Exceptions in specific secrecy offences

10.34   The remainder of this chapter considers the operation of exceptions and defences in specific secrecy offences. Because specific secrecy offences apply to different kinds of information and address the information-sharing requirements of different agencies, exceptions vary considerably—and for legitimate reasons. This is not an area in which firm criteria can always be established, or where it is useful to have a generally applicable model exception provision.

10.35   This section discusses some issues identified by stakeholders regarding the operation of exceptions to specific secrecy offences and then examines particular exceptions to secrecy offences in order to develop, where appropriate, general principles.

The operation of exceptions

10.36   The Terms of Reference for this Inquiry require the ALRC to have regard to the increased need to share Commonwealth information within and between governments and with the private sector. In this Report, the ALRC concludes that a general secrecy offence and specific secrecy offences are necessary to protect essential public interests that may be harmed by the unauthorised disclosure of Commonwealth information. In this context, where all Commonwealth officers are subject to secrecy offences—the general secrecy offence, and perhaps also specific secrecy offences—authorised disclosure provisions are often the mechanisms that permit officers to share information, in appropriate circumstances. In addition, authorised disclosure provisions provide guidance and certainty to officers subject to an offence for mishandling information.

10.37   There is, however, a tension inherent in using a prohibition on the disclosure of information to authorise the disclosure of that information in some circumstances. The tension between protecting and sharing information and its effect on the terms of secrecy provisions was noted by Dixon J in the 1974 case of Jackson v Magrath regarding taxation secrecy provisions:

There is plenty of evidence in the rather lengthy provisions ... that the conflict between the requirements of secrecy and the pull which the exigencies of administration inevitably exerted towards the free exchange of information among fiscal and other governmental departments has proved a recurring problem for the draftsman.[20]

Submissions and consultations

10.38   In the Issues Paper, Review of Secrecy Laws (IP 34), the ALRC asked whether federal secrecy provisions unduly inhibited the sharing of information between government agencies, and with the private sector.[21] Stakeholders drew attention to a number of issues in relation to the operation of exceptions to secrecy provisions, including the narrow scope of some exceptions and inconsistencies between exceptions.

10.39   A number of stakeholders noted the increasing need to share information in order to deliver government programs and implement policies but expressed concerns that the exceptions in secrecy provisions were unable to accommodate appropriate information sharing. The Australian Government Attorney-General’s Department (AGD) noted that:

In relation to information collected by government agencies for service delivery and regulatory functions, the capacity for agencies to exchange information tends to rely on finding specific exceptions to the various secrecy laws, which are based on particular programs or agencies. This approach can result in ‘informational silos’ that may not reflect the actual need to share information across agencies with common responsibilities. Few agency operations are neatly contained within these artificial boundaries.[22]

10.40   The Department of Education, Employment and Workplace Relations gave an example of how agency-specific secrecy provisions can pose a barrier to service delivery:

For example, the confidentiality provisions in the social security and family assistance law authorise the use and disclosure of protected information in a number of prescribed circumstances. These circumstances however in the main tend to be tied back to purposes which are linked to or benefit a social security or family assistance outcome. Accordingly, the Department would be very limited, if not prevented, from using and disclosing protected information for the purposes of a policy initiative which was aimed at assisting vulnerable members of the community, where that initiative did not serve a social security or family assistance law purpose or could be tied back to a matter of direct relevance to this Department.[23]

10.41   The Department of Human Services (DHS) raised similar concerns about the operation of secrecy provisions in the course of the delivery of government services. The DHS noted that secrecy provisions ‘impose a level of bureaucratic complexity in service delivery which is often seen by customers as “red tape” or simply poor performance on the part of the agency’. The DHS also commented that, for example, secrecy provisions inhibited Centrelink from sharing child protection information with states and territories, and prevented the DHS using its database to assist other government agencies to investigate or enforce the criminal law.[24]

10.42   The Community and Disability Services Ministers’ Advisory Council (CDSMAC) also highlighted the importance of information sharing in the child protection context, and noted that secrecy provisions binding officers in Australian Government agencies—such as Centrelink, Medicare and the Family Court—hindered those agencies sharing information with state and territory child protection agencies.[25]

10.43   While some Australian Government agencies commented that the secrecy provisions governing their agencies provided an appropriate balance between protecting and sharing information,[26] other stakeholders emphasised the importance of secrecy provisions in restricting the sharing of information. The Australian Bureau of Statistics, while identifying the importance of being able to gain access to certain information from other agencies, highlighted the importance of tightly controlling access to the information that it holds.[27] The Non-Custodial Parents Party expressed concerns that personal information held by the Australian Government was disclosed to a wide range of people and organisations through ‘loopholes’ in secrecy provisions.[28]

10.44   A number of stakeholders identified problems in the way that exceptions to secrecy provisions are drafted and interpreted. For example, the DHS commented on the tension between flexibility and accountability in relation to exceptions in secrecy provisions:

The more prescriptive the secrecy provision, the less able it is to deal with changes to methods and extent of service delivery. Whilst this may be a deliberate legislative decision, it creates service delivery frustrations which may be difficult to justify in practice to all those concerned including customers … At the same time, if secrecy provisions are to instil a level of public comfort that information is being handled properly, there needs to be accountability and scrutiny beyond the limited interests of the agency which has possession of the information.[29]

10.45   In a submission in response to IP 34, Ron Fraser observed that lengthy lists of exceptions, while often designed to facilitate the disclosure of information to other public authorities,[30] may create problems in practice:

There is often a need to add to these [exceptions and related guidelines], or amend them, to enable the agency to do its job properly eg, provision of information to another Commonwealth or State agency that is not specified in the exceptions, or return of innocuous information to providers of it where this is not specified. The fact that exceptions to the secrecy prohibitions occur in primary legislation makes this difficult to achieve quickly. It is, however, highly desirable for transparency reasons that provisions imposing criminal penalties, and the exceptions from them, appear in primary legislation. This is an example of the inflexibility and contradictions inherent in the classic secrecy provision.[31]

10.46   In light of this, a number of stakeholders commented on the challenge of drafting a secrecy provision that balances the need to share information with the need to protect it.[32] Some stakeholders also noted that exceptions are often added to secrecy provisions in an ad hoc manner as issues in information sharing arise, leading to inconsistent drafting and interpretation.[33]

ALRC’s views

10.47   Exceptions to secrecy offences are necessary to facilitate the disclosure of information in appropriate circumstances. However, as illustrated by some of the submissions set out above, it is sometimes difficult to find the appropriate balance between the need to protect information and the need to share it. In particular, the need to share information can be frustrated by overly narrow agency-specific exceptions to secrecy offences. As noted in Chapter 2, there is an increasing need to share Commonwealth information between government agencies and externally in order to fulfil whole of government and multi-agency approaches to government service delivery.

10.48   While it is important to ensure that authorised disclosure provisions are not unduly restrictive, the content and form of authorised disclosure provisions must be guided by government policy in the context in which they operate. Therefore, while the following consideration of authorised disclosure provisions takes account of the increased emphasis on information sharing, the ALRC recognises that the policies behind each specific secrecy offence will differ, necessitating different approaches to authorised disclosure provisions in particular contexts.

In the performance of duties or for the purposes of an Act

10.49   Approximately 65% of secrecy provisions contain an exception to permit the disclosure of information in the performance of a person’s functions and duties or for the purposes of particular legislation. These exceptions are phrased in various ways.

10.50   Some specific secrecy offences include exceptions for the disclosure of information in the performance of official duties: for example, for disclosures made ‘in the performance of the person’s duties as an officer’,[34] ‘in the course of the employee’s duties’,[35] ‘official duty’[36] or ‘official employment’.[37]

10.51   Other exceptions are tied to particular legislation: for example exceptions that allow the disclosure of information ‘for the purposes of this Act’,[38] for the purposes of other legislation,[39] or in the performance of duties under particular legislation.[40] A number of secrecy provisions prohibit an official from disclosing protected information except when required or permitted by ‘this Act or any other law of the Commonwealth; or a prescribed law of a State or internal Territory’.[41]

10.52   As noted above, an exception for ‘disclosures in the performance of duties as an officer’ has been interpreted widely to govern all that is incidental to carrying out the functions and duties authorised by an officer’s employment.Case law suggests that this may include disclosures:

  • ·                in the performance of a duty arising under the common law;[42]

  • ·                where an officer is required to disclose information to a court[43] or a body with legal authority to compulsorily obtain information;[44]

  • ·                for the purposes of a criminal prosecution, where the proceedings relate to the general functions and duties of an officer under legislation;[45] and

  • ·                under the Freedom of Information Act 1982 (Cth) (FOI Act) and other routine disclosures.[46]

10.53   However, where an exception is limited to disclosures for the purposes of, or in the performance of duties under, a particular Act, the exception is more limited. Such exceptions are unlikely to permit the disclosure of information for the purposes of other legislation, or for purposes that are not directly related to the core functions set out in the legislation governing that agency. In particular, where ‘performance of duties’ or ‘for the purposes of’ exceptions are linked to particular legislation, the exception is unlikely to permit disclosures for purposes related to other legislation, including disclosures under the FOI Act or to integrity agencies.[47]

10.54   A number of secrecy provisions deal with this issue by including detailed exceptions to permit information to be disclosed for the purposes of other legislation or intergovernmental arrangements.[48]

Submissions and consultations

10.55   In DP 74, the ALRC did not make any proposals in relation to exceptions in specific secrecy offences for disclosures in the performance of an officer’s duties or for the purposes of particular legislation. However, in commenting on the proposed exception to the general secrecy offence for disclosures ‘in the course of a Commonwealth officer’s functions and duties’,[49] the ATO noted that the ‘performance of duties exception’ is essential to the proper administration of the taxation laws:

it is not possible to codify every circumstance in which a disclosure of taxpayer information should be permitted. As such, the performance of duties exception is flexible enough to allow a range of disclosures which are made in connection with the ATO’s administration of the taxation laws.[50]

10.56   In response to IP 34, the DHS submitted that the formulation of this exception was inconsistent across the secrecy provisions within their portfolio, and that consistency of terminology would aid in the understanding of the provisions:

In human services legislation the concept of ‘performance of duties’ is expressed in a variety of ways, including:

·            ‘in the performance of duties under or in relation to this Act’ (Child Support (Registration and Collection) Act [1988 (Cth)] s 16);

·            ‘in the performance of duties, or in the exercise of powers or functions under this Act’ (National Health Act [1953 (Cth)] s 135A); and

·            ‘authorised by or under the social security law’ (ss 203 and 204 Social Security (Administration) Act [1999 (Cth)]).

This can be compared with other legislation eg s 16(2) Income Tax Assessment Act 1936 which merely refers to ‘in performance of an officer’s duties’.[51]

ALRC’s views

10.57   The increasing need to share Commonwealth information within and between governments and with the private sector was identified in the Terms of Reference for this Inquiry,[52] and is evident in the trend towards coordinated, whole of government policy development and implementation.[53] In the ALRC’s view, an exception to permit the disclosure of information in the performance of an officer’s duties is critical for information sharing in these contexts.

10.58   If there is a policy intention to permit information protected by a secrecy offence to be shared with other government agencies or entities beyond government, a performance of duties exception should be broadly framed so as to permit disclosures in the performance of a person’s functions and duties as an officer. This will permit a greater degree of sharing than an exception limited to disclosures in the performance of duties under particular legislation, or for the purposes of a particular Act. A broadly framed ‘performance of duties as an officer’ exception will also ensure that disclosures for purposes related to other legislation, including disclosures under the FOI Act or to integrity agencies, are not precluded.

10.59   A performance of duties exception will be limited by the legislative framework that governs an officer and, therefore, will not always support the needs of agencies to share information in particular circumstances. Where information needs to be shared for the purposes of unrelated legislation, it will be necessary for legislation to specify this in a more detailed list of permitted disclosures. Alternatively, a provision could permit the disclosure of information for the purposes of legislation to be prescribed in regulations. It may be that other provisions, such as the objects of the Act, should also reflect information-sharing policies.

10.60   Finally, while it is important to ensure that authorised disclosure provisions reflect government policy and are not unduly restrictive, some specific secrecy offences may require narrowly framed exceptions to reflect the policy that the information protected by the secrecy offence should only be disclosed in limited circumstances.

Recommendation 6–2               Specific secrecy provisions that impose secrecy obligations on officers should generally include an exception for disclosures in the course of an officer’s functions or duties.

Authorised by specified persons

10.61   A number of secrecy provisions permit the disclosure of information at the discretion of specified office-holders or other persons.

10.62   Some provisions include an exception to allow any person to disclose information where that disclosure is authorised by an agency head for a particular purpose. For example, the Customs Administration Act 1985 (Cth) includes an exception where the disclosure of information is authorised by the Chief Executive Officer of Customs and the information will be used by another Australian Government agency for the purposes of that agency’s functions.[54] Other exceptions rely solely on the discretion of the agency head. For example, an officer of the Australian Security Intelligence Organisation does not commit an offence if disclosing information ‘with the approval of the Director-General’ or his or her delegate.[55]

10.63   Other exceptions set out a scheme whereby a minister or senior official (usually a departmental secretary or agency head) can certify that it is in the public interest to disclose particular information. For example, the secrecy offence in the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) provides an exception where the Secretary certifies that it is necessary in the public interest to disclose protected information to such persons and for such purposes as the Secretary determines.[56] In issuing a public interest certificate under this section, the Secretary must act in accordance with guidelines set by the Minister.[57] The current guidelines specify a number of matters to which the Secretary must have regard and envisage the issuing of public interest certificates for a range of purposes, including:

  • ·                to prevent, or lessen, a threat to the life, health or welfare of a person;

  • ·                for the enforcement of a criminal law, imposition of pecuniary penalty or prevention of an act that may have a significant adverse effect on the public revenue;

  • ·                to assist a court or other authorities to ascertain the whereabouts of a missing person, or to locate a person or a relative or beneficiary of a deceased person;

  • ·                to brief a minister; or

  • ·                for research and statistical analysis or policy development.[58]

10.64   Some other exceptions require a minister to issue a public interest certificate in order to permit a departmental secretary or agency head to disclose protected information.[59]

10.65   Finally, some exceptions permit an agency head to disclose information in certain circumstances where it is in the public interest, without the need to issue a certificate.[60] These exceptions vary as to the considerations that an agency head must take into account when determining what is in the public interest. Some provisions of this kind also detail procedural fairness obligations in relation to the disclosure of information in the public interest.[61] 

10.66   The effect of such provisions is that, where the agency head or other senior official has validly exercised his or her discretion, a person who discloses information with such authority will not be liable under a secrecy offence.

10.67   Concerns have been expressed, however, that an exception that allows the disclosure of information with the authority of an agency head or senior official is an inappropriate delegation of power, on the basis that it effectively enables him or her to determine the scope of an offence without parliamentary scrutiny. For example, commenting on a provision that created an offence of failing to comply with a security direction issued by an agency head, the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) stated that:

The discretionary nature of this provision overturns a fundamental principle by which penalties for criminal conduct are imposed. A person should not be exposed to a penalty or criminal sanction at the discretion of an official. The decision as to what is criminal conduct is more preferably left to the Parliament.[62]

Submissions and consultations

10.68   In DP 74, the ALRC proposed that the general secrecy offence contain an exception applying where the disclosure is ‘authorised by the relevant agency head or minister, and the agency head or minister certifies that the disclosure is in the public interest’.[63] While the ALRC did not make any proposals on this issue in relation to specific secrecy offences, some submissions were instructive in this regard.

10.69   The ATO and the Treasury did not support an exception in either the general or specific secrecy offences to allow an agency head to authorise disclosures on a case-by-case basis.[64] The ATO submitted that:

It is conceivable that a minister or agency head could authorise the disclosure of taxpayer information for purposes which could broadly be considered to be in the public interest, but which may damage the reputation of the individual or corporation whose information is being released. Further the ATO considers that the discretionary nature of such an exemption would reduce certainty for taxpayers and could impact upon compliance with their taxation obligations.[65]

10.70   The Treasury considered that the authorisation of disclosures in the public interest was a matter to be considered by the Parliament, not members of the executive:

This provides both the holders of information (for instance, taxation officers) and the sources of the information (notably, the Australian public) both certainty as to when information can be lawfully disclosed (including authorised disclosures in instruments of authorisation arguably limits the transparency of such disclosures) and the confidence that disclosures will be made only in appropriate circumstances.[66]

10.71   The Australian Privacy Foundation commented that an unlimited ad hoc ability to authorise exceptions was objectionable and should be subject to objective public interest criteria, adequate controls and reporting requirements to prevent abuse.[67]

10.72   In contrast, in response to IP 34, the AGD considered that a provision to enable an agency head or other senior officers to authorise disclosure might

provide greater flexibility as it may enable disclosure in new or unforeseen circumstances. It also provides a level of accountability by requiring a senior officer to consider whether disclosure would be consistent with policy considerations in a particular case.[68]

ALRC’s views

10.73   Exceptions that allow the disclosure of protected information in the public interest accord with principles of open and accountable government. In addition, as discussed in Chapter 8, consistency with Australia’s international human rights obligations, it is important that secrecy provisions do not impose an unjustified and excessive burden on the right to freedom of expression.[69] In R v Shayler, the House of Lords suggested that a secrecy offence may be a necessary and proportionate restriction on freedom of expression if it does not constitute an absolute ban on disclosures, and includes avenues for officers to make authorised disclosures, such as under a public interest disclosure regime or procedures for seeking authorisation for making particular disclosures.[70]

10.74   Exceptions that permit disclosures with the authorisation of a senior official or minister are sometimes necessary, particularly where a level of flexibility is needed in order to respond to emergencies or unexpected circumstances. An exception of this kind would allow a person to seek authorisation for the disclosure from a senior official who, due to their position, can make an informed judgment about the likely consequences of the disclosure, including balancing the public interests.

10.75   The ALRC notes the principles in relation to the delegation of legislative power stated by the Scrutiny of Bills Committee, in particular the principle that a person should not be subject to a criminal offence at the discretion of an official. The exception does not permit an agency head or minister to create a criminal offence, but rather protects an officer from prosecution where he or she has a valid authorisation to disclose the information. Further, in exercising discretion to authorise the disclosure of information, an agency head or minister is constrained by the principles of administrative law—including that any decision must be reasonable and made in good faith. The agency head or minister would have to be acting consistently with his or her governing legislative framework.

10.76   In Chapter 7, the ALRC recommends that the general secrecy offence include an exception where the disclosure is made in accordance with an authorisation given by an agency head or minister that the disclosure would, on balance, be in the public interest.[71] As discussed in Chapter 7, the subject matter and purpose of the legislation—that is, the Criminal Code—will be relevant in construing the scope of this exception, including the public interests protected by the general secrecy offence.

10.77   There are a number of other ways to guide the exercise of such a discretion in specific secrecy offences. Exceptions may set out the criteria by which an agency head or minister makes a decision to authorise the disclosure of information. Alternatively, guidelines issued by a minister could inform the exercise of a power to authorise disclosures in the public interest.

Information in the public domain

10.78   Some specific secrecy offences provide exceptions where the information disclosed is already in the public domain[72] or has lawfully been made available to the public.[73] Taxation secrecy laws, in contrast, can operate to prevent the ATO from disclosing publicly available information, such as the fact that a barrister has been convicted of a taxation offence.[74]

10.79   A distinction may be made between information that is in the public domain as the result of a lawful disclosure and as a result of an unlawful disclosure. Specific secrecy offences generally require that, for the exception to apply, the information was in the public domain because of a lawful disclosure. This ensures that a person who discloses information without authority cannot rely on an earlier unauthorised disclosure to justify his or her later, but still unauthorised, disclosure of the information.

Submissions and consultations

10.80   While the ALRC did not make any proposals on this matter in DP 74, some submissions in response to IP 34 considered an exception for the disclosure of information already in the public domain.

10.81   The ATO suggested that there should be a provision stating that information already lawfully available to the public is not protected by tax secrecy provisions.[75] This view is consistent with the Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth) (Tax Laws Exposure Draft Bill), which provides that a taxation officer who discloses protected information does not commit an offence if the information was ‘already lawfully available to the public’.[76]

10.82   Other stakeholders also supported the application of exceptions relating to the disclosure of information that is in the public domain.[77] The Commonwealth Director of Public Prosecutions, for example, stated that ‘if investigation agencies are unable to publicise the outcomes of prosecutions the deterrent effect of successful prosecutions will be undermined’.[78]

ALRC’s views

10.83   The ALRC considers that specific secrecy offences should not criminalise the disclosure of information that is lawfully in the public domain. In Chapter 7, the ALRC recommends that the general secrecy offence and the subsequent disclosure offences include an exception where the disclosure is of information that is already in the public domain as the result of a lawful disclosure.[79] Specific secrecy offences should generally also include such an exception, or define the information protected in such a way as to ensure that it does not cover publicly available information.

Recommendation 6–3                Specific secrecy offences should not apply to the disclosure of information that is lawfully in the public domain.

For the purposes of law enforcement

10.84   A number of specific secrecy provisions include exceptions to allow the disclosure of information for the purposes of law enforcement.[80] For example, s 38(1) of the Dental Benefits Act 2008 (Cth) provides an exception to the prohibition on the disclosure of protected information where:

(a)     the Secretary or the Medicare Australia CEO believes on reasonable grounds that the disclosure is reasonably necessary for:

(i)      the enforcement of the criminal law; or

(ii)     the enforcement of a law imposing a pecuniary penalty; or

(iii)    the protection of the public revenue; and

(b)  the functions of the agency include that enforcement or protection; and

(c)  the disclosure is for the purposes of that enforcement or protection.

10.85   In Chapter 7, the ALRC sets out a number of submissions from government agencies that commented on the importance of ensuring that secrecy provisions did not prevent the disclosure of information to law enforcement or regulatory agencies. In that chapter, the ALRC recognises that the exchange of information with law enforcement and regulatory agencies is important in identifying, investigating and prosecuting unlawful activity, it may not be appropriate in all circumstances. For these reasons, the ALRC is not recommending that the general secrecy offence include a general exception for the disclosure of information for the purposes of law enforcement.

10.86   Such an exception may, however, be appropriate in specific secrecy provisions. As noted above, disclosures for the purposes of a criminal prosecution, where the proceedings relate to the general functions and duties of the officer under legislation, will generally fall within a ‘performance of functions and duties’ exception. Alternatively, where it is appropriate to allow the disclosure of information for the purposes of law enforcement, an exception or information-handling provision could be included in agency-specific legislation.

For the purposes of legal proceedings

10.87   Some exceptions in specific secrecy offences permit the disclosure of information for the purposes of court or tribunal proceedings.[81]

10.88   In comparison, a number of specific secrecy offences provide that a person is not required to disclose information in court or tribunal processes, other than for particular purposes.[82] As noted in Chapter 1, the extent to which Commonwealth officers can be compelled to provide information in the course of investigations or in legal proceedings is not a focus of this Inquiry.

10.89   Similar conclusions can be made about exceptions to disclose information for the purposes of legal proceedings as for exceptions for disclosures for the purposes of law enforcement. In some circumstances, disclosures for the purposes of legal proceedings, particularly when an officer is required to disclose information to a court, will fall within a ‘performance of functions and duties’ exception. However, where, as a matter of policy, disclosures for the purposes of legal proceedings are desirable, it may be necessary to include an exception or information-handling provision to this effect in a specific secrecy provision.

With consent

10.90   A number of exceptions permit the disclosure of information with the consent of the person or entity to whom the information relates. Exceptions for the disclosure of information with consent generally appear in specific secrecy offences that concern the disclosure of personal, commercial or confidential information.[83] However, other secrecy laws that cover information of this kind, such as those regulating officers of the ATO, do not permit the disclosure of information with consent.[84]

Submissions and consultations

10.91   In the Discussion Paper for the Review of Taxation Secrecy and Disclosure Provisions, the Treasury noted that permitting the disclosure of information by the ATO with a taxpayer’s consent would be in line with other secrecy laws.[85] In its submission to this Inquiry, the ATO observed that there would be ‘administrative benefits if a taxpayer could consent to his or her information being released to a third party’.[86]

10.92   The Treasury submitted, however, that some organisations responding to the review of taxation secrecy and disclosure provisions expressed concern about such an approach because of the ‘inherent uncertainty’ about whether consent is informed and voluntary.[87] Under the Tax Laws Exposure Draft Bill, a taxpayer’s consent to the disclosure of information would not authorise the disclosure of that taxpayer’s information. The explanatory material to the draft Bill states:

This approach avoids issues of whether the consent is informed and voluntary (as opposed to, for instance, being a precondition for a particular good or service). This also recognises the fact that, if any entity requires the taxpayer’s information, the taxpayer is able to obtain that information and pass it on.[88]

ALRC’s views

10.93   In Chapter 8, the ALRC expresses the view that the unauthorised disclosure of personal or commercial information does not, without more, warrant criminal sanctions under specific secrecy offences. Therefore, in the ALRC’s view, specific secrecy offences would not generally require an exception allowing the disclosure of personal or commercial information with consent. In the absence of a specific secrecy offence, exceptions in the Privacy Act 1988 (Cth) would allow an Australian Government agency to disclose personal information with the person’s consent.[89]

10.94   However, as discussed in Chapter 8, specific secrecy offences that cover personal or commercial information may be warranted where regulatory agencies—such as taxation or social security agencies, and corporate regulators—receive large amounts of personal and commercial information. Here, the unauthorised disclosure of this information may not only harm a person’s private interests, but may also cause harm to the public interest in the relationship of trust between the government and individuals which is integral to an effective regulatory system or the provision of government services.

10.95   In this context, it may be that the disclosure of personal or commercial information with the consent of the person or entity to whom the information relates would not cause the kind of harm to the public interest that these offences seek to prevent. The trust placed by an individual in the government—that it will not misuse personal or commercial information provided to it—is not breached where the person consents to the disclosure of their information.

10.96   The ALRC notes, however, that an exception for disclosures with consent was not included in the Tax Laws Exposure Draft Bill due to concerns about the validity of consent and to ensure that the ATO is ‘not treated generally as a central repository of financial information to be accessed for purposes unrelated to the tax system or to government administration’.[90]

10.97   In the ALRC’s view, the appropriateness and form of exceptions to allow the disclosure of personal or commercial information with consent will depend on the context in which the specific secrecy offence operates. As such, the ALRC does not make any recommendations with respect to this exception.

To avert a serious threat to a person’s life, health or safety

10.98   As noted in Chapter 3, some secrecy provisions contain exceptions permitting the disclosure of information in order to avert threats to a person’s life, health or safety.[91] For example, s 19H of the National Measurement Act 1960 (Cth) provides that a person commits an offence if he or she copies, makes a record of, uses or discloses protected information. However, the section also provides that this offence will not apply where:

the person believes, on reasonable grounds, that the copying, recording, use or disclosure of the protected information is necessary for the purpose of preserving the safety of another person or other persons.[92]

10.99   A number of other exceptions that permit the disclosure of information to prevent a threat to a person’s life, health or safety require the disclosure to be made or authorised by a senior officer.[93] For example, the Child Support (Assessment) Act 1989 (Cth) provides that the secrecy offence:

does not prevent the Registrar or a person authorised by the Registrar from communicating any protected information: ...

(e) to any person, if the information concerns a credible threat to the life, health or welfare of a person and either of the following applies:

(i)      the Registrar, or the person authorised by the Registrar, believes on reasonable grounds that the communication is necessary to prevent or lessen the threat;

(ii)     there is reason to suspect that the threat may afford evidence that an offence may be, or has been, committed against a person and the information is communicated for the purpose of preventing, investigating or prosecuting such an offence.[94]

10.100         In addition, the Criminal Code includes a defence of ‘sudden or extraordinary emergency’ where a person reasonably believes that circumstances of sudden or extraordinary emergency exist, and committing the offence is the only reasonable way to deal with the emergency.[95]

Submissions and consultations

10.101         Chapter 7 discusses a number of submissions that supported the inclusion of an exception for disclosures to prevent serious and imminent threats to life or health in the general secrecy offence.[96]

10.102         In addition, the CDSMAC expressed concerns about the limited operation of exceptions for disclosures necessary to prevent serious and imminent threats to life, health or safety in relation to child protection. In particular, the CDSMAC noted that exceptions, and the defence of ‘sudden or extraordinary emergency’ in the Criminal Code,[97] require a sense of immediacy and urgency—a high threshold to meet. In the context of child protection, the CDSMAC noted that:

the threshold for release of information on public interest grounds adopted by Centrelink—whether the release of information is necessary to prevent or lessen a threat to health, safety or welfare of a person—has supported the release of information to Child Protection Agencies in the majority of cases, with only a small proportion of requests resulting in non-disclosure. Unlike some of the other legislative exceptions, and guidelines developed, this test does not require the threat to be either serious or imminent, but rather focuses on the necessity of the information to be released to reduce or lessen a relevant threat. The inclusion of ‘welfare’ as a ground for exception is particularly relevant to child protection issues.[98]

10.103         DoHA submitted that the provision in the Health Insurance Act, which allows for the disclosure of information where there is a threat to the life or health of a person, was an important exception which should be retained.[99]

ALRC’s views

10.104         In Chapter 7, the ALRC does not recommend that the general secrecy offence should include an exception to permit the disclosure of information to prevent or lessen a threat to a person’s life, health or safety, on the basis that existing exceptions, such as disclosures with the authority of an agency head or minister, or the Criminal Code defence of sudden or extraordinary emergency, may be available. However, the ALRC considers that an exception of this kind may have a place in some specific secrecy offences where the Criminal Code defence would not be sufficient. For example, the Criminal Code defence may not encompass disclosures to prevent a threat to the ‘welfare’ of a person.

10.105         In Chapter 8, the ALRC recommends that specific secrecy offences should include an express requirement that, for an offence to be committed, the unauthorised disclosure caused, or was likely or intended to cause, harm to an identified essential public interest, except in certain limited circumstances.[100] An exception that permits the disclosure of information to avert a threat to a person’s life, health or safety would require the person making the disclosure to balance this benefit against the likelihood and seriousness of the harm to the public interest identified in the offence.

10.106         In some cases, existing exceptions of this kind only permit a senior officer in an agency to disclose the information. In the ALRC’s view, this is particularly appropriate where the decision to make a disclosure would require the balancing of important public interests.

10.107         Like many authorised disclosure provisions, the desirability and operation of exceptions to permit the disclosure of information in order to avert threats to a person’s life, health or safety depend on the context in which they operate. As noted by the CDSMAC, there may be circumstances in which it is appropriate for exceptions of this kind to cover a person’s welfare, as well as life, health or safety. For these reasons, the ALRC does not make any recommendations regarding the formulation or content of this exception.

Codification of authorised disclosures

10.108         As noted above, some secrecy offences include both general exceptions, such as disclosures in the performance of duties, and more prescriptive exceptions that permit the disclosure of certain information for specified purposes or to specified persons or entities.

10.109         For example, the Aged Care Act 1997 (Cth) provides a general prohibition on the disclosure of protected information by any person, subject to a limited number of exceptions, including where disclosure is in the performance of a function or duty under the Act.[101] In addition, the Secretary may disclose protected information in at least 12 separately defined circumstances,[102] such as ‘if a person has temporarily taken over the provision of care through a particular service to care recipients—to the person for the purposes of enabling the person properly to provide that care’.[103]

10.110         In DP 74, the ALRC reached the preliminary view that expressing such provisions as exceptions to a secrecy offence is not always a necessary or desirable approach.[104] The ALRC considered that secrecy provisions might be simplified by relying on more generic exceptions, such as disclosure in the performance of a function or duty under an Act, or as required or authorised by law.[105] The ALRC proposed that specific secrecy offences that include extensive codification of permissible disclosures should be reviewed to establish whether these exceptions are necessary in view of the desirability of simplifying secrecy offences.[106]

Submissions and consultations

10.111         Civil liberties groups supported the general idea of simplifying disclosure provisions.[107] For example, Liberty Victoria submitted that this ‘would seem to be best practice, and would enable Commonwealth officers to better understand when a disclosure is appropriate and acceptable’.[108]

10.112         However, a number of agencies submitted that detailed exceptions to specific secrecy offences were the most effective way to protect and share information in particular circumstances. For example, the Australian Prudential Regulation Authority noted that the exceptions in the Australian Prudential Regulation Authority Act 1998 (Cth):

all fulfil distinct and important functions and should be retained. Any consideration of these specific exceptions would require careful consideration in order to avoid complicating established practice with regard to the handling of protected information.[109]

10.113         AUSTRAC submitted that detailed codification of permitted disclosures in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (AML/CTF Act) was necessary with respect to AUSTRAC information:

many of the provisions relate to those persons who expressly have access to AUSTRAC information (particularly under the AML/CTF Act as designated agencies). Twenty-four designated agencies or categories of designated agency, in addition to the Australian Taxation Office, are currently listed in the Act, each of which requires detail in regard to the relevant officer of the designated agency to which AUSTRAC information may be disclosed ... This is to provide certainty that sensitive information is disclosed at the appropriate level ...

AUSTRAC considers that the simplification of such exceptions may create uncertainty as a broad application would not provide the required detail to ensure that sensitive information is disclosed in a manner that protects that information.[110]  

10.114         Similarly, the ATO preferred an approach where secrecy provisions set out a general prohibition on the disclosure of taxpayer information, and then set out a range of exceptions to that prohibition:

[T]he ATO considers that the specific exceptions to the tax law secrecy provisions, such as those permitting disclosures to other government agencies for particular purposes should be retained. While the performance of duties exception provides flexibility in the administration of the tax laws, the specific exceptions provide clarity and certainty for officers and taxpayers. The ATO believes that the current combination of the specific exceptions and the general performance of duties exception to the general prohibition on the disclosure of taxpayer information is the most appropriate approach with regard to taxation information.[111]

10.115         Some stakeholders referred to the decision of the High Court in Johns v Australian Securities Commission (Johns)[112] as a reason why secrecy offences need to be associated with comprehensive statutory exceptions.[113] In Johns, the High Court held that a statute which confers a power to obtain information for a particular purpose limits, expressly or impliedly, the purposes for which the information obtained can then be used or disclosed. An agency that obtains information in the exercise of such a power is subject to a statutory duty of confidentiality, which means that the information may not be used or disclosed except as authorised by the statute.[114]

10.116         The Treasury identified the limitations imposed by Johns on ‘the capacity of regulators to share certain information absent a legislative basis authorising disclosure’ as one reason for the enactment of comprehensive exceptions in s 155AAA of the Trade Practices Act 1974 (Cth).[115]

10.117         The Treasury considered that provisions that permit sensitive information to be shared should be closely considered by the Parliament on a case-by-case basis:

While general disclosure provisions (such as those permitting disclosures in the course of an officer’s duties) are necessary and appropriate, Treasury considers that where (for instance) there is a need for other Government departments to access taxpayer information, this is best addressed on a case by case basis and in legislation. This procedure enables a careful analysis of the public interest in the disclosure and ensures that any move to permit disclosures is subject to the rigors of Parliamentary oversight.[116]

10.118         Finally, the AGD submitted that codifying the circumstances in which disclosure is permitted ‘provides clarity and certainty to officers’ and may ensure that information collected by government agencies ‘is only used for the purpose it is collected or other limited appropriate purposes’.[117] Similarly, the Australian Intelligence Community (AIC) considered that ‘codification of the circumstances in which disclosure is allowed minimises the possible loopholes through which secret information may be publicly disclosed’.[118]Other agencies highlighted similar advantages to framing secrecy provisions in this way.[119]

ALRC’s views

10.119         The ALRC considers that, in some circumstances, specific secrecy offences should codify authorised disclosures. This may be appropriate, for example, where the sensitive nature of the information requires that it be shared only within a tightly defined group of entities and for particular purposes—for example, as is the case with the statutory regime for sharing AUSTRAC information.

10.120         In other situations, codification may supplement a ‘performance of duties as an officer’ exception. As discussed above, exceptions that permit the disclosure of information in the performance of an officer’s duties are limited by the legislation governing the officer, and so may not permit the disclosure of information for purposes outside of those duties. Where this is the case, it may be necessary for specific secrecy offences, or authorised disclosure provisions, to codify other circumstances in which information may be shared.  

10.121         Once again, because the formulation of such exceptions depends on the context of the secrecy offence, the ALRC does not make a recommendation in this area.

Form of authorised disclosure provisions

10.122         As noted at the beginning of this chapter, authorised disclosure provisions may be framed as exceptions or defences to secrecy offences, or as information-handling provisions that are not attached to a secrecy offence. Earlier in this chapter the ALRC recommends that, when reviewing specific secrecy offences for repeal, consideration should be given to whether any exceptions or authorised disclosure provisions should be retained in order to provide a legislative basis for information-sharing arrangements and to give content to the exceptions in the recommended general secrecy offence.

10.123         In Chapter 7, the ALRC sets out the differences between an exception and a defence. In summary, an ‘exception’ limits the scope of conduct prohibited by a secrecy offence, while a ‘defence’ may excuse conduct that is prohibited by a secrecy offence. In some circumstances, the distinction between an exception and a defence will be of limited significance, because the Criminal Code provides that a defendant who ‘wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence’ bears an evidential burden.[120] The Criminal Code requires that, except in particular circumstances, or where an offence expressly provides otherwise, a burden of proof imposed on a defendant is an evidential burden only,[121] which means that the defendant must provide evidence to suggest a reasonable possibility that the defence is made out.[122] Once the defendant has met the evidential burden the prosecution must refute the defence and prove all elements of the offence beyond reasonable doubt.[123]

10.124         Some offences expressly impose a legal burden of proof on the defendant,[124] which requires the defendant to establish the defence on the balance of probabilities. The prosecution must then disprove the defence beyond reasonable doubt.[125]

10.125         The Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers (Guide to Framing Commonwealth Offences) issued by the AGD provides that:

a matter should only be included in a defence, thereby placing the onus on the defendant where the matter is peculiarly within the knowledge of the defendant; and is significantly more difficult and costly for the prosecution to disprove than for the defendant to establish.[126]

10.126         As noted above, specific secrecy offences generally contain exceptions rather than defences. In DP 74, the ALRC proposed that specific secrecy offences that include defences should be reviewed to assess whether these defences are appropriate, in view of the general principles of criminal responsibility set out in ch 2 of the Criminal Code, and consideration should be given to recasting the provision as an exception, rather than as a defence.[127]

Submissions and consultations

10.127         While only a few stakeholders commented on this issue, those that did so supported the ALRC’s proposal.[128] Indigenous Business Australia (IBA) noted that the secrecy offence in the Aboriginal and Torres Strait Islander Act 2005 (Cth) (ATSI Act) includes a defence, and submitted that:

The ATSI Act places the onus on individual officers and staff of IBA to establish a defence to any prosecution for the disclosure of information relating to home or business loans. This is unreasonable and contributes to organisational and staff aversion in relation to information handling.[129]

10.128         In response to IP 34, the Law Council of Australia noted that there are procedural disadvantages in criminal prosecutions for a defendant who claims a defence rather than being able to rely on an exception.[130]

ALRC’s views

10.129         In practice, while exceptions are commonly included in Commonwealth secrecy laws, only a few secrecy offences expressly provide defences. Rather than attempting to protect legitimate disclosures through a ‘defence’ that arises after a person has been found to satisfy all the elements of the offence, the ALRC’s preference is for specific secrecy offences to be framed in such a way that they do not encompass legitimate disclosures in the first place. In the ALRC’s view, the inclusion of a requirement that the disclosure cause, or is likely or intended to cause, harm to an essential public interest is one way in which specific secrecy offences will be limited to legitimate conduct.

10.130         However, the ALRC recognises that, in some circumstances, criminal law policy will require a matter to be framed as an exception or a defence, for example where it would be significantly more difficult for the prosecution to disprove an element of the offence than it would for the defendant to establish it. Exceptions and defences to specific secrecy offences should be framed consistently with the policies in the Guide to Framing Commonwealth Offences.

Recommendation 6–4               Exceptions and defences in specific secrecy offences should be framed consistently with the principles set out in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.

[1]           The operation of particular information-sharing arrangements, such as memorandums of understanding, interagency guidelines and legislative information-handling regimes are discussed in Ch 14.

[2]           Income Tax Assessment Act 1936 (Cth) s 16(4)(a)–(m). The Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth) would, in the main, retain these provisions in a simplified form: see Explanatory Material, Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth), 75, Table 8.4.

[3]           Law Enforcement Integrity Commissioner Act 2006 (Cth) s 208(3).

[4]           See, eg, Dental Benefits Act 2008 (Cth) ss 34–41; Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) s 122; A New Tax System (Australian Business Number) Act 1999 (Cth) s 30; Aged Care Act 1997 (Cth) ss 86-2, 86-3.

[5]           Aboriginal and Torres Strait Islander Act 2005 (Cth) s 191(2A) contains a similar defence.

[6]           Criminal Code (Cth) s 10.5.

[7]           Explanatory Memorandum, Fair Work Bill 2008 (Cth), 404.

[8]           Recommendation 7–1.

[9]           Recommendation 7–1.

[10]         Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1, 6.

[11]         D Boucher, Report of a Review of Information Handling Practices in the Serious Non Compliance Business Line of the Australian Taxation Office (2008), Attachment 9.

[12]         Ibid, Attachment 9, 23–24.

[13]         Ibid, Attachment 9, 22–25. See, eg, International Tax Agreements Act 1953 (Cth) s 23 which provides that disclosing information in accordance with the Commissioner’s obligations under an international agreement is not a breach of a secrecy provision in a taxation law.

[20]         Jackson v Magrath (1947) 75 CLR 293, 312, cited in J McGinness, ‘Secrecy Provisions in Commonwealth Legislation’ (1990) 19 Federal Law Review 49 at 63.

[21]         Australian Law Reform Commission, Review of Secrecy Laws, Issues Paper 34 (2008), Question 1–2.

[22]         Attorney-General’s Department, Submission SR 36, 6 March 2009.

[23]         Department of Education, Employment and Workplace Relations, Submission SR 24, 19 February 2009.

[24]         Department of Human Services, Submission SR 83, 8 September 2009.

[25]         Community and Disability Services Ministers’ Advisory Council, Submission SR 80, 28 August  2009.

[26]         Australian Transaction Reports and Analysis Centre, Submission SR 73, 17 August 2009; Australian Intelligence Community, Submission SR 37, 6 March 2009; Australian Federal Police, Submission SR 33, 3 March 2009; Australian Prudential Regulation Authority, Submission SR 12, 13 February 2009.

[27]         Australian Bureau of Statistics, Submission SR 28, 24 March 2009.

[28]         Non-Custodial Parents Party (Equal Parenting), Submission SR 82, 3 September 2009.

[29]         Department of Human Services, Submission SR 26, 20 February 2009.

[30]         See, eg, Health Insurance Act 1973 (Cth) s 130.

[31]         R Fraser, Submission SR 42, 23 March 2009.

[32]         Department of Climate Change, Submission SR 27, 23 February 2009; Department of Human Services, Submission SR 26, 20 February 2009; Australian Prudential Regulation Authority, Submission SR 12, 13 February 2009.

[33]         Australian Crime Commission, Submission SR 75, 19 August 2009; The Treasury, Submission SR 22, 19 February 2009.

[34]         See, eg, Higher Education Funding Act 1988 (Cth) s 78(4A); Student Assistance Act 1973 (Cth) s 12ZU; Income Tax Assessment Act 1936 (Cth) s 16(2A).

[35]         See, eg, Public Service Regulations 1999 (Cth) reg 2.1(5)(a).

[36]         See, eg, Defence Act 1903 (Cth) s 73A.

[37]         See, eg, National Blood Authority Act 2003 (Cth) s 11 (1)(c).

[38]         See eg, Building and Construction Industry Improvement Act 2005 (Cth) s 65(4); Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 (Cth) s 14(3A); Taxation Administration Act 1953 (Cth) s 3C(2A).

[39]         See, eg, Australian Human Rights Commission Act 1986 (Cth) s 49(3); Reserve Bank Act 1959 (Cth) s 79A(2).

[40]         See, eg, Dental Benefits Act 2008 (Cth) s 35; Pooled Development Funds Act 1992 (Cth) s 71; Australian Hearing Services Act 1991 (Cth) s 67.

[41]         See, eg, Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) s 758; Australian Securities and Investments Commission Act 2001 (Cth) s 127(2); Trade Practices Act 1974 (Cth) s 155AAA.

[42]         Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124; D Boucher, Report of a Review of Information Handling Practices in the Serious Non Compliance Business Line of the Australian Taxation Office (2008), Attachment 9, 17.

[43]         Commonwealth v Fernie (1999) 23 SR (WA) 12. In taxation legislation, the disclosure of information to courts is limited by s 16(3) of the Income Tax Assessment Act 1936 (Cth) which permits disclosures to a court where necessary for the purpose of carrying into effect the provisions of the Income Tax Assessment Act 1936 (Cth) or other taxation law. Courts have held such disclosures may be in the performance of duties where the proceedings relate to the imposition, assessment or collection of revenue: Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257, 262–263.

[44]         Mobil Oil Australia Pty Ltd v Commissioner of Taxation (1963) 113 CLR 475, 505.

[45]         R v Yates (1991) 102 ALR 673.

[46]         Australian Government Solicitor, FOI Guidelines—Exemption Sections in the FOI Act (2009) <www.dpmc.gov.au> at 9 September 2009, [9.1.4], citing Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1. See also M Paterson, Freedom of Information and Privacy in Australia: Government and Information Access in the Modern State (2005), [8.98].

[47]         The interaction between secrecy laws and the Freedom of Information Act 1982 (Cth) is discussed in Ch 16. The provision of information to integrity agencies is discussed later in this chapter.

[48]         For example, the Racial Discrimination Act 1975 (Cth) s 27F(3)(b) permits the disclosure of information pursuant to intergovernmental arrangements permitted under s 16 of the Australian Human Rights Commission Act 1986 (Cth). Similar provisions are included in the Age Discrimination Act 2004 (Cth) s 60(3); Disability Discrimination Act 1992 (Cth) s 127(3); Sex Discrimination Act 1984 (Cth) s 112(3).

[49]         Australian Law Reform Commission, Review of Secrecy Laws, Discussion Paper 74 (2009), Proposal
9–1.

[50]         Australian Taxation Office, Submission SR 55, 7 August 2009.

[51]         Department of Human Services, Submission SR 26, 20 February 2009.

[52]         The Terms of Reference are set out at the front of this Report.

[53]         This is discussed in Ch 2.

[54]         Customs Administration Act 1985 (Cth) s 16(3). See also Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) s 129(1); Superannuation Industry (Supervision) Act 1993 (Cth) s 252C(5)(b).

[55]         Australian Security Intelligence Organisation Act 1979 (Cth) s 18(2)(c).

[56]         A New Tax System (Family Assistance)(Administration) Act 1999 (Cth) s 168.

[57]         Ibid s 168(3).

[58]         A New Tax System (Family Assistance)  (Administration) (Public Interest Certificate Guidelines) (DEEWR) Determination 2009 (No 1) (Cth). This model is replicated in Social Security (Administration) Act 1999 (Cth) ss 208–209; Student Assistance Act 1973 (Cth) s 356(1)(a); Child Care Act 1972 (Cth) ss 12N, 12P.

[59]         See, eg, Health Insurance Act 1973 (Cth) s 130(3); National Health Act 1953 (Cth) s 135A(3).

[60]         See, eg, Law Enforcement Integrity Commissioner Act 2006 (Cth) s 209; Ombudsman Act 1976 (Cth) s 35A.

[61]         See, eg, Law Enforcement Integrity Commissioner Act 2006 (Cth) s 210.

[62]         Parliament of Australia—Senate Standing Committee for the Scrutiny of Bills, Fourteenth Report of 2003 (2003), 309–311.

[63]         Australian Law Reform Commission, Review of Secrecy Laws, Discussion Paper 74 (2009), Proposal
9–1.

[64]         The Treasury, Submission SR 60, 10 August 2009; Australian Taxation Office, Submission SR 55, 7 August 2009.

[65]         Australian Taxation Office, Submission SR 55, 7 August 2009.

[66]         The Treasury, Submission SR 60, 10 August 2009.

[67]         Australian Privacy Foundation, Submission SR 71, 16 August 2009.

[68]         Attorney-General’s Department, Submission SR 36, 6 March 2009.

[69]         International Covenant on Civil and Political Rights, 16 December 1966, [1980] ATS 23, (entered into force generally on 23 March 1976) art 19.

[70]         R v Shayler [2003] 1 AC 247, 271, 284. This case is noted in Ch 2 and discussed in detail in Ch 8.

[71]         Recommendation 7–1.

[72]         See, eg, Criminal Code (Cth) s 91.2; Offshore Minerals Act 1994 (Cth) s 375.

[73]         See, eg, Australian Prudential Regulation Authority Act 1998 (Cth) s 56(1) definitions of ‘protected document’ and ‘protected information’.

[74]         New South Wales Bar Association, Submission to Treasury Review of Taxation Secrecy and Disclosure Provisions, 26 September 2006.

[75]         Australian Taxation Office, Submission SR 13, 16 February 2009.

[76]         Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth) sch 1 pt 1 cll 355-20–355-40.

[77]         Attorney-General’s Department, Submission SR 36, 6 March 2009; Australian Transaction Reports and Analysis Centre, Submission SR 31, 2 March 2009; Liberty Victoria, Submission SR 19, 18 February 2009; Australian Prudential Regulation Authority, Submission SR 12, 13 February 2009.

[78]         Commonwealth Director of Public Prosecutions, Submission SR 17, 18 February 2009.

[79]         Recommendations 7–1, 7–2.

[80]         See, eg, Australian Citizenship Act 2007 (Cth) s 43(2)(ea); Inspector of Transport Security Act 2006 (Cth) s 68; Child Support (Assessment) Act 1989 (Cth) s 150(4D)–(4F).

[81]         See, eg, Surveillance Devices Act 2004 (Cth) s 45(5); Pooled Development Funds Act 1992 (Cth) s 71(2); Fringe Benefits Tax Assessment Act 1986 (Cth) s 5(5).

[82]         See, eg, Equal Opportunity for Women in the Workplace Act 1999 (Cth) s 32(2); Child Support (Assessment) Act 1989 (Cth) s 150(5); Australian Security Intelligence Organisation Act 1979 (Cth) s 81(2).

[83]         See, eg, Gene Technology Act 2000 (Cth) s 187(1)(f); Australian Prudential Regulation Authority Act 1998 (Cth) s 56(4)(b); Australian Federal Police Act 1979 (Cth) s 60A(2C); Reserve Bank Act 1959 (Cth) s 79A(3); National Health Act 1953 (Cth) s 135A(8).

[84]         Income Tax Assessment Act 1936 (Cth) s 16.

[85]         The Treasury, Discussion Paper for the Review of Taxation Secrecy and Disclosure Provisions (2006), 27.

[86]         Australian Taxation Office, Submission SR 13, 16 February 2009.

[87]         The Treasury, Submission SR 22, 19 February 2009.

[88]         Explanatory Material, Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth), [4.15].

[89]         Privacy Act 1988 (Cth) s 14, IPP 11.

[90]         Explanatory Material, Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth), [4.16].

[91]         See, eg, Child Support (Assessment) Act 1989 (Cth) s 150(3)(e); Inspector-General of Intelligence and Security Act 1986 (Cth) s 34(1A); Customs Administration Act 1985 (Cth) s 16(3F).

[92]         National Measurement Act 1960 (Cth) s 19H(3). Similar exceptions are included in, for example: Australian Citizenship Act 2007 (Cth) s 43(1B); Surveillance Devices Act 2004 (Cth) s 45(4); Migration Act 1958 (Cth) s 366E(1A).

[93]         See, eg, Dental Benefits Act 2008 (Cth) s 34(4); Aged Care Act 1997 (Cth) s 86-3; Child Support (Registration and Collection) Act 1988 (Cth) s 16(3); Inspector-General of Intelligence and Security Act 1986 (Cth) s 34(1A).

[94]         Child Support (Assessment) Act 1989 (Cth) s 150(3).

[95]         Criminal Code (Cth) s 10.3. This defence is discussed in detail in Ch 7.

[96]               Department of Health and Ageing, Submission SR 81, 28 August 2009; Attorney-General’s Department, Submission SR 36, 6 March 2009.

[97]         Criminal Code (Cth) s 10.3.

[98]         Community and Disability Services Ministers’ Advisory Council, Submission SR 80, 28 August  2009.

[99]         Department of Health and Ageing, Submission SR 81, 28 August 2009.

[100]       Recommendation 8–2.

[101]       Aged Care Act 1997 (Cth) s 86-2.

[102]       Ibid s 86-3.

[103]       Ibid s 86-3(g). The Secretary of the Department may also, for example, disclose protected information: where it is necessary in the public interest to do so; to a person who is expressly or impliedly authorised by the person to whom the information relates to obtain it; to the Chief Executive Officers of Medicare Australia and Centrelink, the Secretaries of Departments administering social security and veterans’ entitlements, or to a state or territory for certain purposes; to prevent or lessen a serious risk to the safety, health or well‑being of an aged care recipient; to a body responsible for standards of professional conduct; or for enforcement of the criminal law, enforcement of a law imposing a pecuniary penalty, or protection of the public revenue: Aged Care Act 1997 (Cth) s 86-3.

[104]       Australian Law Reform Commission, Review of Secrecy Laws, Discussion Paper 74 (2009), [11.35].

[105]       Ibid, [11.35].

[106]       Ibid, Proposal 11–2.

[107]       Liberty Victoria, Submission SR 50, 5 August 2009; Civil Liberties Australia, Submission SR 47, 27 July 2009.

[108]       Liberty Victoria, Submission SR 50, 5 August 2009.

[109]       Australian Prudential Regulation Authority, Submission SR 52, 6 August 2009.

[110]       Australian Transaction Reports and Analysis Centre, Submission SR 73, 17 August 2009.

[111]       Australian Taxation Office, Submission SR 55, 7 August 2009.

[112]       Johns v Australian Securities Commission (1993) 178 CLR 408.

[113]       Australian Securities & Investments Commission, Submission SR 41, 17 March 2009; The Treasury, Submission SR 22, 19 February 2009.

[114]       Johns v Australian Securities Commission (1993) 178 CLR 408, 424.

[115]       Trade Practices Act 1974 (Cth) s 155AAA does not itself directly create a criminal offence. Breach of the secrecy obligations set out in s 155AAA may, however, found an offence under Crimes Act 1914 (Cth) s 70.

[116]       The Treasury, Submission SR 60, 10 August 2009.

[117]       Attorney-General’s Department, Submission SR 36, 6 March 2009. The AGD also expressed reservations about the potential inflexibility of this approach.

[118]       Australian Intelligence Community, Submission SR 37, 6 March 2009. The AIC noted that this is the current approach under the Intelligence Services Act 2001 (Cth) ss 39, 39A, 40.

[119]       See, eg, example, Australian Securities & Investments Commission, Submission SR 41, 17 March 2009; Australian Transaction Reports and Analysis Centre, Submission SR 31, 2 March 2009; Australian Bureau of Statistics, Submission SR 28, 24 March 2009; The Treasury, Submission SR 22, 19 February 2009; Australian Taxation Office, Submission SR 13, 16 February 2009; Australian Prudential Regulation Authority, Submission SR 12, 13 February 2009.

[120]       Criminal Code (Cth) s 13.3(3). Legislative notes in some Commonwealth secrecy laws refer to this provision of the Criminal Code: see, eg, Building and Construction Industry Improvement Act 2005 (Cth) s 65; Taxation Administration Act 1953 (Cth) s 3(2A).

[121]       Criminal Code (Cth) s 13.4.

[122]       Ibid s 13.3.

[123]       Ibid s 13 .1.

[124]       Ibid s 13.4. See, eg, Crimes Act 1914 (Cth) s 79(5) and (6) for examples of secrecy offences in which the defendant bears a legal burden of proof.

[125]       Criminal Code (Cth) s 13.5.

[126]       Australian Government Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers (2007), 28–29.

[127]       Australian Law Reform Commission, Review of Secrecy Laws, Discussion Paper 74 (2009), Proposal
11–1.

[128]       Department of Health and Ageing, Submission SR 81, 28 August 2009; Indigenous Business Australia, Submission SR 64, 13 August 2009; Liberty Victoria, Submission SR 50, 5 August 2009; Civil Liberties Australia, Submission SR 47, 27 July 2009.

[129]       Indigenous Business Australia, Submission SR 64, 13 August 2009.

[130]       Law Council of Australia, Submission SR 30, 27 February 2009.