Interaction with the exceptions in the general secrecy offence

10.15   In Chapter 7, the ALRC recommends that the general secrecy offence should include three exceptions—where the disclosure is:

  • ·                in the course of a Commonwealth officer’s functions or duties;

  • ·                authorised by the relevant agency head or minister, and the agency head or minister certifies that the disclosure is in the public interest; or

  • ·                of information that is already in the public domain as the result of a lawful disclosure.[8]

10.16   Because the recommended general secrecy offence will apply to current and former Commonwealth officers across all Commonwealth agencies, these exceptions are necessarily widely drawn. As discussed in Chapter 7, the ALRC considers that, while it would not be possible to include a comprehensive list of disclosures that fall within these exceptions in the general secrecy offence, clarity about the scope of the exceptions should be provided in other ways, for example, in legislation regulating specific agencies.

10.17   The following section considers how authorised disclosure provisions in specific legislation will interact with the recommended general secrecy offence. In particular, this section examines how authorised disclosure provisions will give substance to the exceptions in the general secrecy offence for disclosures ‘in the course of an officer’s functions or duties’ and to the Criminal Code defence of lawful authority.

In the course of an officer’s functions or duties

10.18   The ALRC recommends that the general secrecy offence include an exception for disclosures ‘in the course of a Commonwealth officer’s functions or duties’.[9] As noted in Chapter 7, exceptions permitting disclosures in the performance of duties as an officer have been given a wide interpretation by the High Court, and encompass matters incidental to carrying out the functions and duties authorised by an officer’s employment.[10]

10.19   However, the duties authorised by an officer’s employment extend only to those duties that have some basis in legislation governing the officer, such as legislation administered by the specific agency or the Public Service Act 1999 (Cth). This requirement can limit the operation of the exception in secrecy provisions, particularly where an officer seeks to disclose information for purposes that are not directly related to the core functions set out in the legislation governing his or her agency.

10.20   Legal advice from the Australian Government Solicitor (AGS), attached to the Report of a Review of Information Handling Practices in the Serious Non Compliance Business Line of the Australian Taxation Office (AGS advice),[11] provides an example of the limited scope of the ‘performance of duties’ exception in this regard. The AGS was asked whether officers of the Australian Taxation Office (ATO) could provide information under the Mutual Assistance in Criminal Matters Act 1987 (Cth). Section 13A of that Act allows the Attorney-General to authorise the provision of material to a foreign country. However, because taxation laws do not expressly authorise officers to share information for the purposes of mutual assistance, and because the Mutual Assistance in Criminal Matters Act does not specifically give the ATO a role in the administration of the scheme, the AGS expressed the view that the disclosure of information for the purposes of the Mutual Assistance in Criminal Matters Act did not fall within the performance of an ATO officer’s duties.[12]

10.21   The AGS also advised that duties imposed by Commonwealth policies and guidelines, or under international agreements, could not provide a basis for the ‘performance of duties’ exception, unless such policies or agreements were supported by statute.[13]

10.22   Therefore, an officer’s duties and functions cannot be determined in a vacuum—they must be grounded in legislation, particularly where those duties and functions may operate as an exception to a criminal offence. To this end, in Chapter 7 the ALRC expresses the view that the legislation regulating specific agencies, or more general instruments such as the Public Service Act, will be indicative of what falls within an officer’s duties or functions.

Lawful authority

10.23   As discussed in Chapter 7, the Criminal Code contains a defence of ‘lawful authority’ where ‘the conduct constituting the offence is justified or excused by or under a law’.[14] The ALRC has not, therefore, recommended that the general secrecy offence expressly include an exception for disclosures that are ‘authorised or required by law’.

10.24   The application of this defence to the recommended general secrecy offence would mean that the existence of a ‘law of the Commonwealth’ that authorises a disclosure would operate as an exception to the prohibition on disclosure in the general secrecy offence.[15] As with the ‘performance of duties’ exception, where such disclosures are made pursuant to a policy or executive guideline, such policies and guidelines would need to be consistent with any underlying legislation.

Submissions and consultations

10.25   In response to the Discussion Paper, Review of Secrecy Laws (DP 74), a number of stakeholders commented on the interaction between the general secrecy offence and specific secrecy provisions.

10.26   Some agencies were concerned that the exceptions in the general secrecy offence were wider or more flexible than exceptions in current specific secrecy provisions. The Department of Health and Ageing (DoHA) noted, for example, that the general secrecy offence would allow an agency head or minister to authorise the disclosure of information where it is in the public interest. However, s 130(3)(a) of the Health Insurance Act 1973 (Cth)

currently permits the release of confidential Medicare information where the Minister certifies, by instrument in writing, that release is ‘necessary in the public interest’. Any proposal to remove the word ‘necessary’ from the legislation, or to otherwise dilute it, would almost certainly be opposed by consumers and medical organisations.[16]

10.27   In addition, DoHA expressed concern that the proposed general secrecy offence would not capture exceptions unique to particular secrecy provisions, such as exceptions that allow the release of personal information with the informed consent of the person to whom the information relates.[17]

10.28   The Australian Transaction Reports and Analysis Centre (AUSTRAC) drew attention to the need for specific secrecy provisions to support and give content to exceptions in the general secrecy offence:

The exception ‘in the course of a Commonwealth officer’s functions or duties’ in the general secrecy offence needs to be underpinned by specific secrecy provisions that define the ambit of those functions and duties. AUSTRAC believes that the duties and functions of a Commonwealth officer of a statutory agency should be defined in accordance with the respective pieces of legislation that govern the operation of that agency.[18]

10.29   AUSTRAC submitted that it would not be appropriate for agency guidelines or memorandums of understanding (MOUs) to specify the disclosures that fall within an officer’s functions or duties:

The proposal to narrow the scope of the term by issuing agency guidelines or inter-agency memorandums of understanding is problematic as they would not be legally binding and would need to be job specific ...

AUSTRAC believes that MOUs are important in establishing the expectations of the parties in respect to the exchange of information. However, AUSTRAC notes that in the majority of cases, MOUs are underpinned by specific secrecy provisions that regulate the disclosure of information, such as s 128 of the [Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)] and s 127 of the Australian Securities and Investments Commission Act 2001 (Cth). These secrecy provisions provide certainty to the parties as to when and in what circumstances information will be disclosed.[19]

ALRC’s views

10.30   The exceptions and defences that will apply to the recommended general secrecy offence anticipate that specific legislation—for example, legislation governing particular agencies or government functions—will set out the duties and functions of officers, and, where necessary, the disclosures they are authorised to make.

10.31   So, for example, a person prosecuted under the general secrecy offence could rely on the ‘lawful authority’ defence where an authorised disclosure provision in specific legislation permitted the disclosure. Similarly, a person seeking to rely on the exception in the general secrecy offence for disclosures ‘in the course of an officer’s functions or duties’ could use specific legislation to give content to those functions and duties.

10.32   A number of stakeholders expressed concerns that the exceptions in the recommended general secrecy offence would be wider than those in current specific secrecy offences, or that unique exceptions currently in specific secrecy offences were not reflected in the general secrecy offence. Authorised disclosure provisions which include specific exceptions that are not covered by the general secrecy offence—such as exceptions relating to the disclosure of information with the consent of the person to whom, or entity to which, the information relates, or disclosures to law enforcement agencies or other specified persons or entities—will act to define the limits of an officer’s duties in a particular case. Where a specific provision allows an officer, for example, to disclose information with consent, any such disclosure will fall within the exception in the general secrecy offence for disclosure in the course of that officer’s duties and functions. Where a specific provision does not allow disclosure with consent, the general offence will not operate to allow this.

10.33   In Chapter 11, the ALRC recommends that specific secrecy offences should be reviewed in accordance with the principles recommended in Chapters 8 to 10 of this Report, including the recommendation that specific secrecy offences are only warranted where they are necessary to protect an essential public interest of sufficient importance to justify criminal sanction. The ALRC recommends that, when reviewing specific secrecy offences, 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. Authorised disclosures need not be exceptions to a specific secrecy offence, but could stand alone as information-handling provisions decoupled from the offence provision.

Recommendation 6–1               Where a specific secrecy offence is repealed or amended as a result of Recommendation 11–1, consideration should be given as to whether any provisions which codify authorised information handling should be retained.

[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.

[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.

[14]         Criminal Code (Cth) s 10.5.

[15]         Australian Government Attorney-General’s Department and the Australian Institute of Judicial Administration, The Commonwealth Criminal Code: A Guide for Practitioners (2002), 233.

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

[17]         Ibid.

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

[19]         Ibid.