Specific statutory secrecy provisions

3.20       Secrecy provisions contained in Commonwealth legislation are many and varied. As noted in Chapter 1, the ALRC has conducted a mapping exercise to identify and analyse provisions in Commonwealth legislation that impose secrecy or confidentiality obligations on individuals or bodies in respect of Commonwealth information. The ALRC has identified 506 secrecy provisions in 176 pieces of primary and subordinate legislation. A table of secrecy provisions in Commonwealth legislation is set out in Appendix 5.

3.21       Approximately 70% of the statutory secrecy provisions identified create criminal offences. Around 75% of these offences are indictable offences—that is, offences punishable by imprisonment for a period exceeding 12 months.[27] The remainder are summary offences—that is, offences which are not punishable by imprisonment, or are punishable by imprisonment for a period not exceeding 12 months.[28]

3.22       Some secrecy provisions do not expressly impose criminal penalties for breach, but rather impose a duty of confidentiality on individuals. For example, the secrecy provision in the Australian Hearing Services Act 1991 (Cth) provides that

it is the duty of a person who is a Director, a member of the staff of the Authority, a member of a committee or a person engaged as a consultant under section 50 not to disclose any information that has been acquired by the person because of being such a Director, member or consultant.[29]

3.23       While provisions of this kind are not, in themselves, offences, s 70 of the Crimes Act 1914 (Cth) may attach criminal sanctions to the breach by a Commonwealth officer of this kind of ‘duty not to disclose’.[30] In this way, specific secrecy provisions¾that do not themselves create an offence¾interact with general offences in the Crimes Act to criminalise the disclosure of some information by Commonwealth officers.

3.24       The remaining non-criminal secrecy provisions establish rules for the handling of certain information by officers or agencies. For example, s 41(2) of the Australian Institute of Aboriginal and Torres Strait Islander Studies Act 1989 (Cth) provides that the Institute or Council shall not disclose information if that disclosure would be inconsistent with the views or sensitivities of relevant Aboriginal persons or Torres Strait Islanders. As discussed in Chapter 1, the ALRC has taken the view that only those provisions that prohibit the disclosure of information are secrecy provisions.

3.25       Statutory secrecy provisions exhibit four common elements:

  • protection of particular kinds of information;
  • regulation of particular persons;
  • prohibition of certain kinds of activities in relation to the information; and
  • exceptions and defences which set out the circumstances in which a person does not infringe a secrecy provision.

3.26       It is notable that this list of the common elements of secrecy provisions does not include an express requirement that the disclosure cause or be likely to cause harm. Only a small number of statutory secrecy offences expressly include such a harm element. For example, the Defence Force Discipline Act 1982 (Cth) requires that, for an offence to have been committed, the unauthorised disclosure of information must be ‘likely to be prejudicial to the security or defence of Australia’.[31]

3.27       The following section examines each of these elements in turn. It provides examples of the different approaches taken across Commonwealth legislation to the protection of official information, and draws attention to the kinds of interests that secrecy provisions seek to protect from harm. Where relevant, the proportion of secrecy provisions that exhibit particular variations is noted.[32]

What kind of information is protected?

3.28       Secrecy provisions in Commonwealth legislation prohibit the unauthorised handling of various kinds of information. The information protected by secrecy provisions can be considered in accordance with the following six categories:

  • any information;
  • confidential information;
  • personal information;
  • commercial information;
  • information relating to an investigation; and
  • other types of information.

Any information

3.29       Approximately 15% of secrecy provisions in Commonwealth legislation relate to the unauthorised disclosure or use of any information. These provisions typically cover any information obtained by a person during the course of his or her employment.[33] Generally, these provisions prohibit the disclosure of any information obtained by a person carrying out, performing or exercising duties, functions or powers under:

  • the Act in which the provision is located;
  • a particular part of the Act in which the provision is located;
  • regulations made under the Act in which the provision is located; or
  • another Act.

3.30       Australian Public Service (APS) employees are subject to the APS Code of Conduct, set out in s 13 of the Public Service Act 1999 (Cth), which imposes a number of duties on APS employees that limit the disclosure of official information. In particular, the Code of Conduct requires an employee to behave honestly and with integrity in the course of his or her employment,[34] and to maintain appropriate confidentiality about dealings the employee has with any minister or minister’s member of staff.[35]

3.31       Section 13(13) of the Public Service Act provides that an APS employee must also comply with any other conduct requirement prescribed by the regulations. Regulation 2.1(3) of the Public Service Regulations 1999 (Cth) provides that:

an APS employee must not disclose information which the APS employee obtains or generates in connection with the APS employee’s employment if it is reasonably foreseeable that the disclosure could be prejudicial to the effective working of government, including the formulation or implementation of policies or programs.

3.32       Legislation establishing a statutory authority or independent agency may also include a similar secrecy provision to cover the employees of that authority or agency.[36]

3.33       Section 70 of the Crimes Act covers a wide range of information in that it makes it an offence for a Commonwealth officer to disclose ‘any fact or document’ obtained by virtue of his or her position as a Commonwealth officer that it is ‘his or her duty not to disclose’. Section 70 is discussed in more detail below.

Confidential information

3.34       About 8% of secrecy provisions identified by the ALRC aim to prevent the unauthorised disclosure of confidential information. Some provisions prohibit the disclosure of ‘confidential’ information, which may or may not be defined in the Act.[37] Others prohibit the disclosure of information that was supplied ‘in confidence’.[38] The most general provision of this kind is reg 2.1(4) of the Public Service Regulations:

An APS employee must not disclose information which the APS employee obtains or generates in connection with the APS employee’s employment if the information:

(a)     was, or is to be, communicated in confidence within the government; or

(b)     was received in confidence by the government from a person or persons outside the government;

whether or not the disclosure would found an action for breach of confidence.

3.35       Provisions covering boards and committees also tend to protect information provided to them in confidence.[39] Meanwhile, other provisions that protect confidential information are expressed to cover information the disclosure of which would constitute a breach of confidence.[40]

Personal information

3.36       A significant proportion of Commonwealth secrecy provisions—approximately one third—prohibit the disclosure of personal information. The majority of these provisions refer to information about a ‘person’. As such, these provisions would also capture the disclosure of information about a body politic or corporate as well as a natural person.[41] However, some legislation refers to information relating to the affairs of an individual,[42] which refers to a natural person only.[43]

3.37       Some secrecy provisions that protect information of this type use the term ‘personal information’,[44] which is the term used in the Privacy Act 1988 (Cth) and the Freedom of Information Act 1982 (Cth).[45] Other provisions refer to information ‘about a person’[46] or ‘concerning another person’.[47] The majority of secrecy provisions refer to information about the ‘affairs’ of another person.[48]

3.38       Secrecy provisions covering personal information are commonly found in contexts where individuals are required to provide information to government, such as taxation, health and social services, with the aim of protecting personal privacy.

3.39       Other secrecy laws that protect personal information prohibit the disclosure of information about the identity of particular persons, such as participants in witness protection programs,[49] officers of the Australian Security Intelligence Organisation (ASIO)[50] or people with assumed identities.[51] However, the purpose of secrecy provisions of this kind may extend beyond the protection of personal privacy to preventing other harms, for example, harm to national security or public safety.

Commercial information

3.40       Approximately 8% of secrecy provisions identified by the ALRC protect commercial information. Some of these provisions specify the type of confidential commercial information protected.[52] Other provisions protect commercial information by prohibiting disclosures that are likely to cause harm to commercial interests. For example, s 74 of the Wheat Export Marketing Act 2008 (Cth) prohibits the disclosure of ‘protected confidential information’, which is defined as information provided under certain provisions of the Act, the disclosure of which could cause financial loss or detriment to a person or benefit a competitor of the person.[53] While not expressly designated commercial information, secrecy provisions in legislation that regulate corporate entities, are likely to predominantly cover commercial information. For example, secrecy provisions in the Reserve Bank Act 1959 (Cth) protect information disclosed or obtained under, or for the purposes of the Act relating to the affairs of a financial institution; related body corporate or a person who has been, is, or proposes to be, a customer of a financial institution.[54]

Information relating to investigations

3.41       About 10% of secrecy provisions protect information which, if disclosed without authority, could prejudice the conduct of an investigation or inquiry. Such provisions are common in legislation relating to law enforcement, where secrecy provisions may prohibit the disclosure of information about the existence of a law enforcement operation or investigation;[55] the existence or content of a warrant,[56] summons or other notice or request,[57] or the questioning or detention of a person in certain circumstances.[58]

3.42       Secrecy provisions may also protect information obtained during or relating to investigations or inquiries outside of the law enforcement context. For example, secrecy provisions in the Transport Safety Investigation Act 2003 (Cth) prohibit the unauthorised disclosure of ‘restricted information’, which is defined to include information obtained and recorded in the course of an investigation.[59] Some secrecy provisions also protect information obtained in the exercise of entry and search powers,[60] or given in evidence before a private hearing.[61]

3.43       Other secrecy provisions are framed to prohibit the disclosure of information that may prejudice an investigation. For example, s 35A of the Ombudsman Act 1976 (Cth) prohibits the Ombudsman from disclosing information with respect to a particular investigation where the disclosure of that information is likely to interfere with the carrying out of any other investigation or the making of a report.

Other information

3.44       Specific secrecy provisions protect a variety of other, more particular kinds of information relevant to the context and function of particular legislative regimes, including information:

  • of a specific type, such as cockpit voice recordings or on‑board recordings[62] or the content or substance of a telegram;[63]
  • provided as advice from particular committees and bodies;[64]
  • derived from inspecting records;[65]
  • comprising communications made during family counselling or dispute resolution;[66] and
  • contained in applications, such as patent[67] or mining applications.[68]

3.45       Two specific kinds of ‘other’ information—defence and security information, and Indigenous cultural information—warrant more detailed explanation.

3.46       Defence and security information—a small number of specific secrecy provisions aim to prevent the unauthorised disclosure of defence or national security information.[69] Historically, the protection of this kind of information has been a core function of secrecy provisions. In addition to specific secrecy offences, defence and national security information is also protected by s 79 of the Crimes Act (disclosure of official secrets) and s 91.1 of the Criminal Code (Cth) (espionage).

3.47       Section 79 includes offences for the disclosure of information:

  • made or obtained in contravention of pt VII of the Crimes Act (unlawful sounding) or s 91.1 of the Criminal Code (espionage);
  • relating to a prohibited place or anything in a prohibited place that the person knows, or ought to know, should not be communicated.[70]

3.48       The most serious offence created by s 79 is the offence of communicating, retaining or receiving information with the intention of prejudicing the security or defence of the Commonwealth.[71]

3.49       Section 91.1 of the Criminal Code makes it an offence for a person to communicate information concerning the security or defence of the Commonwealth or another country to a foreign country or organisation with the intention of prejudicing the security or defence of the Commonwealth, or of giving an advantage to another country’s security or defence. It is also an offence to make, obtain or copy such information with the intention of delivering it to a foreign country or organisation in order to prejudice the security or defence of the Commonwealth[72] or give an advantage to another country’s security or defence.[73]

3.50       In some secrecy provisions, a designated person determines the threshold question of whether information will prejudice the security or defence of Australia. For example, s 108 of the Designs Act 2003 (Cth) provides that the Registrar of Designs may prohibit or restrict the publication of information about the subject matter of a design application if it appears to be ‘necessary or expedient to do so in the interests of the defence of the Commonwealth’.[74] 

3.51       Indigenous sacred or sensitive information—some secrecy provisions prohibit the disclosure of information that is considered sacred or otherwise significant by Indigenous peoples. For example, s 193S(3)(b) of the Aboriginal and Torres Strait Islander Act 2005 (Cth) prohibits the disclosure by a designated person[75] of any information that he or she is aware is considered sacred or significant by a particular group of Aboriginal persons or Torres Strait Islanders, where its disclosure would be inconsistent with the views or sensitivities of the members of the group. Similarly, s 41 of the Australian Institute of Aboriginal and Torres Strait Islander Studies Act 1989 (Cth) provides that the Institute must not disclose information if the disclosure would be inconsistent with the views or sensitivities of relevant Aboriginal persons or Torres Strait Islanders.[76]

Whose conduct is regulated?

3.52       The ALRC’s mapping exercise shows that a range of different individuals and entities may be subject to secrecy provisions, including:

  • Commonwealth employees;
  • organisations or individuals providing services for or on behalf of the Commonwealth;
  • Commonwealth agencies;
  • other specific categories of organisation or individual; and/or
  • any person.

Commonwealth employees

3.53       Approximately one third of Commonwealth secrecy provisions apply to Commonwealth employees. In some cases, the provisions apply to all Commonwealth employees,[77] or all employees of the APS.[78]

3.54       Regulation 2.1 of the Public Service Regulations sets out the general duty of an APS employee not to disclose official information where it is reasonably foreseeable that the disclosure could prejudice the effective working of government. An APS employee is defined in s 7 of the Public Service Act to mean a person engaged by an agency head or by the Public Service Commissioner as the result of an administrative rearrangement. An agency is defined to mean a department, an executive agency established by the Governor-General, or a statutory agency.[79]

3.55       Section 70 of the Crimes Act regulates conduct by ‘Commonwealth officers’. The definition of the term ‘Commonwealth officer’ in s 70 is discussed in further detail below and in Chapter 6.

3.56       Other secrecy provisions regulate officers in specific Commonwealth agencies, such as employees of Australia Post[80] or the staff of the Australian Human Rights Commission.[81] A small number of secrecy provisions apply to specific agency heads or officers—for example, the Commonwealth Ombudsman.[82]

Service providers to the Commonwealth

3.57       Some secrecy provisions expressly refer to a wider range of individuals than Commonwealth employees. This reflects changes to the structure of government and government service provision, and the view that information should be protected at every point in the ‘distribution chain’, including where that information is handled outside the public sector.[83]

3.58       Around 10% of secrecy provisions expressly regulate consultants[84] and others who provide goods or services for or on behalf of the Australian Government.[85] In addition, service providers are often required by agencies to comply with confidentiality undertakings as part of service provision arrangements.[86]

Commonwealth agencies

3.59       About 10% of secrecy provisions apply to specific agencies or statutory corporations, as distinct from individuals.[87] The majority of provisions that apply to agencies are not criminal in nature, but are a component of a broader information-handling regime. For example:

  • Research Involving Human Embryos Act 2002 (Cth) s 29(4) requires the Licensing Committee to make certain information publicly available in a database; however, the database must not include ‘confidential commercial information’.
  • Trade Practices Act 1974 (Cth) s 89(3) requires the Australian Competition and Consumer Commission (ACCC) to keep a register of applications for authorisations in respect of restrictive trade practices. Section 89(5A) requires that, where requested, the ACCC must keep certain information confidential, including information relating to ‘secret formulas or processes’ and the cost of manufacturing, producing or marketing goods and services.
  • Veterans’ Entitlements Act 1986 (Cth) s 118ZF(7) provides that after determining a claim for a seniors health card, the Repatriation Commission must give the claimant a copy of its determination, except to the extent that the information is of a ‘confidential nature’ or might, if communicated, ‘be prejudicial to the claimant’s physical or mental health or well-being’.

3.60       Agencies are also subject to a range of other information-handling obligations, including under the Privacy Act and Archives Act 1983 (Cth). These provisions are discussed further in Chapter 16.

Other organisations and individuals

3.61       Other secrecy provisions regulate a wide range of specific organisations and individuals, such as:

  • state, territory or local government employees;[88]
  • organisations and individuals who engage in federally funded or regulated areas of the private sector—for example, aged care providers;[89] and
  • individuals assisting in government inquiries or studies.[90]

Any person

3.62       Around 30% of Commonwealth secrecy provisions are stated to apply to the handling of information by ‘any person’. In the areas of criminal law enforcement and health and welfare, secrecy provisions that regulate the conduct of any person make up a high proportion (slightly less than half) of all secrecy provisions.

3.63       Secrecy provisions may be framed to regulate the conduct of any person where legislation provides a discretion to provide protected information to a potentially broad range of people. For example, s 135A(3) of the National Health Act 1953 (Cth) permits the Secretary of the Department of Health and Ageing (DoHA) to disclose information to any person if the Minister certifies that disclosure to that person is necessary in the public interest. Section 135A(4) then applies the same secrecy obligations to any person who receives information pursuant to such a disclosure.

3.64       Secrecy provisions may also regulate the conduct of any person where the provision creates an ancillary offence such as soliciting, obtaining or offering to supply protected information.[91]

Current and former parties

3.65       Many secrecy provisions expressly regulate the behaviour of persons who hold, or have previously held positions through which they have access to Commonwealth information.

3.66       An example of a specific secrecy provision governing both current and former officers is s 191 of the Aboriginal and Torres Strait Islander Act, which expressly applies to a person:

(a)  who is or has been an Indigenous Business Australia Director or acting Indigenous Business Australia Director;

(b) who is or has been the Indigenous Business Australia General Manager or an acting Indigenous Business Australia General Manager;

(c)  who is or has been employed or engaged under section 175 or 178;

(d) who is performing, or who has performed, duties on behalf of Indigenous Business Australia pursuant to an arrangement under section 176; or

(e) whose services are being or have been made available to Indigenous Business Australia pursuant to an arrangement under section 177.

3.67       The application of s 70 of the Crimes Act, which is expressed to apply to both current and former Commonwealth officers, may extend the application of other statutory secrecy provisions to former officers.

What conduct is regulated?

3.68       The vast majority (90%) of secrecy provisions prohibit the disclosure of Commonwealth information. Conduct such as tabling information in parliament, or serving information on other parties, may be regarded as forms of disclosure.

3.69       Secrecy provisions may also regulate other activities such as making a record (30%), using information (20%) or soliciting information (less than 5%).

3.70       The ALRC has identified a small number of secrecy provisions that regulate obtaining information. For example, under s 203 of the Social Security (Administration) Act 1999 (Cth), a person commits an offence if he or she intentionally obtains information without authorisation and knew or ought reasonably to have known that the information was protected information.[92] Two secrecy provisions apply to the mere receipt of information.[93]

3.71       Some secrecy provisions regulate both the initial and subsequent unauthorised handling of Commonwealth information. For example, under s 23E of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth):

(4)  A person commits an offence if:

      (a)  information is communicated to the person (the first person) in accordance with [the Act]; and

      (b)  the information is communicated by a person (the second person) to whom this section applies; and

      (c) the second person acquired the information because of his or her membership of, or employment by, a Land Council or his or her activities as an authorised person; and

      (d) the information concerns the affairs of a third person; and

      (e) the first person, either directly or indirectly, makes a record of, or divulges or communicates the information to any other person.

3.72       Other provisions make it an offence for a recipient of certain information then to use or disclose that information for other purposes. For example, under s 86-3 of the Aged Care Act 1997 (Cth), the Secretary of DoHA may disclose protected information in certain circumstances, including where there is a risk to a person’s health and safety. Under s 86-5, it is an offence for a person who receives information by virtue of s 86‑3 to make a record of, disclose or otherwise use the information other than for the purpose for which the information was disclosed.

Exceptions and defences

3.73       Most secrecy provisions contain exceptions or defences. An ‘exception’ is a provision that limits the scope of conduct prohibited by a secrecy law, while a ‘defence’ is a provision that excuses conduct that is otherwise prohibited by a secrecy provision. An exception may provide, for example, that a Commonwealth officer does not commit an offence where disclosure of information is made in the course of performing duties under the relevant legislation. Exceptions are more commonly included in Commonwealth secrecy laws than defences. The following discussion summarises exceptions and defences currently contained in secrecy laws.

3.74       Almost 20% of secrecy provisions do not contain any express exceptions or defences. However, defences may nevertheless be available under provisions of the Criminal Code or at common law. In particular, the Criminal Code sets out general principles of criminal responsibility applicable to offences against the laws of the Commonwealth. The Code provides, for example, that even if an offence provision is stated to be an offence of strict liability, the defence of mistake of fact remains available.[94]

Disclosure in the course of functions and duties

3.75       Approximately 35% of secrecy provisions allow information handling in the course or performance of a person’s functions and duties as an employee or officer. Taxation secrecy laws, for example, generally allow information handling in the ‘course of duties of an officer’. Secrecy obligations placed on officers by the Taxation Administration Act 1953 (Cth) do not apply ‘to the extent that the person makes a record of the information, or divulges or communicates the information … in the performance of the person’s duties as an officer’.[95] Similar formulations appear in other areas of Commonwealth legislation.[96]

Disclosure for the purposes of a particular law

3.76       Many secrecy provisions incorporate exceptions that allow the disclosure of information as required by a particular law. Secrecy provisions also commonly provide that information may be disclosed ‘for the purposes of this Act’.[97] Some secrecy provisions also permit disclosure for the purposes of other legislation[98] or intergovernmental arrangements.[99]

Disclosure authorised by specified persons

3.77       Approximately 15% of secrecy provisions permit the disclosure of information at the discretion of specified office-holders or other persons. For example, the Superannuation Industry (Supervision) Act 1993 (Cth) provides that it is not an offence to disclose information where disclosure is ‘approved by the Commissioner of Taxation by instrument in writing’.[100]

3.78       Other secrecy provisions permit a specified person to authorise the handling of information—generally the head of an agency or the responsible minister—provided that other criteria are met. For example:

  • ·                the Customs Administration Act 1985 (Cth) provides an exception to secrecy provisions 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;[101]

  • ·                the Health Insurance Act 1973 (Cth) provides an exception to secrecy provisions where the Minister certifies, by instrument in writing, that it is necessary in the public interest that information be disclosed;[102] and

  • ·                the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) provides an exception to secrecy provisions where access to information is for the purposes of investigating a breach of a law of the Commonwealth and is authorised by the Chief Executive Officer of the Australian Transaction Reports and Analysis Centre.[103]

Disclosure to specified persons or entities

3.79       Approximately 30% of secrecy provisions provide exceptions where disclosure is made to specified persons or entities. Often, the purpose of such exceptions is to authorise information sharing among Australian Government agencies. For example:

  • ·                the Australian Prudential Regulation Authority Act 1998 (Cth) (APRA Act) permits the disclosure of information to the Australian Statistician, the Reserve Bank of Australia, auditors and actuaries;[104]

  • ·                the Industry Research and Development Act 1986 (Cth) permits the disclosure of information to the Minister, ministerial staff, the Secretary of the Department or a designated officer of the Department;[105] and

  • ·                the Gene Technology Act 2000 (Cth) permits the disclosure of information to ‘the Commonwealth or a Commonwealth authority’, a state agency, or the Gene Technology Technical Advisory Committee.[106]

3.80       In some instances, secrecy provisions permit disclosure in circumstances, or to persons or entities, as prescribed by regulation.[107]

Disclosure for the purposes of legal proceedings

3.81       Approximately 15% of secrecy provisions provide exceptions to expressly permit the disclosure of information for the purposes of court or tribunal proceedings.[108]

3.82       Some secrecy provisions provide that certain persons are not required to disclose information in court or tribunal processes, other than for the purposes of the Act under which the information was obtained.[109] 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.

Disclosure for the purposes of law enforcement

3.83       Approximately 15% of secrecy provisions include exceptions to allow the handling of information for various law enforcement and investigatory purposes. While provisions of this kind often refer to the investigation of criminal offences,[110] some exceptions to secrecy provisions extend to broader law enforcement and administration of justice concerns. For example:

  • ·                the Crimes Act allows forensic DNA information to be disclosed for the purposes of a coronial inquest or inquiry, or an investigation by the Privacy Commissioner or Commonwealth Ombudsman;[111]

  • ·                the Child Support (Assessment) Act 1989 (Cth) allows the communication of information about missing and deceased persons where necessary to assist a court, coronial inquiry, Royal Commission, or department or authority of the Commonwealth, a state or a territory;[112] and

  • ·                the Australian Federal Police Act 1979 (Cth) allows the Police Commissioner to approve the disclosure of information that relates to the National Witness Protection Program if he or she is of the opinion that it is ‘in the interests of the due administration of justice to do so’.[113]

Disclosure with consent

3.84       Approximately 20% of secrecy provisions provide exceptions that permit the disclosure of information where the person or entity to whom the information relates has consented to the disclosure.[114] In addition, the Privacy Act contains exceptions to allow the use or disclosure of personal information with the person’s consent.[115]

Disclosure of de-identified information

3.85       Less than 5% of secrecy provisions provide exceptions permitting the disclosure of information if it does not identify the person or entity that is the subject of the information.[116] For example:

  • ·                the APRA Act provides that it is not an offence if information is disclosed ‘in the form of a summary or collection of information that is prepared so that information relating to any particular person cannot be found out from it’;[117] and

  • ·                the Epidemiological Studies (Confidentiality) Act 1981 (Cth) provides that the Act does not prohibit the publication of certain information from prescribed studies ‘but such conclusions, statistics or particulars shall not be published in a manner that enables the identification of an individual person’.[118]

Disclosure to avert threats to life or health

3.86       Some secrecy provisions contain exceptions permitting the disclosure of information in order to avert threats to a person’s life or health, for example:

  • ·                the Customs Administration Act 1985 (Cth) allows the disclosure of information necessary to ‘avert or reduce’ a ‘serious and imminent threat to the health or life of a person’;[119]

  • ·                the Inspector-General of Intelligence and Security Act 1986 (Cth) allows the disclosure of information ‘necessary for the purpose of preserving the well‑being or safety of another person’;[120]and

  • ·                the Child Support (Assessment) Act allows the disclosure of information to prevent or lessen a ‘credible threat to the life, health or welfare of a person’.[121]

Disclosure in the public interest

3.87       A small number of secrecy provisions allow the disclosure of Commonwealth information in the public or national interest.

3.88       For example, the Food Standards Australia New Zealand Act 1991 (Cth) allows the disclosure of certain information if the Minister certifies, by instrument, that it is necessary ‘in the public interest’.[122] Similar provisions are found in other legislation.[123]

3.89       In addition, the Australian Security Intelligence Organisation Act 1979 (Cth) allows the disclosure of information where the information concerns matters outside Australia and the Director‑General ‘is satisfied that the national interest requires the communication’.[124]

[1]           Commonwealth v Fairfax (1980) 147 CLR 39, 50, citing Swinfen Eady LJ in Lord Ashburton v Pope (1913) 2 Ch 469, 475.

[2]           See, eg, Commonwealth v Fairfax (1980) 147 CLR 39, 50–51 in which Mason J concluded that the information had probably been leaked by a public servant in breach of his or her duty and contrary to the security classifications marked on some of the documents.

[3]           See, eg, Victoria v Nine Network (2007) 19 VR 476.

[4]           Commonwealth v Fairfax (1980) 147 CLR 39, 51.

[5]           Ibid.

[6]           G Munster and J Walsh, Documents on Australian Defence and Foreign Policy 1968–1975 (1980).

[7]           Commonwealth v Fairfax (1980) 147 CLR 39, 52.

[8]           Ibid, 52.

[9]           Ibid, 54. The High Court did, however, grant an injunction to restrain infringement of the Commonwealth’s copyright in documents that it had brought into existence.

[10]         Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86, 191.

[11]         Victoria v Nine Network (2007) 19 VR 476, [84].

[12]         Ibid, [122]; [146]; [160].

[27]         Crimes Act 1914 (Cth) s 4G.

[28]         Ibid s 4H.

[29]         Australian Hearing Services Act 1991 (Cth) s 67(1).

[30]         Section 70 is discussed in detail later in this chapter.

[31]         Defence Force Discipline Act 1982 (Cth) s 58(1).

[32]         As this chapter provides an overview of all statutory secrecy provisions, the approximate values expressed here are different from figures noted in later chapters that focus on secrecy offences alone.

[33]         See, eg, Australian Crime Commission Act 2002 (Cth) s 51(2); Auditor-General Act 1997 (Cth) s 36(1); Australian Hearing Services Act 1991 (Cth) s 67(1); Data-matching Program (Assistance and Tax) Act 1990 (Cth) s 15(1); Australian Federal Police Act 1979 (Cth) s 60A(2); Australian Security Intelligence Organisation Act 1979 (Cth) ss 18(2), 81(1).

[34]         Public Service Act 1999 (Cth) s 13(1).

[35]         Ibid s 13(6).

[36]         See, eg, Law Enforcement Integrity Commissioner Act 2006 (Cth) s 207(1); Australian Human Rights Commission Act 1986 (Cth) s 49(1); Australian Security Intelligence Organisation Act 1979 (Cth) s 18(2).

[37]         See, eg, Water Act 2007 (Cth) s 215 (in which confidential information is not expressly defined); Offshore Minerals Act 1994 (Cth) s 374 (‘confidential information’ is defined in a separate section, s 27).

[38]         See, eg, Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) ss 604-15, 604-20; Equal Opportunity for Women in the Workplace Act 1999 (Cth) s 32; Therapeutic Goods Act 1989 (Cth) s 9C.

[39]         See, eg, Water Act 2007 (Cth); Australian Securities and Investments Commission Act 2001 (Cth) ss 213, 237; Pooled Development Funds Act 1992 (Cth) s 71(5)(a) and (aa); Bankruptcy Regulations 1996 (Cth) regs 8.05O, 8.32.

[40]         See, eg, Industry Research and Development Act 1986 (Cth) s 47(1).

[41]         Acts Interpretation Act 1901 (Cth) s 22.

[42]         See, eg, Building and Construction Industry Improvement Act 2005 (Cth) s 66; Health Insurance Regulations 1975 (Cth) reg 23C(2)(a).

[43]         Acts Interpretation Act 1901 (Cth) s 22.

[44]         See, eg, Higher Education Support Act 2003 (Cth) ss 179-10, 179-35; Product Grants and Benefits Administration Act 2000 (Cth) s 47(2); Aged Care Act 1997 (Cth) s 86-2(1).

[45]         The Privacy Act 1988 (Cth) and the Freedom of Information Act 1982 (Cth) are discussed in Ch 16.

[46]         See, eg, Superannuation Contributions Tax (Assessment and Collection) Act 1997 (Cth) s 32(1), (2); Superannuation Guarantee (Administration) Act 1992 (Cth) s 45(1), (2).

[47]         See, eg, Australian Institute of Health and Welfare Act 1987 (Cth) s 29(1).

[48]         See, eg, Higher Education Funding Act 1988 (Cth) s 78(2); Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 23E(2); Racial Discrimination Act 1975 (Cth) s 27F(1); Health Insurance Act 1973 (Cth) s 130(1).

[49]         Witness Protection Act 1994 (Cth) s 22.

[50]         Australian Security Intelligence Organisation Act 1979 (Cth) s 92.

[51]         Crimes Act 1914 (Cth) s 15XS.

[52]         See, eg, Agricultural and Veterinary Chemicals Code Act 1994 (Cth) s 162; Food Standards Australia New Zealand Act 1991 (Cth) s 114(1).

[53]         Wheat Export Marketing Act 2008 (Cth) s 73. See also Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) s 22A (disclosure may cause substantial damage to a person’s commercial or other interests); Pooled Development Funds Act 1992 (Cth) s 71(5)(b)(i) (disclosure may reasonably be expected to affect a person adversely in respect of the lawful business, commercial or financial affairs of the person); Trade Practices Act 1974 (Cth) s 95ZN (disclosure may damage the competitive position of the person).

[54]         Reserve Bank Act 1959 (Cth) s 79A. See also Australian Prudential Regulation Authority Act 1998 (Cth) s 56.

[55]         See, eg, Australian Crime Commission Act 2002 (Cth) s 29B (1), (3).

[56]         See, eg, Australian Security Intelligence Organisation Act 1979 (Cth) s 34ZS; Telecommunications (Interception and Access) Act 1979 (Cth) ss 63, 133.

[57]         See, eg, Law Enforcement Integrity Commissioner Act 2006 (Cth) s 92; Australian Crime Commission Act 2002 (Cth) s 29B(1); Proceeds of Crime Act 2002 (Cth) ss 210, 217, 223; Mutual Assistance in Criminal Matters Act 1987 (Cth) s 43C; Crimes Act 1914 (Cth) s 3ZQT.

[58]         See, eg, Australian Security Intelligence Organisation Act 1979 (Cth) s 34ZS; Criminal Code (Cth) s 105.41.

[59]         Transport Safety Investigation Act 2003 (Cth) ss 3, 60. See also, Inspector of Transport Security Act 2006 (Cth) s 49; Space Activities Act 1998 (Cth) s 96; Civil Aviation Act 1988 (Cth) s 32AP.

[60]         See, eg, National Environment Protection Measures (Implementation) Act 1998 (Cth) s 36.

[61]         See, eg, Productivity Commission Act 1998 (Cth) s 53.

[62]         Civil Aviation Act 1988 (Cth) s 32AP; Inspector of Transport Security Act 2006 (Cth) s 63; Transport Safety Investigation Act 2003 (Cth) s 53.

[63]         Postal and Telecommunications Commissions (Transitional Provisions) Act 1975 (Cth) s 37.

[64]         See, eg, Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 189B, 251(3), 324R, 341R.

[65]         See, eg, Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) s 183-1; Copyright Act 1968 (Cth) s 203E(10).

[66]         See, eg, Family Law Act 1975 (Cth) ss 10D, 10H.

[67]         Patents Act 1990 (Cth) s 173.

[68]         Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) sch 5 cl 4.

[69]         See, eg, Defence Force Discipline Act 1982 (Cth) s 58(1); Defence Act 1903 (Cth) s 73A.

[70]         ‘Prohibited place’ is defined in Crimes Act 1914 (Cth) s 80 and includes defence property and installations.

[71]         Ibid s 79(2).

[72]         Criminal Code (Cth) s 91.1(3).

[73]         Ibid s 91.1(4).

[74]         See also Auditor-General Act 1997 (Cth) s 37; Patents Act 1990 (Cth) s 173; Privacy Act 1988 (Cth) s 70; Australian Human Rights Commission Act 1986 (Cth) s 24.

[75]         As defined in s 193S(1) of that Act.

[76]         See also Aboriginal and Torres Strait Islander Act 2005 (Cth) s 193S(3)(d).

[77]         See, eg, Income Tax Assessment Act 1936 (Cth) s 16.

[78]         Public Service Regulations 1999 (Cth) reg 2.1.

[79]         Public Service Act 1999 (Cth) s 7.

[80]         Australian Postal Corporation Act 1989 (Cth) ss 90H, 90LB apply to ‘employees of Australia Post’ by virtue of s 90G.

[81]         Age Discrimination Act 2004 (Cth); Disability Discrimination Act 1992 (Cth) s 127; Sex Discrimination Act 1984 (Cth) s 112; Racial Discrimination Act 1975 (Cth) s 27F.

[82]         Ombudsman Act 1976 (Cth) s 35C.

[83]         Australian Parliament—House of Representatives Standing Committee on Legal and Constitutional Affairs, In Confidence: A Report of the Inquiry into the Protection of Confidential Personal and Commercial Information Held by the Commonwealth (1995), [7.11.2].

[84]         See, eg, Equal Opportunity for Women in the Workplace Act 1999 (Cth) s 32(1).

[85]         See, eg, Customs Administration Act 1985 (Cth) s 16.

[86]         Confidentiality clauses are included in contracts with service providers as a matter of course: Australian Parliament—House of Representatives Standing Committee on Legal and Constitutional Affairs, In Confidence: A Report of the Inquiry into the Protection of Confidential Personal and Commercial Information Held by the Commonwealth (1995), 53.

[87]         See, eg, Australian Securities and Investments Commission Act 2001 (Cth) s 127(1) which applies to the Australian Securities and Investments Commission; and Trade Practices Act 1974 (Cth) s 95ZP which applies to the Australian Competition and Consumer Commission.

[88]         See, eg, Australian Hearing Services Act 1991 (Cth) s 67(8); Taxation Administration Act 1953 (Cth) s 13J.

[89]         See, eg, Aged Care Act 1997 (Cth) s 62-1.

[90]         See, eg, Inspector of Transport Security Act 2006 (Cth) s 35(7); Epidemiological Studies (Confidentiality) Act 1981 (Cth) s 4.

[91]         See, eg, Social Security (Administration) Act 1999 (Cth) s 203; Health Insurance Act 1973 (Cth) ss 130(14), 130(21); Child Care Act 1972 (Cth) ss 12K, 12Q.

[92]         See also A New Tax System (Family Assistance)(Administration) Act 1999 (Cth) s 163; Student Assistance Act 1973 (Cth) s 352; Child Care Act 1972 (Cth) s 12K; Defence Act 1903 (Cth) s 73A(2).

[93]         Crimes Act 1914 (Cth) s 79(5), (6).

[94]         See Criminal Code (Cth) ss 6.1, 9.2.

[95]         Taxation Administration Act 1953 (Cth) s 3C(2A).

[96]         See, eg, Disability Services Act 1986 (Cth) s 28(2A); Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 23E(2); Racial Discrimination Act 1975 (Cth) s 27F(3A).

[97]         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).

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

[99]         See, eg, Disability Discrimination Act 1992 (Cth) s 127(3).

[100]       Superannuation Industry (Supervision) Act 1993 (Cth) s 252C(5)(b).

[101]       Customs Administration Act 1985 (Cth) s 16(3).

[102]       Health Insurance Act 1973 (Cth) s 130(3).

[103]       Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) s 129(1).

[104]       Australian Prudential Regulation Authority Act 1998 (Cth) s 56(5A), (5B), (6A).

[105]       Industry Research and Development Act 1986 (Cth) s 47(2).

[106]       Gene Technology Act 2000 (Cth) s 187(1)(d).

[107]       See, eg, Building and Construction Industry Improvement Act 2005 (Cth) s 65(4); Medical Indemnity Act 2002 (Cth) s 77(4).

[108]       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).

[109]       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).

[110]       See, eg, Surveillance Devices Act 2004 (Cth) s 45(5); Australian Security Intelligence Organisation Act 1979 (Cth) s 18(3)(a).

[111]       Crimes Act 1914 (Cth) s 23YO(2).

[112]       Child Support (Assessment) Act 1989 (Cth) s 150(4D)–(4F).

[113]       Australian Federal Police Act 1979 (Cth) s 60A(2B).

[114]       See, eg, Gene Technology Act 2000 (Cth) s 187(1)(f); Reserve Bank Act 1959 (Cth) s 79A(3); National Health Act 1953 (Cth) s 135A(8).

[115]       Privacy Act 1988 (Cth) s 14, IPPs 10, 11.

[116]       The privacy implications of the use of de-identified information is discussed in Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, ALRC 108 (2008), [6.64]–[6.87].

[117]       Australian Prudential Regulation Authority Act 1998 (Cth) s 56(7).

[118]       Epidemiological Studies (Confidentiality) Act 1981 (Cth) s 11.

[119]       Customs Administration Act 1985 (Cth) s 16(3F).

[120]       Inspector-General of Intelligence and Security Act 1986 (Cth) s 34(1A).

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

[122]       Food Standards Australia New Zealand Act 1991 (Cth) s 114(4).

[123]       See, eg, Medical Indemnity Act 2002 (Cth) s 77(3); Health Insurance Act 1973 (Cth) s 130(3); National Health Act 1953 (Cth) s 135A(3).

[124]       Australian Security Intelligence Organisation Act 1979 (Cth) s 18(3)(b).