What should be included in the general secrecy offence?

Damaging national security, defence or international relations

5.10       Section 33(1)(a) of the FOI Act provides that a document is exempt if disclosure would, or could reasonably be expected to, cause damage to the security, defence or international relations of the Commonwealth.[9]

National security and defence

5.11       In this section the ALRC considers whether unauthorised disclosures that damage the security or defence of the Commonwealth should be covered by the general secrecy offence.

5.12       As discussed in Chapter 4, the departmental committee on s 2 of the Official Secrets Act 1911 (UK) chaired by Lord Franks (Franks Committee) recommended that, in the United Kingdom (UK), information relating to internal security or defence and classified ‘Secret’ or above should be protected by criminal secrecy offences. This was on the basis that such information was classified because unauthorised disclosure would cause ‘at least serious injury to the interests of the nation’.[10]

5.13       The Committee noted that the criterion for classification would have to be applied correctly and consistently if the system were to operate fairly. It recommended that, before making a decision to prosecute for the unauthorised disclosure of any classified information, the responsible minister should be required to certify that, at the time of disclosure, the information was properly classified. The prosecution would then be required to establish that the information was classified, but not that the disclosure of the information would harm the interests of the nation.[11]

5.14       As noted in Chapter 4, the 1988 White Paper issued by the UK Government Home Office did not agree with this approach.[12] Instead, the paper drew a distinction between disclosures of security and intelligence information by members of the security and intelligence services, and disclosures by others. The White Paper proposed that, in relation to disclosures by members of the security and intelligence services, there should be no requirement to prove damage. However, in relation to disclosures of information by individuals who were not members of the security and intelligence services, the prosecution should have to show that the disclosure was likely to cause damage.

5.15       Section 1 of the UK Official Secrets Act generally reflects the position set out in the 1988 White Paper. Section 1(4) defines a damaging disclosure of information relating to security or intelligence as follows:

  1. it causes damage to the work of, or any part of, the security and intelligence services; or
  2. it is of information or a document or other article which is such that its unauthorised disclosure would be likely to cause such damage or which falls within a class or description of information, documents or articles the unauthorised disclosure of which would be likely to have that effect.

5.16       Section 2 of the Official Secrets Act defines a damaging disclosure of information relating to defence as follows:

  1. it damages the capability of, or any part of, the armed forces of the Crown to carry out their tasks or leads to loss of life or injury to members of those forces or serious damage to the equipment or installations of those forces;

  2. otherwise than as mentioned in paragraph (a) above, it endangers the interests of the UK abroad, seriously obstructs the promotion or protection by the UK of those interests or endangers the safety of British citizens abroad; or

  3. it is of information or of a document or article which is such that its unauthorised disclosure would be likely to have any of those effects.

5.17       In the Australian context, the Review of the Commonwealth Criminal Law, chaired by Sir Harry Gibbs (the Gibbs Committee) considered it appropriate to impose criminal sanctions in relation to the unauthorised disclosure of ‘intelligence and national security information’ without having to demonstrate harm. The Committee recommended that the prosecution should be required to prove harm in the case of a disclosure of information relating to defence.[13]

5.18       In the course of the Inquiry the ALRC also considered the need to define key concepts such as ‘security’ and ‘defence’. Section 4(5) of the FOI Act contains a non-exhaustive definition of ‘security of the Commonwealth’ as follows:

  1. matters relating to the detection, prevention or suppression of activities, whether within Australia or outside Australia, subversive of, or hostile to, the interests of the Commonwealth or of any country allied or associated with the Commonwealth; and
  2. the security of any communications system or cryptographic system of the Commonwealth or of another country used for:

      (i)   the defence of the Commonwealth or of any country allied or associated with the Commonwealth; or

      (ii)  the conduct of the international relations of the Commonwealth.

5.19       The FOI Guidelines—Exemption Sections in the FOI Act (FOI Exemption Guidelines) provide further guidance on the meaning of national security in the FOI context:

In broad terms, the ‘security’ of the Commonwealth refers to matters concerning the protection of Australia and its population from active measures of foreign intervention, espionage, sabotage, subversion and terrorism and the security of any communications system or cryptographic system of any country used for defence or conduct of international relations.

5.20       The FOI Exemption Guidelines also note that the meaning of the term ‘security’ has arisen for consideration in a number of cases before the Administrative Appeals Tribunal (AAT) dealing with release of information under the FOI Act and the Archives Act 1983 (Cth).[15]

5.21       Section 8 of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) defines ‘national security’ to mean ‘Australia’s defence, security, international relations or law enforcement interests’. Section 9 goes on to state that for the purposes of the Act, the term ‘security’ has the same meaning as set out in s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act), namely:

(a)  the protection of, and of the people of, the Commonwealth and the several States and Territories from:

      (i)         espionage;

      (ii)        sabotage;

      (iii)       politically motivated violence;

      (iv)       promotion of communal violence;

      (v)        attacks on Australia’s defence system; or

      (vi)       acts of foreign interference;

      whether directed from, or committed within, Australia or not; and

(b)  the carrying out of Australia’s responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a).

5.22       Section 4 of the ASIO Act further defines ‘attacks on Australia’s defence system’ to mean:

activities that are intended to, and are likely to, obstruct, hinder or interfere with the performance by the Defence Force of its functions or with the carrying out of other activities by or for the Commonwealth for the purposes of the defence or safety of the Commonwealth.

5.23       Neither the National Security Information (Criminal and Civil Proceedings) Act nor the FOI Act contain a separate definition of the term ‘defence’.

5.24       The FOI Exemption Guidelines note, however, that decisions of the AAT have indicated that ‘defence of the Commonwealth’ includes meeting Australia’s international obligations and ensuring the proper conduct of international defence relations; measures to deter and prevent foreign incursions into Australian territory; and the protection of the Defence Force from hindrance or activities which would prejudice its effectiveness. In addition, the AAT has indicated that to make a finding of ‘damage’ it needs to be presented with evidence that the release of information ‘will enable possible enemies of good government to obtain knowledge of the security and defence measures used’.[16]

5.25       The general secrecy offence is intended to sit in the Criminal Code. Section 90.1 of the Code states that the security or defence of a country ‘includes the operations, capabilities and technologies of, and methods and sources used by, the country’s intelligence or security agencies’. However, this definition is situated in Part 5.2 of the Code and relates specifically to espionage and related offences.

5.26       As noted in Chapter 2, the right to freedom of expression may be restricted where necessary to protect national security according to art 19(3) of the International Covenant on Civil and Political Rights (ICCPR).[17] The Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR (Siracusa Principles) state that the term ‘national security’ may be invoked to justify measures taken to protect the ‘existence of the nation, its territorial integrity or political independence against force or threat of force’.[18]

Submissions and consultations

5.27       While stakeholders agreed that national security and defence should be included in the general secrecy offence, a number made submissions in relation to the requirement to prove that the disclosure caused, or was reasonably likely or intended to cause, damage. The AGD expressed the view that individual officers may not be in the best position to make a fully informed assessment of the risk of harm in the national security and intelligence context. The AGD stated that:

In view of these factors, there is merit in considering specific secrecy offences that do not require harm to be established. These specific secrecy offences would protect those types of information where there is reasonable likelihood that harm will always be caused by unlawful disclosure. This could include national security and intelligence information as well as law enforcement information, consistent with the requirement under article 19(3) of the International Covenant on Civil and Political Rights that freedom of expression can be limited by law where necessary for the protection of national security or public order.

5.28       Ron Fraser was firmly of the view, however, that:

The Commission is correct on grounds of general penal principles not to except intelligence and national security information from the need for a harm test. A great deal of information may be properly described as such information, and its unauthorised disclosure will undoubtedly lead to various administrative and employment penalties for officers responsible, but criminal proceedings are not justified in the absence of specifiable harm or potential harm.

ALRC’s views

5.29       The ALRC’s view is that the unauthorised disclosure of Commonwealth information that is reasonably likely, or intended, to damage the security or defence of the Commonwealth should be regulated by the criminal law.

5.30       In Chapter 8, the ALRC considers the specific secrecy offences prohibiting the disclosure of information obtained or generated by the intelligence agencies in connection with their functions, or relating to their functions. The ALRC concludes that these provisions—which do not require the prosecution to prove harm in every case—are justified by the sensitive nature of the information and the special duties and responsibilities of officers and others who work in and with such agencies.[21]

5.31       The general secrecy offence, however, is intended to apply to all Commonwealth officers and to all Commonwealth information. As Fraser notes, a great deal of information has the potential to relate to national security or defence. In this broader context, it is the ALRC’s view that the general secrecy offence should include an express harm requirement. The potential damage likely to be caused by disclosing such information may not be implicit in the information itself, or the context in which it is generated and used.

5.32       The ALRC recommends, therefore, that the general secrecy offence cover unauthorised disclosures that cause, are likely to cause or intended to cause, damage to the security or defence of the Commonwealth.

5.33       The ALRC has considered whether it is necessary to define the terms ‘security’ and ‘defence’ for the purposes of the general secrecy offence. In the ALRC’s view, a definition of the term ‘security’ would assist Commonwealth officers and the courts to understand the scope of the offence. The definition set out in the ASIO Act is appropriate. This definition describes in concrete terms the activities and interests that the general secrecy provision is designed to protect. The term ‘security’ should, therefore, be defined for the purposes of the general secrecy offence by reference to the definition in the ASIO Act. This is consistent with the provisions of the National Security Information (Criminal and Civil Proceedings) Act.

5.34       The term ‘defence of the Commonwealth’ is more concrete and limited than ‘security of the Commonwealth’ and does not require a separate statutory definition. In addition, as noted above, the definition of ‘security’ in the ASIO Act includes ‘attacks on Australia’s defence system’, which is defined to mean activities that are intended to, and are likely to, obstruct, hinder or interfere with the performance by the Defence Force of its functions or with the carrying out of other activities by or for the Commonwealth for the purposes of the defence or safety of the Commonwealth.

5.35       In the ALRC’s view, a secrecy offence framed and defined in this way will be consistent with Australia’s obligations under art 19 of the ICCPR on the basis that it is necessary to protect the existence of the nation, its territorial integrity or political independence against force or threats of force. As always, however, the way the provision is enforced in practice will also need to be consistent with these obligations.

International relations

5.36       The Franks Committee recommended that criminal sanctions should apply to the unauthorised disclosure of official information relating to any matters which concern or affect foreign relations or the conduct of foreign relations.[22] As discussed above, the Franks Committee recommended the use of security classifications to indicate when the unauthorised disclosure of this information would be subject to criminal sanctions. The Gibbs Committee, on the other hand, recommended that the prosecution should be required to prove harm in the case of a disclosure of information relating to foreign relations.[23]

5.37       The 1988 White Paper recommended, and s 3 of the UK Official Secrets Act requires, that in order to attract criminal sanctions the disclosure of information relating to international relations must be damaging.[24] Section 3(2) provides that a disclosure is damaging if:

  1. it endangers the interests of the UK abroad, seriously obstructs the promotion or protection by the UK of those interests or endangers the safety of British citizens abroad; or
  2. it is of information or of a document or article which is such that its unauthorised disclosure would be likely to have any of those effects.

5.38       The FOI Exemption Guidelines provide guidance on what the concept means in the context of FOI:

  • The phrase damage to international relations includes such things as intangible damage to Australia’s reputation or relationships between government officials or loss of confidence or trust in the Government of Australia by an overseas government as well as loss or damage in monetary terms …

  • The phrase international relations concerns the ability to maintain good working relations with other overseas governments and international organisations and to protect the flow of confidential information between them. …

  • Lessening the confidence which another country would place on the government of Australia would satisfy the exemption (Re Maher and Attorney-General’s Department), as would an expected reduction in the quality and quantity of information provided by a foreign government (Re Wang and Department of Employment, Education and Training).

5.39       Section 10 of the National Security Information (Criminal and Civil Proceedings) Act defines ‘international relations’ to mean ‘political, military and economic relations with foreign governments and international organisations’.

5.40       As noted in Chapter 2, according to art 19(3) of the ICCPR, the right to freedom of expression may be restricted where necessary to protect public order. The Siracusa Principles state that the term ‘public order’ is ‘the sum of the rules which ensure the functioning of society or the set of fundamental principles on which society is founded’ and that ‘respect for human rights is part of public order’.[26] As noted above, it is also possible to restrict freedom of expression where necessary to protect ‘national security’.

5.41       In DP 74, the ALRC included ‘damage to international relations’ in the proposed general secrecy offence, but expressed concern that imposing criminal liability on Commonwealth officers for disclosing information that harms, is reasonably likely to harm, or intended to harm Australia’s international relations may be too broad. The ALRC noted that some such disclosures may cause only embarrassment, rather than significant harm.[27]

Submissions and consultations

5.42       Two stakeholders expressed support for including damage to international relations in the general secrecy offence.[28] However, Civil Liberties Australia (CLA) expressed the view that:

  • It would be preferable to qualify the harm as clearly likely to have or intended to have substantial adverse effect on international relations. The FOI Draft Exposure Bill model, that expressly provides that embarrassment or loss of confidence must not be taken into consideration in determining whether on balance, access would be contrary to the public interest, is an appropriate model to follow.

ALRC’s views

5.43       The ALRC’s view is that the intentional unauthorised disclosure of information that is reasonably likely to damage the international relations of the Commonwealth should be regulated by the criminal law. The ALRC recommends that the term ‘international relations’ be defined by reference to the definition provided in s 10 of the National Security Information (Criminal and Civil Proceedings) Act, that is, ‘political, military and economic relations with foreign governments and international organisations’. This means that the provision will be limited to unauthorised disclosures that damage, or are likely or intended to damage, Australia’s political, military or economic relations with other countries or international organisations.

5.44       The ALRC acknowledges that this provision has the potential to be interpreted quite broadly. The ALRC has considered a range of mechanisms for restricting the scope of the provision including, for example, requiring that the disclosure have a ‘substantial adverse effect’ on international relations. The FOI Exemption Guidelines note that ‘substantial adverse effect’ has been interpreted to mean ‘severe, of some gravity, large or weighty or of considerable amount, real or of substance and not insubstantial or nominal consequences’.[30] The ALRC is concerned that imposing a requirement that a disclosure have a ‘substantial adverse effect’ may exclude disclosures that cause damage such as a loss of confidence by foreign governments. Loss of confidence may not be viewed by the courts as sufficiently severe to constitute a substantial adverse effect on international relations. In the ALRC’s view, however, such disclosures have the potential to cause real and significant damage to Australia’s political, military or economic relations with other countries and therefore warrant the imposition of criminal sanctions.

5.45       A disclosure that embarrasses the Australian Government may also cause damage to Australia’s international relations. For example, where a disclosure damaged Australia’s reputation, as well as being ‘embarrassing’, it may lead to a loss of confidence or trust in Australia. A loss of confidence in the Australian Government’s capacity to protect information is likely to result in a restricted flow of information from foreign governments. This, in turn, may impact on Australia’s capacity to protect national security or on Australia’s capacity to function in the global political, military and economic environment.

5.46       As noted above, prosecution under the general secrecy offence will only be consistent with Australia’s international obligations under the ICCPR if it is necessary to protect national security, discussed above, or to ensure the functioning of Australian society (the protection of public order). In the ALRC’s view, the protection of Australia’s international relations is necessary to ensure that Australian society continues to function in the global environment, but a disclosure that merely embarrasses the Australian Government, without threatening real damage to international relations, is unlikely to meet the requirements of art 19 of the ICCPR.

Prejudicing the enforcement of the criminal law

5.47       In its report on s 2 of the UK Official Secrets Act, the Franks Committee noted that:

The public have a right to information about such matters as general police methods and procedures, and prison treatment. These are matters of public interest, and Parliament and the people need adequate information to satisfy themselves that proper and effective measures are being taken and proper standards of behaviour are being observed. But the public have no right to information of a kind which would, for instance, be of direct use in the commission of an offence, or in evading detection or in escaping from prison. Such information requires effective protection.

5.48       The Committee proposed that the criminal law should apply to the unauthorised disclosure of official information that is likely to be helpful in the commission of offences; is likely to be helpful in facilitating escape from legal custody; or likely to impede the prevention or detection of offences or the apprehension or prosecution of offenders.[32]

5.49       The 1988 White Paper agreed and noted that this description of the category of information to be protected ‘already carries its own test of harm within it’. Section 4(2) of the Official Secrets Act applies to any information the disclosure of which:

  1. results in the commission of an offence;
  2. facilitates an escape from legal custody or the doing of any other act prejudicial to the safekeeping of persons in legal custody; or
  3. impedes the prevention or detection of offences or the apprehension or prosecution of suspected offenders.

5.50       Section 4 also applies to information obtained by the interception of communications under warrant, or by reason of any action authorised by warrant under the Security Service Act 1989 (UK).

5.51       The Gibbs Committee expressed the view that ‘because of the detailed statutory regime in Australia regulating the interception of telephone and telegraphic communications’, it would be more appropriate to deal with the disclosure of this category of information in a specific provision relating to interception.[33] The Committee agreed, however, that the information protected by s 4(2) of the Official Secrets Act should also be protected in Australia.

5.52       Section 20A of the New Zealand Summary Offences Act establishes an offence for unauthorised communication of official information likely to:

  • endanger the safety of any person;

  • prejudice the maintenance of confidential sources of information in relation to the prevention, investigation, or detection of offences;

  • prejudice the effectiveness of operational plans for the prevention, investigation, or detection of offences or the maintenance of public order, either generally or in a particular case; or

  • prejudice the safe custody of offenders or of persons charged with offences.

5.53       Section 37(1)(a) of the FOI Act provides that certain information relating to the enforcement or administration of the law should be protected from disclosure. The section states that a document is an exempt document if disclosure would, or could reasonably be expected to:

  • prejudice the conduct of an investigation of a breach, or possible breach, of the law or a failure, or possible failure, to comply with a law relating to taxation; or

  • prejudice the enforcement or proper administration of the law in a particular instance.

5.54       Section 37(1)(b) provides that a document is an exempt document if disclosure would, or could reasonably be expected to, disclose the existence or identity of a confidential source of information—or the non-existence of a confidential source of information—in relation to the enforcement or administration of the law.

5.55       In DP 74, the ALRC expressed the view that the disclosure of information that causes, is likely to cause, or is intended to cause harm to the prevention, detection, investigation, prosecution or punishment of criminal offences should be covered by the general secrecy offence. The formulation in s 37 of the FOI Act appeared, however, to be too wide for this purpose. The FOI Exemption Guidelines explain that s 37 extends to documents that relate to upholding or enforcing the civil law.[34] This highlights the policy differences between FOI legislation and criminal secrecy provisions. Under the FOI Act it is appropriate to protect from disclosure information that relates to all legal proceedings, including civil proceedings. In the ALRC’s view, however, it is not appropriate to impose criminal sanctions for the disclosure of such information in the general secrecy offence.

5.56       The ALRC proposed instead to adopt a narrower formulation based in part on National Privacy Principle (NPP) 2 in the Privacy Act 1988 (Cth). NPP 2 provides an exemption for disclosures that organisations believe are reasonably necessary for one or more of the following by or on behalf of an ‘enforcement body’:[35]

  • the prevention, detection, investigation, prosecution or punishment of criminal offences, breaches of a law imposing a penalty or sanction or breaches of a prescribed law;

  • the enforcement of laws relating to the confiscation of the proceeds of crime; or

  • the protection of the public revenue.

Submissions and consultations

5.57       In response to the Issues Paper, Review of Secrecy Laws (IP 34), the Australian Commission for Law Enforcement Integrity (ACLEI) emphasised the sensitive nature of some of the information it receives:

  • Those who would give information in secret to law enforcement agencies are commonly concerned for their own safety, particularly against reprisals from those whose interests could be adversely affected by the information they provide.

  • These people seek assurance that their information will not be disclosed, whether through inadvertence or corruption. While the details of the measures law enforcement agencies take to keep information confidential are of little interest to these people, what matters is the reputation of an agency for being able to keep secrets.

5.58       ACLEI stated that it was essential to protect the flow of information to the agency, ‘whether it comes from other government agencies, from business, from informers, from covert surveillance activities, or from ordinary members of the public’. ACLEI noted the well-established link between the unauthorised disclosure of information and police corruption, such as the disclosure of information alerting suspects to police raids; disclosing the presence or identity of police informers; and disclosing the use or methods of surveillance or other techniques used to investigate criminal activity:

  • Anti-corruption agencies, such as ACLEI, take a central role in government’s investment in ensuring that particularly sensitive law enforcement information is not compromised by unauthorised disclosure by individuals as a consequence of their corrupt conduct.

5.59       In the view of the Australian Federal Police (AFP), the formulation proposed by the ALRC in DP 74 was too narrow:

  • In our view the wording used by the ALRC to define this interest may be too narrow to cover all activities undertaken by law enforcement agencies. For example, the AFP’s responsibilities under the Family Law Act 1975 may not be adequately covered in the current formulation. In order to cover this type of interest a broader formulation along the lines of the FOI Act section 37(1)(a) may be necessary to include for example ‘prejudice to the enforcement or proper administration of the law’.

5.60       CLA, on the other hand, expressed the view that the proposed formulation was too wide and that the public interest protected should be limited to the enforcement of the criminal law. CLA suggested that the following elements should be removed: the enforcement of laws relating to the confiscation of the proceeds of crime, and the protection of the public revenue.[40]

5.61       The Australian Taxation Office (ATO) noted that the proposal to include the disclosure of information that prejudices the protection of the public revenue would be sufficient to protect internal ATO administrative documents, such as compliance risks and strategies, from disclosure.[41]

ALRC’s views

5.62       The ALRC’s view is that the recommended general secrecy offence should cover the disclosure of information that prejudices, or is likely or intended to prejudice, the prevention, detection, investigation, prosecution or punishment of criminal offences. A secrecy offence framed in this way will be consistent with Australia’s obligations under art 19 of the ICCPR as it is necessary to protect the ‘rules which ensure the functioning of society’, including human rights and the rights of others. As always, however, the way the offence is enforced on a case-by-case basis will also have to be considered in light of Australia’s international obligations under art 19.

5.63       In the ALRC’s view, the formulation in s 37 of the FOI Act is too wide to provide a template for the general secrecy offence because it extends to the administration of any law, including the civil law. Where disclosures that impact on the enforcement of the civil law warrant the protection of the criminal law, this should be done in specific criminal offences that target particular information in specific contexts. The general criminal offence should not extend to unauthorised disclosures of information that would prejudice the enforcement of laws relating to the confiscation of the proceeds of crime, or the protection of the public revenue. Taxation legislation and proceeds of crime legislation already contain specific secrecy offences targeting Commonwealth information in those contexts.[42]

5.64       In addition, the general criminal offence should not cover unauthorised disclosures of information that would prejudice the prevention, detection, investigation, prosecution or punishment of a breach of a law imposing penalties or sanctions that are not criminal. It would be excessive to impose criminal sanctions in the general secrecy offence for disclosures of information that threatened civil or administrative processes.

5.65       The ALRC recognises, however, that there may be some circumstances in which the disclosure of such information may warrant criminal sanctions—for example, in the area of corporate regulation where significant civil penalties are imposed for serious breaches of the law. In particular, this may be appropriate where civil penalties are included in provisions regulating entities as an alternative to criminal penalties because imprisonment is not an option in sentencing entities. In these circumstances, there may be a need for specific offences to protect the investigatory process. For example, the Australian Securities and Investments Commission Act 2001 (Cth) makes it an offence to use or disclose records of witness examinations made in the course of an investigation, except in compliance with the conditions imposed by ASIC.[43] Any such specific secrecy offences should be considered in light of the ALRC’s recommendations in Chapters 8 to 11.

5.66       The ALRC has not included elements in the general secrecy offence based on the exemption set out in s 37(2)(a) of the FOI Act—that is, where disclosure would, or could reasonably be expected to, prejudice the fair trial of a person or the impartial adjudication of a particular case. This is because the courts have their own procedures for protecting their processes and may impose penalties for such conduct. For example, under the law of contempt the courts may impose penalties for failure to comply with a court order, or an undertaking made to the court, restricting the publication of evidence adduced in closed proceedings.

Endangering the life or physical safety of any person

5.67       Section 37(1)(c) of the FOI Act provides that a document is an exempt document if disclosure would, or could reasonably be expected to, endanger the life or physical safety of any person.

5.68       As noted in Chapter 2, under art 19(3) of the ICCPR, the right to freedom of expression may be restricted where necessary to protect the rights of others.

5.69       In DP 74, the ALRC proposed using a formulation based on s 37(1)(c) of the FOI Act, but suggested that a somewhat broader approach might be based on the language used in NPP 2: ‘a serious threat to an individual’s life, health or safety’. There was some support expressed for including this element in the general secrecy offence.[44] Only one stakeholder expressed support for the broader language used in NPP 2.[45]

ALRC’s views

5.70       The ALRC’s view is that a disclosure of Commonwealth information that endangered, was reasonably likely to endanger, or intended to endanger the life or physical safety of any person should be covered by the proposed general secrecy offence. This kind of information might include, for example, the personal details of a police informant.[46] This approach recognises that disclosing information that endangers an individual’s life or safety is a serious matter warranting criminal sanctions. A secrecy offence framed in this way will be consistent with Australia’s obligations under art 19 of the ICCPR as it is necessary to protect the rights of others although, as always, it will be important to ensure that any prosecutions are brought in circumstances that are consistent with art 19.

5.71       The ‘life, health or safety’ formulation put forward in DP 74 was developed in the context of allowing, rather than restricting, disclosures of personal information under the Privacy Act. In the ALRC’s view, unauthorised disclosures of information that are likely to endanger a person’s health—for example, where the information was likely to exacerbate a mental health issue—should not generally attract criminal sanctions. Where the unauthorised disclosure would pose such a threat to a person’s health that it would endanger their life or physical safety, the general secrecy offence would apply.

Prejudicing the protection of public safety

5.72       Section 37(2)(c) of the FOI Act provides that a document is an exempt document if disclosure would, or could reasonably be expected to, prejudice the maintenance or enforcement of lawful methods for the protection of public safety.

5.73       As noted in Chapter 2, art 19(3) of the ICCPR states that freedom of expression may be restricted where necessary to protect public order, public health and the rights of others.

5.74       In DP 74, the ALRC proposed using a formulation based on NPP 2, that is, that the unauthorised disclosure would pose ‘a serious threat to public health or public safety’. Only one stakeholder expressed support for the broader language used in NPP 2.[47]

ALRC’s views

5.75       The ALRC’s view is that a disclosure of Commonwealth information that prejudiced, was reasonably likely to prejudice, or intended to prejudice the protection of public safety should be covered by the general secrecy offence. This approach recognises that disclosing Commonwealth information that threatens public safety is a serious matter warranting a criminal penalty. A secrecy offence framed in this way will be consistent with Australia’s obligations under art 19 of the ICCPR as it is necessary to protect public order and the rights of others although, as always, it will be important to ensure that any prosecutions are brought in circumstances that are consistent with art 19.

5.76       The ALRC has concluded that unauthorised disclosures of information that are likely to prejudice the protection of public health—for example, the location of national supplies of a vaccine being stockpiled in a secure location in case of national emergency—would also prejudice the protection of public safety. On this basis, the ALRC is not recommending the formulation put forward in DP 74 based on NPP 2.

Recommendation 5–1   The general secrecy offence should require that the disclosure of Commonwealth information did, or was reasonably likely to, or intended to:

  1. damage the security, defence or international relations of the Commonwealth;
  2. prejudice the prevention, detection, investigation, prosecution or punishment of criminal offences;
  3. endanger the life or physical safety of any person; or
  4. prejudice the protection of public safety.

Recommendation 5–2   The terms ‘security’ and ‘international relations’ should be defined for the purposes of the general secrecy offence by reference to the relevant provisions of the Australian Security Intelligence Organisation Act 1979 (Cth) and the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth).

[1]           Recommendation 4–1. Section 70 is described in detail in Chs 3 and 4, and set out in full in Appendix 5.

[2]           Australian Public Service Commission, APS Values and Code of Conduct in Practice (2005) <www.apsc.gov.au> at 30 November 2009.

[3]           Freedom of Information Act 1982 (Cth) s 3(1)(b). The Exposure Draft, Freedom of Information Amendment (Reform) Bill 2009 (Cth) proposes a revised objects clause, which is set out in Ch 2 of this Report.

[4]           Australian Securities & Investments Commission, Submission SR 41, 17 March 2009.

[9]           Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 (Cth) sch 1 cl 5 repeals the provisions of the FOI Act that previously permitted a minister or delegate to issue a conclusive certificate in relation to documents exempt under s 33(1) of the FOI Act.

[10]          Departmental Committee on Section 2 of the Official Secrets Act 1911, Report of the Committee, Vol 1 (1972), 56.

[11]          Ibid, 56.

[12]          United Kingdom Government Home Office, Reform of Section 2 of the Official Secrets Act 1911 (1988), [75].

[13]          H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Final Report (1991), 323. This issue is discussed further in relation to specific secrecy offences in Ch 8.

[14]          Australian Government Solicitor, FOI Guidelines—Exemption Sections in the FOI Act (2009) <www.dpmc.gov.au> at 9 September 2009, 3.3.1.

[15]          See, eg, Re Slater and Cox (Director-General of Australian Archives) (1988) 15 ALD 20; Hocking and Department of Defence (1987) 12 ALD 554; Re Throssell and Australian Archives (1987) 10 ALD 403.

[16]          Australian Government Solicitor, FOI Guidelines—Exemption Sections in the FOI Act (2009) <www.dpmc.gov.au> at 9 September 2009, 3.3.2.

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

[18]          United Nations Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, E/CN.4/1985/4 (1984), [29].

[19]          Attorney-General’s Department, Submission SR 67, 14 August 2009.

[20]          R Fraser, Submission SR 78, 21 August 2009.

[21]          For example, Australian Security Intelligence Organisation Act 1979 (Cth) s 18; Intelligence Services Act 2001 (Cth) ss 39, 39A and 40.

[22]          Departmental Committee on Section 2 of the Official Secrets Act 1911, Report of the Committee, Vol 1 (1972), 50.

[23]          H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Final Report (1991), [31.50(c)].

[24]         United Kingdom Government Home Office, Reform of Section 2 of the Official Secrets Act 1911 (1988), [50].

[25]          Australian Government Solicitor, FOI Guidelines—Exemption Sections in the FOI Act (2009) <www.dpmc.gov.au> at 9 September 2009, [3.3.3].

[26]          United Nations Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, E/CN.4/1985/4 (1984), [29].

[27]          Australian Law Reform Commission, Review of Secrecy Laws, Discussion Paper 74 (2009), [7.64].

[28]          Attorney-General’s Department, Submission SR 67, 14 August 2009; Australia’s Right to Know, Submission SR 35, 6 March 2009.

[29]          Civil Liberties Australia, Submission SR 47, 27 July 2009.

[30]          Australian Government Solicitor, FOI Guidelines—Exemption Sections in the FOI Act (2009) <www.dpmc.gov.au> at 9 September 2009, [1.1.6.1].

[31]          Departmental Committee on Section 2 of the Official Secrets Act 1911, Report of the Committee, Vol 1 (1972), 64.

[32]          Ibid, 65.

[33]          Section 63 of the Telecommunications (Interception and Access) Act 1979 (Cth) is discussed in Ch 8.

[34]          Australian Government Solicitor, FOI Guidelines—Exemption Sections in the FOI Act (2009) <www.dpmc.gov.au> at 9 September 2009, [8.1.2].

[35]          Privacy Act 1988 (Cth) s 6 sets out a definition of ‘enforcement body’, which includes the Australian Federal Police (AFP), the Australian Crime Commission (ACC), the Australian Prudential Regulation Authority (APRA) and ASIC.

[36]          Ibid sch 3.

[37]          Australian Commission for Law Enforcement Integrity, Submission SR 18, 18 February 2009.

[38]          Ibid.

[39]          Australian Federal Police, Submission SR 70, 14 August 2009.

[40]          Civil Liberties Australia, Submission SR 47, 27 July 2009.

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

[42]          Proceeds of Crime Act 2002 (Cth) ss 210(1), (2); 217; 223(1), (2), (3); Taxation Administration Act 1953 ss 3C; 3D; 3E(2), (2B), (5), (6C); 3EA; 3EB; 3EC; 3G(6), (9); 3H(5), (8); 8WB; 8XA; 8XB; 13H; 13J; sch 1 s 355-5.

[43]          Australian Securities and Investments Commission Act 2001 (Cth) ss 25, 26.

[44]          Attorney-General’s Department, Submission SR 36, 6 March 2009; Australia’s Right to Know, Submission SR 35, 6 March 2009.

[45]          Civil Liberties Australia, Submission SR 47, 27 July 2009.

[46]          Australian Government Solicitor, FOI Guidelines—Exemption Sections in the FOI Act (2009) <www.dpmc.gov.au> at 9 September 2009, [8.5.6].

[47]          Civil Liberties Australia, Submission SR 47, 27 July 2009.