Whose conduct should be regulated?

6.3          Chapter 3 provides an overview of the parties regulated by existing federal secrecy provisions. As noted in that chapter, secrecy provisions can apply to:

  • ·                Commonwealth employees;

  • ·                organisations or individuals providing services for or on behalf of the Commonwealth;

  • ·                Commonwealth agencies;

  • ·                other specific categories of organisations or individuals; or

  • ·                ‘any person’.

6.4          In this section, the ALRC considers whether the general secrecy offence, to be included in the Criminal Code, should regulate the behaviour of ‘Commonwealth public officials’ as defined in the Code, or a smaller group of ‘Commonwealth officers’ defined separately for the purposes of the new offence.

‘Commonwealth officer’ under the Crimes Act

6.5          Section 70 of the Crimes Act applies to a ‘Commonwealth officer’, defined in s 3 of that Act to mean:

a person holding office under, or employed by, the Commonwealth, and includes:

(a)  a person appointed or engaged under the Public Service Act 1999;

(aa)   a person permanently or temporarily employed in the Public Service of a Territory or in, or in connection with, the Defence Force, or in the Service of a public authority under the Commonwealth;

(b)  the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an [Australian Federal Police] employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979); and

(c)  for the purposes of section 70, a person who, although not holding office under, or employed by, the Commonwealth, a Territory or a public authority under the Commonwealth, performs services for or on behalf of the Commonwealth, a Territory or a public authority under the Commonwealth; and

(d)  for the purposes of section 70:

(i)     a person who is an employee of the Australian Postal Corporation;

(ii)    a person who performs services for or on behalf of the Australian Postal Corporation; and

(iii)   an employee of a person who performs services for or on behalf of the Australian Postal Corporation.[3]

6.6          The definition is fairly broad and although there is some uncertainty at the outer limits, as discussed below, it clearly covers: Australian Public Service (APS) employees; others employed by or holding office under the Commonwealth; those who perform services for or on behalf of the Commonwealth; and those employed by ‘public authorities’, defined as ‘any authority or body constituted by or under a law of the Commonwealth or of a Territory’. The definition also specifically covers the Australian Federal Police (AFP), the Australian Defence Force (ADF) and the Australian Postal Corporation.

 ‘Commonwealth public official’ under the Criminal Code

6.7          The Criminal Code includes a number of offences concerning the conduct of a ‘Commonwealth public official’.[4] The term ‘Commonwealth public official’ is defined exhaustively in the Dictionary to the Code, and includes elements from all three branches of government—the executive, the legislature and the judiciary.[5] The Revised Explanatory Memorandum for the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 2000 (Cth) states, in relation to this definition, that:

‘Commonwealth public official’ includes a broad group of people including Commonwealth employees and officers, Members of Parliament, judges, police, contractors, military personnel and those employed by Commonwealth authorities.[6]

The definition ‘sets the scope of the protection of the theft, fraud, bribery and related offences which are to assist with the proper administration of government’.[7]

6.8          The definition includes bodies established ‘by or under a law of the Commonwealth’ created to perform government functions. The Explanatory Memorandum notes that the current definition of ‘public authority under the Commonwealth’ in s 3 of the Crimes Act, which includes any authority or body constituted by or under a law of the Commonwealth or of a Territory, ‘lacks sufficient discrimination’.[8]

6.9          A number of bodies and organisations are expressly excluded because they are separate from the Commonwealth government. These include Indigenous councils and associations; the ACT, Northern Territory and Norfolk Island Governments; and corporations and bodies such as registered unions and employer associations.[9]

ALRC’s views

6.10       The executive branch of government collects and generates vast amounts of information. In particular, the executive collects information from and about private individuals on both a voluntary and compulsory basis. It is this sector that is the main focus of s 70 of the Crimes Act. In the ALRC’s view, the new general secrecy offence should also regulate the disclosure of information by officers of the executive branch.

6.11       Although both the legislative and judicial branches collect information from individuals and organisations, the context in which this information is collected and used is quite different from the executive branch. Much of the information is collected in the context of public processes, such as court hearings and parliamentary committee inquiries. These processes raise different issues in relation to disclosure of information, and have their own rules and procedures to protect information in appropriate circumstances. It is also possible to make specific provision in legislation regarding disclosure of certain executive branch information to the judicial and legislative branches of government and this has been done in a number of existing secrecy provisions.[10]

6.12       The definition of ‘Commonwealth public official’ in the Criminal Code includes officials from all three branches of government, but it is possible to distinguish between the offences set out in the Criminal Code—such as bribery and abuse of public office—that apply to ‘Commonwealth public officials’, and the general secrecy offence that is intended to protect information collected and generated by the executive. The existing Criminal Code offences are directed at corruption in public office, while the general secrecy offence is directed at protecting information held by government. For this reason, the ALRC is of the view that it is not appropriate to rely on the definition of ‘Commonwealth public official’ in the Criminal Code to define those who are subject to the general secrecy offence. Instead, ‘Commonwealth officer’ should be defined separately for the purposes of the proposed new offence.

6.13       The following section examines the categories of people covered by the definitions of ‘Commonwealth officer’ in the Crimes Act and ‘Commonwealth public official’ in the Criminal Code and the extent to which these overlap. The ALRC then considers which categories should be incorporated into the definition of ‘Commonwealth officer’ for the purposes of the new general secrecy offence.

Public sector employees

6.14       The following categories are taken from the definition of ‘Commonwealth public official’ in the Criminal Code. They cover APS employees and other public sector employees and, although the categories are not defined in exactly the same way as their equivalents in the Crimes Act, there is a significant degree of overlap:

  • ·                APS employees;

  • ·                other individuals employed by the Commonwealth otherwise than under the Public Service Act 1999 (Cth);

  • ·                members of the ADF;

  • ·                members or special members of the AFP;

  • ·                individuals who hold or perform the duties of an office established by or under a law of the Commonwealth;

  • ·                officers and employees of Commonwealth authorities, as defined in the Criminal Code; and

  • ·                individuals who exercise powers, or perform functions, conferred on them by or under a law of the Commonwealth.

6.15       These categories represent the key working units of the executive branch of government that are responsible for collecting, generating and controlling the flow of Commonwealth information. The extent to which these categories cover judicial officers is discussed further below.

6.16       In DP 74, the ALRC proposed that these categories form the core of the definition of ‘Commonwealth officer’ for the purposes of the general secrecy offence. A number of stakeholders expressed support for this proposal.[11] The ALRC recommends that the definition of ‘Commonwealth officer’ include these elements of the definition of ‘Commonwealth public official’.

Contracted service providers

6.17       Currently, the definition of ‘Commonwealth officer’ in s 3 of the Crimes Act includes ‘a person who … performs services for or on behalf of the Commonwealth, a Territory or a public authority under the Commonwealth’. This paragraph was added to the definition in 1987, in order to reflect the changing and increasingly dispersed nature of government and government service provision.[12] It recognises that Commonwealth information is often handled by those contracted to provide goods and services to or on behalf of the Commonwealth.

6.18       The Revised Explanatory Memorandum for the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill notes that the definition of ‘Commonwealth public official’ in the Criminal Code also extends to Commonwealth contracted service providers, that is:

those who provide services by contract rather than as an office holder or employee ... Often these people have responsibilities that are indistinguishable from departmental officers. While they are covered by the Crimes Act 1914 definition of ‘Commonwealth officer’ for some offences (non-disclosure, theft, falsification of records, corruption, impersonation and obstruction—sections 75 to 76), there is no reason why they should not be subject to the full range of Chapter 7 offences (including the fraud related offences).

The definition of ‘contracted service provider’ covers parties to a contract with a ‘Commonwealth entity’ but also subcontractors. Often it is the subcontractors who provide the services.[13]

6.19       The definition of ‘Commonwealth public official’ in the Dictionary to the Criminal Code dictionary includes:

  • ·                individuals who are contracted service providers for a Commonwealth contract; and

  • ·                individuals who are officers or employees of a contracted service provider for a Commonwealth contract and who provide services for the purposes (whether direct or indirect) of the Commonwealth contract.

6.20       The term ‘contracted service provider for a Commonwealth contract’ is also defined in the Criminal Code to mean a person who is a party to the Commonwealth contract and who is responsible for the provision of services to a Commonwealth entity under the Commonwealth contract; or a subcontractor for the Commonwealth contract.

6.21       These provisions are specifically directed to individuals, rather than entities. There is an argument, in the context of the general secrecy offence, that entities that are contracted service providers should also be subject to the offence. The Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth) (the Tax Laws Exposure Draft Bill) defines ‘taxation officer’ broadly to include:

an entity engaged to provide services relating to the [Australian Taxation Office (ATO)] (such as cleaning firms or IT contractors) and any individual employed or subcontracted by such an entity.[14]

Submissions and consultations

6.22       There was considerable support in submissions for ensuring that the proposed general secrecy offence continues to cover Commonwealth contracted service providers.[15] The Department of Human Services (DHS), for example, stated that:

The extent of outsourcing and potential partnerships with non-Commonwealth entities makes it necessary that secrecy laws bind [contracted service providers] and partners as if they were Commonwealth employees. The Department notes that, in respect of personal information, this is consistent with s 95B and IPP 4 of the Privacy Act [1988 (Cth)], which require that contracted service providers are held to the same privacy standards that would have applied if the service or function they are performing for or on behalf of an agency had been performed by the agency itself.[16]

6.23       The Treasury provided the following example:

Treasury considers that it is appropriate that secrecy obligations have a wide application to reflect the reality that private individuals and entities are increasingly being used to assist in the provision of government services. In the taxation context, a clear example is the use of debt collection agencies to assist with the collection of outstanding taxation debt. Although disclosed outside of a Commonwealth Government agency, the sensitivity of the information is not diminished, nor is the policy justification for ensuring a high level of protection of that information.[17]

6.24       The Australian Intelligence Community (AIC)[18] suggested that this element could be expanded to cover persons who have ‘any contract, agreement or arrangement’ with the Commonwealth, to reflect the width of the relevant provisions of the Intelligence Services Act 2001 (Cth)[19] and the Australian Security Intelligence Organisation Act 1979 (Cth)[20] in this regard.[21] The Department of Health and Ageing (DoHA) was also concerned that the provision was not wide enough and would not cover, for example, external members of departmental committees and researchers who receive information for the purposes of research.[22]

ALRC’s views

6.25       The ALRC agrees that Commonwealth contracted service providers should be covered by the new general secrecy offence. This reflects the reality that contracted service providers are increasingly involved in the business of government, including the provision of government services. They collect and generate large amounts of information, which would clearly be Commonwealth information if it were collected or generated by an Australian Government agency, and has the potential to cause the same kind and degree of harm if disclosed without authority. This information should be protected in the same way by the criminal law, whether it happens to be held by the public or private sector.

6.26       The ALRC recommends, therefore, that the definition of ‘Commonwealth officer’ for the purposes of the general secrecy offence should include individuals and entities that are contracted service providers under a Commonwealth contract. The ALRC is of the view that contracted entities should also be subject to the deterrent value of the criminal law. This will encourage such entities to ensure that appropriate measures are put in place to protect Commonwealth information. The general secrecy offence should extend to officers and employees of contracted service providers and to sub-contractors.

6.27       In Chapter 13, the ALRC recommends that contracted service providers should take steps to ensure that contractors’ employees who have access to Commonwealth information are made aware of their obligations of secrecy, including the circumstances in which criminal liability could result.

6.28       The ALRC does not recommend, however, that the definition be broadened to include any person who has an ‘agreement or arrangement’ with the Commonwealth. Such provisions feature in the specific secrecy offences governing the AIC. Given the context and the nature of these agencies, individuals entering into an agreement or arrangement to share information—no matter how informal the arrangements might be—should have been made aware of the sensitive nature of the information involved and the implications of unauthorised disclosure.

6.29       In the wider public sector context, an ‘agreement’ or ‘arrangement’ of itself is not sufficient, in the ALRC’s view, to impose potential criminal liability under the general secrecy offence on persons who are not otherwise ‘Commonwealth officers’. In this context, something more is warranted to ensure that the parties understand that the information is being disclosed in confidence, and the reasonable likelihood that a subsequent unauthorised disclosure will be harmful. The ALRC recommends, below, an offence for the unauthorised subsequent disclosure of information that has been disclosed by a Commonwealth officer to a non-Commonwealth officer on terms requiring it to be held in confidence, where the subsequent disclosure causes, or is reasonably likely to cause, harm to one of the essential public interests set out in Recommendation 5–1.[23] This offence is intended to cover parties who are not ‘Commonwealth officers’ but who are given access to Commonwealth information on a confidential basis—such as external departmental committee members or researchers.

The Governor-General

6.30       The Governor-General belongs to the executive branch of government and has access to Commonwealth information at the highest level. The Revised Explanatory Memorandum for the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill states that:

The definition of ‘Commonwealth officer’ in subsection 3(1) of the Crimes Act 1914 is very unsatisfactory. This is because there have even been doubts expressed in the past that it covers Ministers and it does not even cover the Governor-General. It is critical that all people who perform duties and functions for the Commonwealth are covered.[24]

6.31       It appears that the Governor-General does not fall within the definition of ‘Commonwealth officer’ in the Crimes Act, and so would not be liable to prosecution under s 70. The Governor-General would, however, be liable to prosecution under s 79(3) of the Crimes Act, in certain circumstances, as the provision applies to any person.

6.32       In DP 74, the ALRC proposed that, although the Governor-General is not currently subject to s 70 of the Crimes Act, the conduct of the Governor-General should be regulated by the new general secrecy offence.[25] The ALRC did not receive any submissions in relation to this issue, and recommends that the Governor-General should be included in the definition of ‘Commonwealth officer’ for the purposes of the general secrecy offence.

6.33       The Governor-General’s staff are appointed or employed under the Governor-General Act 1974 (Cth) and will, therefore, be covered by other elements of the definition of ‘Commonwealth officer’ developed for the purposes of the new offence. The Governor-General’s Official Secretary, for example, is ‘an individual who holds or performs the duties of an office established by or under a law of the Commonwealth’ and other staff will be individuals ‘employed by the Commonwealth otherwise than under the Public Service Act’.

Ministers and parliamentary secretaries

6.34       As noted in the Revised Explanatory Memorandum for the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill, there is some doubt whether the definition of ‘Commonwealth officer’ in the Crimes Act extends to cover ministers.[26] By way of contrast, however, Lindgren J in Wong v Minister for Immigration and Multicultural and Indigenous Affairs reasoned that they should be covered:

The expression ‘Commonwealth officer’ is defined in s 3 of the Crimes Act 1914 to mean ‘a person holding office under, or employed by, the Commonwealth’, and to include particular office-holders listed in the definition. Section 64 of the Constitution empowers the Governor-General to appoint ‘officers’ to administer departments of State of the Commonwealth, and provides that ‘[s]uch officers shall hold office during the pleasure of the Governor-General’.[27]

6.35       As with the Governor-General, ministers and parliamentary secretaries belong to the executive branch of government and have access to Commonwealth information at the highest level.[28] Some specific secrecy offence provisions, such as s 150 of the Child Support (Assessment) Act 1989 (Cth), expressly apply to ministers. Ministers and parliamentary secretaries are also potentially subject to prosecution under s 79(3) of the Crimes Act. It is arguable, therefore, that the activity of ministers and parliamentary secretaries should be regulated by the new general secrecy offence.

6.36       The 1972 United Kingdom (UK) departmental committee chaired by Lord Franks (the Franks Committee) was of the view that, while ministers largely authorise themselves to disclose official information, they are under the same duty as public servants to protect information that may be damaging, and should be covered by secrecy provisions.[29]

6.37       On the other hand, ministers are sometimes required to decide whether or not it is in the public interest to disclose certain information. A minister may decide to release information even though the disclosure may cause harm to a particular public interest—for example, Australia’s relationship with another country. John McGinness noted that:

Sections 70 and 79(3) do not specify who may authorise the disclosure of information. A committee which reviewed equivalent provisions in the United Kingdom suggested that in practice authorisation for this purpose is implied, flowing from the nature of public servants’ duties. It accepted that Ministers and ‘senior’ civil servants are self-authorising.[30]

Submissions and consultations

6.38       The ALRC received only a few submissions on this issue but Harry Evans, the Clerk of the Senate, noted that the proposed general secrecy offence would not apply to ministers and parliamentary secretaries in respect of their participation in parliamentary proceedings.[31] This is because such disclosures are protected by parliamentary privilege.[32]

6.39       In his submission, Dr James Renwick suggested that:

although public servants are often blamed for the leaking of information, it is widely suspected that most leaks of information come from the offices of ministers, usually from their staff (who, these days, are rarely public servants). Any criminal or civil law sanctions imposed to prevent leaking by public servants ought equally apply to ministerial staffers.[33]

6.40       The Australian Privacy Foundation agreed.[34]

ALRC’s views

6.41       The ALRC recommends that, for the purposes of the general secrecy offence, the definition of ‘Commonwealth officer’ should include ministers and parliamentary secretaries. In order to address the issue of disclosures authorised by the minister, the ALRC recommends in Chapter 7 that one of the exceptions to the new general secrecy offence should be disclosure with the approval of the responsible minister, who would have to certify that disclosure is in the public interest in any particular case.[35]

6.42       Ministerial staff are generally employed under the Members of Parliament (Staff) Act 1984 (Cth) and will, therefore, be individuals ‘employed by the Commonwealth otherwise than under the Public Service Act’ and, as such, will fall within the definition of ‘Commonwealth officer’ for the purposes of the new general secrecy offence. Although the exception for approval by the minister will allow some information to be disclosed by ministerial staff, this will not protect ministers’ staff from prosecution for unauthorised ‘leaks’ where information is disclosed without the minister’s authority.

Former Commonwealth officers

6.43       Section 70 of the Crimes Act expressly regulates the behaviour of persons who are Commonwealth officers,[36] as well as those who have been Commonwealth officers.[37]

6.44       As noted in Chapters 3 and 13, the common law duty of loyalty and fidelity provides some protection for information acquired during the employment relationship once that relationship ends. Leo Tsaknis notes that the common law duty allows former employees to use the knowledge, skills and experience gained as an employee in order to carry out their profession or trade, while also protecting confidential information where disclosure would have an adverse impact on the employer’s business.[38]

6.45       Tsaknis argued, however, that s 70(2) of the Crimes Act does not draw a distinction between information that is confidential and information that is not, and expresses the view that this imposes ‘a form of servitude that the common law would not countenance’ on former officers.[39] Paul Finn agreed with this view, stating that this provision is ‘objectionably wide in its scope and mysterious in its possible applications’.[40]

Submissions and consultations

6.46       In DP 74, the ALRC proposed that the general secrecy offence should apply to both current and former Commonwealth officers.[41] A number of stakeholders expressed support for this position,[42] some noting that it would significantly undermine the utility of the provisions if they did not extend to former officers.[43] The Australian Prudential Regulation Authority (APRA), for example, stated that the effectiveness of its secrecy provision would be ‘dramatically curtailed if it did not apply to former officers’.[44]

6.47       In response to the Issues Paper, Review of Secrecy Laws (IP 34), the Australian Government Attorney-General’s Department (AGD) submitted that:

If there are strong reasons for protecting information based upon its nature and the harm to the public interest if it is disclosed, it would seem to follow that secrecy laws should extend, in most cases, to individuals who formerly held positions where they were required to keep the relevant information confidential. To exclude such persons from the ambit of secrecy laws would frustrate their purpose, as it would allow a person to avoid any penalty simply by resigning from the relevant office before making an unauthorised disclosure.[45]

6.48       The Australian Securities and Investments Commission noted that, if a secrecy provision included a ‘harm to the public interest’ test, this would allow former Commonwealth officers to disclose certain information, for example, where the information had become dated and was no longer relevant to the operations of the agency.[46]

ALRC’s views

6.49       The ALRC’s view is that the general secrecy offence should apply to both current and former Commonwealth officers. The ALRC agrees with stakeholders that it would significantly undermine the utility of the provision if it did not extend to former officers. This problem is especially acute in relation to those who have had access to highly sensitive information, for example, in the AIC or law enforcement contexts. The requirement, discussed in Chapter 5, that to attract criminal liability any disclosure must cause harm, be reasonably likely to cause harm, or be intended to cause harm will limit the circumstances in which former Commonwealth officers will be liable.

Members of the Houses of Parliament

6.50       Members of the Australian Parliament—both senators and members of the House of Representatives—who are not ministers or parliamentary secretaries, form part of the legislative, rather than the executive, branch of government. While Members of Parliament do not fall within the definition of ‘Commonwealth officer’ in s 3 of the Crimes Act, they are expressly included in the definition of ‘Commonwealth public official’ in the Criminal Code. On occasion they do have access to Commonwealth information that is not in the public domain, for example, when they are approached by whistleblowers or briefed on government proposals. Members of Parliament would be liable to prosecution for unauthorised disclosure of such information under s 79(3) of the Crimes Act, in certain circumstances.

6.51       The general secrecy offence targets Commonwealth information held by Commonwealth officers. In DP 74, the ALRC did not propose extending the definition of Commonwealth officer beyond the executive branch to include Members of Parliament who are not ministers or parliamentary secretaries. The ALRC did not receive any specific feedback on this point and is not recommending that the definition of Commonwealth officer should include Members of Parliament. Members of Parliament may, however, be liable to criminal penalties if in breach of the subsequent disclosure offences discussed below.[47]

6.52       In addition, Members of Parliament are liable to criminal penalties for breach of other provisions of the Criminal Code. These include provisions that prohibit a Commonwealth public official from using any information that was obtained in his or her capacity as an official with the intention of dishonestly obtaining a benefit for himself or herself or for another person, or dishonestly causing a detriment to another person.[48]

Commonwealth judicial officers

6.53       The Revised Explanatory Memorandum for the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill states that:

Certain judicial officers are covered by the Crimes Act 1914 definition of ‘Commonwealth officer’ (subsection 3(1)) which covers any person holding office under the Commonwealth. This would include judges of federal courts but there is less certainty about the status of judicial registrars, and State and Territory judges and officials performing judicial functions.[49]

6.54       Judicial officers, when acting judicially, do not form part of the executive branch of government, but comprise the judicial branch. The Australian Constitution establishes the principle of the separation of powers, meaning that the three functions of government—the power to make laws, administer laws and decide disputes—are conferred on three different branches of government: the legislature, the executive and the judiciary. The independence of the judicial branch and the strict separation of judicial power, established under Chapter III of the Australian Constitution, is fundamental to Australia’s system of government. General secrecy provisions must not, therefore, interfere with, or limit, the exercise of federal judicial power by a federal court.

6.55       It is possible to confer executive functions on judicial officers—acting as designated persons rather than in their judicial capacity—for example, the power to issue warrants under the Telecommunications (Interception and Access) Act 1979 (Cth). In Grollo v Palmer, Gummow J expressly considered this situation and the fact that judicial officers might be subject to prosecution under s 70 for breach of a duty of non-disclosure arising under the Telecommunications (Interception and Access) Act or, possibly, under s 79 of the Crimes Act. In this case, Gummow J found that the ambit of the duty imposed by these provisions ‘stops short of impeding discharge of the higher duty flowing from Chapter III of the Constitution’ but noted that his decision rested on the construction of the particular provisions under consideration.[50]

6.56       Judicial officers are liable to criminal penalties for breach of existing provisions of the Criminal Code, including s 142.2 on misuse of official information by Commonwealth public officials, discussed above.[51]

ALRC’s views

6.57       The general secrecy offence targets Commonwealth information held by Commonwealth officers in the executive branch of government. The ALRC does not recommend that the definition of Commonwealth officer be extended beyond the executive branch to include judicial officers acting in their judicial capacity. However, judicial officers may be liable under the general secrecy offence when appointed as designated persons to perform executive functions under Commonwealth legislation, to the extent that this is consistent with the exercise of federal judicial power.

6.58       In addition, the ALRC recommends the enactment of two offences prohibiting the subsequent disclosure of Commonwealth information by any person, where the person receives the information in confidence, or knowing that, or reckless as to whether, the information has been disclosed in breach of the general secrecy offence.[52] These offences would apply to any person including, potentially, those working in the judicial and legislative branches of government. The offence would, however, be subject to the operation of the Australian Constitution, including the requirement not to interfere with the exercise of judicial power, and the doctrine of parliamentary privilege.

Recommendation 1–1               The general secrecy offence should regulate the conduct of those who are, or have been, ‘Commonwealth officers’, defined as follows:

Recommendation 1–2               the Governor-General;

Recommendation 1–3               (b)         ministers and parliamentary secretaries;

Recommendation 1–4               (c)                     Australian Public Service employees, that is, individuals appointed or engaged under the Public Service Act 1999 (Cth);

Recommendation 1–5               (d)                     individuals employed by the Commonwealth otherwise than under the Public Service Act;

Recommendation 1–6               (e)                     members of the Australian Defence Force;

Recommendation 1–7               (f)                     members or special members of the Australian Federal Police;

Recommendation 1–8               (g)                     individuals who hold or perform the duties of an office established by or under a law of the Commonwealth;

Recommendation 1–9               (h)                     officers or employees of Commonwealth authorities;

Recommendation 1–10           (i)                     individuals who exercise powers, or perform functions, conferred on them by or under a law of the Commonwealth;

Recommendation 1–11           (j)                     individuals and entities who are contracted service providers for a Commonwealth contract; or

Recommendation 1–12           (k)                     individuals who are officers or employees of a contracted service provider for a Commonwealth contract and who provide services for the purposes (whether direct or indirect) of the Commonwealth contract.

[1]           Sections 70 and 79(3) are described in detail in Chs 3 and 4, and set out in full in Appendix 5.

[2]           Australian Law Reform Commission, Review of Secrecy Laws, Discussion Paper 74 (2009), Proposals
8–1 and 8–3.

[3]           Crimes Act 1914 (Cth) s 3.

[4]           These include the offence of ‘Abuse of Public Office’ that, in part, prohibits public officials from using any information that the official has obtained in the official’s capacity as a public official with the intention of dishonestly obtaining a benefit for himself or herself or for another person; or dishonestly causing a detriment to another person: Criminal Code (Cth) s 142.2.

[5]           The definition is set out in full in Appendix 5.

[6]           Revised Explanatory Memorandum, Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 2000 (Cth), [367].

[7]           Ibid.

[8]           Ibid.

[9]           See, eg, Criminal Code (Cth) dictionary, definition of ‘Commonwealth public official’ paras (n) and (r).

[10]          See, eg, Law Enforcement Integrity Commissioner Act 2006 (Cth) s 90(4) re disclosure to the courts and Migration Act 1958 (Cth) s 46A(5) re disclosure to the Australian Parliament.

[11]          Community and Public Sector Union, Submission SR 57, 7 August 2009; Australian Taxation Office, Submission SR 55, 7 August 2009; Civil Liberties Australia, Submission SR 47, 27 July 2009.

[12]          Statute Law (Miscellaneous Provisions) Act 1987 (Cth) sch 1. This issue is discussed further in Ch 2.

[13]          Revised Explanatory Memorandum, Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 2000 (Cth), [371]–[372].

[14]          Explanatory Material, Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth), [2.8]. See Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth) sch 1 pt 1 cl 355-25. The contractual relationship between the Australian Government and contracted service provider entities and individuals is discussed in Ch 13.

[15]          Australian Securities & Investments Commission, Submission SR 41, 17 March 2009; Public Interest Advocacy Centre Ltd, Submission SR 38, 9 March 2009; Australian Federal Police, Submission SR 33, 3 March 2009; Australian Taxation Office, Submission SR 13, 16 February 2009; Australian Prudential Regulation Authority, Submission SR 12, 13 February 2009.

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

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

[18]          The Australian Intelligence Community is made up of six agencies: the Australia Secret Intelligence Service; the Australian Security Intelligence Organisation (ASIO); the Defence Intelligence Organisation (DIO); the Defence Imagery and Geospatial Organisation; the Defence Signals Directorate; and the Office of National Assessments (ONA).

[19]          Intelligence Services Act 2001 (Cth) ss 39(1)(b)(ii), 39A(1)(b)(ii) and 40(1)(b)(ii).

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

[21]          Australian Intelligence Community, Submission SR 77, 20 August 2009.

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

[23]          Recommendation 6–7.

[24]          Revised Explanatory Memorandum, Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 2000 (Cth), [371].

[25]          Australian Law Reform Commission, Review of Secrecy Laws, Discussion Paper 74 (2009), Proposal
8–1.

[26]          Revised Explanatory Memorandum, Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 2000 (Cth), [371].

[27]          Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722, 744.

[28]          Parliamentary secretaries are ministers: Ministers of State Act 1952 (Cth) s 4.

[29]          Departmental Committee on Section 2 of the Official Secrets Act 1911, Report of the Committee, Vol 1 (1972), 78.

[30]          J McGinness, ‘Secrecy Provisions in Commonwealth Legislation’ (1990) 19 Federal Law Review 49, 62.

[31]          Clerk of the Senate, Submission SR 48, 31 July 2009.

[32]          Parliamentary privilege and its interaction with secrecy provisions is discussed in detail in Ch 16.

[33]          J Renwick, Submission SR 02, 11 December 2008.

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

[35]          Recommendation 7–1(b).

[36]          Crimes Act 1914 (Cth) s 70(1).

[37]          Ibid s 70(2).

[38]          L Tsaknis, ‘Commonwealth Secrecy Provisions: Time for Reform?’ (1994) 18 Criminal Law Journal 254, 262.

[39]          Ibid.

[40]          P Finn, Official Information, Integrity in Government Project: Interim Report 1 (1991), 259.

[41]          Australian Law Reform Commission, Review of Secrecy Laws, Discussion Paper 74 (2009), Proposal
8–1.

[42]          Australian Federal Police, Submission SR 70, 14 August 2009; Australian Taxation Office, Submission SR 55, 7 August 2009; Civil Liberties Australia, Submission SR 47, 27 July 2009.

[43]          Australian Intelligence Community, Submission SR 37, 6 March 2009; NSW Young Lawyers Human Rights Committee, Submission SR 34, 4 March 2009; Department of Human Services, Submission SR 26, 20 February 2009; Department of Education, Employment and Workplace Relations, Submission SR 24, 19 February 2009; The Treasury, Submission SR 22, 19 February 2009; Australian Taxation Office, Submission SR 13, 16 February 2009; Australian Prudential Regulation Authority, Submission SR 12, 13 February 2009.

[44]          Australian Prudential Regulation Authority, Submission SR 12, 13 February 2009.

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

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

[47]          Recommendations 6–6, 6–7.

[48]          Criminal Code (Cth) s 142.2.

[49]          Revised Explanatory Memorandum, Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 2000 (Cth), [370].

[50]          Grollo v Palmer (1995) 184 CLR 348, 398.

[51]          Criminal Code (Cth) s 142.2.

[52]          Recommendations 6–6, 6–7.