The Monitor spoke at the Australia Institute Transparency Summit
Secrecy offences: finding the right balance
INSLM speaking notes - Transparency Summit – 17 October 2024 – Canberra
Transparency is an essential part of democracy. Yet, at the same time, police, intelligence agencies and a military capability are all long established parts of Australia’s democracy and there are situations where a level of secrecy is a necessary part of those things being effective. You can call this a ‘paradox’, a ‘balancing act’, a ‘tension’ or a simple fact. It is certainly a fact that, in our democracy, rules about both transparency and secrecy are given force via laws made by the elected members of our Parliaments. And we have a lot of those laws.
Although much of the agenda at today’s Transparency Summit is about what might be called transparency laws, including whistle-blower protections and FOI – I want to talk about the flip side: secrecy laws or secrecy offences.
Is Australia the ‘world’s most secretive democracy’? I don’t know. But we are surely in the running for the title of ‘democracy with the most secrecy laws’. There are at least 875 secrecy offences and non-disclosure duties in Commonwealth law.1 That figure – 875 - doesn’t count State and Territory laws.
Role of Monitor
As the Independent National Security Legislation Monitor, it is my role to review Commonwealth counter-terrorism and national security laws to see how they are actually operating and if they remain necessary and proportionate. In essence, I and my small (but growing) team operate like a specialist law reform body in this field. I have access to government information, including classified information, and importantly to insights and submissions from civil society groups, individuals and legal and other organisations. I gather evidence, conduct hearings and make reports that are tabled in Parliament.
I operate under an Act – and while my own-motion powers under that Act are largely limited to counter-terrorism laws, the government or the Parliament can refer other national security related matters to me.2 In 2018 when extensive changes were made to the Criminal Code to significantly expand the secrecy offences in the Code and to increase the penalties – now up to 10 years imprisonment - the Parliament also amended my Act to require a review of those offences after a time.
I have recently completed that review.3 It wasn’t a review of all 875 offences – just the dozen or so in the Criminal Code, but the principles are of wider application. I found that many of the Criminal Code secrecy offences were too broad or too uncertain and that change is needed.
That doesn’t mean there isn’t a place for appropriate secrecy offences. In my field - when it comes to intelligence collection, defence capabilities and counterterrorism and other police operations I accept that there is some information that, in the wrong hands, could genuinely harm Australia’s national interests and even the safety of individuals. But secrecy laws need to be carefully calibrated and regularly reviewed so that they do not apply to more information than is absolutely necessary, or for longer than is necessary. I don’t think it controversial to say that excessive secrecy can have a chilling effect on public interest journalism, reduce accountability and undermine trust in government. All of which are detrimental to the overall security and functioning of our democracy.
Secrecy offences report
My secrecy offences report makes 15 recommendations for change. Some were made because I don’t consider some of the offences to be necessary or proportionate and some recommendations were based on inconsistencies with fundamental rule of law principles: in particular the principle that laws and especially criminal laws – including secrecy laws - need to be clear and certain.
There isn’t time today to talk about all of the recommendations and the reasoning in the report – the full report is available on the INSLM website and we also post snippets and summaries on our LinkedIn page.4 So I am just going to mention a couple of recommendations that may be of particular interest to this audience and which illustrate key principles.
The offences in the Criminal Code that I looked at can be broadly divided into those which apply only to current and former officials and contractors – and those that apply to everyone else – including journalists. I will start with those ‘everyone else’ offences.5
Offences for non-officials
There are two ‘everybody else’ secrecy offences – one for disclosing certain information and a separate one for ‘dealing with’ that information. I have made a recommendation about the disclosure offence – in essence it should be narrowed so that establishing serious harm is always a necessary part of prosecuting the offence – with more clarity on the kinds of serious harms that are covered - and I say that the current defence concerning journalists who reasonably believe they are acting in the public interest should remain.6
It is the second ‘everybody else’ offence –the one about ‘dealing with’ - that I have more concerns with. The term ‘deal with’ includes receiving, possessing, making a record of, or concealing amongst other things. Imagine this scenario: a journalist who covers defence and security matters for a major media organisation is working on a story. They receive a bundle of documents in an envelope (or more likely these days a message via an encrypted app). They intentionally open it and read the documents, they look credible and relevant. One has ‘secret’ stamped on the top. Receiving that document was probably an offence, and intentionally possessing it is also a ‘dealing with’ offence. Being an experienced and senior journalist, they know what to do – they go straight to the lawyers. They give it to the lawyer who reads the document – possibly another offence- and being a diligent lawyer makes a file note in relation to the information – might be another offence. She advises that, for now, the documents should be locked up in the company safe – is that concealing? Another offence? Even if they decide to destroy the document and never publish the information the journalist and the lawyer have probably committed serious offences. That doesn’t seem right.
They may have defences, but that isn’t the point. There may well be a sensible police policy or a sound decision under a guideline not to pursue a prosecution in these circumstances, again not the point. It may be true that if the information in that secret document truly needs to be kept secret there is greater risk that a foreign spy might have a better chance of stealing it from a media organisation than from the fortified compound of an intelligence agency – but is it not normally part of our legal system to impose a duty on ordinary citizens to take action just in case a third party that they have no knowledge of or connection with (such as a foreign spy) might intend on committing a crime (such as espionage) against the government at some point in the future.
There are other ways to protect truly harmful information from disclosure than undermining this sort of longstanding principle or creating extraordinarily wide offences and relying on police policy and prosecutorial discretion. I have recommended that the ‘dealing with’ offence for non-officials should be repealed in its entirety.7 It isn’t necessary or proportionate.
Offences for officials
Let me turn now to some of the offences that apply to officials, contractors and others who perform work for the Commonwealth. Such individuals voluntarily take on special duties to protect certain government information. Especially those who take on jobs that require the highest levels of trust and security clearance. I do think that disclosure and dealing with offences for officials are appropriate: provided they are necessary and proportionate. I acknowledge that effective whistleblowing and oversight systems are part of assessing overall proportionality – though those laws were outside my scope. Squarely in scope is the principle that the boundaries of what is a crime and what isn’t should always be set by the parliament and judged by the courts. And the principle that laws need to be knowable and certain. One of my key recommendations is about a law that I think offends all of these principles.
At the moment it is a crime to disclose a document only because it is marked as ‘secret’ or ‘top secret’ by an official in accordance with a policy.8 I don’t doubt that there are some documents marked as secret or top secret that could cause real harm and even endanger lives. But for information likely to have those effects there are already other serious offences – right there in the Code. Having an extra offence based just on ‘classification markings’ might have seemed attractive to those who may have thought it would be easier to prosecute (although in the end I don’t think it actually would be). But as a matter of basic legal principle, such an approach in my view, introduces too much uncertainty and it leaves too much room for administrative decisions and policy changes to alter the scope of the criminal law without parliamentary oversight. Then there is the issue that some of the policies under which classification decisions get made are themselves classified…
The law should require a court to be satisfied at least that there is a real risk the information is likely to harm security, defence, international relations or other specified critical national interests, not just whether an official has stamped it as ‘secret’ in accordance with the policy of the time.
Similarly, the current legislation makes it a crime to disclose just about anything to do with an intelligence agency or a law enforcement operation – without the need to prove harm (these are called deemed harm offences). It then relies on the discretion of police and prosecutors to only pursue ‘serious’ matters.9 This just isn’t the right approach. Instead, deemed harm offences should be used very sparingly and only relate to very narrow categories of clearly harmful information such as the identity of an ASIS or ASIO operative or someone in the witness protection program or the covert methods and sources used to obtain intelligence. In most other circumstances it should be necessary for the crown to prove that a disclosure caused harm, or was likely to cause harm, to security, defence, international relations or certain other specified critical national interests.
Another offence that has been subject to criticism many times – it is not just me – is the very broad ‘general office’ for an official breaching a ‘duty’ not to disclose information.10 It seems that even the Parliament had hesitations when creating the offence in 2018 as it was originally due to sunset (cease operating) after 5 years – thought to be sufficient time to allow the government to review the then 295 non-disclosure duties that had been identified as being attached to that offence and determine if it should be converted into a specific offence or if it was no longer required. The Attorney-General’s Department published their review in November 2023 – and recommended allowing the provision to sunset as planned at the end of 2023 to be replaced by a new offence with Departments and agencies asked to later identify other offences that might be repealed. The sunset clause was then extended another year to December 2024. My report set out some general principles relevant to any new offence – and said that if a new offence was needed then the offences to be repealed should be included in the legislative proposal so that the Parliament can properly assess the necessity and proportionality of any new crime before it is enacted. Last week a Bill was passed that extends the sunset another 18 months.
Not over-prosecuted
It should be clear by now – and it will certainly be clear if you read my report - I found some of the current Criminal Code secrecy offences unnecessarily complex, uncertain and in some cases excessive. But I didn’t find that they have been over-prosecuted. In fact, since they were introduced in 2018 there haven’t actually been any prosecutions under these Criminal Code provisions. There have been a couple of high-profile matters lately – but mostly in relation to disclosures that occurred before 2018 and so were dealt with under other laws.
Conclusion
There has been significant expansion in our secrecy offences in recent years– both in the number of offences and their scope. Australia doesn’t have constitutional guarantees or enshrined human rights to act as a check on such offences. So instead we need other mechanisms, like independent reviews to ensure our laws remain in balance.
If they are amended as I have recommended I do think the Criminal Code secrecy laws have a role to play and some should stay. As for the other 850+ offences, there have to be real questions about why so many and if they are even needed in light of the Criminal Code offences. This larger question is outside my jurisdiction but is something that needs to be scrutinised – alongside whistle-blower protections (also outside my remit).
Closing
In the face of growing threats from espionage and foreign interference and perhaps a resurgence of terrorism driven by on-line radicalisation, it is tempting to think we need to ‘strengthen’ our laws: instead we need to strengthen our democracy including by ensuring our laws are clear, certain, necessary and proportionate.
Intelligence and law enforcement agencies do important work, but we must always be careful that the secrecy and other laws relating to these agencies do not undermine the very democracy and rule of law that we want them to protect.
Some of these rule of law issues and questions of necessity and proportionality will be under the spotlight again in current reviews being worked on right now by my office – one on certain police surveillance and disruption powers and another on the espionage, foreign interference and sabotage laws.
Thank you.
Watch the Secrecy offences presentation
Footnotes
- 1 Attorney-General’s Department (2023) Review of Secrecy Provisions – Final Report, p4
- 2 Independent National Security Legislation Monitor Act 2010 ss 6-7A
- 3 INSLM (2024) Secrecy Offences: Review of Part 5.6 of the Criminal Code Act 1995 (Tabled on 27 June 2024)
- 4 www.inslm.gov.au
- 5 Criminal Code 1995 s 122.4A
- 6 Recommendation 12
- 7 Recommendation 8
- 8 See Chapter 4 and recommendation 1
- 9 See recommendations 2,3,4,5 and 6
- 10 See s122.4 and recommendation 11