Review of Secrecy Offences in part 5.6 of the Criminal Code 1995 Issue Paper – January 2024

The Independent National Security Legislation Monitor (‘INSLM’) is required to conduct a review of the secrecy offences in Part 5.6 of the Criminal Code Act 1995 (‘Criminal Code’). This issues paper contains preliminary analysis and early research and is being released by the INSLM at the beginning of the review. This approach is being taken primarily to assist those who may want to make a submission to the review or participate in discussions or hearings, understand what the key issues are expected to be and where they have been considered before. As the issues paper reflects only preliminary work it does not necessarily reflect what the Monitor’s final views may be.

Secrecy offences have a role to play in protecting national security and other critical national interests. However, offences which are unnecessarily broad or complex may harm trust in government, including in relation to intelligence and law enforcement activities. Provisions which are uncertain may mean a prosecution is ineffective. The important role of a free press and civil society groups in a robust democracy needs to be acknowledged. It is therefore important that the effectiveness, necessity and proportionality of secrecy laws in the Criminal Code, which have now been in force for 5 years, be tested through an independent review.

Part 5.6 of the Criminal Code includes offences that apply to Commonwealth officials (including contractors) who disclose or otherwise deal with what is defined as ‘inherently harmful information’ or information that falls into a category defined as ‘causing harm to Australia’s interests’. These definitions are central to how these serious offences operate. Preliminary analysis suggests the definitions are broad, complex and in some regards uncertain. Part 5.6 also contains a general offence pertaining to officials who breach a duty imposed by another law not to disclose information. That offence is due to sunset in 2024 and it has been proposed that it be replaced by a potentially broader offence. There is also an offence in Part 5.6 that applies to any person (not just officials) who disclose specified types of information, including information that has a security classification of SECRET or TOP SECRET applied in accordance with a policy framework developed by the Commonwealth. Initial analysis suggests there is a lot of uncertainty about how relying on a classification marking would practically work in a prosecution. There are specific defences in Part 5.6 - the one that has received the most attention in previous reviews relates to disclosures made by journalists. Related to secrecy offences is the way certain disclosures by current and former officials are permitted under the Public Interest Disclosure Act 2013; however, review of that Act is beyond the scope of this INSLM review.