Secrecy Offences – Review of Part 5.6 of the Criminal Code Act 1995

There is some information that, in the wrong hands, could genuinely harm Australia’s national interests. Secrecy offences that criminalise unauthorised dealing with and communication of this type of information have a role to play in deterrence and punishment. This report considers whether the offences in Part 5.6 of the Criminal Code operate in a way that is effective, necessary, proportionate and consistent with Australia’s international obligations; and whether the offences contain sufficient safeguards.

There are problems with the current offences, and these need to be addressed. For example, there is significant uncertainty as well as conflict with rule of law principles because of the way a policy framework is used to define key elements of some offences. There are also problems with proportionality in penalising non-officials, particularly in relation to receiving or otherwise dealing with information.

The 15 recommendations of this review will ensure that information which is or is likely to be harmful to critical national interests remains protected but in a way that is clearer and more consistent with the rule of law and concepts of necessity and proportionality; and with Australia’s international obligations.

The final report begins with an overview of the context in which Part 5.6 of the Criminal Code operates and key definitions (Chapter 1), the current threat environment (Chapter 2) and international obligations (Chapter 3). Chapter 4 then considers the main deemed harm offence, finding it uncertain, inconsistent with key rule of law principles and unreasonably broad. Recommendations 1–5 are made to address these concerns, the most important being the removal of reliance on security classification markings as an element of an offence. Harm-based and related offences for officials are analysed in Chapters 5–7. Recommendations 6, 7, 9 and 10 are directed at improving these, including by clarifying definitions and ensuring a cascading approach to penalties. Recommendation 11 sets out principles for a replacement general offence for officials. A key recommendation concerning offences for non-officials is removing ‘dealing with’ offences (Recommendation 8) along with refining the circumstances in which a disclosure offence occurs (Recommendation 12). While there is some scope to recast the defence for journalists as an exception, it is not recommended that a general public interest test or element be introduced (Recommendation 13). Safeguards in both policy and the legislation are discussed in Chapter 10, with some enhancements suggested (Recommendations 14 and 15).