Secrecy Review

On Thursday 1^st February 2024, the Independent National Security Legislation Monitor, Mr Jake Blight, met with several prominent academics in the national security law field to discuss their preliminary views on the offences in Part 5.6 of the Criminal Code Act 1995.

The roundtable was attended by:

• Professor Peter Greste, Macquarie University
• Associate Professor Rebecca Ananian-Welsh, University of Queensland
• Dr Dominique Dalla-Pozza, The Australian National University
• Dr Keiran Hardy, Griffith University
• Ms Sarah Kendall, University of Queensland

The roundtable highlighted some of the complex legal issues arising from the current structure and operation of these secrecy offences as well as ideas for law reform. This record outlines some of the key issues discussed. This is a record of preliminary discussions only and any views expressed should not be attributed to individuals.

Executive Summary

Participants noted that there are certain secrecy offences which are justifiable as necessary and proportionate. However, the provisions in Part 5.6 were generally seen as complex, overbroad and having the potential to create unnecessary legal complexities and barriers to prosecution. Key themes included:

• The extent of overlap and/or duplication of offences across the broader legal secrecy framework
• Uncertainty and complexity in the scope of key provisions and definitions
• Possible constitutional issues
• Public discourse about the growing culture of secrecy across Australian government agencies, particularly compared with 5-eyes partners
• The impact of Part 5.6 on journalism and whistleblowers
• Concern with ‘dealing with’ offences, at least for non-officials

The main issues with Part 5.6

The scope and certainty of Part 5.6

The group discussed rule of law principles in the context of the scope and certainty of Part 5.6. There was concern that the scope of the offences was uncertain and that some are so broad that they capture innocuous conduct. The rule of law was also raised in the context of the Executive, rather than the Parliament, as the decision maker for some key offence parameters.

The breadth of the term ‘dealing with’ was discussed in some detail. The group discussed hypothetical examples in which an individual could be caught by a ‘dealing with’ offence for simply receiving unsolicited classified information. Concerns were raised particularly in relation to non-Commonwealth officials. One suggested option wasthe addition of an ‘intention to cause harm’ element in any offence for non-Commonwealth officials.

For some participants it was not clear what ‘harm’ the secrecy offences were specifically targeted at, particularly given the breadth of the foreign interference and espionage offences and similar offences in other Acts.

Definition of ‘inherently harmful information’ and ‘security classification’

The current offence based on ‘inherently harmful information’ was identified as potentially having a wide range of legal and practical problems. Participants raised issues with the use of the ‘Protective Security Policy Framework’ (PSPF) as a determinant of an element of a serious offence. It was noted as contrary to general legal principles for the parameters of a criminal offence to be determined by reference to policy or guidelines which can be altered at any time without Parliamentary oversight or a mechanism for disallowance. It was suggested that some of the concerns could possibly be ameliorated by using a legislative instrument or incorporating harm thresholds into the Act itself. The many overlapping elements of these definitions were flagged as complex and possibly make some elements redundant.

Participants noted that some agencies such as ASD and AGO also now have non-intelligence functions. There was discussion as to whether it is proportionate for these functions to be captured by the same secrecy offences as those guarding intelligence functions and capabilities.

The terms ‘interfere with’ and ‘prejudice’

The group discussed interpretations of the terms ‘interfere with’ and ‘prejudice’ which appear in the definition of ‘cause harm to Australia’s interests’. It was noted that the threshold set by each term was unclear, however, as two terms are used presumably they mean different things and ‘interfere with’ could potentially include a very low threshold of conduct.

Mosaic effect and criminal culpability

Issues of legal principle were raised in deeming an individual liable for all of the harm caused by their single disclosure, where they are not aware of the greater harm, rather than the harm caused by their conduct alone.

Constitutional compatibility

The group discussed whether the implied freedom of political communication was offended by the current, or any proposed, provisions. In particular, concerns about the breadth and operation of the phrase ‘effective working of government’ were raised.

One issue that was not discussed in the Issues Paper was whether a re-drafting which makes a security classification conclusive proof of a central element of the offence would be consistent with Chapter III of the Constitution.

Role of the Attorney-General in consent and certification

There were differing views on the Attorney-General’s consent provision. Some suggested that it acts as a safeguard to prosecution while others expressed that it could potentially politicise prosecutions. It was also speculated that some journalists might make decisions regarding the chance of prosecution based on who the AG is at the time.

Part 5.6 in operation

What are the effects of Part 5.6 on the press?

Some members of the group had observed evidence of a ‘chilling effect’ amongst journalists and media organisations owing to the growing criminalisation of unauthorised disclosures, including by Part 5.6. There was less concern about a chilling effect on academics (in contrast to the espionage and foreign interference provisions which were of some concern).

What might a better Part 5.6 look like?

Cascading offences

The group considered ideas to improve the structure and operation of Part 5.6. Cascading offences were suggested – that is, offences for different categories of people and offences with different levels of severity in conduct and consequence. One suggestion included a distinction between a penalty for offences where there is an intention to cause harm versus a recklessness to causing harm. Another suggestion involved a distinction between offences where there is actual harm versus no harm to national security.

The media defence

The group noted that there was general support amongst academic and media groups for a media defence in Part 5.6 (though some think the current defence does not go far enough). Questions were raised about how this defence and others would operate in practice, given there have been no prosecutions. It was suggested that without public examples of its operation, many journalists may not feel they can rely on the media defence. The cost of mounting a defence of this type may also be prohibitive or cause individuals and organisations to lower their risk appetite.

On Friday 2^nd February 2024, the Independent National Security Legislation Monitor, Mr Jake Blight, met with several civil society groups and media organisations to discuss their preliminary views on the offences in Part 5.6 of the Criminal Code Act 1995.

The roundtable was attended by representatives from:

• Australia’s Right to Know Coalition
• Civil Liberties Australia
• Human Rights Law Centre
• Law Council of Australia
• Media, Entertainment & Arts Alliance
• NSW Council for Civil Liberties

The discussion highlighted many areas of concern in the structure and the operation of the offences in Part 5.6. This record outlines some of the key issues discussed. This is a record of preliminary discussions only and any views expressed should not be attributed to individuals or organisations.

Executive Summary:

Some of the key themes from the discussions were:

• The breadth and uncertainty of the provisions in Part 5.6
• Observations about a ‘culture of secrecy’ across Australian government agencies and in this context a lack of trust in government and police/security agencies in particular
• A ‘chilling effect’ from secrecy laws on journalist and civil society activities
• The need for a free media to be recognised as an essential element of democracy and that whistle-blowers are a part of this ecosystem
• Concern about ‘dealing with’ offences, particularly for non-officials
• Possible issues of legal interpretation in any prosecutions and the breadth of definitions in Part 5.6

The main issues with Part 5.6

Issues with the ‘dealing with’ offence for non-officials

The definition of ‘dealing with’ was raised a number of times. Concerns were raised that the definition includes the mere ‘receipt’ and ‘possession’ of information. It was suggested that these thresholds place an undue burden on non-Commonwealth officers who have no formal relationship with the Commonwealth and no ‘duty’ to actively protect national security.

The group discussed examples of conduct which may be captured by the offences. One participant gave an example of a junior lawyer in a civil society organisation who is worried about the character of information that has been sent to them and then forwards it to their supervisor for advice on what to do next. That act would, in effect, ‘deal with’ the information and potentially be an offence with no applicable defence under s 122.5. It was suggested that the criminal law may not be the right tool to respond to this type of conduct. Some non-criminal mechanisms, such as the DSMA system in the United Kingdom, were discussed, though not necessarily supported.

When considering fault elements in ‘dealing with’ offences, the group discussed whether working as a journalist or civil society group involved or interested in national security matters could be, in and of itself, interpreted as an ‘intention’ to elicit or receive sensitive information on these topics.

Definition of ‘information’

It was said that the definition of ‘information’ has historically been interpreted broadly and that the statutory definition in Part 5.6 is even broader. For example, ‘information’ is defined in s 90.1 to include opinions and false information. There was some discussion about how this and other definitions greatly expand the scope of the offences and how a very detailed analysis is needed to understand the scope of the offences. The offences in Part 5.6 were described by some as being excessively broad and impenetrable.

Role of the Attorney-General in consent and certification

There were differing views on the role of the Attorney-General in the prosecutorial process. Some suggested that the role of the Attorney-General in giving consent inherently politicises prosecutions. Others suggested that in the present legislation, the Attorney-General’s discretion acts as a necessary check and balance. One suggestion for reform involved the introduction of a limitation period on the Attorney’s consent which provides for deemed refusal after a set period.

Part 5.6 in operation

Some participants suggested that the way in which journalism is conducted today has changed significantly as some journalists are becoming increasingly unsure of the relevant legal parameters of their work. It was also suggested that some organisations are becoming risk-averse due to the uncertainty and cost of defending cases. It was posited that this chilling effect and the broader ‘culture of secrecy’ is a direct threat to democratic values and by extension, national security. The need for effective whistle-blower protections in Australia was discussed as being an essential requirement in order for secrecy offences to be justifiable.

The current AFP policies for handling sensitive investigations introduced after the Smethurst case were seen by some as providing little meaningful protection as they could be changed at any time.

What might a better Part 5.6 look like?

A harm-based offence

The group discussed concerns with the use of a ‘security classification’ as a deemed measure of harm. It was suggested that the classification system is not as accessible for non-officials compared to officials, and there was concern that the over-classification of documents may be occurring. Further, that a security classification is not a conclusive indicator of harm potentially caused, only that an official at some stage assigned a classification. The group discussed whether the introduction of an actual harm element was appropriate. Another suggestion involved the inclusion of a ‘intention to cause harm’ as a mental element, particularly for non-Commonwealth officers.

Cascading offences

The introduction of cascading offences was discussed – that is, offences that vary in severity for different groups of people based on different types of conduct. One suggestion was that a distinction could be drawn between ‘causing harm’ and ‘likelihood of causing harm’. A temporal question was also raised about when the harm or likely harm would need to occur to make out this element. There was discussion of including a summary offence as a more proportionate response to disclosures.

Offences relating to non-Commonwealth officials

The group discussed the role of the public interest and the circumstances in which it was inappropriate to penalise non-officials for communicating official information. Some expressed a view that no offence should be absolute and that a court should always be able to consider the greater public interest. The evidential burden of proof under the defence for ‘persons engaged in the business of reporting news etc’ was also discussed. Some participants posited that it should be shifted from the defendant to the prosecution in relation to proving that a person reasonably believed that engaging in that conduct was in the public interest.

The role of criminal and non-criminal sanctions

The group discussed the role of criminal and non-criminal sanctions in deterring and punishing unauthorised disclosures. It was suggested by some that administrative sanctions alone would be a sufficient response to most cases of unauthorised disclosure by officials and those criminal sanctions were only appropriate for truly harmful conduct.