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Secrecy Review

Secrecy Offences in Part 5.6 of the Criminal Code 1995 (‘Criminal Code’)

In January 2024 the INSLM commenced a review of the secrecy offences in Part 5.6 of the Criminal Code 1995 (‘Criminal Code’). This page contains some background information about the review and a summary of the key things it will consider. There is also information about when public hearings will be held. To make a submission to the secrecy review or to view submissions which have been made see the submissions page. Submissions close on 1 March 2024.

Background

The Independent National Security Legislation Monitor Act 2010 (‘INSLM Act’) requires that the INSLM review the secrecy offences in Part 5.6 of the Criminal Code (see s6(1B)(c)).

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’. 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. There are specific defences in Part 5.6 – including a limited defence which applies 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.

In accordance with sections 6 and 8 of the INSLM Act this INSLM review will consider Part 5.6 of the Criminal Code and ask:

  1. Is Part 5.6 operating effectively and does it do so in a way that has the minimum possible impact on the legitimate activities of groups such as journalists, academics, lawyers and civil society groups?
  2. What safeguards does Part 5.6 contain for protecting the rights of individuals and are they appropriate?
  3. Does Part 5.6 criminalise only that which it is necessary and proportionate to criminalise in general secrecy offences taking account of the current threats, particularly those not covered by other offences in the Criminal Code?
  4. Are the definitions of ‘inherently harmful information’ and ‘cause harm to Australia’s interests’ appropriate?
  5. Is Part 5.6 consistent with Australia’s international obligations, particularly under the International Convention on Civil and Political Rights (‘ICCPR’)?

If the answer to any of these questions is ‘no’ then the task becomes to consider what needs to change.

Issues incidental to Part 5.6 may also be considered by the INSLM review. This may include whether the main offences in other Acts applicable to intelligence officials improperly disclosing or dealing with information should be replaced by an appropriate offence in the Criminal Code.

Key issues

The INSLM has released a detailed issues paper as part of this review. That paper is available below under ‘Additional Information’. The issues paper highlights 35 issues for consideration, additional issues may be identified during the course of the review.

Key themes include:

  • the way potential breaches of secrecy obligations are handled in practice and what national security or other harms the criminal offences aim to address;
  • the threshold questions of when a ‘deemed harm’ offence is appropriate, what they should cover and who they should apply to;
  • the breadth, complexity and uncertainty of the definitions of ‘inherently harmful information’ and to a lesser extent ‘cause harm to Australia’s interests’ and their overlap;
  • the breadth of the offence that applies to non-officials, potentially including in relation to receipt of information; and
  • compliance with Australia’s international obligations, particularly in relation to whether the offences are ‘necessary’ in the context of art 19 of the ICCPR.

 

Submissions

All INSLM reviews are strengthened by public engagement and input. The INSLM invites written submissions and asks that they be provided by 1 March 2024.

Further guidance about making a submission, including accessibility and other content requirements, are available on this website. (Please refer to the submissions information on this website.)

Hearings

The INSLM will further consult with interested stakeholders through a series of private and public hearings.

A public hearing for this review will be held on Monday, 25 March and Tuesday, 26 March 2024. The hearings will be held in Canberra and will also be live-streamed.

Further details will be announced closer to the date.