Labor proposes catch-all secrecy offence targeting officials who expose ‘sensitive information’
The federal government is set to streamline secrecy offences under a new catch-all law that will criminalise commonwealth officials leaking information that could compromise the “effective working of government”.
The long-awaited review, released on Tuesday by attorney general, Mark Dreyfus, would also require ministerial consent to prosecute journalists who publish stories in the public interest. The proposal would also remove criminal liability from hundreds of offences.
The Human Rights Law Centre welcomed aspects of the overhaul but suggested that a proposed general secrecy law went “too far”. It implored the attorney general to “strike the right balance between secrecy and transparency in our democracy after a decade of opacity”.
The new catch-all provision is envisioned to address the “gap” exposed by the recent confidentiality breach scandal by consulting giant PwC .
Dreyfus ordered a review in December last year of the “number, inconsistency, appropriateness and complexity of commonwealth secrecy offences”.
The number of secrecy offences had increased from 506 in 2009 to 875 in late 2022 when the Australian Law Reform Commission (ALRC) issued a report that concluded many of these offences were at odds with the then-Labor government’s commitment to “open and accountable government”.
The attorney general’s department review recommends criminal liability be stripped from 168 of the 875 offences, with a further reduction expected after the introduction of the new general secrecy law.
It will also capture officials who expose “sensitive information” that affects the effective working of government and is considered to undermine public trust in government.
The ALRC’s report did not consider “prejudice to the effective working of government” a strong enough reason for criminal offences but the department’s review disagreed, saying it was appropriate to be captured.
The review, however, noted “embarrassment to government” was not a sufficient reason to pursue for criminal offences against an official.
While a general public interest case was not included in the review to avoid duplication with public interest disclosure laws, stronger rules will be introduced around public interest journalism.
Dreyfus said the Albanese government believed a “strong and independent media is vital to democracy and holding governments to account”.
“Journalists should never face the prospect of being charged or even gaoled just for doing their jobs,” Dreyfus said.
Kieran Pender, a senior lawyer at HRLC, said the government’s commitment to press freedom and whistleblower protections was welcome but its proposed general secrecy offences went “too far” and were contrary to the ALRC’s earlier recommendation.
Jail time for some offences was increased under the Coalition and Pender said these changes should have been reversed by the current government.
“The government’s review has also refused to recalibrate secrecy offences that apply to all Australians, not just public servants, and ignores calls for a general public interest defence,” he said.
“The government should not waste this opportunity to robustly protect transparency and press freedom, which are cornerstones of our democracy.”
The review’s release follows last week’s trial of army whistleblower David McBride, who pleaded guilty on Friday afternoon to three charges after the ACT supreme court upheld a commonwealth intervention to withhold key evidence.
McBride, a former military lawyer, pleaded guilty to stealing commonwealth information and giving it to journalists at the Australian Broadcasting Corporation.
The ABC subsequently used the material as the basis for an investigative series exposing war crimes in Afghanistan titled The Afghan Files.
McBride had earlier unsuccessfully attempted to use existing public interest disclosure protections to avoid prosecution but his lawyers abandoned the bid after the commonwealth moved to suppress expert evidence.
The tax office whistleblower Richard Boyle similarly attempted to use the whistleblower protections earlier this year but a South Australian judge ruled they did not cover his alleged actions.
Boyle is facing 24 charges – which he says stem from trying to collect evidence for a public interest disclosure – including taping private conversations without consent and taking photos of taxpayer information.
Last Thursday, the federal government published a discussion paper on further changes to whistleblower protections it will consider as part of its second tranche of reforms.
The proposed changes include determining whether whistleblowers should be protected for gathering evidence before disclosing possible wrongdoing.
The need for a standalone whistleblower protection authority, and a financial reward system for those coming forward, will also be considered before the end of the year.