The Independent National Security Legislation Monitor, Mr Jake Blight, has completed an independent review of key secrecy offences; laws that make it a crime to deal with or disclose certain government information. The report makes 15 recommendations. Issues include significant uncertainty, conflict with rule of law principles and problems with the proportionality of some offences.
“There are problems with the current offences, and these need to be addressed”, Mr Blight said.
Key recommendations include: removing reliance on ‘security classification’ alone as the basis for an offence; narrowing offences applicable to security and intelligence agency information to focus on covert intelligence activities; and, repealing some of the offences that currently apply to people who do not work for the government, including journalists.
“Secrecy offences have an important role to play in protecting national security. However, excessively wide or uncertain secrecy laws can undermine trust in government and unreasonably impact the important role of a free press and civil society groups”, Mr Blight said.
The secrecy offences in the Criminal Code Act 1995 (Cth) apply to a broad range of government information, including information relating to national security, law enforcement and international relations.
“Intelligence and law enforcement agencies do important work, but we must always be careful that the laws relating to these agencies do not undermine the very democracy we want them to protect”, Mr Blight said.
The review received many submissions, including from media organisations concerned about the chilling effect of secrecy laws. One key issue was with an offence that currently makes it a crime for individuals, including lawyers and journalists, to intentionally ‘deal with’ – including to receive – certain information, even if they do not publish it. The Monitor concluded that this offence should be repealed as it is not necessary or proportionate.
The review focused on the offences in Part 5.6 of the Criminal Code Act 1995 (Cth) some of which can attract a penalty of up to 10 years imprisonment. There have been no prosecutions under these offence provisions since they were enacted in 2018.
Additional information
The secrecy offences report was tabled in parliament on 27 June 2024.
The jurisdiction of the Monitor is set out in the Independent National Security Legislation Monitor Act 2010 (Cth) (INSLM Act). The Act requires the Monitor to undertake certain reviews (‘statutory reviews’) such as the secrecy offences review. Matters relating to counter-terrorism or national security can be referred to the Monitor by the Prime Minister or the Attorney General and in some cases the Parliamentary Joint Committee on Intelligence and Security (‘referrals’). In addition to statutory reviews and referrals the Monitor can also initiate reviews into specified counter-terrorism and national security laws.
The Public Interest Disclosure Act 2013 is not a ‘counter-terrorism or national security law’ and was not within the scope of the secrecy offences review. The Monitor noted that whistleblower protections are the subject a separate government reform process and said that:
“a well-functioning whistleblower scheme that is easy to navigate and provides appropriate protections for those who wish to identify wrongdoing is an essential part of the overall proportionality of secrecy offences.”
In accordance with the INSLM Act the next reviews to be undertaken by the Monitor are expected to be statutory reviews into:
the operation, effectiveness and implications of data disruption, account takeover and network activity warrants (these can be sought by the Australian Federal Police and the Australian Criminal Intelligence Commission to identify, disrupt or investigate certain crimes); and
the espionage, sabotage and foreign interference offences in Part 5 of the Criminal Code Act 1995
The full secrecy offences report is available on the INSLM website: www.inslm.gov.au
For updates on the work of the INSLM visit the INSLM website (which now includes an RSS feed feature) and the INSLM LinkedIn page.
