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Advisory Report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017
Appendix 3. C. Comparison between Schedule 2 and ALRC recommendations
Comparison of the secrecy offences in Schedule 2 to the Bill with recommendations of the Australian Law Reform Commission’s Secrecy Laws and Open Government in Australia (2009)
ALRC recommendation
Implemented in the Bill?
Government proposed amendments
Recommendation 4-1 Sections 70 and 79(3) of the Crimes Act 1914 (Cth) should be repealed and replaced by new offences in the Criminal Code (Cth)—the ‘general secrecy offence’ and the ‘subsequent disclosure offences’.
Partially.
Sections 70 and 79(3) of the Crimes Act are removed, however, section 70 is replicated in proposed section 122.4 of the Criminal Code.
The Bill creates a range of general secrecy offences in sections 122.1 and 122.2 in the Criminal Code, but no separate ‘subsequent disclosure offences’.
The amendments provide separate offences for non-Commonwealth officers in proposed section 122.4A. This corresponds more closely with the ALRC recommendation for ‘subsequent disclosure offences’.
Recommendation 5-1 The general secrecy offence should require that the disclosure of Commonwealth information did, or was reasonably likely to, or intended to:
(a) damage the security, defence or international relations of the Commonwealth;
(b) prejudice the prevention, detection, investigation, prosecution or punishment of criminal offences;
(c) endanger the life or physical safety of any person; or
(d) prejudice the protection of public safety.
Partially.
In addition to disclosures, proposed sections 122.1 and 122.2 also include offences for ‘other dealings’; removing from, or holding information outside, a ‘proper place of custody’; and failing to comply with a lawful direction.
The four essential public interests identified by the ALRC are reflected in proposed sections 122.1 and 122.2. However, section 122.1 creates offences in relation to ‘inherently harmful information’, which includes security classified information; information relating to intelligence agencies and the operations, capabilities and technologies of law enforcements agencies; and information provided to the Commonwealth by a person under a legal obligation. Section 122.1 does not require any specific harm to occur, or be likely or intended to occur. Also, section 122.2 extends the interests identified by the ALRC to include civil penalty provisions, certain functions of the Australian Federal Police, and Commonwealth-State relations.
The concept of ‘inherently harmful information’ is retained but reduced in scope to exclude security classified information below ‘secret’ and to exclude information provided to the Commonwealth by a person under a legal obligation. The scope of section 122.2 is reduced to exclude civil penalty provisions, harm or prejudice to Commonwealth-State relations, and harm or prejudice to international relations other than in relation to information that is communicated by a foreign government in confidence.
For non-Commonwealth officers, proposed section 122.4A applies to a further limited range of conduct.
Recommendation 5-2 The terms ‘security’ and ‘international relations’ should be defined for the purposes of the general secrecy offence by reference to the relevant provisions of the Australian Security Intelligence Organisation Act 1979 (Cth) and the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth).
Partially.
Proposed section 121.1 defines ‘international relations’ by reference to the National Security Information (Criminal and Civil Proceedings) Act 2004.
The word ‘security’ is not defined, and the phrase ‘security or defence of Australia’ is defined without reference to the Australian Security Intelligence Organisation Act 1979.
No impact.
Recommendation 6-1 The general secrecy offence should regulate the conduct of those who are, or have been, ‘Commonwealth officers’, defined as follows:
(a) the Governor-General;
(b) ministers and parliamentary secretaries;
(c) Australian Public Service employees, that is, individuals appointed or engaged under the Public Service Act 1999 (Cth);
(d) individuals employed by the Commonwealth otherwise than under the Public Service Act;
(e) members of the Australian Defence Force;
(f) members or special members of the Australian Federal Police;
(g) individuals who hold or perform the duties of an office established by or under a law of the Commonwealth;
(h) officers or employees of Commonwealth authorities;
(i) individuals who exercise powers, or perform functions, conferred on them by or under a law of the Commonwealth;
(j) individuals and entities who are contracted service providers for a Commonwealth contract; or
(k) individuals who are officers or employees of a contracted service provider for a Commonwealth contract and who provide services for the purposes (whether direct or indirect) of the Commonwealth contract.
Partially. The proposed secrecy offences regulate the conduct of Commonwealth officers and all other persons.
‘Commonwealth officer’ is defined as
(a) an APS employee;
(b) an individual appointed or employed by the Commonwealth otherwise than under the Public Service Act 1999;
(c) a member of the Australian Defence Force;
(d) a member or special member of the Australian Federal Police;
(e) an officer or employee of a Commonwealth authority;
(f) an individual who is a contracted service provider for a Commonwealth contract;
(g) an individual who is an officer or employee of a contracted service provider for a Commonwealth contract and who provides services for the purposes (whether direct or indirect) of the Commonwealth contract.
The Governor-General is excluded from the definition.
The amendments provide separate offences for non-Commonwealth officers in proposed section 122.4A. The existing offences in the Bill are limited to current and former Commonwealth officers, consistent with the ALRC recommendation.
There is no amendment to the definition of ‘Commonwealth officer’.
Recommendation 6-2 The general secrecy offence should regulate the disclosure of Commonwealth information as defined in Recommendation 6-3.
Yes.
No impact.
Recommendation 6-3 The general secrecy offence should apply to any information to which a person has, or had, access by reason of his or her being, or having been, a Commonwealth officer as defined in Recommendation 6-1.
Yes.
Proposed sections 122.1 and 122.2 are limited to information was made or obtained by the person, or any other person, by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
The phrase ‘or any other person’ is removed from proposed sections 122.1 and 122.2. Proposed new section 122.4A is limited to information that was made or obtained by another person by reason of that other person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Recommendation 6-4 The general secrecy offence should require intention as the fault element attaching to the physical element consisting of disclosure.
Yes.
Due to the operation of section 5.6 of the Criminal Code, intention is the fault element applying to the conduct in proposed sections 122.1 and 122.2.
No impact.
Recommendation 6-5 The general secrecy offence should require that a Commonwealth officer knew, intended that, or was reckless as to whether, the disclosure of Commonwealth information would harm, or was reasonably likely to harm, one of the public interests set out in Recommendation 5-1.
Partially.
Due to the operation of section 5.6 of the Criminal Code, recklessness is the fault element applying to the circumstance of information being ‘inherently’ harmful information’ (proposed section 122.1) and the result of the conduct ‘causing harm to Australia’s interests (proposed section 122.2).
As noted above, the Bill expands on the public interests set out by the ALRC in Recommendation 5.1.
No impact.
Recommendation 6-6 There should be a new offence in the Criminal Code (Cth) for the subsequent unauthorised disclosure of Commonwealth information where:
(a) the information has been disclosed by Commonwealth officer A to B (not a Commonwealth officer) in breach of the general secrecy offence; and
(b) B knows, or is reckless as to whether, the information has been disclosed in breach of the general secrecy offence; and
(c ) B knows, intends or is reckless as to whether the subsequent disclosure will harm—or knows or is reckless as to whether the subsequent disclosure is reasonably likely to harm—one of the public interests set out in Recommendation 5-1.
No.
The Bill does not provide for any separate ‘subsequent unauthorised offence’ in relation to non-Commonwealth officers.
The amendments provide separate offences for non-Commonwealth officers in proposed section 122.4A.
In addition to disclosures (i.e. communications), proposed section 122.4A also includes an offence for ‘other dealings’.
Proposed section 122.4A applies in relation to information that
• was made or obtained by another person by reason of that other person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and
• has a security classification of secret or top secret; or information for which the communication (or other dealing) damages the security or defence of Australia; interferes with or prejudices the prevention, detection, investigation, prosecution or punishment of a criminal offence; or harms or prejudices the health or safety of the Australian public.
Due to the operation of section 5.6 of the Criminal Code, recklessness is the fault element applying to these circumstances. The offence does not explicitly require the information to have been disclosed to the non-Commonwealth officer in breach of another secrecy offence.
Recommendation 6-7 There should be a new offence in the Criminal Code (Cth) for the subsequent unauthorised disclosure of Commonwealth information where:
(a) the information has been disclosed by Commonwealth officer A to B (not a Commonwealth officer) on terms requiring it to be held in confidence;
(b) B knows, or is reckless as to whether, the information has been disclosed on terms requiring it to be held in confidence; and
(c) B knows, intends or is reckless as to whether the subsequent disclosure will harm—or knows or is reckless as to whether the subsequent disclosure is reasonably likely to harm—one of the public interests set out in Recommendation 5-1.
No.
The Bill does not provide for any separate ‘subsequent unauthorised offence’ in relation to non-Commonwealth officers.
As above.
The offence in proposed section 122.4A does not explicitly require the information to have been disclosed to the non-Commonwealth officer in terms requiring it to be held in confidence.
Recommendation 7-1 The general secrecy offence should expressly include exceptions applying where the disclosure is:
(a) in the course of a Commonwealth officer’s functions or duties;
(b) in accordance with an authorisation given by an agency head or minister that the disclosure would, on balance, be in the public interest; or
(c) of information that is already in the public domain as the result of a lawful disclosure.
Partially.
There are no exceptions in the physical elements of the secrecy offence.
Proposed section 122.5 provides offence-specific defences (for which the defendant bears an evidential burden) in relation to a Commonwealth officer’s powers, functions and duties; conduct in accordance with an arrangement or agreement with the Commonwealth (sub section 1); and information that has already been communicated or made available to the public with the authority of the Commonwealth (subsection 2).
Proposed section 122.5 also provides defences in relation to communications to the Inspector-General of Intelligence and Security, the Commonwealth Ombudsman and the Law Enforcement Integrity Commission (subsection 3); communications in accordance with the Public Interest Disclosure Act 2013 (subsection 4); to a court or tribunal (subsection 5); communications in the public interest in a person’s capacity as a journalist engaged in fair and accurate reporting (subsection 6); communication of information that has been previously communicated for which the person believes on reasonable grounds that the further communication will not cause harm to Australia’s interests, or the security or defence of Australia (subsection 8); and dealing with information relating to person to or by that person, or with the person’s consent (subsection 9).
The amendments propose to amend the defence at subsection 122.5(7) to apply where (a) the person dealt with or held the information in their capacity as a person engaged in reporting news, presenting current affairs or expressing editorial content in news media; and (b) at that time, the person reasonably believed that dealing with or holding the information was in the public interest.
Recommendation 7-2 The subsequent disclosure offences should include an exception where the disclosure is of information that is already in the public domain as the result of a lawful disclosure.
N/A.
The Bill does not provide for any separate ‘subsequent unauthorised offences’ in relation to non-Commonwealth officers.
The defences at subsections 122.5(2) and 122.5(8) in relation to previously communication information will apply to the separate ‘subsequent disclosure’ offences proposed to be inserted at section 122.4A.
Recommendation 7-3 In developing public interest disclosure legislation the Australian Government should ensure that the legislation protects:
(a) individuals subject to the general secrecy offence;
(b) individuals who subsequently disclose Commonwealth information received by way of a protected public interest disclosure; and
(c) individuals subject to the subsequent disclosure offence for the unauthorised disclosure of information received from a Commonwealth officer on terms requiring it to be held in confidence.
N/A.
The public interest disclosure legislation was finalised subsequently to the ALRC report, with the passage of the Public Interest Disclosure Act 2013.
As noted above, subsection 122.5(4) provides a defence to the secrecy offences for communications in accordance with the Public Interest Disclosure Act 2013.
No impact.
Recommendation 7-4 The general secrecy offence should stipulate a maximum penalty of seven years imprisonment, a pecuniary penalty not exceeding 420 penalty units, or both.
No.
The offences at proposed sections 122.1 and 122.2 stipulate maximum penalties of 15 years for the underlying offences, and 20 years for aggravated offences (see proposed section 122.3).
No impact.
Recommendation 7-5 The subsequent disclosure offences should stipulate maximum penalties of seven years imprisonment, a pecuniary penalty not exceeding 420 penalty units, or both.
No.
The offences at proposed sections 122.1 and 122.2—which would apply equally to subsequent disclosures—stipulate maximum penalties of 15 years for the underlying offences, and 20 years for aggravated offences (see proposed section 122.3).
The amendments provide separate offences for non-Commonwealth officers in proposed section 122.4A. The maximum penalty for these offences is 10 years imprisonment, with no applicable aggravating factors.
Recommendation 7-6 The general secrecy offence and the subsequent disclosure offences should provide that, where a court is satisfied that a person has disclosed, or is about to disclose, information in contravention of the provisions, the court may grant an injunction to restrain disclosure of the information.
Yes.
Proposed section 123.1 provides that the secrecy provisions will be enforceable under Part 7 of the Regulatory Powers (Standard Provisions) Act 2014, which creates a framework for using injunctions to enforce provisions.
No impact.