Federal Attorney-General Mark Dreyfus is proposing a new catch-all secrecy offence in response to the PwC confidentiality breach exposed earlier this year, which will outlaw the disclosure or mishandling of any information that “prejudices the effective working of government”.
The new proposed general secrecy offence is part of an overhaul that will abolish some of the 875 current national secrecy laws and refine the penalties for breaching them. The changes will explicitly subject government contractors and former public servants to the same secrecy obligations as for serving officials, and strip automatic criminal liability from a range of offences, including some affecting journalists, meaning they would no longer attract a mandatory jail sentence.
“It won’t be our default position to keep things secret,” Dreyfus tells The Saturday Paper this week, after unveiling the results of the review of secrecy and non-disclosure offences across the whole Commonwealth government. He says the principle underpinning the government’s approach is that secrecy will need to be justified and “is to be used sparingly”.
“Potential embarrassment for a government is not a justifiable presumption for secrecy,” he said, noting the new approach would be harms-based, and so “will direct those who are involved in enforcing secrecy to pay attention to what harm is caused by making something public”.
The federal review of secrecy offences comes after a string of high-profile controversies involving the handling of government information by Commonwealth officials, contractors, lawyers and journalists.
Police raids on the home of then News Corp journalist Annika Smethurst and on the offices of the ABC over reports by journalists Dan Oakes and Sam Clark in 2019 drew attention to Australia’s secrecy laws and a huge public outcry.
The robodebt royal commission’s exposure of system failures that allowed an unlawful debt recovery scheme to continue unchallenged for years has also informed the review.
The legislation for the new general secrecy offence is not yet drafted, but Dreyfus says it will define what constitutes information that could prejudice the “effective working of government”. He cannot say yet what the definition will be.
Chair of the Centre for Public Integrity and former New South Wales judge Anthony Whealy, KC, warns properly defining the phrase “the effective working of government” is essential.
“I don’t think it has any meaning at all,” Whealy says. “Alternatively, it could have any meaning you like. It’s one of those catch-all phrases that could be used to stifle openness.”
Dreyfus insists the government is not looking to create more loopholes.
“I don’t think people should jump at shadows here,” the attorney-general says, arguing that a “harms-based approach” means “we’re not doing secrecy for secrecy’s sake”. The seriousness of an offence would be determined by the harm that is caused – or could be caused – by a disclosure. This is based on the nature of the information and the circumstances involved, with public-interest defences available for disclosure in some cases. Critics including the Law Council of Australia have argued those defences should be broader, for example to better protect someone providing information to a journalist, as well as protections for the journalist.
The harm assessment would help determine the penalties that should apply for disclosing different kinds of data, from personal details to top-secret national security or intelligence information. This would replace the current system in which criminal penalties, including mandatory minimum jail sentences in some cases, apply to a broad sweep of secrecy and non-disclosure offences.
The review proposes examining each individual provision to determine whether it is still appropriate or should be repealed. It lays out 12 principles that should frame Commonwealth secrecy offences, within 11 recommendations for change. They include removing criminal liability from 168 of the 875 secrecy offences. The review recommends abolishing section 122.4 of the Criminal Code Act, which attaches criminal liability to a range of disclosures by Commonwealth officials and to their possession and disclosure to and by third parties, including journalists.
That section had been subject to a sunset clause to allow for the secrecy review, promised under the previous government, and its provisions had been due to expire on December 29 this year. Last week, parliament passed legislation extending that date by a year, to allow the system redesign to be completed before the section is abolished.
The existing information protection regime includes 569 explicit secrecy offences, with another 295 non-disclosure duties applying specifically to Commonwealth public servants. Further complicating the system, there are provisions in another 20 laws that override the others in some circumstances.
“We’re looking at cutting around one in five of the hundreds of offences,” Dreyfus says.
The new regime also includes special protections for individuals providing information to royal commissions.
Dreyfus confirms the new general secrecy offence will be in addition to a pared-down set of specific secrecy offences. He says it is being designed to address issues arising from the PwC scandal, in which the company used its privileged early access to draft tax-avoidance laws as a consultant to government to devise workarounds for existing clients and to recruit new ones.
“That showed there was a serious gap in the adequacy and appropriateness of secrecy offences for consultants who receive confidential information from government,” Dreyfus says. “This is about cracking down on those who abuse the privileged access they have to government information.”
The attorney-general argues the Albanese Labor government has “a very, very different orientation” on secrecy to the one that guided preceding Coalition governments.
“Our view is that we should only keep things secret when it’s needed to protect the national interest,” Dreyfus says.
Shadow attorney-general Michaelia Cash suggests the review reflected what Dreyfus wanted, prepared by his department to terms of reference he set.
“The Coalition will scrutinise it accordingly,” Cash tells The Saturday Paper. She says the review appears to reflect aspects of the Coalition’s approach to press freedom, in relation to public interest journalism and a public interest test for prosecutions.
Cash also queries the reference to “the effective working of government”.
“What does that mean? How will it work in practice? What impact will it have?”
The secrecy law overhaul is part of a series of measures, including changes in public interest disclosure arrangements introduced prior to the National Anti-Corruption Commission beginning its work in July this year. The federal, state and territory governments are also working on harmonising journalist shield laws. Transparency advocates are urging an overhaul of freedom of information law as well.
The secrecy law review expressly does not cover the specific offences that are contained in the National Security Information (Criminal and Civil Proceedings) Act 2004, which relates to how much can be disclosed in court when someone is being prosecuted for disclosing highly classified national security information.
A report on the workings of that legislation by the retiring Independent National Security Legislation Monitor (INSLM), Grant Donaldson, is due to be tabled in parliament next week and appears likely to recommend further changes. That review particularly examined the 2018 prosecution of a former intelligence officer under the pseudonym Alan Johns, who also called himself Witness J. Johns was charged, convicted and jailed entirely in secret, in the first case of its kind in Australia. Details of the case emerged inadvertently in 2021. It was only through the INSLM’s subsequent work – with Dreyfus’s agreement – that the judge’s reasons for Johns’s conviction were eventually made public.
The INSLM’s findings also follow the twin controversial prosecutions of a former intelligence officer, known as Witness K, and his lawyer Bernard Collaery, who were charged in 2018 with disclosing and possessing information about Australia spying on the East Timorese government. Witness K pleaded guilty and Dreyfus intervened, upon taking office last year, to have the charges against Collaery dropped.
Two other prominent cases involving the unauthorised disclosure of government information – the prosecutions of former military lawyer David McBride and former Australian Taxation Office official Richard Boyle – remain before the courts. On November 17, McBride pleaded guilty to three charges of stealing and unlawfully sharing government military information. He had sought to use a whistleblower defence.
The previous day, Dreyfus unveiled a consultation paper on the next round of whistleblower-protection reforms, including on whether to establish a whistleblower protection authority or commissioner.
The Centre for Public Integrity is in favour. Anthony Whealy welcomes the consultation but argues the overhaul should be faster. On the secrecy review overall, he says the proposed reforms are a good start “but they don’t go far enough in a number of respects”.
The Centre for Public Integrity had argued a legal provision allowing the Australian National Audit Office (ANAO) to be gagged in some circumstances should also be abolished because the previous government had used it to block the publication of criticisms of how Defence procurement was being handled.
Then attorney-general Christian Porter issued a certificate under section 37 of the Auditor-General’s Act to force the ANAO to omit value-for-money criticisms of the purchase of Hawkei light armoured vehicles from a performance audit report. After former independent senator Rex Patrick obtained the full report under freedom of information laws, it became clear the certificate had been issued at the request of defence contractor Thales.
The secrecy review does not recommend that section 37 be repealed.
Dreyfus says Porter is the only attorney-general to have used the section and says it is fair to question its value. However, he argues there may be circumstances – including reasonable commercial-in-confidence concerns – that could warrant its future use.
“The Australian National Audit Office, the auditor-general, has powers that no other Commonwealth agency has,” Dreyfus says. “When you have an agency with powers like that that are necessarily intrusive and far-reaching, they do need to be accompanied by the safeguard of secrecy provisions and sometimes those secrecy provisions will need to be used.”
Dreyfus also retained something else Porter initiated – the provision that the attorney-general must expressly approve the prosecution of a journalist for secrecy-breach offences. Some in the media and the law have criticised that provision as risking political interference and blurring the lines between government and the justice system. Dreyfus argues it can act as an important brake on improper prosecution and plans to enshrine it in its own law.
“It’s not a power to prosecute,” he says. “It’s a power to protect press freedom. It makes it more permanent. It’s not subject to ministerial whim of sweeping away the requirement, which is, at present, what could happen.”
But some respected legal authorities, including the Law Council of Australia, remain deeply concerned about the ministerial approval, believing it impairs the independence of the Commonwealth Director of Public Prosecutions. The Law Council welcomes the move to apply a public interest journalism defence to additional secrecy offences but remains concerned that the evidentiary burden is still on the journalist to prove a disclosure is in the public interest, not on the prosecution to prove it is not.
Overall, Dreyfus says current secrecy laws are “just not fit for purpose”.
“We’re a proud, open, vibrant democracy and we should only keep things secret when it’s needed to protect our national interests.”
This article was first published in the print edition of The Saturday Paper on November 25, 2023 as "Secrecy overhauled".
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