INSLM’s Review of the Secrecy Offences in Part 5.6 of the Criminal Code Act 1995 (Cth)
26 March 2024
On Tuesday, 26 March the Law Council’s expert representatives: Dr David Neal SC (Co-Chair, National Criminal Law Committee) and Mr Phillip Boulten SC (Member, National Criminal Law Committee) along with Mr Shounok Chatterjee appeared at the Independent National Security Legislation Monitor’s (INSLM’s) review of the secrecy offences contained in Part 5.6 of the Criminal Code Act 1995 (Cth).
At the hearing the INSLM, Mr Jake Blight, expressed gratitude for the Law Council’s detailed submission submitted on 18 March 2024 and the voluntary contribution of expert practitioners who contributed their time to the review. It was pleasing to note that the Law Council submission was referred to extensively, to inform questions to government and intelligence agencies as well as by other civil society stakeholders, throughout the hearing.
The Law Council continues to accept the need for carefully drafted and proportionate secrecy offences that are directed to protect a narrow range of essential public interests. In this regard, the Law Council maintains its support for the development and amendment of Commonwealth secrecy provisions in a manner consistent with the Australian Law Reform Commission’s 2009 report: Secrecy Laws and Open Government in Australia.
In his opening statement, Mr Boulten noted that ‘(i)t is significant that the ALRC’s overarching recommendation, the need to ensure that criminal sanctions are reserved for behaviour that harms, is reasonably likely to harm or intended to harm essential public interests, has been endorsed by virtually all of the civil society stakeholders appearing before this inquiry, including the Australian Human Rights Commission, media groups and public interest lawyers’.
The INSLM agreed with us on the need to narrow the scope of certain offences that deem harm in relation to broadly defined categories of information. We have long argued that the current approach to deeming harm in respect of broadly defined categories of information is uncertain and inconsistent with the rule of law. This because these deemed harm categories are identified by nebulous definitional concepts, uncertain physical offence elements as well as being, in certain respects, subject to variation by administrative discretion. In this regard, the INSLM has requested the Law Council provide feedback on his draft recommendation for a more narrowly targeted deemed harm offence for information relating to operations, capabilities, methods or sources used to obtain intelligence information.
The Law Council emphasised its view that the need to maintain whole-of-government information security culture is not a sufficient reason to criminalise the innocuous conduct of people such as journalists and human rights lawyers doing their job—which may include exposing wrongdoing by Commonwealth officials. At the hearing, the Law Council’s representatives explained in further detail our recommendation that the current defence intended to protect public interest journalism should be recast as an exception. We argue that, in keeping with similar Commonwealth offences, the prosecution should be required to prove, as an element of the offence, that the unauthorised disclosure was not in the public interest. The Law Council also highlighted the need for greater protections for lawyers providing legal advice in relation to offences under Part 5.6.
Last Updated on 20/06/2024
Share
Tags
Most recent items
Law Council
Law Council President's Message - December 2024
Law Council