Law Council of Australia

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Release of INSLM review of Commonwealth secrecy offences

3 July 2024

The Law Council of Australia has welcomed the final report of the Independent National Security Legislation Monitor’s (the INSLM’s) review of Commonwealth secrecy offences and calls on the Government to promptly act on its findings. This review examined the effectiveness, necessity and proportionality of Commonwealth secrecy offences contained in Part 5.6 of the Criminal Code Act 1995 (Cth), which make it a criminal offence to deal with, or disclose, certain government information.

The Law Council has long called for amendment of Australia’s secrecy laws to ensure a better balance between preventing the release of information which could harm essential public interests and the need for open and accountable government. To this end, we have endorsed the 15 recommendations contained in the INSLM’s comprehensive and measured report as a starting point for future reform.

In our detailed written submission and evidence to the INSLM’s inquiry, the Law Council explained that the current Commonwealth secrecy offences regime offends against key rule of law principles – that the intended scope and operation of offence provisions should be unambiguous; and key terms should be defined. The practical workability of this regime is undermined by uncertainty in certain key respects. We therefore support those recommendations directed to removing reliance on information being security classified, under an administrative framework, as an element of the offence. We also support the INSLM’s recommendations directed to narrowing the operation of broadly framed offences – applicable to a wide range of security and intelligence agency information –  to instead focus on covert intelligence activities.  

The uncertain reach of secrecy laws undermines trust in government and disproportionately interferes with the important role of a free press and civil society groups. For this reason, we endorse the INSLM’s recommendation to repeal disproportionate offences that currently apply to people who do not work for the government, including journalists and lawyers. We also welcome the INSLM’s recommendation that the Law Council’s proposal for the current defence intended to protect public interest journalism to be recast as an exception be given further consideration. The INSLM also recommended consideration be given to the Law Council’s proposals for wider defences for lawyers handling national security information in order to do their job, if his primary recommendation regarding dealing offences is not accepted.

We were pleased to note that both our written submission, oral evidence of the LCA’s expert representatives and supplementary submission were carefully considered in the INSLM’s Report. Counting both in-text and footnote citations, there were 148 mentions of the Law Council. This influence is a result of the expertise of our National Criminal Law Committee, National Security Law Working Group, in addition to detailed feedback from Constituent Bodies.

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