General criminal offences

3.90       The remainder of this chapter examines the two general criminal offences in the Crimes Act relating to the unauthorised disclosure of Commonwealth information. Section 70 covers the disclosure of information by Commonwealth officers, while s 79 deals with the disclosure of ‘official secrets’. The following overview analyses each of these sections according to criteria similar to that used above to analyse specific secrecy provisions.

Section 70—disclosure of information by Commonwealth officers

3.91       Section 70 of the Crimes Act is the only provision remaining in pt VI of the Crimes Act.^[125] A version of s 70 was included in the original Crimes Act in 1914, and was based on a provision of the Criminal Code Act 1899 (Qld).^[126] This original version of s 70 was repealed and replaced in 1960 to extend the prohibition on the unauthorised disclosure of information by Commonwealth officers to include former Commonwealth officers.^[127] While minor amendments have been made to s 70 on three occasions since 1960,^[128] the substance of the provision has not changed since that time.

3.92       The effect of s 70 is to apply criminal sanctions to the breach of secrecy obligations by public officials.^[129] Section 70 provides that:

(1)  A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he or she is authorized to publish or communicate it, any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and which it is his or her duty not to disclose, shall be guilty of an offence.

(2)  A person who, having been a Commonwealth officer, publishes or communicates, without lawful authority or excuse (proof whereof shall lie upon him or her), any fact or document which came to his or her knowledge, or into his or her possession, by virtue of having been a Commonwealth officer, and which, at the time when he or she ceased to be a Commonwealth officer, it was his or her duty not to disclose, shall be guilty of an offence.

3.93       Many Australian states and territories have similar offences. Crimes legislation in Queensland, Western Australia, Tasmania, the Australian Capital Territory and the Northern Territory each contain broadly framed offences for the unauthorised disclosure of information by public officials.^[130]All but the Northern Territory provision concern information that it is a person’s duty to keep secret or not to disclose.^[131] In New South Wales, the Independent Commission Against Corruption Act 1988 (NSW) includes as prohibited ‘corrupt conduct’ the ‘misuse of information or material that [a public official] has acquired in the course of his or her official functions, whether or not for his or her benefit or for the benefit of any person’.^[132]

3.94       Since 2000, the majority of prosecutions for the breach of secrecy provisions have been brought under s 70 of the Crimes Act, even where specific secrecy offences would have been available. There have been successful prosecutions for breaches of s 70, including of:

• an officer of the Australian Taxation Office—for providing documents containing summaries of taxpayers and tax agents to a private business associate;^[133]
• an officer of the Australian Customs Service—for providing reports about security at Sydney Airport to journalists;^[134]
•  an officer of the Office of Indigenous Policy Coordination—for disclosing information relating to the then draft Declaration on the Rights of Indigenous Peoples^[135] to her daughter, and information relating to Commonwealth Indigenous policy to a member of the Mutitjulu community in the Northern Territory;^[136] and
•  an officer of Centrelink—for disclosing personal details of Centrelink customers to a firm which offered to pay for information leading to the whereabouts of various people.^[137]

3.95       The following section examines the terms of s 70 of the Crimes Act in more detail.

‘Duty not to disclose’

3.96       Section 70 does not create a duty to keep information secret or confidential. Rather, the source of such a duty must be found elsewhere—most commonly in a specific secrecy provision.^[138] In R v Goreng Goreng, for example, the duty was found in reg 2.1(3) of the Public Service Regulations,whichprovides that APS employees must not disclose information obtained or generated in connection with their employment if it is reasonably foreseeable that the disclosure could be prejudicial to the effective working of government.

3.97       Although the issue has not been determined by a court, other sources of the duty may be those considered earlier in this chapter¾such as an employee’s common law duty to serve his or her employer with loyalty and fidelity or an equitable duty to protect his or her employer’s confidential information. In addition, the terms and conditions of an employment contract, or the obligation imposed by s 13(10) of the Public Service Act not to use information for personal benefit, may establish a ‘duty not to disclose’.

3.98       Leo Tsaknis has argued that in order for criminal sanctions to attach to the breach of a duty not to disclose, that duty must be a legal duty as opposed to a moral obligation or contractual arrangement.^[139] However, in Director of Public Prosecutions v G, the Full Court of the Federal Court considered that a contractual obligation may be sufficient to constitute a duty for the purposes of the former s 72 of the Crimes Act, which provided for the offence of falsifying books or records by a Commonwealth officer ‘fraudulently and in breach of his [or her] duty’.^[140] The Court was not, however, required to determine this issue.

3.99       Under s 70, criminal sanctions apply to a breach of a ‘duty not to disclose’. This can be compared with s 79 of the Crimes Act (discussed below), which refers to a ‘duty to treat [information] as secret’. The Western Australian Court of Criminal Appeal has held that the phrase ‘duty not to disclose’ is synonymous with the duty to ‘keep secret’ within the meaning of s 81 of the Crimes Act 1913 (WA).^[141] However, it may be that, for the purposes of Commonwealth law, the duty not to disclose is wider than the duty to keep information secret, in that secrecy presupposes that the material is not already in the public domain, while a duty not to disclose could apply to any information.^[142]

What kind of information is protected?

3.100   Section 70 of the Crimes Act makes it an offence for a Commonwealth officer to disclose ‘any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer’. On its face, s 70 could apply to the disclosure of any information regardless of its nature or sensitivity.

3.101   In Commissioner of Taxation v Swiss Aluminium Australia Ltd, Bowen CJ of the Federal Court commented that:

From the policy point of view it may be noted that an enactment such as s 70 of the Crimes Act prohibiting the disclosure of information obtained in the course of the duties of a public servant treats the nature or kind of information disclosed as virtually irrelevant. It is the office occupied by the person and the character in which he obtained the information which imposes the obligation of secrecy upon him in the interests of orderly administration and discipline of the service.^[143]

3.102   Higgins J of the Supreme Court of the ACT expressed a contrasting view, stating that some limitations could be implied into s 70:

Whether a duty of confidentiality arises so that s 70 Crimes Act can punish its breach will depend on the type of information, the circumstances in which it has been acquired and the interests of relevant parties in keeping it confidential. A consideration of the public interest must also be relevant. The duty to keep information confidential may attach to information of any kind but it must be such and acquired in such circumstances that such a duty arises. It does not arise merely because the information is obtained by an officer in the course of his or her duties.^[144]

3.103   The application of s 70 to the disclosure of information will depend on the nature of the duty not to disclose. As noted above, for example, the equitable duty of confidentiality only arises where the disclosure would be inimical to the public interest.^[145]Therefore, a prosecution for an offence under s 70, reliant on a breach of an equitable duty to protect confidential information, may require the prosecution to show that the disclosure was likely to harm the public interest. On the other hand, if the prosecution relied upon a breach of a statutory duty not to disclose any information obtained in the course of employment, s 70 could potentially apply to the disclosure of information already in the public domain.^[146]

3.104   Section 70 expressly applies to the communication or publication of a ‘fact or document’. Neither ‘fact’ nor ‘document’ is defined. Finn has argued that the need for disclosure of a ‘fact or document’, rather than ‘information’, opens the application of s 70 to anomalies:

Where a document is not disclosed all that is protected is a ‘fact’; where a document is disclosed its contents need not be ones of fact. Unless ‘fact’ is given a meaning which covers disclosure of advice, opinion, intention etc, the scope of the offence is manipulated simply by the particular means (oral or documentary) used in the disclosure.^[147]

3.105   The distinction between the communication of a fact or a document can be important to the prosecution of an offence. In R v Kessing, a former officer of the Australian Customs Service, Allan Kessing, was convicted of providing reports about airport security arrangements to two journalists.^[148] On appeal, the New South Wales Court of Criminal Appeal held that the trial judge had misdirected the jury in saying that it was sufficient if the prosecution could establish that Kessing had confirmed the accuracy of material that journalists had obtained from another source. Bell JA, with whom Rothman and Price JJ agreed, stated that:

The offence under s 70 may be committed by publishing or communicating a fact which came to the knowledge of the accused by virtue of having been a Commonwealth officer or by publishing or communicating a document which came into his or her possession by virtue of having been a Commonwealth officer or by both. This was a case in which the offence charged was the communication of the documents. To confirm the accuracy of a document leaked by another to a journalist may be to communicate a fact, but in my opinion it is not to communicate the document.^[149]

3.106   Further, Tsaknis has pointed out that it is unclear whether the release of any information would constitute a ‘fact’ or whether the prosecution needs to prove the factual accuracy of the information in order to satisfy the terms of s 70.^[150]

What kind of activity is regulated?

3.107   A person commits an offence under s 70 if he or she ‘publishes or communicates’ any fact or document. The Crimes Act does not provide any guidance as to the meaning of the term ‘publishes or communicates’. In Kessing v The Queen, Bell JA, with whom Rothman and Price JJ agreed, summarised this requirement as follows:

To ‘communicate’ is to transmit or to impart knowledge or make known (Macquarie Concise Dictionary, 3rd ed). One may ‘communicate’ a document by communicating the contents of the document. This is how the Crown particularised this case. Generally, ‘to publish’ connotes to make publicly known, however, in the law of defamation publication applies to making the matter complained of known to any person other than the person defamed.^[151]

3.108   Further, Bell JA confirmed that communication for the purposes of s 70 can be direct or indirect:

Communication of the contents of a document requires no more than that the contents be conveyed or transmitted to another. This may be done directly by handing the document to another or by reading the document to another. It may be done indirectly by leaving the document on a park bench for another to collect or in any of a variety of ways. The essential feature of communicating a fact or document for the purposes of s 70 is that the communication is intentional.^[152]

Whose activity is regulated?

3.109   Section 70(1) of the Crimes Act applies to Commonwealth officers, while s 70(2) applies to former Commonwealth officers. The definition of Commonwealth officer set out in s 3 of the Crimes Act includes a person:

•  appointed or engaged under the Public Service Act;
•  employed in the public service of a territory, Australian Defence Force, Australian Federal Police or public authority under the Commonwealth;
• who performs services for or on behalf of the Commonwealth, a territory or public authority; or
• who performs services, or is an employee of the Australian Postal Corporation.

3.110   The list of persons included in this definition is not exhaustive, and some categories could be broadly interpreted. In particular, ‘a person holding office under, or employed by, the Commonwealth’ arguably includes a very wide category of persons. While there has been little judicial consideration of who may be considered a Commonwealth officer, judges,^[153] ministers and ministerial staff all potentially fall within the definition.^[154] It is important to note that while a person may be a Commonwealth officer, it does not necessarily follow that they have a duty not to disclose information—for example, judges exercising federal judicial power may not be bound by such a duty.^[155]

3.111   Other legislation may deem certain officers to be Commonwealth officers. For example, officers or employees of ASIO^[156] and staff members of the Australian Secret Intelligence Service^[157] are deemed to be Commonwealth officers for the purposes of the Crimes Act.

Exception—authorised disclosures

3.112   Section 70(1) includes an exception to the offence where a person discloses the information ‘to some person to whom he or she is authorised to publish or communicate it’. Section 70(2) contains a different exception by requiring that the publication or communication be ‘without lawful authority or excuse’, proof of which lies with the defendant.

3.113   The scope of each exception, and the extent of any difference between them, is unclear. If the duty not to disclose arises under a particular statutory provision, that provision may clarify the circumstances in which publication or communication of information is authorised. In relation to s 70(1), Tsaknis has suggested that the statute conferring functions, powers and duties of a Commonwealth officer may provide an implied authority to release information.^[158] Similarly, in relation to s 70(2), the common law may provide a ‘lawful excuse’, particularly where the ‘duty not to disclose’ arises under contractual, common law or equitable principles.^[159]

3.114   Section 70 does not create an exception or defence relating to disclosure in the public interest. However, it is possible that this issue might be a factor in sentencing in a particular case.^[160]

Section 79—disclosure of official secrets

3.115   Section 79 of the Crimes Act creates a number of offences relating to the use or disclosure of official secrets. A version of s 79 formed part of the first Crimes Act in 1914 and was based on provisions of the Official Secrets Act 1911 (UK).^[161] While s 79 deals with the disclosure of defence or security information, there is also significant overlap with the general secrecy offence in s 70. Section 79 is set out in full in Appendix 5.

3.116   By way of background, the Criminal Code Amendment (Espionage and Related Matters) Act 2002 (Cth) repealed and replaced the espionage offences originally in pt VII of the Crimes Act. The Criminal Code Amendment (Espionage and Related Offences) Bill 2001 (Cth) was initially intended also to repeal and replace s 79 of the Crimes Act with updated provisions in the Criminal Code, although the new provisions did not exactly replicate s 79. In particular, the new offence of ‘receiving certain information’ did not require the person to know or have reasonable grounds to believe that the information was communicated in contravention of the espionage or secrecy provisions.^[162]

3.117   The new provisions were criticised on the basis that they would interfere with freedom of speech and prevent public discussion of important issues of public interest.^[163] As a result, the provisions intended to replace s 79 were removed from the Bill. The then Attorney-General, the Hon Daryl Williams AM QC MP, explained this decision as follows:

Recently concerns have been raised about the official secrets provisions in that bill. … There has been considerable media attention focused on the perceived impact that the official secrets provisions in the earlier bill were alleged to have on the freedom of speech and on the reporting of government activities.

The original bill did not alter the substance of the official secrets offences; it simply modernised the language of the offences consistent with the Criminal Code. The government’s legal advice confirms that there was in substance no difference between the current provisions of the Crimes Act and the proposed provisions of the Criminal Code. The allegations ignore the fact that the existing law has not prevented the reporting of such stories in the past. Despite this, to avoid delay in the reintroduction of the important espionage provisions, the government decided to excise the official secrets provisions from the bill so only those relating to espionage have been included in the bill introduced today.^[164]

3.118   There have been few prosecutions under s 79. One example is the conviction in 2003 of Simon Lappas for offences under ss 79(3) and 78 of the Crimes Act (which was subsequently repealed and replaced by s 91.1 of the Criminal Code). Lappas, an employee of the Defence Intelligence Organisation, had given several classified documents to an unauthorised person, Sherryll Dowling, so she could sell the documents to a foreign country.^[165] Lappas was found guilty and, on appeal, sentenced to two years imprisonment. Dowling pleaded guilty to two charges of receiving the classified documents and was placed on a five year good behaviour bond.^[166]

3.119   Another example is the conviction in 1977 of a probationary trainee of ASIO for offences under s 79(3). He had communicated official secrets as part of a ‘personal practical experiment’ to see what kind of response he would get to an overture to a foreign agency purporting to offer intelligence secrets.^[167]

What kind of information is protected?

3.120   Section 79 operates as both a general and a specific secrecy provision, depending on the kind of information disclosed. As noted above, s 79(1)(a) and (c) set out two categories dealing with the disclosure of particular kinds of defence and security information. However, s 79 also covers a more general category of information which

has been entrusted to the person by a Commonwealth officer or a person holding office under the Queen or he or she has made or obtained it owing to his or her position as a person:

      (i)   who is or has been a Commonwealth officer;

      (ii)  who holds or has held office under the Queen;

      (iii) who holds or has held a contract made on behalf of the Queen or the Commonwealth;

      (iv) who is or has been employed by or under a person to whom a preceding subparagraph applies; or

      (v)  acting with the permission of a Minister;

and, by reason of its nature or the circumstances under which it was entrusted to him or her or it was made or obtained by him or her or for any other reason, it is his or her duty to treat it as secret.^[168]

3.121   Section 79(1)(b) is similar to that in s 70, insofar as it relies on a ‘duty to treat [the information] as secret’. As with s 70, this duty could stem from the common law, a statutory secrecy provision or the terms of a contract. However, s 79 is not dependent on a person’s position as a Commonwealth officer. Because the offences cover ‘any person’, s 79 contemplates that a duty to keep information secret could arise from the nature of the information¾for example, a document of a particular security classification—or the circumstances in which the information was obtained.

3.122   The information covered by s 79 can take the form of a ‘sketch, plan, photograph, model, cipher, note, document, or article’. ‘Article’ is defined to include ‘any thing, substance or material’; while information is broadly defined to mean ‘information of any kind whatsoever, whether true or false and whether in a material form or not, and includes (a) an opinion; and (b) a report of a conversation’.^[169]

What kind of activity is regulated?

3.123   Section 79 creates a number of offences relating to the use and disclosure of ‘prescribed information’ (for convenience, here referred to as an ‘official secret’). The offences can be summarised as follows:

• Section 79(2): communicating or allowing someone to have access to or retaining an official secret without authorisation with ‘the intention of prejudicing the security or defence of the Commonwealth or a part of the Queen’s dominions’—maximum penalty seven years imprisonment.
• Section 79(3): communicating or allowing someone to have access to an official secret without authorisation—maximum penalty two years imprisonment.
• Section 79(4): retaining, failing to comply with a direction regarding the retention or disposal of an official secret, failing to take reasonable care of prescribed information or conducting oneself as to endanger its safety—maximum penalty six months imprisonment.
• Section 79(5): receiving information knowing or having reasonable ground to believe, at the time when he or she receives it, that the information is communicated to him or her in contravention of s 91.1 of the Criminal Code or s 79(2)—maximum penalty seven years imprisonment.
• Section 79(6): receiving information knowing or having reasonable ground to believe, at the time when he or she receives it, that the information is communicated to him or her in contravention of s 79(3)—maximum penalty two years imprisonment.

3.124   Apart from s 79(2), which requires that a person act intending to prejudice the security or defence of the Commonwealth, s 79 applies to all information, regardless of its nature or the effect of its disclosure. As noted in the review of Commonwealth criminal law by the committee chaired by Sir Harry Gibbs in 1991:

No distinction is drawn for the purposes of these provisions between information the disclosure of which may cause real harm to the public interest and information the disclosure of which may cause no harm whatsoever to the public interest.^[170]

Whose activity is regulated?

3.125   Section 79 covers the unauthorised disclosure of information obtained and generated by Commonwealth officers and information ‘entrusted’ to other persons by Commonwealth officers. The offence therefore covers both initial disclosures by Commonwealth officers and subsequent disclosures by third parties. In addition, the offences relating to the receipt and handling of an official secret apply to any person, regardless of whether the person was aware that he or she had a duty not to disclose information.^[171]

Exceptions and defences

3.126   Subsections 79(2) and (3) permit the disclosure of prescribed information to:

(a)        a person to whom he or she is authorized to communicate it; or

(b)  a person to whom it is, in the interest of the Commonwealth or a part of the Queen’s dominions, his or her duty to communicate it.

3.127   The exception regarding a duty to communicate information ‘in the interest of the Commonwealth’ is based on s 2(1) of the (now repealed) Official Secrets Act 1911 (UK). The exemption was considered by a United Kingdom court in the case of R v Ponting.^[172] Clive Ponting was a senior civil servant in the Ministry of Defence. In preparing a briefing for the Minister, Ponting saw documents which showed that the government had provided incorrect information to Parliament about the sinking of the Argentinian ship Belgrano during the Falklands War. When the Minister did not correct the information, Ponting provided copies of the documents to an Opposition Member of Parliament. He was charged under the Official Secrets Act.

3.128   In his defence, Ponting argued that he had disclosed the documents ‘in the interests of the state’, the equivalent exception to that contained in s 79(3)(b) of the Crimes Act. At trial, the judge gave a direction to the jury that the reference to this duty was to an official duty rather than a moral, contractual or civic duty, and the ‘interests of the state’ were the interests according to its recognised organs of government and the policies as expounded by the particular government of the day.^[173]

3.129   It is not necessarily the case that an Australian court would interpret s 79(2)(b) and (3)(b) in the same way, particularly given the High Court’s decision in Commonwealth v Fairfax,^[174] which set out factors relevant to determining the public interest in the confidentiality and disclosure of certain information.^[175]

3.130   Subsections 79(5) and (6) include a defence to the offence of receiving prescribed information where a person can prove that the ‘communication was contrary to his or her desire’.

Overlap between the general offences

3.131   There is a degree of overlap between ss 70 and 79(3) of the Crimes Act. The offence under s 79(3), appears to apply to the same broad range of information covered by s 70. Both provisions apply criminal sanctions to the breach of a ‘duty’ that is found either outside the criminal provision (ss 70 and 79(3)) or determined by the nature of the information or circumstances of the communication (s 79(3)).

3.132   While both offences apply to Commonwealth officers who disclose information without authority, s 79(3) extends to subsequent disclosure of information by ‘any person’. Further, s 79(4), (5) and (6) applies to conduct other than disclosure, including the unauthorised retention or receipt of information.

3.133   A further point of difference between the two provisions is that s 79(3)(b) contains an exception that permits a person to communicate information ‘in the interests of the Commonwealth’. The meaning and scope of this exception is unclear. Tsaknis has suggested that it is possible that a disclosure may be justified under s 79 in the interests of the Commonwealth and yet prohibited under s 70.^[176]

3.134   Both ss 70 and 79(3) of the Crimes Act operate as ‘catch-all’ provisions to criminalise the disclosure of a potentially wide variety of information in breach of some other duty. Because the offences are contingent on duties found beyond the terms of those offences, there is potential for uncertainty about the kind of conduct that will attract criminal sanctions.

3.135   The following chapters set out a framework for the reform of general and specific secrecy provisions in Commonwealth legislation to provide greater certainty and to ensure a consistent and workable approach to the protection of Commonwealth information.