Fault elements

6.96       The Criminal Code sets out the structural framework for Commonwealth criminal offences. The Code provides that offences have physical elements, for example, conduct, and fault elements, such as intention, knowledge, recklessness or negligence.^[92] Under the Code, if the legislation creating an offence does not specify a fault element for a physical element consisting of conduct, the automatic fault element is intention.^[93] Where an offence provision does not specify a fault element for a physical element consisting of a circumstance or a result, the automatic fault element is recklessness.^[94] In the following section the ALRC considers what fault elements should attach to the core physical elements of the general secrecy offence.

Fault element attaching to disclosure

6.97       The ALRC’s mapping exercise indicates that the majority of Commonwealth secrecy provisions, including s 70 of the Crimes Act, do not stipulate fault elements. Therefore, on the basis of the provisions of the Criminal Code, the fault element attaching to the conduct of publishing or communicating information under s 70 of the Crimes Act is intention. In DP 74, the ALRC proposed that the fault element attaching to disclosure in the general secrecy offence should also be intention, that is, the prosecution would have to establish that the act of disclosure was intentional.^[95]

6.98       The ALRC considered whether the offence should also include recklessness as a fault element in relation to the unauthorised disclosure of Commonwealth information. Section 5.4 of the Criminal Code provides that:

(1)  A person is reckless with respect to a circumstance if:

      (a)  he or she is aware of a substantial risk that the circumstance exists or will exist; and

      (b)  having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

(2)  A person is reckless with respect to a result if:

      (a)  he or she is aware of a substantial risk that the result will occur; and

      (b)  having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

(3)  The question whether taking a risk is unjustifiable is one of fact.

(4)  If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.

6.99       If the offence was framed to cover reckless disclosure, the prosecution would be required to prove that the accused was aware of a substantial risk that disclosure would occur as the result of the accused’s conduct and, having regard to the circumstances known to him or her, it was unjustifiable to take the risk.

6.100   The ALRC has identified a number of secrecy provisions in which the fault element attaching to disclosure is recklessness. For example, s 23YO(1) of the Crimes Act provides:

A person is guilty of an offence if:

      (a)  the person has access to any information stored on the Commonwealth DNA database system or [National Criminal Investigation DNA Database] or to any other information revealed by a forensic procedure carried out on a suspect, offender or volunteer; and

      (b)  the person’s conduct causes the disclosure of information other than as provided by this section; and

      (c)  the person is reckless as to any such disclosure.^[96]

6.101   The AGD Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers statesthat:

criminal law policy provides that the fault elements supplied by the Criminal Code should apply unless there is a justifiable reason for departing from them. Departure from the principles set down in the Code would normally only be considered appropriate where it was not possible to achieve Parliament’s intention through the Criminal Code options.^[97]

6.102   The Guide also notes that ‘it will almost always be clear and incontestable that a person intended his or her own conduct’.^[98] In DP 74, the ALRC asked for stakeholder views on whether it would be appropriate to include recklessness as to disclosure as part of the general secrecy offence.^[99]

Submissions and consultations

6.103   A small number of stakeholders made submissions on this issue. DoHA expressed support for the proposal that the fault element attaching to disclosure should be intention.^[100] The AFP, on the other hand, was of the view that the general secrecy offence should cover reckless, as well as intentional, disclosure of Commonwealth information, noting that s 79(4)(c) of the Crimes Act currently extends to reckless conduct:

For example, if a disgruntled Commonwealth employee deliberately left a USB drive containing confidential Commonwealth information in a train station hoping that someone would find it and publicly disclose its contents, it may be hard to argue that the employee intentionally disclosed the information.^[101]

ALRC’s views

6.104   The ALRC recommends that the fault element attaching to the act of disclosure in the general secrecy offence should be intention. This is the existing situation under s 70 of the Crimes Act and the vast majority of other secrecy offences. It is also consistent with the policy position in the Guide to Framing Commonwealth Offences, discussed above. The ALRC can see no justification for a departure from the automatic fault element stipulated in the Criminal Code.

Fault element attaching to harm

6.105   Both the general secrecy offence and the subsequent disclosure offences, discussed below, require that the prosecution prove that the unauthorised disclosures caused harm, or were reasonably likely to cause harm, to one of the specified public interests. Where conduct causes harm, that harm may be characterised as a ‘result’ within the framework established by the Criminal Code. The Code provides that where an offence provision does not specify a fault element for a physical element consisting of a result, the fault element is recklessness.^[102] The Code also provides that if recklessness is the fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.^[103]

6.106   On the basis of the automatic fault elements set out in the Criminal Code, the general secrecy offence would consist of an intentional disclosure of Commonwealth information by a Commonwealth officer who knew, intended or was reckless as to whether the disclosure would cause, or was reasonably likely to cause, harm to the identified public interests.

6.107   In DP 74, the ALRC proposed that the general secrecy offence should include three tiers.^[104] The first tier was to cover an intentional disclosure of Commonwealth information by a Commonwealth officer, with strict liability attaching to the harm element. The prosecution would not be required to prove that the Commonwealth officer knew, intended or was reckless as to whether the disclosure would cause harm, simply that the disclosure did, or was reasonably likely to, cause harm. The ALRC also proposed a more serious offence that would require the prosecution to prove that the officer knew, intended or was reckless as to whether the disclosure would cause harm, or was reasonably likely to cause harm.

Strict liability and absolute liability

6.108   Strict liability and absolute liability offences do not require any fault elements to be proved. The difference between them is that the defence of an honest and reasonable mistake of fact is available in relation to strict liability offences, but not available in relation to absolute liability offences.^[105] Courts are unlikely to impose strict or absolute liability unless there is a clear and express indication in the legislation.^[106]

6.109   The Guide to Framing Commonwealth Offences notes that the automatic fault elements set out in the Criminal Code reflects the common law premise that:

it is generally neither fair, nor useful, to subject people to criminal punishment for unintended actions or unforeseen consequences unless those resulted from an unjustifiable risk (ie recklessness).^[107]

6.110   The Guide goes on to indicate, however, that the application of strict or absolute liability to a particular physical element may be appropriate where there is evidence that a requirement of proving fault in relation to that physical element could undermine the deterrent effect of the offence.^[108]

6.111   The Senate Standing Committee for the Scrutiny of Bills noted that the requirement for a fault element is one of the most fundamental protections of the criminal law, and that strict liability offences should only be introduced after careful consideration and on a case-by-case basis.^[109] The Standing Committee concluded that strict liability may be appropriate where it has proved difficult to prosecute fault provisions, particularly those involving intent. The Standing Committee noted that strict liability had been applied in a range of circumstances, including where it is difficult for the prosecution to prove a fault element because a matter is peculiarly within the knowledge of the defendant.^[110]

6.112   The Standing Committee also concluded that:

two-tier or parallel offences are acceptable only where the strict liability limb is subject to a lower penalty than the fault limb, and to other appropriate safeguards; in addition, it should be clearly evident that the fault limb alone would not be sufficient to effect the purpose of the provision.^[111]

6.113   An example of an offence provision that attaches strict liability to one element of the offence is s 58 of the Defence Force Discipline Act 1982 (Cth). This provision provides that strict liability applies to the requirement that the disclosure is likely to be prejudicial to the security or defence of Australia. The application of strict liability avoids the evidential difficulties for the prosecution in proving beyond reasonable doubt that the accused knew, intended, or was reckless as to whether, the disclosure was likely to be prejudicial to the security or defence of Australia. The provision also provides a defence where the accused can prove that he or she neither knew, nor could reasonably be expected to have known, that the disclosure of the information was likely to be prejudicial to the security or defence of Australia.

6.114   The first-tier general secrecy offence proposed in DP 74 would have required the prosecution to prove that:

• ·                a Commonwealth officer intentionally disclosed Commonwealth information; and

• ·                the disclosure harmed, or was reasonably likely to harm, the essential public interests set out in Recommendation 5–1.

6.115   However, the prosecution would not have to prove that the officer knew, intended or was reckless as to whether the disclosure would cause harm. The defence of mistake of fact would be available by virtue of s 6.1 of the Criminal Code. This defence would have been available where an officer considered whether or not certain facts existed—for example, facts that would make the disclosure harmless—at or before the time of the disclosure, and was under a mistaken but reasonable belief about those facts, and had those facts existed, the conduct would not have constituted an offence.

6.116   The ALRC proposed this strict liability approach to the requirement to prove harm on the basis that Commonwealth officers have access to Commonwealth information because they hold positions of trust in the community. Such positions involve a level of responsibility to take care that information that could potentially harm essential public interests is not disclosed without authority. The approach was consistent with the ALRC’s previous recommendation in its report Keeping Secrets: The Protection of Classified and Security Sensitive Information that secrecy provisions should apply only to information that genuinely requires protection and where unauthorised disclosure is likely to harm the public interest.^[112]

Submissions and consultations

6.117   A number of stakeholders expressed support for the concept of a tiered general secrecy offence ‘where the evidentiary burden on the prosecution increases commensurate with the level of harm and penalty imposed’.^[113] For example, Civil Liberties Australia (CLA) stated that:

this approach introduces proportionality, consistency and gives better guidance to the courts and Commonwealth officers. We believe that this model ensures that the penalty fits with other penalties in Commonwealth law.^[114]

6.118   There was very little support, however, for the ALRC’s proposed first tier, strict liability offence. In response to IP 34, the AGD noted that evidential difficulties usually arise in relation to fault elements applicable to circumstances or results, and submitted that:

Application of strict or absolute liability to a particular physical element of an offence has generally only been considered appropriate where one of the following considerations is applicable:

·        there is demonstrated evidence that the requirement to prove fault of that particular element is undermining or will undermine the deterrent effect of the offence, and there are legitimate grounds for penalising persons lacking ‘fault’ in respect of that element, or

·        in the case of absolute liability, there should also be legitimate grounds for penalising a person who made an honest and reasonable mistake of fact in respect of that element.^[115]

6.119   The AGD suggested that an objective test—such as that used in reg 2.1 of the Public Service Regulations, that an APS employee must not disclose information where it is reasonably foreseeable that the disclosure would be prejudicial to the effecting working of government—would be the preferred approach in relation to the requirement to prove harm.^[116]

6.120   In response to DP 74, the AGD noted the policy position put in the Guide to Framing Commonwealth Offences that strict liability should not normally apply to an element of an offence where the penalty includes imprisonment or where there is a monetary penalty greater than 60 penalty units. The AGD suggested that the ALRC consider whether there were sufficient grounds to depart from the Guide in this case:

The application of strict liability may unfairly subject people who have disclosed information to punishment for unforeseen consequences. If the proposed penalty remains, consideration might be given to including an additional element similar to that in s 58 of the Defence Force Discipline Act: that the disclosure was made without authorisation. The fault element of recklessness could apply to this element. This would help to ensure sufficient safeguards against the unfair prosecution of an individual who unwittingly commits the offence.^[117]

6.121   The AGD noted the proposed exception to the general offence where the disclosure was authorised by the minister or agency head, and that the ‘authorised by law’ defence at section 10.5 of the Criminal Code would also apply. While suggesting this may have substantially the same effect as an element stating that the disclosure was made without authorisation, the AGD’s view was that it may be preferable for the prosecution to have to positively prove that the disclosure was not authorised.^[118]

6.122   The Department of Defence stated that:

the offence created by section 58 of the Defence Force Discipline Act indicates that the unauthorised disclosure, by members of the ADF and defence civilians, of information that is likely to be prejudicial to the security or defence of Australia is unacceptable. Defence would note that it is solely the seriousness of the harm, described in paragraph 58(1)(c) within the military context, that justifies the application of strict liability to that element of the offence.^[119]

6.123   CLA did not support the use of strict liability in relation to the harm requirement, and expressed the view that criminal sanctions should only be imposed where there is an intention to cause harm, or recklessness as to harm. A number of other stakeholders agreed.^[120]

6.124   CLA stated, however, that if the ALRC were to recommend an offence provision in which strict liability attached to the harm requirement, then a defence modelled on s 58 of the Defence Force Discipline Act—where the person can prove that he or she neither knew, nor could reasonably be expected to have known, that the disclosure of the information was likely to harm any of the specified public interests—should be available.^[121] Liberty Victoria expressed similar views.^[122]

6.125   The Treasury noted that some taxation secrecy offences do contain strict liability elements. However, in considering the consolidation of tax secrecy provisions, Treasury did not consider that there was any reason to depart from the automatic fault elements set out in the Criminal Code.^[123]

ALRC’s views

6.126   The ALRC has reconsidered the proposal to have a tiered general secrecy offence and, in particular, the proposal to attach strict liability to the harm element of the first tier offence. The ALRC remains of the view that Commonwealth officers hold positions of trust in the community that attract a high level of responsibility in relation to information that could potentially harm specified essential public interests such as national security and defence.

6.127   However, the ALRC recognises that the requirement for a fault element is one of the most fundamental protections of the criminal law and has decided that, on balance, the general secrecy offence should be limited to the unauthorised disclosure of Commonwealth information by a Commonwealth officer who knows, intends, or is reckless as to whether, the disclosure will harm, or is reasonably likely to harm, one of the public interests set out in Recommendation 5–1.