Fault elements

9.60       The great majority of Commonwealth secrecy offences do not stipulate fault elements attaching to the physical elements in the offence. Where legislation creating an offence does not specify fault elements, the automatic fault elements set out in the Criminal Code apply.

9.61       Under the Criminal Code, the fault element for a physical element of an offence consisting of conduct is intention.^[88] In secrecy offences, the ‘conduct’ will usually be the disclosure of information. This means that, unless expressly stated otherwise, a person must intend to disclose the information before that disclosure can constitute a criminal offence. Inadvertent disclosure, for example, because a person did not take proper care of information, would not constitute an offence.

9.62       The Criminal Code also provides that the fault element for a physical element consisting of a circumstance or a result is recklessness.^[89] A person is reckless if he or she is aware of a substantial risk that a circumstance exists, or a result will occur, and, having regard to all the circumstances, it is unjustifiable to take that risk.^[90] Under the Criminal Code, recklessness is established by proving intention, knowledge or recklessness.^[91]

9.63       A ‘circumstance’ in the context of a secrecy offence might be the nature of the information, for example, that the information disclosed was acquired in the course of a person’s duties. A ‘result’ of conduct proscribed by a secrecy offence might be, for example, that the disclosure of the information caused, or was likely to cause, harm.

9.64       The following sections discuss the fault elements attaching to conduct, circumstances and results in specific secrecy offences.

Fault element attaching to conduct

9.65       As noted above, the fault element for the conduct element of almost all specific secrecy offences is intention. In most cases, this is because no fault element is specified and, therefore, the Criminal Code provides that intention is the fault element to be applied.

9.66       Only a few secrecy offences specify that a fault element other than intention applies to the disclosure of information, for example:

• ·                under s 23YO(1)(c) of the Crimes Act, a person is guilty of an offence if the person is reckless as to the disclosure of information stored on the Commonwealth DNA database system or National Criminal Investigation DNA Database or any other information revealed by a forensic procedure carried out on a suspect, offender or volunteer; and

• ·                under s 3ZQJ of the Crimes Act, a person is guilty of an offence if the person is reckless as to the disclosure of age determination information.

9.67       Some specific secrecy offences are strict liability offences. For example, s 63(2) of the Superannuation (Resolution of Complaints) Act 1993 (Cth), provides that certain persons must not disclose any information acquired in connection with a complaint made to the Superannuation Complaints Tribunal. This offence is stated to be an offence of strict liability.^[92] This means that the prosecution is not required to prove that the defendant had any particular mental state when committing the offence. The Criminal Code provides that defences of mistake of fact, and of intervening conduct or event, are available in relation to strict liability offences.^[93]

9.68       Offences of strict liability must be considered in light of the policy position stated in the AGD Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers (Guide to Framing Commonwealth Offences) that it is generally neither fair, nor useful, to subject people to criminal punishment for unintended actions or unforeseen consequences unless they resulted from an unjustified risk.^[94]

9.69       In 2002, the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) reviewed strict liability offences in federal legislation.^[95] The Scrutiny of Bills Committee considered that strict liability may be appropriate in the following circumstances: to ensure the integrity of a regulatory regime; to protect the general revenue; to overcome difficulties in prosecuting fault provisions; and to overcome arguments about the defendant’s knowledge of a legislative provision which has been incorporated into the offence.^[96] The Scrutiny of Bills Committee recommended that strict liability should apply only where the penalty does not include imprisonment, and where the monetary penalty does not exceed $6,600 for an individual and $33,000 for a body corporate.^[97]

9.70       The Guide to Framing Commonwealth Offences advises that a strict liability offence is appropriate only if each of the following considerations applies:

• ·                the offence is not punishable by imprisonment and the monetary penalty does not exceed the amount specified by the Scrutiny of Bills Committee;

• ·                the punishment of offences not involving fault is likely to significantly enhance the effectiveness of the enforcement regime; and

• ·                there are legitimate grounds for penalising persons lacking ‘fault’, for example, because they will be placed on notice to guard against any possible contravention.^[98]

9.71       In Chapter 6, the ALRC recommends that the fault element attaching to the disclosure of information in the general secrecy offence and the subsequent disclosure offences should be intention.^[99] In DP 74, the ALRC proposed that specific secrecy offences should generally also stipulate intention as the fault element for the disclosure of information.^[100] The ALRC also proposed that specific secrecy offences which provide that strict liability applies to one or all physical elements should be reviewed to establish whether the application of strict liability remains justified.^[101]

Submissions and consultations

9.72            A number of stakeholders supported these proposals.^[102] For example, Liberty Victoria stated that criminal liability should only attach where there is the requisite mental element and that, in relation to the disclosure of official information, the requisite fault element should be intention.^[103] The ATO noted that the Tax Laws Exposure Draft Bill does not apply strict liability to any element of the equivalent offences because it was not considered necessary in the taxation context.^[104]

9.73            The ACC, however, favoured extending criminal liability to reckless disclosure in cases where ‘foresight could reasonably have been exercised to avoid a disclosure that could harm law enforcement’.^[105]

ALRC’s views

9.74       The ALRC considers that specific secrecy offences should generally require intention as to the disclosure of information, or other conduct relating to the information. This is consistent with the framing of most existing secrecy offences, and with the policy in the AGD Guide to Framing Commonwealth Offences.

9.75       However, a different fault element, such as recklessness, may be justified in exceptional circumstances. For example, it might be appropriate that Commonwealth officers in specific agencies who handle particularly sensitive information should be subject to a criminal offence when they knowingly engage in conduct involving a substantial and unjustifiable risk that the information will be disclosed. In accordance with the ALRC’s recommendations in Chapter 8, the elements of such an offence would need to be necessary and proportionate to preventing harm to an essential public interest.^[106]

9.76       In the ALRC’s view, secrecy offences should not apply strict liability to physical elements consisting of conduct, such as the act of disclosure. At a minimum, in order to be subject to a criminal secrecy offence, a person should intend, or, in more limited circumstances, be reckless, as to the conduct that constitutes the offence.

Fault element attaching to harm

9.77       In Chapter 8, the ALRC recommends that, except in very limited circumstances, specific secrecy offences should include a requirement that the disclosure of information cause, or be likely or intended to cause, harm to an essential public interest.^[107] In Criminal Code terms, a requirement that conduct cause, or be likely to cause, harm would be characterised as a result. As noted above, unless it was specified otherwise, the Criminal Code would attach recklessness to this element of the offence.^[108]

9.78       An example of an offence that includes an express requirement of harm is s 58 of the Defence Force Discipline Act 1982 (Cth). That offence provides that strict liability applies to the requirement that the disclosure is likely to be prejudicial to the security or defence of Australia. This means that the prosecution is not required to prove that the accused intended that, knew or was reckless as to whether, the disclosure was likely to be prejudicial to the security or defence of Australia.

9.79       In DP 74, the ALRC proposed that where specific secrecy offences incorporate a harm requirement, recklessness should generally be the fault element for offences punishable by imprisonment for more than a maximum of two years. For other offences, the ALRC proposed that strict liability should apply in relation to the likelihood of harm.^[109]

Submissions and consultations

9.80       Some stakeholders supported recklessness as the fault element for harm.^[110] For example, the ACC submitted that:

If a person foresaw the possibility of serious harm but proceeded to disclose the potentially harmful information, they should not be able to avoid responsibility by claiming they did not intend to cause the harm they foresaw. In the case of some forms of harm, such as endangering personal safety, it may even be appropriate to impose constructive foresight of the potential harm.^[111]

9.81       In response to IP 34, the AGD commented that the difficulties that arise in proving a fault element usually relate to the fault element applicable to a circumstance or result. The AGD advised that:

It is current Commonwealth criminal law practice that strict or absolute liability should only be used in an offence where there are well thought out grounds for this. This reflects the basic premise that it is generally not in the interests of fairness or justice to subject people to criminal punishment for unintended actions or unforeseen consequences unless these resulted from an unjustified risk (ie recklessness). Strict liability should be introduced only after careful consideration on a case-by-case basis of all available options and should not be applied where the penalty for the offence includes imprisonment or where there is a monetary penalty greater than 60 penalty units.^[112]

9.82       Also in response to IP 34, the Australian Securities and Investments Commission submitted that, if a harm test were introduced into secrecy offences, strict liability should be applied because it would be very difficult to prove that a person intended or knew that the disclosure of information was likely to harm a specified public interest.^[113]

9.83            However, a number of stakeholders expressed concerns about the application of strict liability to the harm requirement in any context. For example, Liberty Victoria stated that criminal liability must only attach where there is the requisite mental element,^[114] while CLA submitted that:

Criminal sanctions should not apply, absent intention to cause harm to the specified public interest or clear recklessness to the probability of such harm occurring. There is always a potential for government to utilise criminal sanctions to silence reasonable dissent or to attempt to induce unreasonable conformity within the public sector, especially in situations where an open and transparent approach might involve only trivial harm or mild embarrassment.^[115]

9.84       Similarly the Australian Press Council submitted that it is not appropriate to have offences of strict liability in legislation dealing with unauthorised disclosure:

Strict liability may have a place in internal disciplinary procedures for minor matters or in mechanisms dealing with compensation but it is not appropriate where the offence would result in a criminal conviction … Before a criminal conviction is imposed there should be a finding, either that there was an intention to cause harm to a specified public interest, or recklessness as to the probability of such harm occurring.^[116]

ALRC’s views

9.85       In Chapter 6, the ALRC recommends that the fault element attaching to the harm element of the general secrecy offence should be recklessness. That is, the offence will only be committed where information has been disclosed by a Commonwealth officer and the officer knows, intends or is reckless as to whether, the disclosure of the information will harm, or is reasonably likely to harm, one of the public interests set out in Recommendation 5–1.^[117]

9.86       Similarly, specific secrecy offences that include, as an element of the offence, that the disclosure cause, or is likely to cause, harm to an essential public interest, should generally require recklessness, knowledge or intention as to the likelihood of harm.

9.87       The application of strict liability to the likelihood that the disclosure cause harm may be justifiable in particular circumstances. For example, the application of strict liability to the harm requirement in s 58 of the Defence Force Discipline Act 1982 (Cth) may be justified by the seriousness of the harm and the special obligations of military personnel. Where strict liability is applied to the likelihood that the disclosure cause harm, the penalty should be lower than that for an offence which requires recklessness, knowledge or intention as to the likelihood of harm. 

Fault element attaching to the nature of the information

9.88       Specific secrecy offences protect a wide range of information. Often the protected information is defined by how the information was obtained—for example, information obtained in the course of an officer’s duties. In Criminal Code terms, the nature of the information is a physical element consisting of a circumstance and the automatic fault element attached to the physical element is recklessness.^[118]

9.89       Some specific secrecy offences depart from the automatic fault elements in the Criminal Code by specifying that strict liability applies to the circumstance of the nature of the information subject to the secrecy offence, for example:

• ·                that the information was disclosed or obtained under or for the purposes of a particular legislative provision;^[119] or

• ·                that the information was obtained in the performance of functions or duties under legislation.^[120]

9.90       The application of strict liability in such cases means that the prosecution is not required to prove that a person knew or was reckless as to whether, for example, the information was obtained in the performance of functions or duties under particular legislation.

9.91       Other specific secrecy offences expressly require knowledge as the relevant fault element, for example:

• ·                s 114 of the Development Allowance Authority Act 1992 (Cth) applies to a person who has commercial in confidence information, where the person knows that the information is commercial in confidence; and

• ·                s 91B of the Commonwealth Electoral Act 1918 (Cth) applies ‘if the person knows, or has reasonable grounds for believing, that the information has been obtained under section 90B’.

9.92       The second example applies when a person has actual knowledge that the information was of a particular kind, but also when the person did not actually know, but reasonably should have known. The AGD Guide to Framing Commonwealth Offences states that this kind of formulation is an ‘attempted compromise between requiring proof of fault and imposing strict liability’. The Guide notes that, depending on the context, a court may read in a requirement for the prosecution to prove something akin to recklessness, and recommends that this terminology be avoided.^[121]

Submissions and consultations

9.93       In relation to the nature of the information covered by the general secrecy offence, the Commonwealth Director of Public Prosecutions (CDPP) stated that:

Absolute liability should apply to the ‘jurisdictional element’ of Commonwealth offences ie the link between the offence and the relevant legislative power of the Commonwealth. This link is also known as the ‘Commonwealth connector’. The CDPP considers that the fact that the defendant has or had the information because s/he is or was a Commonwealth officer is the Commonwealth connector in the proposed general secrecy offences and that absolute liability should apply to this element.^[122]

9.94       The CDPP also noted that this position is reflected in the Guide to Framing Commonwealth Offences, which provides:

Absolute liability should apply to the jurisdictional element. For example, in the case of theft of Commonwealth property, the act of theft is the substantive element of the offence; while the circumstance that the property belongs to the Commonwealth is a jurisdictional element.^[123]

ALRC’s views

9.95       The ALRC’s approach in this Report is to focus on the harm of disclosure, rather than categories of information. To this end, the ALRC recommends that, except in very limited circumstances, specific secrecy offences should include an express requirement that the disclosure cause, or is likely or intended to cause, harm to an essential public interest.^[124]

9.96       Where there is an express requirement of harm it may be appropriate to attach strict liability to the circumstance that the information was obtained in a particular manner, or is of a particular kind. In these circumstances, the act of disclosing the information reckless as to whether, or intending that, the disclosure cause harm is the substantive element of the offence and the circumstance that the information was ‘Commonwealth information’ amounts to a jurisdictional element.

9.97       However, where a specific secrecy offence does not include an express requirement of harm, the key requirement for criminal liability is that the information disclosed was of a particular kind, for example, ‘taxation information’. For these offences, the ALRC considers that strict liability should not attach to the circumstance that the information falls into a particular category. It is important that, in order to have committed an offence, the person knew, or was reckless as to whether, the information was in the protected category of information.