The Law Council of Australia calls for amendment of Australia's secrecy laws to ensure a balance between preventing the release of information which could harm essential public interests and the need for open and accountable government.
Reform is required to ensure that the offences contained in Part 5.6 of the Criminal Code Act 1995 (Cth) comply with the rule of law requirement that the intended scope and operation of offence provisions should be unambiguous and key terms should be defined.
"We are most troubled by the current approach to deeming harm in respect of broadly defined categories of information because these categories are identified by nebulous definitional concepts, uncertain physical offence elements as well as being, in certain respects, subject to variation by administrative discretion. This uncertainty is inconsistent with the rule of law," Law Council of Australia President, Mr Greg McIntyre SC said.
Appearing before the Independent National Security Legislation Monitor (INSLM) today, the Law Council expressed its ongoing support for the overarching recommendation of the Australian Law Reform Commission's 2009 report: Secrecy Laws and Open Government in Australia.
"What this report recommended is that general secrecy offences should contain an express harm requirement to ensure that criminal sanctions are 'reserved for behaviour that harms, is reasonably likely to harm or intended to harm essential public interests,'" Mr McIntyre said.
"The Law Council would like to see the Commonwealth secrecy offences contained in Part 5.6 of the Criminal Code Act 1995 (Cth) amended in line with this recommendation. We believe it is only appropriate to deem harm in the special case of intelligence and security service officials and information.
"In the absence of an express harm requirement, penalties should cascade, as they generally do in criminal law, based on gradations in the culpability, knowledge and intent of the offender.
"The Law Council is particularly concerned that catch-all offences that apply to the conduct of civil society actors, such as journalists, risk criminalising a wide range of conduct—including the mere receipt of security classified information. This risks imposing disproportionate limitations on the right to freedom of expression and does not give sufficient regard to the importance of the public interest in transparency and accountable government.
"That is why the Law Council recommends that the current defence intended to protect public interest journalism be recast as an exception. 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.
"We do not agree that the need to maintain whole-of-government information security culture is 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."
During today's hearing, the Law Council also highlighted the need for greater protections for lawyers providing legal advice in relation to offences under Part 5.6. "An exception should be made for where the communication is engaged in for the purpose of obtaining or providing legal advice in relation to a secrecy offence in Part 5.6," Mr McIntyre said.
