Tom French (Moore, Australian Labor Party) Share this | Hansard source

I rise in support of the Secrecy Provisions Amendment (Repealing Offences) Bill 2026 and the associated bill. The main bill is not the sort of bill likely to dominate the evening news. It is, however, the sort of bill that matters if we want Commonwealth law to be clear, proportionate and capable of being understood by the people who have to comply with it. That is not always the most glamourous work in parliament, but it is important work.

The Commonwealth's secrecy framework has become too complex, too scattered and, in some places, too blunt. The Attorney-General's Department identified more than 860 secrecy related provisions across Commonwealth law—295 nondisclosure duties, 569 specific offences and 11 general offences in the Criminal Code. That is a lot of secrecy law. Some of it is necessary. Some of it protects national security, sensitive personal information, commercial information, health information and the integrity of Commonwealth decision-making. But some of it is outdated, some of it is duplicated, some of it has not been reviewed properly for years and some of it imposes criminal liability in circumstances where criminal law is not the right tool—and that is the problem the main bill seeks to address.

At the centre of the current framework is section 122.4 of the Criminal Code. Section 122.4 makes it an offence for a Commonwealth officer or a person engaged to perform work for a Commonwealth entity to communicate information in breach of a duty arising under another Commonwealth law. That provision was never intended to be permanent. It was intended to operate while those non-disclosure duties were reviewed and a more settled framework was developed. In plain terms it was a temporary fix, and, as any electrician will tell you, temporary fixes have a habit of becoming permanent if nobody comes back to do the job properly. That's not a criticism of temporary fixes—sometimes you need them—but it does come to a point when you should stop pretending that a cable tie is part of the design, and this bill is part of doing the job properly.

The Australian Law Reform Commission identified the issue in its 2010 report Secrecy laws and open government in Australia. The principle was straightforward. Criminal sanctions should be reserved for conduct that warrants criminal punishment. Where civil, administrative or contractual remedies are sufficient the criminal law should not be used just because it happens to be available. That is a sensible principle. It's not soft on wrongdoing and it's not antisecrecy. It simply recognises that criminal law is the sharpest instrument available to the state and should be used with some care. The first major change by this bill is to replace section 122.4 of the Criminal Code with a new targeted general secrecy offence.

Under the existing approach, criminal liability can be enlivened by a breach of a non-disclosure duty, even where there is no real consideration of intent or harm, or whether the conduct is the sort of thing that should be criminalised. The new offence is more focused. It captures people who are using or communicating Commonwealth information with the intention of obtaining benefit for themselves or for someone else, or causing detriment to a Commonwealth entity or another person where a reasonable person would conclude that the conduct was improper. That is a better test. It targets the person who misuses confidential government information for advantage. It captures the sort of conduct alleged in the PricewaterhouseCoopers tax scandal: confidential Commonwealth information being used to help private clients avoid their obligations.

That is the kind of conduct that should attract serious consequences, but it does not treat every mistake, every misjudgement or every technical breach as though it belongs in criminal courts. That distinction matters, because most people who deal with Commonwealth information are not trying to game the system. They are public servants, contractors, advisers and officials trying to navigate a complex set of rules, and they should be held to proper standards. They should be subject to discipline when they breach their duties and they should face consequences when they do the wrong thing, but the consequence should fit the conduct. This bill keeps non-disclosure duties in place. It keeps civil remedies. It keeps administrative consequences. It keeps the capacity to protect genuinely sensitive information. What changes is the criminal liability reserved for the conduct that properly warrants it. That is not radical; it is basic proportionality.

The second major change is that this bill repeals or removes criminal liability from more than 300 Commonwealth secrecy provisions. Some of these provisions are simply no longer needed. Some of them relate to schemes that have long since passed into history. Others deal with information where civil or administrative consequences are sufficient. There is a certain charm, I suppose, in preserving secrecy obligations for institutions that no longer exist, but charm is usually not the best basis for criminal law. The bill also recognises that not every secrecy obligation should be treated the same way. A small number of duties relating to genuinely sensitive personal, commercial and healthcare information will continue to attract criminal liability, and that is appropriate. The point is not to abolish secrecy law; the point is to make it more coherent.

The third important reform concerns journalists and news organisations. The bill legislates the requirement that the Attorney-General's consent be sought before prosecuting a journalist, an editor, a producer or an administrative staff member of a news organisation for a secrecy offence. At present, that protection exists as a ministerial direction. A ministerial direction is better than nothing, but it is not the same as legislation. It can be changed and it can be revoked. It depends on the government of the day. This bill moves that protection into statute, and that matters, because journalism often involves uncomfortable information.

Good journalism does not only report what institutions would prefer to announce. It also reports what institutions would sometimes prefer to avoid. That is particularly important at the local level. In communities like Moore local and community media do not have the resources of major mastheads. They are often small teams, sometimes very small teams—one journalist, one editor, sometimes the same person doing both jobs while probably also trying to get the website to work and chasing, for a comment, someone who has decided that 4.55 pm is the right time to become unavailable. These outlets cover local councils, agencies, community organisations and decisions that affect people directly. They are part of the accountability framework, whether or not we always describe them that way.

Secrecy prosecution does not need to have a chilling effect. The threat can be enough. For a small newsroom, the risk of prosecution—or even the risk of a serious legal fight—can be enough to stop a story from being pursued, and that is not good for public accountability. This bill does not give journalists a blank cheque. It does not place them above the law. It creates a safeguard before the prosecution of a journalist or relevant news media staff can proceed. That is a sensible protection.

There has been debate about whether requiring the Attorney-General's consent risks politicising prosecutorial decisions, and that concern should not be dismissed. The Law Council and the Alliance for Journalists' Freedom have raised legitimate points about the role of executive discretion in this space. But the contrary position also has force. The Human Rights Law Centre, Transparency International Australia and others have recognised that, in the current framework, a legislated consent requirement is a pragmatic safeguard. The Australian Press Council has also argued that legislative entrenchment is stronger than reliance on ministerial direction. On balance, this bill takes the better course. It does not solve every question about press freedom, whistleblower protection or secrecy law, but it improves that position.

The fourth area of reform concerns part 5.6 of the Criminal Code and the government's response to the Independent National Security Legislation Monitor. These amendments are targeted. They remove reliance on security classification alone as the basis for certain offences. That is important because a classification label should not, by itself, do all the work required for criminal law. The bill reduces the maximum penalty for offences by nonofficials from five years to three years. It repeals aggravated offence provisions, except in narrow circumstances. It requires the Attorney-General's consent for prosecutions, regardless of whether proceedings are committal or summary. These are not headline-grabbing amendments. They are the kinds of amendments that make the law more precise, and, in criminal law, precision matters. People should be able to understand what conduct is prohibited. Prosecutors should have clear thresholds. Courts should not be left with provisions broader than they need to be.

The bill sits alongside the Secrecy Provisions Amendment (Sunsetting Provision) Bill 2026. That bill extends the sunset date for section 122.4 from 29 June 2026 to 29 December 2026. That is a short extension. It allows the parliament to consider the broader reforms before the existing provision sunsets. That is sensible. There is no point pulling down the temporary structure before the permanent one is ready, and anyone who has spent time on a worksite understands that sequencing matters. Parliament, occasionally, is no different.

I also note that the Senate Legal and Constitutional Affairs Legislation Committee is due to report on the repealing offences bill by 19 June 2026. That inquiry provides an opportunity for stakeholders to test the detail. That is appropriate. Secrecy laws sit at the intersection of public administration, national security, press freedom, privacy, accountability and criminal law. They should be scrutinised carefully.

This bill is not the final word on all of those questions. There is still work to do, particularly on whistleblower protections. Recent cases have shown these issues are not theoretical. They affect real people; they affect public servants, journalists, agencies and the public's confidence in the government. But this bill is a substantial step. It removes unnecessary criminal liability, it replaces a temporary and broad provision with a more targeted offence, it better protects public interest journalism, it implements important recommendations from recent reviews, and it makes the Commonwealth secrecy framework clearer than it is now. That is the point.

Government needs secrecy in some circumstances, and nobody seriously disputes that. There will always be information that must be protected—national security information, intelligence information, personal medical information, sensitive commercial information and material given to the government on a confidential basis. But secrecy laws should not be broader than necessary, they should not be scattered across the statute book in a way that makes compliance harder, and they should not use criminal liability where other remedies are sufficient.

The people of Moore expect government to protect sensitive information. They also expect the government to be accountable. Those expectations are not inconsistent. A mature legal framework should be able to do both. This bill moves us closer to that position. It is careful. It is practical. It is overdue. I commend the bill to the House.

Sitting suspended from 13:30 to 16:00

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