Claire Clutterham (Sturt, Australian Labor Party) Share this | Hansard source

I rise today to speak in support of the Secrecy Provisions Amendment (Sunsetting Provision) Bill and Secrecy Provisions Amendment (Repealing Offences) Bill. Before I do, I do acknowledge the contribution from the member for Clark. I share his view that the disclosable conduct regime in the Public Interest Disclosure Act, taxation assessments act and the Corporations Act are complex, but they are complex for very good reasons. I would put some of his concerns to rest that the legislation does, in fact, contain robust protections for whistleblowers and robust processes and procedures that organisations in receipt of disclosable conduct submissions must follow. Any reform to those powers and those processes must be done with significant degrees of care and consideration given the consequences and the magnitude of the making of disclosable conduct.

Turning to the bills currently before this chamber, what are secrecy provisions? These are provisions designed to prohibit the disclosure of sensitive information held by government, including some types of personal, commercial, national security and law enforcement information. Secrecy provisions exist not to hide, to obfuscate, to confuse or to concentrate power. They exist to prevent harm to essential public interests such as national security, and they provide assurance to people and entities who provide information to the Commonwealth that their information will be treated appropriately.

There is a need for secrecy laws, but of course these laws must be balanced against both the public interest and the fundamental democratic principle of open and accountable government. Secrecy provisions must be justified within that system of open and accountable government, and in a manner consistent with the right to freedom of expression. Now, this requires a balance between the desirability of open government and the legitimate public interest in protecting some information from disclosure for those important reasons, including national security, defence, international relations and privacy.

This balance must be clear and it must be appropriate. It's not easy. On one side of the coin, it is critical that Australia's law enforcement and security agencies have access to powers which may, in certain instances, have the effect of curtailing certain freedoms. This is in order to allow for the proper investigation of serious offending and the obtaining of intelligence regarding legitimate threats to essential public interests. The other side of the coin reflects Australia's democratic values, the rule of law and human rights considerations which dictate that official secrecy provisions must be tempered by a critical right, which is the public's right to accountable government.

Secrecy provisions need to be ring-fenced, and proportionately so, to the disclosure of information which would undermine national security or endanger citizens. It is simply a fact that some information held by the Commonwealth must have its integrity and security protected. This is not secrecy for secrecy's sake; this is a genuine purpose. Secrecy provisions must be frequently measured and performance tested to make sure that they reflect this genuine purpose and to make sure that the balance between the genuine purpose, the public interest and human rights is being appropriately and proportionately struck.

Drawing on the 2023 review of secrecy provisions conducted by the Attorney-General's Department and the government's response to the Independent National Security Legislation Monitor's 2024 Secrecy offences: review of part 5.6 of the Criminal Code Act 1995, this bill comprehensively tests and reforms Australia's secrecy provisions. By way of background, on 21 November 2023, the Albanese Labor government announced it would introduce reforms to Commonwealth secrecy offences to significantly reduce the number of secrecy offences, ensuring remaining offences were fit for purpose and improving protections for press freedom. The Independent National Security Legislation Monitor's 2024 review, which looked at part 5.6 of the Criminal Code, helped to shape this. Part 5.6 of the Criminal Code includes offences that apply to Commonwealth officials, including contractors, who disclose or otherwise deal with what is defined as 'inherently harmful information' or information that falls into a category defined as 'causing harm to Australia's interests'. These definitions of 'inherently harmful information' and 'causing harm to Australia's interests' are central to how these very serious offences operate, so they must, therefore, be clear and certain.

Part 5.6 also contains a general offence pertaining to officials who breach a duty imposed by another law not to disclose information and an offence that applies to any person, not just officials who disclose specified types of information, including information with a security classification of 'secret' or 'top secret', applied in accordance with the Commonwealth policy framework. For prosecutions in this regard to be effective, certainty and clarity about what this all means in practice is required. Asking whether part 5.6 is working effectively required a consideration of what can only be described as really complex questions, such as how potential breaches of secrecy obligations are actually handled in practice, what national security or other harms the criminal offences aim to address, as well as the threshold questions of when a deemed-harm offence is appropriate, what they should cover and who they should apply to.

These are complex issues, and multiple reviews of Australian laws relating to secrecy found that the provisions—probably in response—have become complicated, outdated, too broad and, in some cases, no longer essential. The latter finding of 'essential' cuts across the principle of the genuine purpose of secrecy provisions, creating a risk that justifiable information sharing can be compromised, which only undermines trust and creates suspicion that the genuine purpose is not appropriately reflected in the law. Scope creep, or death by a thousand cuts—whatever you call it when new baselines are constantly set—cannot be the way to legislate. This bill quite rightly makes comprehensive reforms to Australia's secrecy framework in response to these findings.

Now to turn to the bill itself and its practical impact—firstly, criminal liability. The 2023 review of secrecy provisions that I referred to earlier found that there existed 168 provisions that no longer required criminal liability but which still attracted it. Following a period of extensive stakeholder consultations led by the Attorney-General and involving contributions from multiple departments and agencies, criminal liability will be removed from more than 300 secrecy provisions, which will take place by repealing and amending specific legislation. Significantly, section 122.4 of the Criminal Code will also be repealed. Courtesy of section 122.4A, the offences in this section apply to people who are not Commonwealth officers in relation to information they communicate or deal with, or which was made or obtained by another person by reason of that other person being or having been a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

What this means is that section 122.4A offences would arise if the non-Commonwealth officer communicates or otherwise deals with information and, among other things, the information is security classified or communication of it interferes with or prejudices enforcement of Commonwealth criminal law, or harms the health or safety of the Australian public. These offences are extremely broad, and the repeal means that the vast majority of these non-disclosure duties will now be subject to more proportionate civil and administrative sanctions. This means criminal liability will only arise where strictly necessary to protect sensitive information, which again better reflects the genuine purpose of secrecy laws. This is significant reform.

To be clear, this bill will introduce a much more targeted and refined secrecy offence into the Criminal Code. This is not a broad, general secrecy offence that criminalises disclosures that are detrimental to the working of government, which is what the 2023 review recommended. That would be too broad and would undermine trust in the criminalised aspects of the secrecy framework. The bill instead seeks to close gaps that were previously identified following the much reported, unacceptable conduct of a former PwC partner, who allegedly shared confidential Commonwealth information for personal and professional gain. The targeted secrecy offence will address this type of conduct, which will apply to Commonwealth officers and persons connected to the Commonwealth where these persons improperly communicate or use Commonwealth information to obtain a benefit or cause a detriment.

Finally, press freedoms are contemplated and enhanced by the repealing offences bill. Appropriate protections that promote freedom of the press are growing in importance. We know that if there is an erosion of press freedoms it is a signal of the erosion of an efficient, effective and functioning democracy. In 2025, the World Press Freedom Index, which was compiled by Reporters Without Borders, was at its lowest point in the index's 25-year history. Journalism is being increasingly criminalised, and political hostility to the press is creating a very uneasy climate where speaking out can compromise one's personal safety. We see it time and time again across the globe, including increasingly in countries which we would traditionally have regarded as fully functioning democracies that have historically embraced freedom of the press.

In 2025, Norway topped the index, and we must all strive to meet them where they are at, which is a media market that is vibrant and features a strong public service broadcaster and diversified private sector services with extensive editorial independence. Fair and genuine public-interest journalism must never be endangered. Journalists and the press play an important role in providing information to the public, in holding governments to account, in investigating matters of national significance and, ultimately, in some cases, shaping policy decision. This work, when it is done fairly, must never be encumbered.

The bill therefore contains a new requirement that the Attorney-General consent to the prosecution of a journalist for any secrecy offence, with the goal of this being that it must be absolutely clear that any proposed prosecution is in the public interest before it proceeds while noting two things: firstly that protected matters—like providing information to the public, holding governments to account and investigating matters of national significance—are firmly part of the public interest, and secondly that certain information relevant to national security and law enforcement or highly sensitive commercial and personal information must also be protected from disclosure. So significant amendments will be made to the secrecy offences that apply to non-Commonwealth officials, including journalists. The practical effect of this is that non-officials will be subject to a higher threshold for criminal culpability than Commonwealth officials by increasing the thresholds to trigger criminal liability.

Achieving the genuine purpose of secrecy laws is challenging because it involves a combination of secrecy, transparency and accountability. But that purpose must always be achieved, because if it is not then public confidence in the secrecy framework is eroded, and once this is damaged or gone the challenge to try to regain that trust is almost insurmountable. The Secrecy Provisions Amendment (Repealing Offences) Bill seeks to strike that balance between secrecy, transparency and accountability, and I stand with the Attorney-General in bringing this bill before the parliament and in the work that she has done revisiting Australia's secrecy laws. I commend the bill to the Chamber.

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