Kate Chaney (Curtin, Independent) Share this | Hansard source

I rise to support the Secrecy Provisions Amendment (Repealing Offences) Bill 2026. Repealing more than 300 unnecessary secrecy offences is long overdue, and I commend the government for acting on years of careful review by the Australian Law Reform Commission, the Attorney-General's Department and the Independent National Security Legislation Monitor, INSLM.

For too long, Commonwealth law has imposed criminal liability across a vast sprawl of nondisclosure obligations—provisions that have accumulated without coherent review and that sit far beyond what any principled framework of criminal law would endorse. That accumulation was not the product of deliberate policy, but rather legislative drift, and it has entrenched a culture of secrecy that weakens rather than strengthens accountable government. Repealing more than 300 of these provisions is a meaningful reform. It will make our laws clearer and more worthy of trust from the people they govern. But I'm concerned about the new general secrecy offence it introduces, the replacement for section 122.4. It gets the balance wrong in ways that matter.

The government's own independent reviewer, the INSLM, has been clear: any new general offence should be harm based and directed to essential public interests, with criminal sanctions reserved for disclosures that cannot be adequately addressed through administrative or contractual means. The bill does not do this. Instead, the new offence turns on whether it would be reasonable to conclude that a use or communication of information was improper—a concept that's undefined and dangerously vague. 'Improper' is not a harm but a broad, uncertain standard of conduct that no independent reviewer recommended. The government agreed in principle with the INSLM's harm based approach, but this provision does not reflect that agreement.

The uncertainty this offence creates is a problem. Consider a public servant who mentions to a former colleague that their agency is tendering for a particular contract, where that information hasn't yet been published. Is that improper? It may well be. Consider a peak legal body that receives a confidential exposure draft of legislation precisely so it can consult its specialist committees and provide informed feedback. A lawyer who circulates that draft internally is doing exactly what the consultation process requires, but are they exposed? Arguably, yes, if sharing the draft confers a benefit and the confidentiality terms were explicit.

Now, the government might say that none of these people would actually be prosecuted, and that may be true, but 'trust us' is not a principle of criminal law. People are entitled to know in advance whether their conduct is lawful. 'Improper' does not tell them, and it risks having a chilling effect on consultations, civil society and public interest journalism.

The first amendment that I'm going to move in consideration in detail will address this. It replaces the 'improper' test with a harm based threshold. The offence would only be committed where the communication harms, or the person intends or is reckless as to harming, an essential public interest. The amendment defines essential public interests as national security and defence, criminal justice, integrity, public health and safety, financial system stability and the privacy of personal information held by the Commonwealth, while making clear that the courts may recognise others as well. Critically, it also makes clear that a communication does not harm an essential public interest merely because it exposes wrongdoing, maladministration or a failure of public accountability, protecting the space for whistleblowing and public interest journalism without creating an unlimited defence.

The second amendment that I will propose addresses the Attorney-General's consent mechanism for journalist prosecutions. I support this mechanism, but not without reservation. Politicians should not, as a matter of principle, be final arbiters in the functions of our criminal justice system. But, in the absence of stronger protections, including a general public interest defence or effective whistleblower laws, this mechanism is desirable in practice and may safeguard against prosecutions that would otherwise proceed contrary to the public interest. Well-balanced secrecy laws would negate any need for the Attorney-General to act as a final safeguard at all. My second amendment will therefore require a mandatory independent review every five years to assess whether this mechanism is working as intended and whether it remains necessary, with findings reported to the parliament and a government response to any recommendations required.

Open government is a condition of democratic accountability. Secrecy is sometimes necessary, but it must be the exception, and it must be justified by reference to real harm to real public interests. While the bill makes important progress, the amendments that I'll be proposing in consideration in detail would ensure it goes further, anchoring the new general offence in the harm based framework that independent reviewers recommended, protecting journalists and civil society, and building in the accountability mechanism this reform deserves.

I really want to support this bill. Repealing more than 300 secrecy provisions and simplifying this would be a step in the right direction, towards more open and accountable government. But replacing them with an offence that turns on whether the use of information was improper is dangerously vague. It's not consistent with the harm based approach or the focus on essential public interests, advocated by the INSLM and the Law Council, which the government agreed with in principle.

I urge the government to consider my amendments in good faith—making the new test harm based and directed to essential public interests and including a five-yearly review to make sure that the Attorney-General's consent mechanism for journalist prosecutions is actually working as it should. These are reasonable changes, and, if the government agrees to them, I will happily support the bill.

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