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

by leave—I move amendments 1 to 3 as circulated in my name together:

(1) Schedule 1, item 1, page 3 (lines 24 and 25), omit paragraph 122.4(1)(d), substitute:

(d) the communication of the information harms, or the person intends or is reckless as to whether the communication harms, an essential public interest.

(2) Schedule 1, page 4 (after line 6), after item 1, insert:

1A After section 122.4 of the Criminal Code

Insert:

122.4AA Meaning of essential public interest

(1) For the purposes of section 122.4, each of the following is an essential public interest:

(a) the security or defence of Australia;

(b) the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth;

(c) the health or safety of the Australian public or a significant section of the Australian public;

(d) the effective functioning of the Australian financial system or a significant part of it;

(e) the protection of individual privacy or personal information held by the Commonwealth or a Commonwealth entity.

Note: This list is not exhaustive. A court may find that a communication harms an essential public interest in other circumstances having regard to the nature and importance of the interest affected and the gravity of the harm caused or intended.

(2) For the purposes of this section, harms an essential public interest includes:

(a) actual damage to that interest; and

(b) damage that is reasonably likely to result from the communication.

(3) For the purposes of paragraph 122.4(d):

(a) a person intends to harm an essential public interest if the person means to bring about harm to that interest, or knows that harm to that interest will occur in the ordinary course of events; and

(b) a person is reckless as to whether the communication harms an essential public interest if the person is aware of a substantial risk that the communication will harm such an interest, and it is unjustifiable in the circumstances to take that risk.

Note: The fault elements in subsection (3) are consistent with the definitions of intention and recklessness in sections 5.2 and 5.4 of the Criminal Code. Those provisions apply to the extent they are not inconsistent with this section.

(4) For the avoidance of doubt, a communication does not harm an essential public interest merely because it:

(a) reveals wrongdoing, maladministration or a failure of public accountability by a Commonwealth entity or official; or

(b) is made in the course of, or for the purposes of, journalism in the public interest.

(3) Schedule 3, item 1, page 21 (after line 26), after section 123.6, insert:

123.6A Review of section 123.6 (Attorney-General consent to prosecution of journalists)

(1) The Attorney-General must cause an independent review of the operation of section 123.6 to be conducted:

(a) within 5 years after the commencement of section 123.6; and

(b) within 5 years after the completion of each preceding review under this section.

(2) The review must consider:

(a) the effectiveness of section 123.6 in protecting press freedom and safeguarding the prosecution of journalists for secrecy offences; and

(b) the number of applications for consent received under section 123.6 during the review period, and the outcome of each such application; and

(c) whether the consent requirement adequately balances the public interest in protecting national security and other sensitive information with the public interest in press freedom and the free flow of information; and

(d) any developments in Australian or international law relevant to the protection of journalists in the context of secrecy and national security legislation; and

(e) whether any amendments to section 123.6 or the broader secrecy framework are necessary or desirable.

(3) A review under subsection (1) must be conducted by a person or body that:

(a) is independent of the Commonwealth; and

(b) has appropriate expertise in matters of press freedom, criminal law, and national security.

The new secrecy offence in this bill 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'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 government agreed in principle with the INSLM's harm based approach, and this provision doesn't reflect that agreement.

My amendments (1) and (2) will address this. They replace the 'improper' test with a harm based threshold. The offence would only be committed where the communication harms, or the person intends to harm or is reckless as to harming, an essential public interest. The amendments define 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 courts may recognise others as well. Critically, the amendments also make 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.

Amendment (3) addresses the Attorney-General 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 the final safeguard at all. Amendment (3), therefore, requires 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 parliament and a required government response to any recommendations.

Open government is a condition of democratic accountability. Secrecy is sometimes necessary, but it must remain the exception and it must be justified by reference to real harm to real public interests. I urge the government to consider my amendments: making the new test harm based and directed to essential public interests, and including a five-year review to make sure that the Attorney-General consent mechanism for journalist prosecutions is actually working as it should. These are reasonable changes, and I commend these amendments to the House.

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