Julian Leeser (Berowra, Liberal Party, Shadow Minister for Indigenous Australians) Share this | Link to this | Hansard source

I rise to speak on the Secrecy Provisions Amendment (Repealing Offences) Bill 2026 and the Secrecy Provisions Amendment (Sunsetting Provision) Bill 2026. The repealing offences bill is a bill that reshapes where the criminal law ends and where civil liability begins in the protection of Commonwealth information. The coalition will not oppose this bill in the House. The government has the numbers and it will, of course, pass this chamber. But that's not the end of the matter. The coalition has questions about the bill's scope, about its gaps and about choices the government has made that no independent reviewer recommended. These are questions that must be examined by the Senate Legal and Constitutional Affairs Legislation Committee, which is due to report next month. The coalition will finalise its position, including on whether amendments are necessary, once that process is complete.

Let me start with some history, because this bill cannot be understood without it. In 2018, the former coalition government introduced the most significant overhaul of Australia's counter-intelligence and secrecy laws since the 1970s. It repealed section 70 of the Crimes Act 1914, a century-old provision, and replaced it with a modern framework in part 5.6 of the Criminal Code. This was part of a broader and essential overhaul of our national security legislation and was enacted through the National Security Legislation Amendment (Espionage and Foreign Interference Act) 2018. This was a deliberate, measured and careful reform process. We were conscious that, with the repeal of the old section 70 of the Crimes Act, hundreds of nondisclosure duties around the Commonwealth law could potentially lose their criminal consequences, so we created section 122.4 of the Criminal Code as a transitional measure, a temporary safety net deliberately built into our criminal law architecture, to hold the line while each of those duties was individually reviewed to determine whether criminal liability was actually warranted.

The Parliamentary Joint Committee on Intelligence and Security, the PJCIS, recommended inserting a sunsetting clause. The coalition accepted that recommendation. Section 122.4 was never intended to be permanent. The sunsetting clause was our mechanism to ensure that the review happened. That review has now been completed through the 2023 AGD secrecy review and the 2024 Independent National Security Legislation Monitor review of part 5.6.

The Commonwealth secrecy law operates at two levels. At the top, hundreds of specific acts contain their own criminal secrecy offences, in taxation, national security, intelligence, social services and financial regulation. This bill largely leaves those untouched. The criminal protection for genuinely sensitive national security information is unchanged. Below that sat section 122.4, the safety net. It made breach of any nondisclosure duty a crime, regardless of motive or harm. Over 300 duties relied on it for criminal liability. This bill removes criminal liability from those 300-plus duties. The duties themselves remain on the statute book. The obligation to keep information confidential survives, but breach is now a civil and administrative matter—a matter of dismissal, APS Code of Conduct action and civil remedies rather than prosecution, conviction and imprisonment. In place of the old catch-all, the bill introduces new targeted offences. Where the old section 122.4 criminalised any breach of any duty, regardless of why it occurred, the new offence requires proof of improper intent—specifically an intention to obtain a personal benefit or cause harm. Around 16 specific duties retain criminal liability where civil sanctions were assessed as insufficient, principally where personal health information, census data or commercially sensitive information is involved.

The bill also makes important reforms to the existing general secrecy offences, implementing INSLM recommendations to improve clarity, proportionality and rule-of-law consistency. Schedule 5 corrects three technical drafting errors.

I want to turn to issues with schedule 1. The coalition supports the policy direction of schedule 1, but there are a number of specific issues we expect the Senate committee to examine. These include, first, the term 'improper'. The new offence turns on whether a reasonable person would conclude that the conduct was improper. The term is not defined anywhere in the legislation. Courts will determine its meaning on a case-by-case basis. People connected to government may not know with confidence whether their conduct crosses the criminal line. Prosecutors may face contestable standards at trial. The Senate committee should examine whether a definition or a non-exhaustive list of factors is needed.

Second, there's no sensitivity threshold. Unlike every other offence in part 5.6, the new offence does not require the information to meet a defined harm or sensitivity threshold. In theory, entirely innocuous information could satisfy elements if the intent and impropriety tests are met. The 'improper' test does the filtering work, but, without a definition, that is an uncertain standard. The Senate committee should examine this.

Third, the new offence extends for the first time to people providing services to the Commonwealth, whether paid or unpaid. Advisory board members, pro bono industry experts and people who have no formal contract have received no secrecy training and may have no idea they're now exposed to criminal liability. That's a significant change in scope and reach, particularly in the absence of clarity as to whether conduct is criminal in nature. Further, the change is immediate. The measures in this bill will commence on the day after royal assent, with no transition period. The government should tell Australians what information campaign or guidance material will be provided before the law takes effect.

Fourth and most significant, under the old section, 122.4, motive was entirely irrelevant. A public servant who leaked cabinet deliberations because they disagreed with government policy faced criminal sanctions. Under the new offence, the same person may not be guilty at all, because the prosecution must prove an intention to obtain personal benefit or cause harm. The AGD secrecy review specifically identified this problem and recommended an additional offence covering disclosures prejudicial to the effective working of government to capture ideologically motivated leaks of cabinet material, pre-budget decisions and diplomatic cables where there's no personal gain and no intent to harm. The government declined to implement that recommendation. That was a deliberate choice. It was not an oversight. This must also be explored by the Senate committee.

Schedule 2 of the bill amends existing Commonwealth secrecy offences and non-disclosure duties in other legislation. The schedule affects some 300-plus provisions that set out secrecy and non-disclosure obligations. Among those 300-plus provisions, the outright repeals of existing duties include, for example, the secrecy obligations of staff from the old Australian Broadcasting Tribunal, a body that ceased to exist in 2005. This is appropriate. However, the coalition notes one genuine gap in the civil substitutes: they do not apply to former officials. Once a public servant leaves government, the APS code no longer binds them. Civil litigation against a former employee is expensive and uncertain. For the most serious potential breaches, a departing official misusing sensitive information, the criminal law was the primary deterrent. The Senate committee should examine whether that gap is adequately addressed.

I'll now turn to schedule 3, the provision that the coalition has significant concerns about. Schedule 3 requires the Attorney-General to give written consent before a journalist or news organisation staff member can be prosecuted for any Commonwealth secrecy offence. If the Attorney-General refuses consent, the prosecution cannot proceed. Let me begin with where this came from. In 2019, AFP raids on News Corp journalist Annika Smethurst and the ABC attracted significant public and political attention. Whether to investigate and prosecute offences was, of course, a matter determined independently by police and prosecutors. But there was clear community concern about the impact on journalism. Attorney-General Christian Porter responded to that concern at the time by directing the Commonwealth DPP to seek his written consent before prosecuting a journalist for a defined list of national security and intelligence secrecy offences.

That direction was signed on 19 September 2019. It came shortly after another safeguard, put in place by Peter Dutton as the responsible minister at the time, setting out expectations on the investigation of journalists. The direction by Attorney-General Porter was a deliberate and highly targeted safeguard. It was welcomed by the Parliamentary Joint Committee on Intelligence and Security as an initial step to restore confidence in press freedom. I served on that relevant committee at the time of the inquiry. Rightly, it has never been used. No prosecution of a journalist for a secrecy offence has been brought since. On 21 November 2023, when releasing the AGD's Review of secrecy provisions final report, Attorney-General Dreyfus announced the government's intention to legislate the Porter direction, contradicting the opportunistic and misleading criticisms that he made at the time. This bill takes that highly targeted safeguard and expands it significantly.

Under Labor, the consent requirement will apply to every Commonwealth secrecy offence that does not already require ministerial consent. That is an extraordinary reach. Neither the AGD secrecy review nor the Independent National Security Legislation Monitor review recommended schedule 3. It's the only provision in this bill without an independent expert recommendation behind it. Australia's Right to Know submitted to the AGD secrecy review on 5 May 2023. Their 57-page submission is a detailed, sophisticated legal document. On the consent mechanism, at page 57, Australia's Right to Know said that it was 'at best a complement to proper reforms of the type outlined in the balance of this submission' and that 'it cannot be a substitute'. What Australia's Right to Know primarily sought, in the overwhelming substance of 57 pages, was fundamental reform of the journalist protection in section 122.5(6) of the Criminal Code. They describe the existing defence as a 'dead letter in practical terms'. They argue the prosecution should bear the full evidential burden of disproving the protection, not the journalist. They argued that the reasonable-grounds standard should be replaced with a bona fide belief standard, removing the ability of courts to second guess journalistic methodology and professional judgement.

Australia's Right to Know raised three specific concerns about the consent mechanism: first, it creates a chilling effect by vesting discretion in a member of the government whose own actions may be under journalistic scrutiny; second, it makes no difference to police investigations, which will proceed regardless; and, third, the Attorney-General may simply fail to grant consent, leaving journalists in indefinite legal limbo.

The government seems to have ignored that submission, and it appears that Australia's Right to Know's concerns are realised in schedule 3 as drafted. The government has turned a targeted, responsive and carefully reviewed direction into a legislative procedure that applies much, much more broadly, without explanation. Time and again, when it comes to secrecy and access to information, this is a government that cannot be trusted.

There are clear questions the coalition expects the Senate committee on legal and constitutional affairs to pursue: Why did the government choose schedule 3 rather than implementing INSLM recommendation No. 13, which recommended clarifying the existing journalist defence? What specific evidence base exists for massively expanding the existing highly targeted approach in Attorney-General Porter's direction so that it covers every Commonwealth secrecy offence and locks it into legislation? How will this work in practice, in the absence of statutory criteria, with no reasons requirement and no time limit but a very broad scope?

The government must be upfront. It must provide a complete schedule of all 300-plus provisions being decriminalised, showing for each which civil and administrative substitute applies. It must confirm whether the relevant agencies were consulted. And there are broader concerns. What criminal sanction now applies to the ideologically motivated leaker of cabinet material—the public servant who discloses sensitive government information with no personal gain and no intent to harm? Is that person engaged in criminal activity, as was the case in Australian legal history to date, or are they now out of scope? The government has a responsibility to explain these things, to identify any gaps and to say what, if anything, it intends to do about it.

We will consider whether these provisions are fit for purpose, as well as other schedules in the bill, which, in the interests of time, I don't propose to run through now. The coalition will engage with the Senate committee process in good faith. We will press for answers and we will finalise our position on the bill, including on whether amendments are necessary, once we have those answers.

Let me turn now to the second bill in this cognate debate, the Secrecy Provisions Amendment (Sunsetting Provision) Bill 2026. This bill is short, it's technical, and, importantly, it's necessary. It makes a single amendment to the Criminal Code Act 1995 by extending the sunsetting date for section 122.4 of the Criminal Code by six months, from 29 June 2026 to 29 December 2026. As I explained earlier, section 122.4 is the Commonwealth's general secrecy offence. It applies where a current or former Commonwealth officer or contractor discloses information obtained through their official role in breach of secrecy or non-disclosure obligations imposed by another Commonwealth law. Those obligations exist across a broad range of Commonwealth legislation. They protect highly sensitive information, including Australians' personal information, health records, taxation information, commercially sensitive material and law enforcement information. These are not abstract categories of information. They include real information that Australians trust their government to protect—their health records, their tax data, their personal details and sensitive commercial information.

The provision was drafted as a temporary measure to preserve criminal liability for relevant secrecy obligations while national security reforms were implemented and broader Commonwealth secrecy law reform was considered. It created a clear and enforceable criminal framework to sit alongside a wide range of existing Commonwealth secrecy obligations. Importantly, the provision was always intended to operate as an interim measure. That's why the parliament included a sunset clause. The sunset mechanism ensured that the offence would be revisited and would not be continued indefinitely without reconsideration by parliament. This bill represents the third occasion on which parliament has been asked to extend the operation of section 122.4. That reflects a straightforward reality: the broader Commonwealth secrecy reform process has still not concluded.

The other bill in this cognate debate, the Secrecy Provisions Amendment (Repealing Offences) Bill 2026, proposes broader reforms dealing with section 122.4 and related secrecy offences, but that's separate legislation. As I've explained, a range of stakeholders have raised concerns about the proposed changes, and it's important that the coalition works through that legislation carefully and on its merits. But supporting this sunsetting bill does not predetermine the coalition's view on the broader repeal bill and reform bill. Those are separate matters, and the purpose of this bill is much narrower. It's about ensuring continuity in the law while parliament properly scrutinises the government's broader reforms.

The case for that continuity is straightforward. Parliament cannot properly scrutinise the government's proposed reforms if the existing framework collapses in the meantime. If this bill doesn't pass before 29 June 2026, section 122.4 will sunset automatically. The consequences would be immediate and serious. There would be a significant gap in criminal liability for breaches of a wide range of Commonwealth secrecy obligations. Sensitive information entrusted to government could be disclosed without the operation of this general criminal offence. There would be uncertainty across Commonwealth agencies about the enforceability of relevant secrecy obligations, and there would be weakened protections for information Australians rightly expect their government to safeguard. Allowing a legal vacuum to emerge, even temporarily, is not acceptable.

This bill ensures those protections remain in place while parliament considers the government's broader secrecy law reforms. It does not expand, alter or restrict the existing operation of section 122.4. It does not predetermine the outcome of the larger policy debate currently before the parliament. It simply preserves the current legal position for a further six months to avoid a potentially serious gap in the law.

The coalition supports this bill and will vote for its passage. We have long supported strong, proportionate protections for sensitive Commonwealth information. At the same time, we recognise the importance of ensuring secrecy laws are workable, proportionate and subject to proper parliamentary scrutiny. That's why the interim extension is necessary. It provides continuity, certainty and stability while the parliament completes consideration of the broader reforms. I thank the House.

Debate adjourned.