Kate Chaney (Curtin, Independent) Share this | Link to 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.

Michelle Rowland (Greenway, Australian Labor Party, Attorney-General) Share this | Link to this | Hansard source

I thank the member for Curtin. I acknowledge the constructive approach she has taken to moving these amendments and note her long advocacy for reform in this area.

The government will not be supporting these amendments. First, the proposed amendment to change the harm threshold is inconsistent with the recommendations of the AGD secrecy review, which recommended a broader offence that captured disclosures prejudicial to the working of government, including scenarios akin to the PwC incident. The proposed amendment would not sufficiently close gaps in secrecy laws that were identified following the PwC incident. The essential public interests in the list contained in the proposed amendments are matters covered by other general secrecy offences in the Criminal Code and in specific secrecy offences in other legislation.

Secondly, notwithstanding the importance of establishing clear and robust safeguards around the prosecution of journalists, the government is not convinced that a periodic review as contemplated by the amendment is necessary given the infrequency with which secrecy offences are prosecuted. An independent statutory review is costly, and a five-yearly review may not present particularly useful insights for the parliament.

The government remains committed to improving protections for press freedom and will consider whether further amendments are necessary in the future.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question is that the amendments moved by the honourable member for Curtin be agreed to.

Allegra Spender (Wentworth, Independent) Share this | Link to this | Hansard source

I move:

(1) Schedule 1, page 6 (after line 32), after item 8, insert:

8A After subsection 122.5(4) of the Criminal Code

Insert:

(4AA) Where a defendant seeks to rely on the defence at paragraph 122.5(4)(a), on the grounds that they have made an external or emergency disclosure in accordance with section 26 of the Public Interest Disclosure Act 2013, it is sufficient for the defendant to show:

(a) in the case of items 2 and 3 of the table in that section—all the further requirements set out in column 3 of the item are met; or

(b) the disclosure is otherwise reasonable and in the public interest, having regard to all of the circumstances.

I rise to move this amendment to the Secrecy Provisions Amendment (Repealing Offences) Bill 2026. As I flagged in my second reading speech, I'm pleased with this legislation being introduced and I commend the government. However, in the absence of simultaneous reform to protect whistleblowers, and reforms to the PID Act, there are omissions in this bill which ultimately may harm those who are protecting the public interest. My amendment attempts to address one of these issues.

Under section 122.5(4) of the Criminal Code, a person has a defence to a secrecy offence if they have made a public interest disclosure in accordance with the Public Interest Disclosure Act 2013. On its face, that looks like an adequate provision. In practice, it is in fact deeply flawed, because the PID Act's requirements for a qualifying external emergency disclosure under section 26 are technical in the extreme. Before a public official can make an external disclosure—that is, disclose to a journalist, a member of parliament or any other person outside government—they must navigate a set of conditions that are easy to fail on a technicality. Miss one step in the sequence and the PID Act immunity does not attach. If a person is not familiar with the whistleblower schemes, they may find themselves facing serious criminal charges.

The Human Rights Law Centre, which runs Australia's only dedicated whistleblower legal centre, was clear about this issue in its submission to the Senate committee. In its experience, the PID Act is not fit for purpose. The conditions are difficult to satisfy. Genuine public interest disclosures regularly fall outside them, and when they do there is no current legislative safety net, just criminal exposure.

My amendment creates that safety net. It inserts a new subsection, 122.5(4AA), which provides that, where a defendant cannot satisfy every technical requirement of the PID Act's external or emergency disclosure pathway, they may still access the defence if they can demonstrate that their disclosure was reasonable and genuinely in the public interest, having regard to all circumstances. If someone makes a disclosure and does not fulfil the technical requirements but it cannot be proven they were completing this disclosure for a reasonable public good, they will still be held liable under the secrecy provisions. This is seeking to protect those who are sharing for the genuine public interest.

I want to be precise about what this amendment does and does not do. It does not override the PID act. The existing section 122.5(4) defence for compliant PID Act disclosures remains entirely intact. My amendment adds a parallel pathway. It does not replace or weaken the primary one. Compliance with the PID Act's full requirements remains the clearest and most certain route to protection. Within the PID Act remains an express carve-out: a disclosure to a foreign public official cannot attract the defence, regardless of the claimed public interest. National security concerns about disclosures to foreign governments are real, and this amendment does not disturb them.

I accept this amendment does not resolve every problem with the whistleblower framework. The PID act needs comprehensive reform. That work is pending by the government. I understand they have committed to the second tranche of reforms in this area. But, where there is room for progress, we should try and achieve it instead of waiting for the next suite of reforms. This amendment is a small but real step towards giving whistleblowers what they deserve. Having moved the amendment circulated in my name, I commend it to the House.

Michelle Rowland (Greenway, Australian Labor Party, Attorney-General) Share this | Link to this | Hansard source

The government does not support this amendment. Subsection 122.5(4) of the Criminal Code provides a defence to the secrecy offences in the code where the conduct was engaged in for the purpose of disclosing information in accordance with the Public Interest Disclosure Act. To meet the defence, the defendant is required to point to evidence suggesting a reasonable possibility that they were disclosing in accordance with the PID Act. The burden then shifts to the prosecution to disprove the defence beyond a reasonable doubt. The government is committed to the second tranche of PID reform.

Mike Freelander (Macarthur, Australian Labor Party) Share this | Link to this | Hansard source

The question is that the amendment be agreed to.