'Problematic' secrecy offences should be revised, review recommends

The review, conducted by Independent National Security Legislation Monitor Jake Blight, focused on secrecy offences in part 5.6 of the Criminal Code Act, introduced in 2018.

Most of the offences relate to public servants and their handling of Commonwealth information, though some affect journalists, with Mr Blight highlighting a number of issues.

The 300-page report included 15 recommendations urging the federal government to adjust current offences to more effectively police national security threats.

"The recommendations of this review will ensure that information which is or is likely to be harmful to critical national interests remains protected but in a way that is clearer and more consistent with the rule of law and concepts of necessity and proportionality; and with Australia's international obligations," Mr Blight's review reads.

It is the second major review of secrecy offences to land in under a year, with an internal government report finding in 2023 that offences across all Commonwealth laws had ballooned from 506 in 2009 to 875.

The monitor found current offences conflict with rule of law principles, requiring laws to be clear and accessible, administered in a transparent way, and for their impacts to be proportionate and justified.

Mr Blight took issue with the implementation of so-called "deemed harm offences" which do not require proof of any actual harm or risk of harm.

They can apply to information which the government has classified as "secret" or "top secret", but the review called this application of deemed harm offences "problematic", because it relates to decisions made under a policy framework.

"There are fundamental rule of law issues with having, as a core element of an offence, decisions made under a policy framework," the monitor's report found, including that policies can be changed at any time, and that parts of the relevant policy framework aren't publicly available.

It should therefore be scrapped, Mr Blight found.

An offence which applies to "dealing with" information, which means that anyone who receives classified information can be penalised, should be repealed for non-officials, the review recommended.

Mr Blight noted that "journalists, academics and civil society groups hold a significant degree of concern about what it means to 'deal with' information, including the more uncertain aspects of the definition that criminalise actions such as the receipt of information".

Human Rights Law Centre senior lawyer Kieran Pender called the review's findings "a step in the right direction".

"The Monitor rightly recognises that many of the current offences undermine essential rule of law principles," he said.

"The Albanese government must commit to implementing these and other pending reforms to Australia's national security framework, together with a comprehensive overhaul of whistleblower protections and the establishment of a whistleblower protection authority."

A spokesperson for Attorney-General Mark Dreyfus said the government would consider the recommendations and "respond in due course".

"The Australian Government is committed to ensuring that secrecy offences are fit for purpose, and improving protections for press freedom," they said.