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Prosecutors weigh up Australia’s first case under government secrecy laws | Australian politics

PoliticsProsecutors weigh up Australia’s first case under government secrecy laws | Australian politics


Federal prosecutors are considering Australia’s first prosecution under broad-ranging general secrecy laws that can send someone revealing classified government information to jail for up to 10 years.

Nobody has ever been prosecuted under part 5.6 of the Criminal Code Act, which was introduced in December 2018 as a catch-all, general secrecy law designed to protect high-level commonwealth information, the release of which would be “inherently harmful”. It targets commonwealth officials but also contains an offence that covers anyone – including journalists, academics or the wider public – disclosing information that the government has stamped “secret” or “top secret”.

The office of the Commonwealth Director of Public Prosecutions has revealed it has received seven agency referrals recommending prosecutions under part 5.6. The detail is included in a submission to the office of the Independent National Security Legislation Monitor, which is reviewing the operation and breadth of part 5.6 and its offences.

The CDPP did not proceed with six of the referrals but says one is still being considered.

“Of the seven referrals, five were from the Australian Federal Police, one was from the Department of Home Affairs and one from the Australian Commission for Law Enforcement Integrity (Aclei),” its submission says. Aclei was folded into the new National Anti-Corruption Commission when it was established in July last year.

The CDPP does not reveal any details of the unresolved referral. The federal attorney general would need to approve any prosecution.

Part 5.6 consolidated a range of disparate secrecy offences. The high-profile prosecutions of the former Defence lawyer David McBride and Australian Taxation Office official Richard Boyle preceded its existence.

Under a sunset clause, the part 5.6 general secrecy offence expires this year. The government must decide whether to renew, amend, replace or remove it.

The new Independent National Security Legislation Monitor (Inslm), Jake Blight, told public hearings on Monday that some information clearly needed protection. But he is concerned that the definition of “inherently harmful” is unclear and that high-level classifications may be being assigned too readily.

“I’m talking about a 10-year offence … – quite a serious offence – and I’m looking to see that only those things which are necessary and proportionate to an offence of this type are covered,” Blight said.

Agency chiefs defended a broad definition.

The Department of Home Affairs deputy secretary, Nathan Smyth, was prepared to countenance limited changes to 5.6 provided they “do not result in the net watering down of the robustness” of national security protections. The Australian federal police deputy commissioner Krissy Barrett emphasised that classifications should not be used to cover up “embarrassment” or hide impropriety.

Asio and the Australian Signals Directorate argued that disclosing any information from their agencies was harmful in itself.

“Secrecy provisions are here for deterrence purposes,” the Asio director general, Mike Burgess, told Monday’s hearing. “Once someone has received something, the deterrence provisions are not having the desired effect … It’s what happens next … And that’s the problem we need to focus on.”

The ASD acting chief operating officer, Stephen McGlynn, was firmer.

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“We say once there is a disclosure, there is harm,” McGlynn said.

Blight said it was accepted that information about highly sensitive intelligence activities, operations, capabilities and technologies must be protected.

“The bit I’m struggling with is the jump from there to everything,” Blight told McGlynn.

In what became a slightly testy exchange, Blight posed a hypothetical scenario involving a culture of bullying or sexual harassment and asked why secrecy law should protect such information.

McGlynn said it could identify people or their work to foreign intelligence agencies seeking to harm Australia.

“We don’t know if a piece of information isn’t the missing piece that’s going to tell a broader story,” McGlynn responded.

However, Burgess said such information that did not identify people or jobs may not need to be classified secret.

The chief of defence intelligence, Lt Gen Gavan Reynolds, cautioned against watering down secrecy provisions or proscribing more of his agencies’ operations in law. Reynolds said different kinds of information within them should be treated consistently.

Kieran Pender, a senior lawyer with the Human Rights Law Centre, whose clients include a robodebt whistleblower, told the hearing that part 5.6 favoured secrecy over transparency and needed overhauling.

“The breadth and vagueness of the offences in Part 5.6, together with inadequate defences and the flaws in the wider whistleblower protections framework, have a chilling effect on whistleblowing,” Pender said.



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