Mark Dreyfus introduces new secrecy offence for public servants

The new offence is one of 11 recommendations made in a review of Commonwealth secrecy provisions - released on Tuesday - which Attorney-General Mark Dreyfus has announced the government will adopt.

The review was commissioned to address concerns about the number, inconsistency and appropriateness of secrecy offences, which have grown from 506 in 2009 to 875.

The general secrecy offence, to apply to public servants, contracted service providers, ministers and their staff, and statutory office holders, would consolidate 168 specific offences and non-disclosure duties across government agencies.

It would establish criminal liability for Commonwealth officers who disclose information obtained in connection with their job or service, where disclosure would be prejudicial to the effective working of government or where the information was communicated to them in confidence.

The review recommended that disclosure of information should be captured by the new offence where it "harms the effective working of government [and] undermines the Australian community's trust in government and the ability of Commonwealth departments and agencies to deliver policies and programs".

"Embarrassment to the government should not be sufficient to establish prejudice," the review states.

The Attorney-General's consent would be required to prosecute the new offence, which was recommended following allegations that PwC Australia used confidential Commonwealth information to gain financial advantage.

The case raised potential gaps in existing legislation, with the review recommending the definition of Commonwealth officers be broadened to include "all individuals providing services to the Commonwealth, whether paid or not". It also identified that the new general secrecy offence should address circumstances "where there is no existing legislative duty not to disclose certain information but where disclosure could cause harm".

The review also encourages bolstered press freedom, including extending the public interest journalism defence to apply to a broader range of offences and legislating the protection of public interest journalism in decisions on search warrants for the investigation of secrecy offences.

A ministerial direction, requiring the Commonwealth Director of Public Prosecutions to seek the Attorney-General's consent before prosecuting a journalist for certain secrecy offences will be maintained.

While the review did not recommend this direction - introduced in 2019 by former attorney-general Christian Porter - be legislated, Mr Dreyfus has committed to doing so.

"The Albanese government believes a strong and independent media is vital to democracy and holding governments to account," he said in a statement.

"Journalists should never face the prospect of being charged or even jailed just for doing their jobs."

Senior lawyer at the Human Rights Law Centre Kieran Pender welcomed some of the proposed reforms, but criticised the new general secrecy offence.

"We urge the Attorney to go further - the changes announced today do not go far enough to strike the right balance between secrecy and transparency in our democracy after a decade of opacity," Mr Pender said in a statement.

"The new proposed general secrecy offence goes too far in criminalising the disclosure of public information and is contrary to the Australian Law Reform Commission's prior recommendation."

He also called for reforms to secrecy offences that apply to all Australians, not just public servants.

"The government should not waste this opportunity to robustly protect transparency and press freedom, which are cornerstones of our democracy."

Greens senator David Shoebridge welcomed the move to repeal some specific offences, but called the new general secrecy offence "extremely concerning".

"The newly proposed overarching secrecy offence targeting public servants is extremely concerning when public servants are already being prosecuted as whistleblowers under existing laws," he said in a statement.

"If the trials of David McBride and Richard Boyle demonstrate anything it's that we need less oppressive secrecy laws, not a brand new catch all secrecy offence.

"We know secrecy laws have a massive impact on press freedom and whistleblowers and any reform must start from this essential fact."

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