Whistleblowers and Classified Information

In recent years, Australia’s laws restricting what journalists can report and what information Commonwealth employees can disclose have got tighter and tighter. Human rights lawyers and activists have often raised the alarm that we are creeping closer to becoming a police state, with liberties such as freedom of the press under threat. But exactly what federal laws restrict the communication of government information? This article will examine some of them.

Criminal Code offences

In the Federal Criminal Code Act 1995, there are two provisions that contain offences relating to the disclosure of information.

Inherently harmful information

The first provision relates to inherently harmful information. Inherently harmful information includes:

• security classified information ;
• information that that was obtained by, or made by or on behalf of, a domestic intelligence agency or a foreign intelligence agency in connection with the agency’s functions;
• information relating to the operations, capabilities or technologies of, or methods or sources used by, a domestic or foreign law enforcement agency.

Communicating information

Section 122.1 of the Criminal Code makes it an offence to communicate information that is inherently harmful and was obtained by the person whilst a Commonwealth officer or working for a Commonwealth entity. This is punishable by a maximum of seven years imprisonment.

Dealing with information

Under the same provision, a person commits an offence if they deal with information (otherwise than by communicating it) that is harmful and that was obtained by the person whilst a Commonwealth officer or working for a Commonwealth entity. This is punishable by a maximum of seven years imprisonment. This is punishable by a maximum of three years imprisonment.

Removing information

The provision also makes it an offence for a person to remove information from its proper place of custody or to hold the information outside of a proper place of custody if

• the information is inherently harmful; and
• the information was obtained by the person whilst a Commonwealth officer or while working for a Commonwealth entity. This is punishable by a maximum of three years imprisonment.

Failing to comply with a direction

A person also commits an offence if they are given a lawful direction about the retention, use or disposal of inherently harmful information obtained while working for the Commonwealth and

• they fail to comply with the direction; and
• the failure to comply with the direction results in a risk to the security of the information.

This is punishable by a maximum of three years imprisonment.

Causing harm to Australia’s interests

Under Section 122.2 of the Criminal Code, a person commits an offence if they communicate information, which causes harm (or is likely to cause harm) to Australia’s interests where the information was obtained by the person whilst a Commonwealth officer or while working for a Commonwealth entity.

ASIO business

Under Section 35P of the ASIO Act 1979, it is an offence for an entrusted person to disclose information about a special intelligence operation. This offence carries a maximum penalty of five years imprisonment. Following a 2016 amendment, the criminal penalties under this provision apply only where the activity, or health or safety is endangered.

An ‘entrusted person’ is a person who works for ASIO or a person who has contracted with ASIO. This includes journalists who are in discussion with ASIO prior to publishing a story.

A ‘special intelligence’ operation may be any operation that assists ASIO to perform a special intelligence function, including gathering and evaluating intelligence related to security or co-operating with other agencies. It may include acts of wrongdoing by ASIO where disclosure is in the public interest.

Immigration and Border Protection

Under Section 42 of the Australian Border Force Act 2015, it is an offence for a person to make a record of, or disclose, Immigration and Border Protection information. This offence carries a maximum penalty of two years imprisonment.

The provision has the potential to curtail the ability of detention centre workers to reveal incidents or practices that occur in detention that may amount to infringements of legislation or human rights norms.

Limited protections

Under the Public Interest Disclosure Act 2013, people who reveal information in the public interest are accorded some protection. However, this protection is limited. Journalists and government employees wanting to report information still risk harsh penalties if the protections are found not to apply and so are likely to be deterred from coming forward.

Australia has passed over 75 national security laws that include similar such repressions, mostly since the terrorist attacks of the 11 September 2001. Calls are now abounding for these laws to be reviewed against human rights principles such as freedom of the press.

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