Secrecy offences for Commonwealth officers and service providers
Secrecy offences primarily apply to current and former Commonwealth officers or service providers. This includes:
- Australian Public Service (APS) employees
- individuals appointed or employed by the Commonwealth
- members of the Australian Defence Force
- members of the Australian Federal Police (AFP)
- individuals who are contracted service providers for a Commonwealth contract.
How the general secrecy offences apply to you
Part 5.6 of the Criminal Code contains 9 general secrecy offences that apply to current and former Commonwealth officers and service providers.
Eight offences prohibit communicating or dealing with inherently harmful information (section 122.1) and information that will, is likely to, or does cause harm to Australia’s interests (section 122.2). One offence prohibits communicating information that is protected by a non-disclosure duty arising under a separate Commonwealth law (section 122.4).
Inherently harmful information includes information that:
- is classified SECRET or TOP SECRET
- is obtained or made by or on behalf of an intelligence agency in connection with the agency’s functions
- relates to the operations, capabilities or technologies of, or methods or sources used by, a law enforcement agency.
Information that causes harm to Australia’s interests includes information that harms or prejudices:
- the security or defence of Australia
- the health or safety of the Australian public or a section of the Australian public
- Australia’s international relations in relation to information communicated in confidence
- the investigation, prosecution or punishment of a federal criminal offence
- the performance of certain functions of the AFP.
Communicating information can include disclosing, publishing or making information available. Dealing with information can include receiving, possessing, storing, making a record of, or altering information.
How specific secrecy offences apply to you
There are a range of specific secrecy offences in Commonwealth legislation. These offences mainly apply to current and former Commonwealth officers and service providers. They are often found in legislation establishing an agency or regulatory scheme.
You should consider if the legislation establishing your agency or the regulatory scheme you are working under contains secrecy offences that apply to you. If it does, it’s important to understand your obligations.
Visit Overview of secrecy offences to find out how to assess whether a specific secrecy offence applies to you, and what you need to do to meet your obligations.
When you can lawfully share information
There are defences and exceptions that may be applicable to the sharing of certain information. Section 122.5 of the Criminal Code includes defences for sharing information that is already lawfully public. It also covers information that is communicated:
- as a part of your duties
- to a Commonwealth oversight or integrity agency
- to a court or tribunal
- with the consent of the person to whom the information relates, or by the person to whom it relates
- for the purpose of obtaining or providing legal advice
- for the purpose of reporting a criminal offence or maladministration
- in accordance with the Public Interest Disclosure Act 2013 or the Freedom of Information Act 1982.
Other obligations for APS employees
Australian Public Service employees have obligations under the APS Code of Conduct. The Code of Conduct imposes duties on APS employees to:
- not disclose certain information
- maintain appropriate confidentiality
- not improperly use information
- comply with all Australian laws.
These include secrecy provisions. A breach of the APS Code of Conduct may result in administrative or disciplinary action.