Secrecy offences for journalists and media organisations

There are general secrecy offences that apply to everyone, including journalists. These are contained in section 122.4A of the Criminal Code. They make it an offence to communicate or deal with information that:

• has a security classification of SECRET or TOP SECRET
• would damage the security or defence of Australia
• interferes with or prejudices the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth
• harms or prejudices the health or safety of the Australian public or a section of the Australian public.

These offences apply if the information was made or obtained by another person by reason of that person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity. 

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.

When there may be a public interest in a journalist or media organisation communicating or dealing with information

Subsection 122.5(6) of the Criminal Code provides a defence to the general secrecy offences that protects public interest journalism by excusing journalists and media organisations from criminal liability in certain circumstances.

This defence may be available to a person who, at the time they communicated, removed, held or otherwise dealt with the relevant information, reasonably believed that engaging in that conduct was in the public interest. For this defence to apply, they need to have been acting in their capacity as a person engaged in any of the following business:

• reporting news
• presenting current affairs
• expressing editorial or other content in news media.

Alternatively, this defence can apply if the person was a member of the administrative staff of an entity that was engaged in those same activities – but only if they were acting under the direction of a journalist, editor or lawyer employed by the same entity who reasonably believed that engaging in that conduct was in the public interest. 

Subsection 122.5(7) of the Criminal Code provides that some conduct is not in the public interest. This includes some conduct that discloses the identity of an intelligence officer, or directly or indirectly assists a foreign intelligence agency or a foreign military organisation.

Other defences may also apply, such as subsection 122.5(2) which covers information that is already public.

How specific secrecy offences apply to journalists and media organisations

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.

If you are dealing with information originating in a Commonwealth agency or under a regulatory scheme, you should consider if the legislation establishing that agency or regulatory scheme 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.

Other protections for public interest journalism

There are additional protections for public interest journalism. These include:

• a ministerial direction that directs the Commonwealth Director of Public Prosecutions to seek the Attorney-General’s written consent before deciding to prosecute a journalist for certain secrecy offences.
• a ministerial direction to the AFP outlining expectations for the AFP when undertaking investigations involving a professional journalist or news media organisation.
• Public Interest Advocates are appointed to provide greater oversight and scrutiny of journalist information warrants, which are issued without the journalist’s knowledge. Public Interest Advocates are independent and can make submissions to the issuing authority about facts and considerations to support or not support the issuing of a journalist information warrant. 
• Journalist shield laws set out that if a journalist has promised an informant not to disclose their identity, then the journalist and their employer cannot be compelled to disclose the informant’s identity in court proceedings. This can be overridden if the court considers that the public interest in identifying the informant outweighs any adverse effect on them.