For more than 50 years, section 70 of the Crimes Act 1914 criminalised the disclosure of confidential information without authorisation by current and former ‘Commonwealth officers’. This extended to unauthorised disclosure by contractors performing services for or on behalf of the Commonwealth, a Territory or a public authority of the Commonwealth.

But, no longer.

Anyone looking for section 70 will find it was repealed by Schedule 2 of the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018.

What has replaced section 70?

Part 5.6 (Secrecy of information) of the Criminal Code (see the Schedule to the Criminal Code Act 1995) commenced on 30 December 2018.

It introduces ‘general secrecy offences’ for the ‘communication of’ or ‘dealing with’ various types of information (including opinions) which results in harm or likely harm.

The offence in section 122.4 of the Criminal Code is most similar to the now-repealed section 70 of the Crimes Act 1914. However, it applies if the person communicating the information is under a duty not to disclose the information, where that duty arises under a law of the Commonwealth.

Who do these new offences apply to?

Except for the offences in section 122.4A, the offences apply to a person if the information in question was made or obtained by that person by reason of his or her being a ‘Commonwealth officer’; or by reason of being otherwise engaged to perform work for a Commonwealth entity.

'Commonwealth officer' is defined to include APS employees; members of the Australian Defence Force or the Australian Federal Police; officers or employees of a Commonwealth authority; an individual who is a contracted service provider for a Commonwealth contract; and officers or employees of a contracted service provider who is providing services for the purposes of the Commonwealth contract (section 121.1).

In addition, the offences in section 122.4A apply to people who are not Commonwealth officers in relation to information they communicate or deal with which was made or obtained by another person by reason of that other person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity. Broadly, section 122.4A offences arise if the non-Commonwealth officer communicates or otherwise deals with information; and (among other things) the information is security classified, or communication of it interferes with or prejudices enforcement of Commonwealth criminal law, or harms the health or safety of the Australian public. These offences were previously covered by the now repealed section 79 of the Crimes Act 1914.

Are the new offences broader than the old section 70?

Yes. The new offences encompass those set out in sections 70 and section 79 of the Crimes Act 1914. They include offences relating to:

• Communication and other dealings with inherently harmful information by current and former Commonwealth officers etc (section 122.1). This section creates offences which, generally speaking, arise in relation to communication or dealing with information that is 'inherently harmful information'.
• Conduct by current and former Commonwealth officers etc. causing harm to Australia’s interests (section 122.2). Generally speaking, the offences in this section arise where the information is communicated or dealt with and the communication or conduct causes harm to Australia’s interests, or is likely to cause harm to Australia’s interests.
• Aggravated offence, imposing additional imprisonment terms (section 122.3). Aggravating factors include (for example) if the commission involves a record marked 'for Australian eyes only'.
• Unauthorised disclosure of information by current and former Commonwealth officers (section 122.4). This applies where the person is under a duty not to disclose the information and the duty arises under a law of the Commonwealth.
• Communicating and dealing with information by non-Commonwealth officers etc (section 122.4A).

In addition, section 90.1 of the Criminal Code defines information to mean 'information of any kind, whether true or false and whether in a material form or not, and includes:

1. an opinion
2. a report of a conversation'.

This significantly broadens the scope of the potential offences to cover situations where opinions or reports of conversations between others are disclosed by Commonwealth officers or persons engaged to perform work for a Commonwealth entity.

Are any defences available?

Yes. Defences are set out in section 122.5. They include that the information is already public; or that it was communicated or otherwise dealt with:

• by the person in the course of exercising a power or performing a function as a public official or a person who is otherwise engaged to perform work for a Commonwealth entity
• in the course of communicating to an integrity agency (eg the Inspector General of Intelligence and Security, the Commonwealth Ombudsman, ACLEI, the Australian Information Commissioner)
• for the purposes of communicating the information in accordance with the Public Interest Disclosure Act 2013 (Cth) or the Freedom of Information Act 1982 (Cth)
• in order to report a criminal offence
• for the purpose of communicating to a court or tribunal
• in order to obtain or give legal advice
• by a person engaging in a business reporting news who reasonably believed that communicating etc the information was in the public interest.

What are the potential penalties?

The penalties are much heavier than they were. They vary, but range between imprisonment for 2 years (eg section 122.4(a)) to 10 years for aggravated offences.

What does this mean in practice?

References to section 70 of the Crimes Act 1914 (Cth) will need to be changed to refer to Part 5.6 of the Criminal Code as appropriate.

This could include, for example, references to the old section 70 in email footers; contracts; grant deeds; probity documents; and procurement documentation.

Training on confidentiality will need to cover these broader offences.