Government Solicitor

Australian government solicitor ISSUE 1: 2016
Confidentiality
‘Top secret’ – the provisions keeping
Commonwealth information confidential
There are hundreds of secrecy provisions contained in Commonwealth legislation. 1
These provisions typically prohibit people who obtain information in the course of
working for the Commonwealth from disclosing that information, except in
circumstances where an exception or a defence applies. A large number of secrecy
provisions have criminal penalties attached.
not itself create a duty not to disclose information. It only applies where a person otherwise
has a duty not to disclose information. This duty must therefore be found elsewhere, such as
in a specific secrecy provision or reg 2.1 of the PS Regs.
Regulation 2.1 of the PS Regs is another provision of a general nature that applies to all
Australian Public Service (APS) employees. It prohibits an APS employee from disclosing
information they obtained or generated in connection with their employment if:
• it is reasonably foreseeable that the disclosure could be prejudicial to the effective working
of government, including the formulation or implementation of policies or programs
(reg 2.1(3)), or
• the information was, or is to be, communicated in confidence within the Government, or was
received in confidence by the Government from a person or persons outside the Government
(reg 2.1(4)).
However, reg 2.1(5) contains a number of exceptions to these prohibitions. For example,
regs 2.1(3) and 2.1(4) do not prevent a disclosure of information by an APS employee if the:
a) information is disclosed in the course of the APS employee’s duties
b) information is disclosed in accordance with an authorisation given by an Agency Head
c) disclosure is otherwise authorised by law, or
d) information is already in the public domain as the result of a lawful disclosure.
Specific secrecy provisions
As noted above, there are a range of specific secrecy provisions that apply to impose
confidentiality requirements on particular people or to particular categories of
Commonwealth information.
Leo Hardiman
National Group Leader
Office of General Counsel
T 02 6253 7074
Tara McNeilly
Senior General Counsel
T 02 6253 7374
Olivia Abbott
A/g Senior General Counsel
T 02 6253 7023
Some specific secrecy provisions prevent the disclosure of any information that a particular
category of people (for example, Australian Federal Police employees) obtain while working
for the Commonwealth. 3
There are secrecy provisions of a general nature (for example, provisions that apply to govern
the disclosure of information by all Commonwealth employees), as well as specific provisions
that apply to particular people or particular categories of information. The types and features of
secrecy provisions are discussed in further detail below.
The obligations imposed by secrecy provisions apply in addition to any privacy obligations
arising under the Privacy Act 1988. The interaction of secrecy provisions and the Privacy Act is
also discussed briefly below.
General secrecy provisions
Two key provisions of a general nature that apply to Commonwealth employees are contained
in s 70 of the Crimes Act 1914 and reg 2.1 of the Public Service Regulations 1999 (the PS Regs). 2
Section 70(1) of the Crimes Act says:
A person who, being a Commonwealth officer, publishes or communicates, except to some person to
whom he or she is authorized to publish or communicate it, any fact or document which comes to
his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and
which it is his or her duty not to disclose, commits an offence.
(Section 70(2) also imposes an equivalent obligation on former Commonwealth officers.)
If a Commonwealth officer has a duty not to disclose information they obtain in the course of
doing their job, s 70 makes it an offence to disclose that information. Importantly, s 70 does
Other provisions protect the confidentiality of particular categories of information. For example,
Div 355 of Sch 1 to the Taxation Administration Act 1953 (TAA 1953) protects the confidentiality
of ‘protected information’, being information that was disclosed or obtained under or for the
purposes of a taxation law, that relates to the affairs of an entity, and that identifies (or is
reasonably capable of being used to identify) the entity (s 355-30). Further, some provisions
protect the confidentiality of ‘commercial information’. For example, s 114(1) of the Food
Standards Australia New Zealand Act 1991 imposes a duty on particular people not to disclose
any ‘confidential commercial information’ in respect of food. 4 Other provisions, commonly
contained in law enforcement legislation, protect the confidentiality of information
relating to an investigation. One example is s 34ZS(1) of the Australian Security Intelligence
Organisation Act 1979, which makes it an offence to disclose information indicating that a
warrant has been issued, relating to the content of a warrant, or relating to the questioning
or detention of a person in connection with a warrant.
Specific secrecy provisions typically contain exceptions or defences that permit relevant
information to be disclosed in particular circumstances. One common exception allows
relevant information to be disclosed in the ‘performance of duties’. This type of exception
ordinarily permits disclosures that are incidental to the carrying out of ‘the duties of an
officer’s employment’ (that is, those functions and actions that are authorised as part of his
or her employment). 5 Although it will necessarily depend on the particular statutory context,
disclosures may be permitted under a ‘performance of duties’ type exception even if they are
not specifically contemplated by the relevant legislation. For example, in some cases an officer
1 In its 2009 report, Secrecy laws and open government in Australia, the Australian Law Reform Commission identified 506 secrecy provisions
contained in 176 Commonwealth laws (see 104).
2 Other examples are s 79 of the Crimes Act, which applies in relation to ‘official secrets’, and s 13(6) of the Public Service Act 1999, which
says that an APS employee must ‘maintain appropriate confidentiality about dealings that the employee has with any Minister or
Minister’s member of staff’.
3 See s 60A of the Australian Federal Police Act 1979.
4 ‘Confidential commercial information’ in relation to food is defined in s 4 of the Act to mean a trade secret relating to food, or any other
information relating to food that has a commercial value that would be, or could reasonably be expected to be, destroyed or diminished
if the information were disclosed.
5 See Canadian Pacific Tobacco Ltd v Stapleton (1952) 86 CLR 1 and Herscu v The Queen (1991) 173 CLR 276.
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