Secrecy reform needed to protect whistleblowers, journalists following independent review

The Human Rights Law Centre has welcomed the Independent National Security Legislation Monitor’s (INSLM) recommendations to better balance secrecy and transparency under federal law, and called on the Albanese Government to enact the proposed reform. 

In 2018, the Turnbull Government legislated sweeping new general secrecy offences in the Criminal Code, with limited defences and disproportionate penalties, despite widespread concern about the democratic impact of the reform. The changes have criminalised whistleblowing and journalism, undermining transparency and accountability in Australia’s democracy. 

The Human Rights Law Centre welcomes the INSLM’s review to better calibrate Australia’s secrecy landscape, particularly noting the recommendations to: 

  • repeal ‘dealing with’ offences for third parties and narrow equivalent offences for public servants (recommendations 7 and 8); 

  • ensure the proposed new general secrecy offence for public servants is enacted pursuant to a harms-based approach (recommendation 11); 

  • significantly decrease maximum penalties for secrecy offences applying to third parties (recommendation 12); 

  • reframe the current defence for journalists as an exception rather than a defence (recommendation 13); 

  • retain the requirement for the Attorney-General to consent to prosecutions under the general secrecy offences (recommendation 14); and 

  • revise the Prosecution Policy of the Commonwealth to expressly include the public interest in a free and open press as a consideration for secrecy prosecutions (recommendation 15). 

The recommendations come amid a heightened focus on secrecy, transparency and press freedom in Australia, following the return of Julian Assange, the recent prosecutions of whistleblowers Bernard Collaery, Witness K and David McBride, and the ongoing prosecution of whistleblower Richard Boyle. A separate review by the Attorney-General's Department last year identified almost 1,000 secrecy offences and non-disclosure duties under federal law.

The Human Rights Law Centre made a submission to the review, and appeared before the INSLM in a public hearing. 

Kieran Pender, Senior Lawyer at the Human Rights Law Centre, said: 

“The long-overdue end to the unjust prosecution of Julian Assange has underscored the challenges faced to press freedom and transparency, in Australia and abroad. The recent imprisonment of war crimes whistleblower David McBride, the ongoing prosecution of tax office whistleblower Richard Boyle and the 2019 raids on Australian media outlets have all highlighted Australia’s draconian secrecy landscape. Unnecessary and disproportionate secrecy is bad for democracy. 

“There is no public interest in punishing and criminalising whistleblowers, who play a crucial role in exposing government wrongdoing. The Independent National Security Legislation Monitor's recommendations to reform general secrecy offences to ensure they are proportionate and better align with Australia’s human rights obligations is a step in the right direction. The Monitor rightly recognises that many of the current offences undermine essential rule of law principles. 

“The Albanese Government must commit to implementing these and other pending reforms to Australia’s national security framework, together with a comprehensive overhaul of whistleblower protections and the establishment of a whistleblower protection authority. Those reforms are urgent to ensure whistleblowers and journalists can play their rightful democratic role without fear of prosecution.” 

Media Contact: 
Thomas Feng
Human Rights Law Centre
0431 285 275
thomas.feng@hrlc.org.au

Thomas FengDemocratic Freedoms