Journalists will no longer face criminal prosecution for merely receiving some secret government information even without making it public, under changes the federal attorney general has announced to national secrecy laws.
Mark Dreyfus has also agreed to repeal parts of the law that make it a criminal offence to publish any information stamped “protected”, “secret” or “top secret” – meaning actual or likely harm is determined by the content of a document, not just the label on it.
But Dreyfus has not gone as far as an independent review of secrecy laws recommended. He declined to ease restrictions on publishing certain kinds of information about intelligence agencies and agreed only to consider whether the definition of “inherently harmful” material should be narrower.
Presenting his response to the Independent National Security Legislation Monitor’s review of the nation’s security laws to parliament on Wednesday, Dreyfus has accepted six out of 15 INSLM recommendations in full and accepted another six in part or in principle, noting two without commitment and rejecting one outright.
Jake Blight had argued in his review that the document classification system was essentially administrative and should not be used as the basis for criminal prosecutions punishable by years in jail.
“My concern is in taking a policy document and trying to enshrine it in the criminal law,” Blight told journalists on Wednesday. “Criminal laws need much more precision than a policy like that can provide.”
Dreyfus accepted Blight’s argument but said he would consider whether the definition of “causing harm to Australia’s interests” needed to be broadened.
He would not agree to more tightly define what is considered harmful information about intelligence agencies. Blight had recommended that it not capture everything about an agency but should be restricted to information about the data it handled, its operations, capabilities, technologies, methods and sources.
“The government acknowledges that not all information held by intelligence agencies is inherently sensitive,” Dreyfus’s response said. But it said the recommended approach would “remove protections from categories of information which would cause harm if disclosed”.
Blight called that decision “unfortunate”. “Many of our intelligence agencies now do important work, but actually isn’t intelligence work, and I think our laws need to be tailored to that. Extreme secrecy should be focused only on the most extreme secrets.”
However, the INSLM welcomed the government’s overall response. “We do need secrecy laws in this country,” Blight said. “There is some work of intelligence and security agencies that is genuinely secret and needs to be kept secret. But an excessive secrecy law, too much secrecy or disproportionate laws is not helpful.”
Dreyfus said he would consider whether to narrow the definition of “inherently harmful” material that could attract a penalty of up to seven years’ jail.
He said he would develop legislation to define the kinds of law enforcement information that should attract secrecy protection in the “essential public interest” and therefore attract criminal penalties for publication.
“I’ll be working with government and certainly making my voice known if I think they’re not actually implementing the principles I’ve recommended,” Blight said.
The Human Rights Law Centre’s associate legal director, Kieran Pender, called Dreyfus’s response a “broadly positive step for transparency and open government in Australia”. But more reform was required, he said.
“These sweeping secrecy laws continue to pose a daily risk to whistleblowers, human rights defenders and journalists – and are having a chilling effect on accountability,” Pender said.
“The Albanese government must commit to enacting these secrecy reforms and fixing public sector whistleblowing law before the next election.”
• This article was amended on 27 November 2024. A previous version stated that the number of INSLM recommendations accepted in full was seven. This has been corrected to six.
