Secrecy offences in Australia: unlawful disclosure of Commonwealth information.

This note sets out the Commonwealth secrecy offences: what they are, who can be charged, the penalties, and the defences. The charge reported this week is the news hook. The law below is the standing law that applies to every person who holds or once held a Commonwealth office.

A word before the law. This is a plain-English account of the legal position. It is not a comment on any current investigation or on any person who has been charged. A charge is an allegation. Any person charged is presumed innocent until a court finds otherwise, and nothing here should be read as a view about a matter that is before the court.

What are the Commonwealth secrecy offences?

They live in Part 5.6 of the Criminal Code (Cth), headed Secrecy of information. In broad terms, they make it a crime for a current or former Commonwealth officer to communicate or otherwise deal with certain government information without authority. The point of the law is to protect information that the government holds, from the truly sensitive, such as security and intelligence material, down to information a person is simply under a legal duty to keep.

Part 5.6 is not old. It was inserted by the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth), the same package that rewrote the espionage offences in Division 91 and created the foreign interference offences in Division 92. It replaced the old general secrecy offence in section 70 of the Crimes Act 1914 (Cth), which had stood, in one form or another, for a century. The rewrite drew heavy criticism from press and legal bodies, who warned that the offences were wide enough to catch ordinary reporting on government. Those concerns shaped the defences that now sit in the Part.

What is section 122.4 of the Criminal Code?

Section 122.4 is the narrowest of the secrecy offences, and the one charged in the matter now before the court. It makes it an offence for a current or former Commonwealth officer to communicate information that they are under a duty not to disclose, where that duty comes from another Commonwealth law. The offence does not ask whether the information was harmful. It asks a simpler question: did a legal duty of non-disclosure apply, and did the person breach it. The maximum penalty is two years.

Because it hangs off a duty found in another statute, section 122.4 sweeps up a wide range of confidentiality rules. Tax secrecy, social security information, census data and many other regimes each carry their own duty of non-disclosure. A breach of any of them by an officer can be prosecuted as a secrecy offence, on top of any offence in the specific statute itself.

Is it illegal for a public servant to leak information in Australia?

Often, yes. The two central offences turn on the kind of information. Section 122.1 covers communicating or dealing with inherently harmful information. That phrase is defined, and it takes in security classified information, information from or about an intelligence agency, and information whose release is otherwise expected to cause serious harm. Section 122.2 covers dealing with information that causes, or is likely to cause, harm to Australia's interests, a list that includes national security, defence, and international relations.

The reach is broad because the conduct element is broad. Communicating the information is the clearest case, but the offences also catch removing, holding, copying or otherwise dealing with it. The disclosure does not have to be to a foreign power. A leak to a colleague, a friend or the media can be enough, if the information falls within one of the categories and no defence applies. Where the information is passed to a foreign intelligence service, the conduct moves out of secrecy and into the far more serious territory of espionage.

What is the maximum penalty for disclosing Commonwealth information?

The penalties climb with the seriousness of the offence. Communicating inherently harmful information under section 122.1 carries up to seven years, and other ways of dealing with it up to three years. Dealing with information that harms Australia's interests under section 122.2 carries up to five years. A breach of a duty of non-disclosure under section 122.4 carries two years, the lowest in the Part.

Section 122.3 adds an aggravated offence that lifts the maximum to ten years. It applies where extra features are present, for example where the information was security classified, where the person held a security clearance, where they dealt with five or more records at once, or where they altered a record to conceal what they had done. As always, a maximum is a ceiling, not a starting point. A court retains the full range of sentencing options, and in a suitable case that can include a sentence without a conviction being recorded.

What is the difference between whistleblowing and leaking?

The line is the channel used, not the motive. A Commonwealth officer who wants to expose wrongdoing has a protected route: a public interest disclosure under the Public Interest Disclosure Act 2013 (Cth). A disclosure that meets the conditions of that Act, made to an authorised internal recipient or, in defined circumstances, to an integrity agency, is protected. The officer cannot be prosecuted, sued or sacked for making it.

A leak is a disclosure that steps outside that protected pathway. The same document, sent to a journalist rather than reported through the Act, can be a secrecy offence. The protection is also narrow. It has strict conditions, external disclosure to the media is only permitted in limited cases, and an officer who gets the process wrong can lose the protection entirely. That gap between what feels like the right thing to do and what the Act actually protects is where officers most often come unstuck, and why advice before any disclosure matters.

Are there public interest and journalist defences?

Yes. Section 122.5 gathers the exceptions and defences. Several are practical: information that is already lawfully in the public domain, dealing with information as part of a person's official functions, and disclosures to the Inspector-General of Intelligence and Security or the Commonwealth Ombudsman. A disclosure made under the Public Interest Disclosure Act is also protected here.

There is a separate defence aimed at the press. A person who was acting as a journalist, and who reasonably believed that dealing with the information was in the public interest, has a defence to the secrecy offences. It was added to answer the criticism that the 2018 offences would chill reporting on government. The defence is not a blank cheque. It turns on the person's role and on the reasonableness of their belief, and, like the other exceptions, the accused carries an evidential burden to raise it before the prosecution must disprove it. The reach of these offences into journalism was tested in public when Commonwealth police searched a national broadcaster and a newspaper journalist over leaked material in 2019, a controversy that fed directly into calls to narrow the law.

Who can be charged, and what does the prosecution have to prove?

The main offences apply to current and former Commonwealth officers. That term is wide. It takes in public servants, staff of Commonwealth agencies, and contractors and service providers who are given access to government information. A person does not escape the offences by resigning. Former officers stay bound after they leave. Some offences can also reach a person who was never an officer, where they deal with information made or obtained by one.

To convict, the prosecution must prove the conduct, that the person communicated or dealt with the information, and the mental element attached to it, which usually means the person meant to deal with the information and knew its character or the duty that applied. The defence often lies in that second part, and in the section 122.5 exceptions. Several of these prosecutions also require the Attorney-General's consent before they can start, a filter that reflects how sensitive this area is. Cases can run alongside other Commonwealth charges, and the way information is gathered, including the use of compulsory questioning powers, can itself become a live issue.

What should you do if you are contacted about a secrecy offence?

Get advice before you answer questions or hand over anything. These are Commonwealth matters, they are investigated by the AFP and agencies such as the National Anti-Corruption Commission, and an account given early, without advice, is hard to walk back. You are not required to take part in a record of interview, and our note on the police interview and your right to silence explains why that right matters most in a serious case.

If you are a current or former officer thinking about raising a concern, the safest step is to take advice on the Public Interest Disclosure Act pathway before you say anything to anyone outside it. The protection can be lost by a single wrong turn. Bring any court attendance notice, warrant or property receipt to your lawyer, and do not discuss the detail of the information with anyone until you have.

Frequently asked.

What are the Commonwealth secrecy offences?

They are the offences in Part 5.6 of the Criminal Code Act 1995 (Cth), headed Secrecy of information. They make it a crime for a current or former Commonwealth officer to communicate or otherwise deal with certain government information without authority. Part 5.6 was inserted by the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth) and replaced the old general secrecy offence in section 70 of the Crimes Act 1914 (Cth).

What is section 122.4 of the Criminal Code?

Section 122.4 makes it an offence for a current or former Commonwealth officer to communicate information that they are under a duty not to disclose, where that duty arises under another Commonwealth law. It is the narrowest of the secrecy offences. It does not require proof that the information was harmful, only that a legal duty of non-disclosure applied and the person breached it. The maximum penalty is two years imprisonment.

Is it illegal for a public servant to leak information in Australia?

It can be. A Commonwealth officer who discloses information gained in that role, without authority, may commit a secrecy offence under Part 5.6 of the Criminal Code. The offences reach security classified material, intelligence information and information protected by a duty of non-disclosure. Whether a particular disclosure is an offence depends on the type of information, the person's duty, and whether a defence such as a public interest disclosure applies.

What is the maximum penalty for disclosing Commonwealth information?

The penalties depend on the offence. Communicating inherently harmful information under section 122.1 carries up to seven years, and other dealings with it up to three years. Dealing with information that harms Australia's interests under section 122.2 carries up to five years. Breaching a duty of non-disclosure under section 122.4 carries two years. The aggravated offence in section 122.3, for example where the information is security classified, carries up to ten years.

What is the difference between whistleblowing and leaking?

Whistleblowing is a disclosure of wrongdoing made through a protected channel. A Commonwealth officer who follows the Public Interest Disclosure Act 2013 (Cth), by reporting to an authorised internal recipient or an integrity agency, is protected against criminal liability for that disclosure. Leaking is an unauthorised disclosure that does not follow a protected pathway. The same document sent to a journalist outside the protected channels can be a secrecy offence, while a report made under the Act is not.

Is there a public interest or journalist defence to a secrecy charge?

Section 122.5 sets out exceptions and defences. They cover information already lawfully in the public domain, dealing with information as part of a person's functions, disclosure to the Inspector-General of Intelligence and Security or the Ombudsman, and disclosures made under the Public Interest Disclosure Act 2013 (Cth). There is a separate defence for a person acting as a journalist who reasonably believed that dealing with the information was in the public interest. The accused bears an evidential burden to raise these matters.

Who can be charged with a secrecy offence?

The main offences apply to current and former Commonwealth officers, which includes public servants, staff of Commonwealth agencies, contractors and service providers who deal with government information. Former officers remain bound after they leave. Some offences can also reach a person who was never a Commonwealth officer, for example where they deal with information that was made or obtained by a Commonwealth officer. Several of these prosecutions require the Attorney-General's consent before they can proceed.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Brady & Associates Lawyers, as at 12 September 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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