Offences For Disclosing Information About Covert Operations: A Quick Guide
Offences For Disclosing Information About Covert Operations: A Quick Guide
Offences For Disclosing Information About Covert Operations: A Quick Guide
The offences for unauthorised disclosure of information about a ‘special intelligence operation’ were one of the
most controversial aspects of the National Security Legislation Amendment Bill (No. 1) 2014 (NSLA Bill). The Bill
was passed by both Houses of Parliament (with some amendments, including to the offences) and became an
Act on 2 October 2014. Debate about the offences was re-ignited when Australian Labor Party front-bencher
Anthony Albanese commented on them in an interview on 12 October 2014, in which he suggested they go too
far and should be monitored closely. The debate remains relevant in the context of a similar offence relating to
delayed notification search warrants proposed in the Counter-Terrorism Legislation Amendment (Foreign
Fighters) Bill 2014, which is currently before the Senate.
These offences are different to longstanding secrecy offences such as the offence in section 70 of the Crimes
Act 1914, which criminalises unauthorised disclosure of official information by someone who is or was a
Commonwealth officer. They apply more broadly to any person who discloses particular information, raising
concerns that they may inappropriately capture legitimate reporting.
This Quick Guide provides a brief factual overview of the offences, how they operate and the extent to which
they apply to public interest disclosures.
Special intelligence operations
As outlined in the Parliamentary Library’s Bills Digest, a new Division of the Australian Security Intelligence
Organisation Act 1979 (ASIO Act) will establish a ‘special intelligence operation’ (SIO) scheme under which
Australian Security Intelligence Organisation (ASIO) officers and affiliates will be protected from criminal and civil
liability for certain conduct engaged in for the purpose of an SIO. Enactment of an SIO scheme modelled on the
controlled operations scheme used by law enforcement agencies for undercover operations implements a
recommendation in the Independent National Security Legislation Monitor’s Annual report 2014.
Similar to the controlled operations scheme, the SIO scheme is intended to apply to circumstances where
officers would need to engage in conduct that would otherwise constitute an offence in order to maintain their
cover. The Attorney-General gave the example of an ASIO officer who had penetrated a terrorist cell being
involved in conversations about planning a terrorist attack.
Section 35P of the ASIO Act sets out two offences for unauthorised disclosure of information relating to SIOs, in
order to ‘protect persons participating in an SIO and to ensure the integrity of operations’. The offences are
modelled on offences for disclosures relating to controlled operations (but contain some differences):
(1) A person commits an offence if:
(a) the person discloses information; and
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(b) the information relates to a special intelligence operation.
Penalty: Imprisonment for 5 years.
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Disclaimer: The views expressed in this Quick Guide do not reflect an official position of the Australian Parliamentary Library, nor
do they constitute professional legal opinion.