Understanding Secrecy Laws: A Pro Bono Collaboration Looking at Press Freedom Legislative Reform in Australia

This impact story is part of a series to celebrate the extraordinary pro bono projects undertaken by legal teams to support NGOs and social enterprises with the support of TrustLaw. All projects mentioned in this series are nominated for this year’s TrustLaw Awards. Find out more. 

In 2019, the Australian Federal Police raided journalists from two news organisations, in search of evidence on their sources for stories questioning government decisions. The Australian Federal Police had search warrants in the name of the journalist as well as the news organisation’s Executive Director. In the process of the raid, devices and electronic data were seized by the police. 

Australia’s “secrecy laws” 

There are 875 offences across various legislations that come within the scope of Australia’s “secrecy laws,” as they are now known. A March 2021 survey on secrecy legislation conducted by the Attorney-General’s Department found there are 11 general secrecy offences and 542 specific secrecy offences in Commonwealth legislation. Separately, over 296 non-disclosure duties also function as specific secrecy offences and a breach of these duties is criminalised under the Criminal Code Act 1995. This creates a complex environment for journalists, who may struggle to understand whether their work could be in breach of national security laws.  

These secrecy offences are often relied on by governing agencies in the name of national security to curb the independent initiative of individuals . Over the years, several civil society organisations have been advocating for legal reform. The Alliance for Journalists’ Freedom (AJF) is one of these, specifically focused on the protection and independence of journalists.                         

Advocating for a free and independent media   

AJF is the brainchild of a lawyer, Chris Flynn, and two journalists, Peter Greste and Peter Wilkinson. Together, they established AJF following efforts to free Peter Greste, who was incarcerated for 400 days during his public interest reporting in Egypt. Promoting media freedom and independent journalism has been the cornerstone of AJF’s work since its inception, with advocating for reform in secrecy offences a key part of this effort. 

Following advocacy by civil rights groups, the office of the Attorney-General of Australia invited recommendations for the review of the country’s 875 secrecy offences at the start of 2023. AJF wished to base their recommendations based on Australian legal principles, rather than looking at each legislation separately. For this, a strong legal perspective was required, and AJF approached TrustLaw for pro bono support.  

TrustLaw connected AJF to Australian law firm Allens, who were keen and quick to offer their assistance through pro bono legal research. Allens put together a team of lawyers under the leadership of Richard Lilly, to provide the legal perspective necessary to establish the core principles for reviewing the secrecy offences. The submission by AJF focused on the public’s interest to be informed on matters of government, and the public’s right to know, which equates to the protection of public interest journalism, limiting the scope of criminal sanctions, and consistent governance on secrecy and non-disclosure laws. The research identified several key terms that were not adequately defined in the offences and provided a broad scope for criminalisation. It provided AJF with an understanding of the legal landscape which was essential to focus on the key areas to recommend changes to secrecy laws. 

The first step in a long journey to legislative reform 

The submissions were made by AJF in June 2023, following which the Attorney-General’s office released a comprehensive review of secrecy laws in November. An acknowledgement that the current system was inconsistent marked the first step in a long journey to reform. 

Based on the submissions, the Attorney-General developed 11 recommendations, which have been submitted to the Australian government to guide legislation. The government considered the final report and agreed to the 11 recommendations. The first of these focuses on the establishment of principles for framing secrecy offences, the call to action at the heart of AJF’s submission. AJF believes it is imperative to know which principle of the Australian legal system is being relied on in identifying an action as an offence, more specifically a criminal punishable offence. The government has committed to reducing the number of secrecy provisions, supporting a consistent approach to framing secrecy provisions, maintaining essential protections for Commonwealth information and responding to stakeholder concerns about the impact of secrecy provisions on press freedom. 

For AJF, this was a critical step to protecting media freedom in Australia, made possible thanks to the power of pro bono legal research.