Legislative Assembly for the ACT: 2004 Week 10 Hansard (26 August) . . Page.. 4438..
MS TUCKER (continuing):
direction and another to a person who knows that the direction has been given but was not directly given the direction.
It is a worthy aim to seek to clarify this point. It could probably be worked out by a careful reading of the proposed subsection 32C (4) (a), but it is worth making absolutely clear. I hope that in interpreting this clause this intent will be read from speeches, including speeches on this amendment tonight. However, in addition to making this change, the government amendment also significantly narrows the definition of the offence of disclosing such protected information.
The proposal put in the bill is that it is an offence, with a maximum penalty of 50 penalty units, imprisonment for six months, or both, not strict liability, if the person knows that the direction has been given and the person discloses the information to someone else. The amendment, however, would make the disclosure of the protected information an offence only if the person intentionally discloses the information and is reckless about whether the disclosure contravenes the direction.
The unauthorised disclosure of sensitive information in the course of an audit inquiry can have very serious consequences for the person who gave the information in the first place. That, presumably, is why the maximum penalty is set so high, including possibly a prison term. These are also the penalties that apply in the existing act, at section 34, to disclosure by someone brought in by the Auditor-General.
In some situations the disclosure could lead to reprisals against a whistleblower and it could lead to a threat against someone, or even in an extreme situation to a possible threat of loss of life. Even at the lower end of the threats, the risk is that a person's reputation will be unfairly impugned as the information may have thus far been untested. The amendment would reduce the protection for informants or whistleblowers and for people unfairly accused.
For those reasons, I believe that it is not appropriate to have such a high test for this offence. That may mean that in a future Assembly it would be wise to bring back a revised version of this amendment with only the parts related to clarifying the offence, without changing the nature of the tests of the offence.
The effect of Mr Smyth's amendment would be to further reduce the penalty for this offence by removing the prison term. Whilst the Greens are not great fans of imprisonment, the potential here is for severe impacts. As I have said, it matches the penalties in the equivalent section already in the act. I think that in the context of this type of offence it is reasonable to consider that penalties may have a deterrent effect because these offences may be a part of steps in a carefully considered attempt to avoid responsibility for a wrongful act or detection of a wrongful act and a kind of risk management strategy. That in no way takes away from our principle that imprisonment should never be given lightly and that it is always preferable to work through non-custodial consequences first.
I note in closing that Mr Smyth's amendment was proposed only to the amended version of this proposed new section and not to the version of this clause in the bill. I do not know why. It may be a consequence of the late circulation of the government's amendment to the bill.