Labor MP Brendan O’Connor says whoever leaked cabinet information revealing the prime minister’s negotiations on a religious discrimination bill has committed a criminal offence.
However, the claim is misleading. No law specifically bans ministers from leaking information from cabinet meetings. Experts have told AAP FactCheck that police are unlikely to prosecute a minister for a routine cabinet leak, even if it does breach Australia’s broad secrecy laws.
During question time in parliament on February 14, Mr O’Connor said: “Leaking from cabinet is a criminal offence. Has the prime minister asked the Australian Federal Police to investigate the source of the major cabinet leak designed to undermine the prime minister?”
Mr O’Connor’s office told AAP FactCheck he was referring to section 122.1 of the Criminal Code Act, which makes it an offence for a Commonwealth official to unlawfully communicate intelligence and security information.
Keiran Hardy, a senior lecturer at Griffith University’s School of Criminology and Criminal Justice, told AAP FactCheck in a phone interview that Mr O’Connor’s claim is “misleading, in the sense that it makes it sound like to most people that there is a crime of leaking from cabinet, which is not the case”.
Dr Hardy co-authored a 2014 journal paper about Australian secrecy laws, which are contained in section 122 of the Criminal Code. Offences include the communication of “inherently harmful information”, communication of information that causes harm to “Australia’s interests”, and unauthorised disclosure of information by current and former Commonwealth officers. People convicted under section 122 potentially face up seven years in prison.
Dr Hardy said section 122 was “extremely broad” and, theoretically, the release of cabinet information could be a criminal offence. However, all offences “really come down to discretion to prosecute” and it was unlikely police would take action.
“I can’t see that realistically happening when leaks are part of everyday politics,” he said.
“The idea that somebody sniping on somebody in cabinet is going to be prosecuted as a crime is a bit ridiculous, even though technically they’ve made laws that are broad enough to possibly cover it.”
Richard Herr, a parliamentary law and procedure expert at the University of Tasmania, told AAP FactCheck the law around cabinet leaks is “not quite as simple” as Mr O’Connor implies, and ministers are not “realistically” at risk of prosecution.
“While the principle of cabinet confidentiality is desirable – and it can be a criminal act to breach that confidentiality – there are a lot of loopholes in that process,” Dr Herr said in a phone interview.
Neither Dr Hardy nor Dr Herr were aware of any historical cases of ministers being prosecuted for leaking cabinet information. Mr O’Connor is not the first MP to claim the leaks are a crime.
In 2015, Labor’s current manager of opposition business, Tony Burke, claimed in parliament that cabinet leaks were an offence under section 70 of the Crimes Act, legislation that was repealed in 2018 and replaced by section 122 of the Criminal Code.
Shadow attorney-general Mark Dreyfus also said in parliament in 2016 the leaks were a crime under section 70, punishable by two years in prison. Former Liberal deputy leader Julie Bishop warned colleagues in 2017 that leaking from cabinet “is a serious criminal offence”.
The Verdict
While Mr Connor’s claim may be technically true under Australia’s broad secrecy laws, experts told AAP FactCheck that no law specifically prohibits ministers from leaking cabinet discussions. They also say police are unlikely to prosecute a minister for disclosing routine cabinet discussions.
Misleading – The claim is accurate in parts but information has also been presented incorrectly, out of context or omitted.
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