Page:R v McBride (No 4).pdf/5

 in the ACT, Mr McBride, being a Commonwealth officer, published a fact or document, except to some person to whom he was authorised to publish it, which came to his knowledge or into his possession by virtue of him being a Commonwealth officer and which it was his duty not to disclose. This relates to disclosures on a website known as "The Ops Room".

4․ In summary, the chronology of the offending is as follows:


 * (a) about 1 December 2013 to about 26 February 2018 – theft;


 * (b) about 1 August 2014 to about 31 December 2015 – disclosure to Mr Masters and Mr Clark;


 * (c) about 4 April 2016 to about 31 May 2016 – disclosure on The Ops Room; and


 * (d) about 2 May 2016 to about 11 July 2017 – disclosure to Mr Oakes.

Maximum penalty

5․ It is necessary to say something more about the maximum penalty for counts 2 and 3, the offences under s 73A. Permitting an offence to be punishable by "a fine of any amount or imprisonment for any term, or both" is a rare formulation. It has only been included in three Commonwealth Acts and the Defence Act is the only one of those Acts where such a provision remains in force.

6․ The formulation was first included in the War Precautions Act 1914 (Cth) as amended by the War Precautions Act 1915 (Cth). The Act introduced a scheme for punishing contraventions of regulations or orders made pursuant to the Act, which distinguished between offences prosecuted summarily and offences prosecuted upon indictment. Where an offence was prosecuted upon indictment, the Act permitted "a fine of any amount or imprisonment for any term, or both". If it was proved that the offence was committed with the intention of assisting the enemy, the penalty was death. The 1915 amending Act followed changes made to the Defence of the Realm Act 1914 (UK) when it was superseded by the Defence of the Realm Consolidation Act 1914 (UK). The War Precautions Act 1914 (Cth) was repealed in 1920.

7․ In September 1939, shortly after the commencement of the Second World War, the National Security Act 1939 (Cth) was passed. It was intended to operate until six months after the end of the war, but no longer. Like the earlier War Precautions Act, it included a broad regulation making power to be exercised by the Governor-General. Section 10 provided that a person who contravened or failed to comply with a regulation made under the Act was guilty of an offence against the Act. Section 10(3) provided different penalties depending upon whether or not the offence was prosecuted summarily or upon