Commonwealth Director of Public Prosecutions

Prosecutions under section 79 of the Crimes Act 1914 – rectification where prosecutions were conducted without the Attorney-General’s consent

General Prosecutions


  • In September 2018 the CDPP became aware of two matters it had recently prosecuted which included charges under section 79 of the Crimes Act 1914 without having obtained the consent of the Attorney-General, as required by section 85 of the Crimes Act 1914.
  • One of the cases prosecuted involved a number of charges, two of which alleged breaches of section 79(3), namely; unauthorised communication of or access to official secrets while the other involved a breach of section 79(6); receipt of official secrets.
  • The CDPP takes responsibility for the oversight which resulted in these charges proceeding without the Attorney-General’s consent.
  • Having become aware of the matter, the CDPP immediately contacted the legal representatives who had acted for each of the defendants during the course of the respective prosecutions.
  • The CDPP then initiated and conducted proceedings in the Supreme Court, resulting in the respective convictions being annulled.
  • The CDPP has taken procedural steps to ensure a similar oversight is not repeated.  These include providing additional training for prosecutors to ensure they are aware of when consent is required, and ensuring prosecutors are aware of the importance of complying with the provisions.
  • The CDPP has also updated its National Legal Direction on ‘Timely Prosecutions’, which provides advice to prosecutors about their obligations in relation to obtaining consent from the Attorney-General and when the provisions apply.
  • The CDPP is also exploring ways to incorporate automatic alerts to case officers considering laying charges which require consent, as part of its digital transformation and implementation of a new case management system.
  • The CDPP is committed to a fair, safe and just society through successfully prosecuting crimes against the Commonwealth. In cases such as these, it seeks to rectify issues as soon as practicable to ensure the principles of Australia’s legal system are upheld to the highest possible standard.
  • It is not appropriate to discuss the individual circumstances of the cases where these charges have been annulled, as the effect of the Supreme Court ruling is to create a situation in law whereby the charges had never been laid.