Under the bill, the disclosure of state secrets is allowed when its purpose is to reveal the government’s performance of its functions is “seriously affected” or “a serious threat” to public order, safety or health.

“Having regard to all the circumstances of the case, the public interest served by making the disclosure manifestly outweighs the public interest served by not making the disclosure,” the bill states.

But the defence can only be applied to people who unlawfully acquire, possess or disclose state secrets without the intention of endangering national security.

When considering whether the disclosure meets the listed criteria, certain factors must be considered, such as the seriousness of the matter, whether there is any “reasonably practicable step in place of the disclosure” and whether the person had taken those steps before the disclosure, the level of damage or risk caused and whether it is made amid an emergency.

The proposed law also empowers the chief executive to issue a certificate to attest whether an act or matter involves national security or whether any material involves state secrets, similar to an arrangement in the Beijing-imposed national security law.

Such a certificate can be granted outside court proceedings on the chief executive’s “own motion”.

Theft of state secrets is one of the offences the government has proposed as part of the new ordinance required under Article 23 of the Basic Law, the city’s mini-constitution.

The proposed legislation also targets four other new types of offences: treason; insurrection, incitement to mutiny and disaffection, and acts with seditious intention; sabotage endangering national security and related activities; and external interference and organisations engaging in activities endangering national security.

When the government first attempted to legislate Article 23 in 2003, the public interest defence was added to the bill as a result of demands raised during the consultation period.

The current bill lists seven types of secrets that can equate to state ones when they concern matters such as major policy decisions on affairs of the national or Hong Kong government, diplomatic or foreign affairs activities of the country, economic, social, technological and scientific development of the country or the city, and activities for investigating offences.

It also allows a defence for people accused of unlawful disclosure of state secrets if they “did not know and had no reasonable grounds to believe” that the material in question was or included a specified state secret.

Under the offence of unlawful possession of state secrets, there is also a defence provided for those who hand over the information to police as soon as possible.

The chairman of the Hong Kong Journalists Association Ronson Chan Ron-sing said his group welcomed the inclusion of the public interest defence as it was “better than none”, but the high threshold involved could make convincing a judge that it applied difficult.

“It did mention public interests such as public health which is relatively clear. For example, if Sars or Covid reemerge, the public knows nothing about it, but then we receive some information and disclose it. This should be covered by the defence,” he said.

“But the person who is charged still needs to convince the appointed judge what kind of public interest is concerned in the case, and it will depend on the judge’s understanding of public interest based on the law.

“I do not think under this arrangement, it will be easy for us to see the black-and-white certainties. The threshold will not be low.”

Chan said that once the bill was passed, the industry would need to “think and assess very carefully”.

“I will consider who and what matter is involved in the information we receive. If we discover a scandal involving a low-ranking government official, I will need to think if it is worth taking the risks,” he said.

Lee Williamson, the president of the Foreign Correspondents’ Club, said the organisation needed more time to digest the bill before issuing an official statement.

“We welcome the inclusion of the public interest defence, but need more time to review the language of the bill in full,” he said.

The Bar Association and Law Society, as well as Executive Council convenor and former security minister Regina Ip Lau Suk-yee, had backed the inclusion of the public interest defence, with the former saying the provision should cover anyone and not just journalists.

Secretary for Justice Paul Lam Ting-kwok earlier stressed the need to strike a balance between safeguarding the country and protecting other public interests as national security risks could differ on a case by case basis.

The espionage offence targets people who conspire with an external force to publish a false or misleading statement to the public. They will violate the law if they know or have reason to believe the statement is false or misleading, intend to endanger national security or are “reckless” as to whether they are doing so.

A statement is defined as “misleading” when it excludes or conceals any information concerning the fact or provides the information in a “unclear, unintelligible, ambiguous or untimely” way.

A media industry insider who wished to remain anonymous said he believed that “everyone who works for foreign media is concerned about” the offence.

Bloomberg on Wednesday published a story about public suggestions received during the consultation period, saying there had been a call to ban social media platforms under Article 23, triggering the government’s condemnation which questioned the media outlet’s “intention”. The news service later corrected the story.

Chan said the incident was “a real-life demonstration” of the industry’s concerns.

“The issue is what is meant by intentional or fake news,” he said. “Is it also problematic when reporters use different ways to illustrate the government’s remarks?”