Revised Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)SCHEDULE 1 - TREASON, ESPIONAGE, FOREIGN INTERFERENCE AND RELATED OFFENCES
General Outline
14. The purpose of Schedule 1 is to make amendments to offences relevant to Australia's defence and security. The amendments will ensure Commonwealth law comprehensively criminalises activities that could prejudice Australia's national security or facilitate the intelligence activities of foreign governments.
15. The amendments in Schedule 1 will send an important deterrence message to Australia's foreign adversaries that conduct that prejudices Australia's national security will not be tolerated.
Espionage
16. The Criminal Code currently contains espionage offences, but these are too narrow and have not evolved to deal with the modern threat environment.
17. Schedule 1 amends Part 5.2 of the Criminal Code to introduce comprehensive new espionage offences in Division 91. The new offences criminalise a broad range of dealings with information, including possessing or receiving, and protect a broader range of information, including unclassified material. The current methodology of Australia's adversaries means that dealings with unclassified information, if accompanied by the requisite intention to harm Australia, can be as damaging as the passage of classified information. The new offences will not just target the person who discloses the information, but also the actions of the foreign principal who receives the information. The new offences in Division 91 will also, for the first time, criminalise soliciting or procuring a person to engage in espionage and will introduce a new preparation or planning offence, which will allow law enforcement agencies to intervene at an earlier stage to prevent harmful conduct occurring.
Foreign interference
18. Currently, Commonwealth criminal law contains no offences targeting conduct undertaken by foreign government that falls short of espionage but is intended to harm Australia's national security or influence Australia's political or governmental processes.
19. Schedule 1 introduces new Division 92 into Part 5.2 of the Criminal Code which will contain new foreign interference offences. These offences complement the espionage offences by criminalising a range of other harmful conduct undertaken by foreign principals who seek to interfere with Australia's political, governmental or democratic processes, to support their own intelligence activities or to otherwise prejudice Australia's national security. The offences will apply where a person's conduct is covert or deceptive, involves threats or menaces or does not disclose the fact that conduct is undertaken on behalf of a foreign principal. New Division 92 also criminalises the provision of material support or funding to foreign intelligence agencies.
Sabotage
20. The Commonwealth's current sabotage offence was introduced into the Crimes Act in 1960 and has not evolved to reflect the modern threat environment. The existing sabotage offence only protects Defence facilities. Schedule 1 introduces comprehensive sabotage offences into new Division 82 in Part 5.1 of the Criminal Code. The new sabotage offences will criminalise conduct causing damage to a broad range of critical infrastructure where it could prejudice Australia's national security. The offences in new Division 82 will apply higher penalties where sabotage offences are committed on behalf of foreign principals. New Division 82 will also contain offences that apply where a person's conduct does not immediately cause damage, but leaves an item or system vulnerable to future misuse or exploitation.
Theft of trade secrets on behalf of a foreign government
21. Schedule 1 introduces a new offence targeting theft of trade secrets on behalf of a foreign government. This amounts to economic espionage and can severely damage Australia's national security and economic interests. The new offence will apply to dishonest dealings with trade secrets on behalf of a foreign actor.
Treason and other threats to security
22. Although rarely used, treason offences are a critical part of Commonwealth criminal law. Part II of the Crimes Act also contains a series of rarely used offences protecting the security and defence of the Commonwealth. These offences require modernisation to reflect the modern environment.
23. Schedule 1 amends Part 5.1 of the Criminal Code to modernise Australia's treason offences. It will ensure that treason offences regarding assisting an enemy to engage in armed conflict against Australia, which carries a penalty of life imprisonment, appropriately reflect moderns terminology related to armed conflict. The amendments to Part 5.1 will also create a new offence of treachery in the Criminal Code (replacing the existing archaic and antiquated treachery offence in section 24AA of the Crimes Act) that applies where a person seeks to use force or violence to overthrow the Constitution or an Australian government.
24. Schedule 1 introduces new Division 83 into Part 5.1 of the Criminal Code. Division 83 will modernise and improve the existing offences against government in Part II of the Crimes Act (which will be repealed). The offences in Division 83 aim to protect Australia's defence by criminalising advocating mutiny, assisting prisoners of war to escape and military-style training by foreign governments. New Division 83 also criminalises interference with Australian democratic or political rights where the conduct involves the use of force, violence or intimidation.