Senate

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)

SCHEDULE 3 - AGGRAVATED OFFENCE FOR GIVING FALSE OR MISLEADING INFORMATION

General Outline

1779. Schedule 3 amends Division 137 of Part 7.4 of the Criminal Code to introduce a new aggravated offence that applies where a person provides false or misleading information in relation to an application for, or maintenance of, an Australian Government security clearance. The introduction of the aggravated offence reflects the serious consequences that can flow from the provision of false or misleading information, or the omission of relevant information, during a security clearance process that could lead to a person gaining access to highly classified information.

Criminal Code Act 1995

Item 1

1780. Item 1 inserts a new aggravated offence for giving false or misleading information after section 137.1 of the Criminal Code.

Section 137.1A - Aggravated offence for giving false or misleading information

1781. Subsection 137.1A(1) creates an aggravated offence for giving false or misleading information. The aggravated offence will apply where a person commits an underlying offence against subsection 137.1(1) (false or misleading information), and the information given in committing the underlying offence was given in relation to an application for, or the maintenance of, an Australian Government security clearance.

1782. The aggravated offence will be punishable by a maximum penalty of five years imprisonment.

1783. Examples of this offence are as follows.

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Person A is seeking employment in a Commonwealth government department and has applied for an Australian Government clearance. On the application form, Person A did not disclose that he had previously participated in military service for a foreign country. As a result of this omission, the Commonwealth agency responsible for security clearances is not aware of Person A's connection with, and possible allegiance to, the armed forces of a foreign country.

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Person A is employed in a Commonwealth government department and holds an Australian government security clearance. The security clearance allows Person A to access highly sensitive, classified information. During an overseas trip to Country X, Person A forms an ongoing association with Person B, who is a citizen of Country X and an employee of the government of Country X. In the maintenance of Person A's security clearance, Person A does not disclose the association with Person B. As a result of Person A's omission, the Commonwealth agency responsible for security clearances is unaware of Person A's association with Person B and Country X.

1784. To establish the aggravated offence, the prosecution will first need to prove, beyond a reasonable doubt, that a person commits the underlying offence. To establish the underlying offence, the prosecution will need to prove, beyond a reasonable doubt, that:

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a person intentionally gives information to another person

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the person knows that the information:

o

is false or misleading; or

o

omits any matter or article without which the information is misleading

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the information is given:

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to a Commonwealth entity;

o

to a person who is exercising powers or performing functions under, or in connection with, a law of the Commonwealth; or

o

in compliance or purported compliance with a law of the Commonwealth.

1785. In addition to establishing the underlying offence, the prosecution will also need to prove beyond a reasonable doubt that the information given in committing the underlying offence was given in relation to an application for, or the maintenance of, an Australian Government security clearance. Section 5.6 of the Criminal Code will apply the automatic fault element of recklessness to the circumstance in paragraph 137.1A(1)(b). Section 5.4 of the Criminal Code provides that a person is reckless with respect to a circumstance if he or she is aware that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk.

1786. Subsection 137.1A(2) provides that there is no fault element for the physical element in paragraph 137.1A(1)(a) other than the fault elements (however described) for the underlying offence. The underlying offence has specific physical and fault elements that must be proved by the prosecution (as outlined above). The prosecution will be required to establish beyond reasonable doubt all of the elements constituting the relevant underlying offence, including any fault elements applicable to that offence. Subsection 137.1(2) has been included to make clear that for the purposes of the offence in section 137.1A(1), the prosecution does not need to prove any fault elements in addition to those fault elements already applying to the underlying offences.

1787. Paragraph 137.1A(3)(a) provides that, to avoid doubt, a person does not commit the underlying offence for the purposes of paragraph 137.1A(1)(a) if the person has a defence to the underlying offence. This has been included to make clear that a person does not commit the underlying offence, and cannot therefore be found liable under the new aggravated offence at section 137.1A, if a defence applies to the underlying offence.

1788. Section 137.1 includes defences that provide that a person does not commit the offence if:

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the information is not false or misleading in a material particular (subsection 137.1(2))

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the person or Commonwealth entity to whom the information is given did not take reasonable steps to inform the person of the existence of the offence at section 137.1, for example by using the words 'giving false or misleading information is a serious offence' (subsections 137.1(4)-(6))

1789. Paragraph 137.1A(3)(b) clarifies that a person may be convicted of the new aggravated offence against subsection 137.1A(1) even if the person has not been convicted of the underlying offence at section 137.1. This subsection makes it clear that to be convicted of the aggravated offence a person does not have to be convicted of the underlying offence; rather a person only needs to have committed the underlying offence. In this respect, paragraph 137.1A(1)(a) still requires the prosecution to prove, beyond a reasonable doubt, all elements constituting the underlying offence in order to establish that the aggravated offence has been committed.

1790. Subsection 137.1A(4) provides that if the trier of fact is not satisfied that a person is guilty of the aggravated offence but is satisfied, beyond a reasonable doubt, that the person is guilty of the underlying offence; it may find the person not guilty of the aggravated offence but guilty of the underlying offence. Subsection 137.1A(5) provides that subsection 137.1A(4) only applies if the person has been accorded procedural fairness in relation to the finding of guilt for the underlying offence.

1791. Subsection 137.1A(6) ensures that a reference in any law to section 137.1 (the underlying offence) is taken to include a reference to section 137.1A (the aggravated offence).

1792. The aggravated offence will be punishable by a maximum penalty of five years imprisonment. This penalty reflects the higher level of culpability associated with the provision of false or misleading information in security clearance processes. In such cases, providing false or misleading information concerning links to foreign individuals, entities and governments may be particularly harmful as vetting and security agencies are unable to adequately assess the risks posed by the person seeking an Australian Government security clearance. The penalty for the aggravated offence is consistent with the established principle of Commonwealth criminal law policy as set out in the Guide to Framing Commonwealth Offences to impose a heavier penalty where the consequences of the offence are particularly dangerous or damaging.