National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (67 of 2018)

Schedule 1   Treason, espionage, foreign interference and related offences

Part 1   Main amendments

Criminal Code Act 1995

16   At the end of Division 90 of the Criminal Code

Add:

90.2 Definition of foreign principal

Each of the following is a foreign principal :

(a) a foreign government principal;

(aa) a foreign political organisation;

(b) a public international organisation within the meaning of Division 70 (see section 70.1);

(c) a terrorist organisation within the meaning of Division 102 (see section 102.1);

(d) an entity or organisation owned, directed or controlled by a foreign principal within the meaning of paragraph (aa), (b) or (c);

(e) an entity or organisation owned, directed or controlled by 2 or more foreign principals within the meaning of paragraph (a), (aa), (b) or (c).

90.3 Definition of foreign government principal

Each of the following is a foreign government principal :

(a) the government of a foreign country or of part of a foreign country;

(b) an authority of the government of a foreign country;

(c) an authority of the government of part of a foreign country;

(d) a foreign local government body or foreign regional government body;

(e) a company to which any of the subparagraphs of paragraph (a) of the definition of foreign public enterprise in section 70.1 applies;

(f) a body or association to which either of the subparagraphs of paragraph (b) of the definition of foreign public enterprise in section 70.1 applies;

(h) an entity or organisation owned, directed or controlled:

(i) by a foreign government principal within the meaning of any other paragraph of this definition; or

(ii) by 2 or more such foreign government principals that are foreign government principals in relation to the same foreign country.

90.4 Definition of national security

(1) The national security of Australia or a foreign country means any of the following:

(a) the defence of the country;

(b) the protection of the country or any part of it, or the people of the country or any part of it, from activities covered by subsection (2);

(c) the protection of the integrity of the country's territory and borders from serious threats;

(d) the carrying out of the country's responsibilities to any other country in relation to the matter mentioned in paragraph (c) or an activity covered by subsection (2);

(e) the country's political, military or economic relations with another country or other countries.

(2) For the purposes of subsection (1), this subsection covers the following activities relating to a country, whether or not directed from, or committed within, the country:

(a) espionage;

(b) sabotage;

(c) terrorism;

(d) political violence;

(e) activities intended and likely to obstruct, hinder or interfere with the performance by the country's defence force of its functions or with the carrying out of other activities by or for the country for the purposes of its defence or safety;

(f) foreign interference.

90.5 Definition of security classification

(1) Security classification means:

(a) a classification of secret or top secret that is applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying information:

(i) for a classification of secret - that, if disclosed in an unauthorised manner, could be expected to cause serious damage to the national interest, organisations or individuals; or

(ii) for a classification of top secret - that, if disclosed in an unauthorised manner, could be expected to cause exceptionally grave damage to the national interest; or

(b) any equivalent classification or marking prescribed by the regulations.

(1A) For the purposes of a reference, in an element of an offence in this Part, to security classification, strict liability applies to the element that:

(a) a classification is applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying the information mentioned in subparagraph (1)(a)(i) or (ii); or

(b) a classification or marking is prescribed by the regulations as mentioned in paragraph (1)(b).

(2) Before the Governor-General makes regulations for the purposes of subsection (1), the Minister must be satisfied that the regulations are not inconsistent with the policy framework mentioned in paragraph (1)(a).

(3) Despite subsection 14(2) of the Legislation Act 2003, regulations made for the purposes of subsection (1) of this section may prescribe a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time, if the instrument or other writing is publicly available.

90.6 Expressions also used in the Australian Security Intelligence Organisation Act 1979

The meaning of an expression in this Part does not affect the meaning of that expression in the Australian Security Intelligence Organisation Act 1979, unless that Act expressly provides otherwise.