National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (67 of 2018)
Schedule 2 Secrecy
Part 1 Secrecy of information
Criminal Code Act 1995
6 At the end of Chapter 5 of the Criminal Code
Add:
Part 5.6 - Secrecy of information
Division 121 - Preliminary
121.1 Definitions
(1) In this Part:
cause harm to Australia's interests means to:
(a) interfere with or prejudice the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth; or
(b) interfere with or prejudice the performance of functions of the Australian Federal Police under:
(i) paragraph 8(1)(be) of the Australian Federal Police Act 1979 (protective and custodial functions); or
(ii) the Proceeds of Crime Act 2002; or
(c) harm or prejudice Australia's international relations in relation to information that was communicated in confidence:
(i) by, or on behalf of, the government of a foreign country, an authority of the government of a foreign country or an international organisation; and
(ii) to the Government of the Commonwealth, to an authority of the Commonwealth, or to a person receiving the communication on behalf of the Commonwealth or an authority of the Commonwealth; or
(f) harm or prejudice the health or safety of the Australian public or a section of the Australian public; or
(g) harm or prejudice the security or defence of Australia.
Commonwealth officer means any of the following:
(a) an APS employee;
(b) an individual appointed or employed by the Commonwealth otherwise than under the Public Service Act 1999;
(c) a member of the Australian Defence Force;
(d) a member or special member of the Australian Federal Police;
(e) an officer or employee of a Commonwealth authority;
(f) an individual who is a contracted service provider for a Commonwealth contract;
(g) an individual who is an officer or employee of a contracted service provider for a Commonwealth contract and who provides services for the purposes (whether direct or indirect) of the Commonwealth contract;
but does not include an officer or employee of, or a person engaged by, the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation.
deal has the same meaning as in Part 5.2.
Note: For the meaning of deal in that Part, see subsections 90.1(1) and (2).
domestic intelligence agency means:
(a) the Australian Secret Intelligence Service; or
(b) the Australian Security Intelligence Organisation; or
(c) the Australian Geospatial-Intelligence Organisation; or
(d) the Defence Intelligence Organisation; or
(e) the Australian Signals Directorate; or
(f) the Office of National Assessments.
foreign military organisation means:
(a) the armed forces of the government of a foreign country; or
(b) the civilian component of:
(i) the Department of State of a foreign country; or
(ii) a government agency in a foreign country;
that is responsible for the defence of the country.
information has the meaning given by section 90.1.
inherently harmful information means information that is any of the following:
(a) security classified information;
(c) information that was obtained by, or made by or on behalf of, a domestic intelligence agency or a foreign intelligence agency in connection with the agency's functions;
(e) information relating to the operations, capabilities or technologies of, or methods or sources used by, a domestic or foreign law enforcement agency.
international relations has the meaning given by section 10 of the National Security Information (Criminal and Civil Proceedings) Act 2004.
proper place of custody has the meaning given by section 121.2.
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.
security classification has the meaning given by section 90.5.
security classified information means information that has a security classification.
security or defence of Australia includes the operations, capabilities or technologies of, or methods or sources used by, domestic intelligence agencies or foreign intelligence agencies.
(2) To avoid doubt, communicate includes publish and make available.
(3) For the purposes of a reference, in an element of an offence in this Part, to security classified information or 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 90.5(1)(a)(i) or (ii); or
(b) a classification or marking is prescribed by the regulations as mentioned in paragraph 90.5(1)(b).
Note: See the definitions of security classified information in subsection (1) and security classification in section 90.5.
121.2 Definition of proper place of custody
(1) Proper place of custody has the meaning prescribed by the regulations.
(2) 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.
Division 122 - Secrecy of information
122.1 Communication and other dealings with inherently harmful information by current and former Commonwealth officers etc.
Communication of inherently harmful information
(1) A person commits an offence if:
(a) the person communicates information; and
(b) the information is inherently harmful information; and
(c) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Note 1: For exceptions to the offences in this section, see section 122.5.
Note 2: The fault elements for this offence are intention for paragraph (1)(a) and recklessness for paragraphs (1)(b) and (c) (see section 5.6).
Penalty: Imprisonment for 7 years.
Other dealings with inherently harmful information
(2) A person commits an offence if:
(a) the person deals with information (other than by communicating it); and
(b) the information is inherently harmful information; and
(c) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Note: The fault elements for this offence are intention for paragraph (2)(a) and recklessness for paragraphs (2)(b) and (c) (see section 5.6).
Penalty: Imprisonment for 3 years.
Information removed from, or held outside, proper place of custody
(3) A person commits an offence if:
(a) the person:
(i) removes information from a proper place of custody for the information; or
(ii) holds information outside a proper place of custody for the information; and
(b) the information is inherently harmful information; and
(c) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Note: The fault elements for this offence are intention for paragraph (3)(a) and recklessness for paragraphs (3)(b) and (c) (see section 5.6).
Penalty: Imprisonment for 3 years.
Failure to comply with direction regarding information
(4) A person commits an offence if:
(a) the person is given a direction; and
(b) the direction is a lawful direction regarding the retention, use or disposal of information; and
(c) the person fails to comply with the direction; and
(ca) the failure to comply with the direction results in a risk to the security of the information; and
(d) the information is inherently harmful information; and
(e) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Note: The fault elements for this offence are intention for paragraph (4)(c) and recklessness for paragraphs (4)(a), (b), (ca), (d) and (e) (see section 5.6).
Penalty: Imprisonment for 3 years.
122.2 Conduct by current and former Commonwealth officers etc. causing harm to Australia's interests
Communication causing harm to Australia's interests
(1) A person commits an offence if:
(a) the person communicates information; and
(b) either:
(i) the communication causes harm to Australia's interests; or
(ii) the communication will or is likely to cause harm to Australia's interests; and
(c) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Note 1: For the definition of cause harm to Australia's interests , see section 121.1.
Note 2: For exceptions to the offences in this section, see section 122.5.
Penalty: Imprisonment for 7 years.
Other conduct causing harm to Australia's interests
(2) A person commits an offence if:
(a) the person deals with information (other than by communicating it); and
(b) either:
(i) the dealing causes harm to Australia's interests; or
(ii) the dealing will or is likely to cause harm to Australia's interests; and
(c) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Penalty: Imprisonment for 3 years.
Information removed from, or held outside, proper place of custody
(3) A person commits an offence if:
(a) the person:
(i) removes information from a proper place of custody for the information; or
(ii) holds information outside a proper place of custody for the information; and
(b) either:
(i) the removal or holding causes harm to Australia's interests; or
(ii) the removal or holding will or is likely to cause harm to Australia's interests; and
(c) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Penalty: Imprisonment for 3 years.
Failure to comply with direction regarding information
(4) A person commits an offence if:
(a) the person is given a direction; and
(b) the direction is a lawful direction regarding the retention, use or disposal of information; and
(c) the person fails to comply with the direction; and
(d) either:
(i) the failure to comply causes harm to Australia's interests; or
(ii) the failure to comply will or is likely to cause harm to Australia's interests; and
(e) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Penalty: Imprisonment for 3 years.
122.3 Aggravated offence
(1) A person commits an offence against this section if:
(a) the person commits an offence against section 122.1 or 122.2 (the underlying offence ); and
(b) any of the following circumstances exist in relation to the commission of the underlying offence:
(ii) if the commission of the underlying offence involves a record - the record is marked with a code word, "for Australian eyes only" or as prescribed by the regulations for the purposes of this subparagraph;
(iii) the commission of the underlying offence involves 5 or more records each of which has a security classification;
(iv) the commission of the underlying offence involves the person altering a record to remove or conceal its security classification;
(v) at the time the person committed the underlying offence, the person held an Australian Government security clearance allowing the person to access information that has a security classification of at least secret.
Penalty:
(a) if the penalty for the underlying offence is imprisonment for 7 years - imprisonment for 10 years; or
(b) if the penalty for the underlying offence is imprisonment for 3 years - imprisonment for 5 years.
(2) There is no fault element for the physical element in paragraph (1)(a) other than the fault elements (however described), if any, for the underlying offence.
(4) To avoid doubt:
(a) a person does not commit an underlying offence for the purposes of paragraph (1)(a) if the person has a defence to the underlying offence; and
(b) a person may be convicted of an offence against this section even if the person has not been convicted of the underlying offence.
122.4 Unauthorised disclosure of information by current and former Commonwealth officers etc.
(1) A person commits an offence if:
(a) the person communicates information; and
(b) the person made or obtained the information by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and
(c) the person is under a duty not to disclose the information; and
(d) the duty arises under a law of the Commonwealth.
Penalty: Imprisonment for 2 years.
(2) Absolute liability applies in relation to paragraph (1)(d).
Sunset provision
(3) This section does not apply in relation to any communication of information that occurs after the end of 5 years after this section commences.
122.4A Communicating and dealing with information by non-Commonwealth officers etc.
Communication of information
(1) A person commits an offence if:
(a) the person communicates information; and
(b) the information was not made or obtained by the person by reason of the person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and
(c) the information was made or obtained by another person by reason of that other person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and
(d) any one or more of the following applies:
(i) the information has a security classification of secret or top secret;
(ii) the communication of the information damages the security or defence of Australia;
(iii) the communication of the information interferes with or prejudices the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth;
(iv) the communication of the information harms or prejudices the health or safety of the Australian public or a section of the Australian public.
Note 1: For exceptions to the offences in this section, see section 122.5.
Note 2: The fault elements for this offence are intention for paragraph (1)(a) and recklessness for paragraphs (1)(b) to (d) (see section 5.6).
Penalty: Imprisonment for 5 years.
Other dealings with information
(2) A person commits an offence if:
(a) the person deals with information (other than by communicating it); and
(b) the information was not made or obtained by the person by reason of the person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and
(c) the information was made or obtained by another person by reason of that other person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and
(d) any one or more of the following applies:
(i) the information has a security classification of secret or top secret;
(ii) the dealing with the information damages the security or defence of Australia;
(iii) the dealing with the information interferes with or prejudices the prevention, detection, investigation, prosecution or punishment of a criminal offence against of a law of the Commonwealth;
(iv) the dealing with the information harms or prejudices the health or safety of the Australian public or a section of the Australian public.
Note: The fault elements for this offence are intention for paragraph (2)(a) and recklessness for paragraphs (2)(b) to (d) (see section 5.6).
Penalty: Imprisonment for 2 years.
Proof of identity not required
(3) In proceedings for an offence against this section, the prosecution is not required to prove the identity of the other person referred to in paragraph (1)(c) or (2)(c).
122.5 Defences
Powers, functions and duties in a person's capacity as a public official etc. or under arrangement
(1) It is a defence to a prosecution for an offence by a person against this Division that:
(a) the person was exercising a power, or performing a function or duty, in the person's capacity as a public official or a person who is otherwise engaged to perform work for a Commonwealth entity; or
(b) the person communicated, removed, held or otherwise dealt with the information in accordance with an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information.
Note: A defendant may bear an evidential burden in relation to the matters in this subsection (see subsection (12) of this section and subsection 13.3(3)).
Information that is already public
(2) It is a defence to a prosecution for an offence by a person against this Division that the relevant information has already been communicated or made available to the public with the authority of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
Information communicated etc. to integrity agency
(3) It is a defence to a prosecution for an offence by a person against this Division that the person communicated the relevant information, or removed, held or otherwise dealt with the relevant information for the purpose of communicating it:
(a) to any of the following:
(i) the Inspector-General of Intelligence and Security, or a person engaged or employed to assist the Inspector-General as described in subsection 32(1) of the Inspector-General of Intelligence and Security Act 1986;
(ii) the Commonwealth Ombudsman, or another officer within the meaning of subsection 35(1) of the Ombudsman Act 1976;
(iia) the Australian Information Commissioner, a member of the staff of the Office of the Australian Information Commissioner, or a consultant engaged under the Australian Information Commissioner Act 2010;
(iii) the Law Enforcement Integrity Commissioner, a staff member of ACLEI, or a consultant to, or a person made available to, the Integrity Commissioner under the Law Enforcement Integrity Commissioner Act 2006; and
(b) for the purpose of the Inspector-General, the Ombudsman, the Australian Information Commissioner or the Law Enforcement Integrity Commissioner (as the case requires) exercising a power, or performing a function or duty.
Note: A person mentioned in paragraph (3)(a) does not bear an evidential burden in relation to the matters in this subsection (see subsection (12)).
Information communicated etc. in accordance with the Public Interest Disclosure Act 2013 or the Freedom of Information Act 1982
(4) It is a defence to a prosecution for an offence by a person against this Division that the person communicated the relevant information, or removed, held or otherwise dealt with the relevant information for the purpose of communicating it, in accordance with:
(a) the Public Interest Disclosure Act 2013; or
(b) the Freedom of Information Act 1982.
Note: A defendant may bear an evidential burden in relation to the matters in this subsection (see subsection (12) of this section and subsection 13.3(3)).
Information communicated etc. for the purpose of reporting offences and maladministration
(4A) It is a defence to a prosecution for an offence by a person against this Division that the person communicated, removed, held or otherwise dealt with the relevant information for the primary purpose of reporting, to an appropriate agency of the Commonwealth, a State or a Territory:
(a) a criminal offence, or alleged criminal offence, against a law of the Commonwealth; or
(b) maladministrationrelating to the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth; or
(c) maladministrationrelating to the performance of functions of the Australian Federal Police under:
(i) the Australian Federal Police Act 1979; or
(ii) the Proceeds of Crime Act 2002.
Note: A defendant may bear an evidential burden in relation to the matters in this subsection (see subsection (12) of this section and subsection 13.3(3)).
Information communicated etc. to a court or tribunal
(5) It is a defence to a prosecution for an offence by a person against this Division that the person communicated the relevant information, or removed, held or otherwise dealt with the relevant information for the purpose of communicating it, to a court or tribunal (whether or not as a result of a requirement).
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
Information communicated etc. for the purposes of obtaining or providing legal advice
(5A) It is a defence to a prosecution for an offence by a person against this Division that the person communicated, removed, held or otherwise dealt with the relevant information for the primary purpose of obtaining or providing, in good faith, legal advice in relation to:
(a) an offence against this Part; or
(b) the application of any right, privilege, immunity or defence (whether or not in this Part) in relation to such an offence;
whether that advice was obtained or provided before or after the person engaged in the conduct constituting the offence.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
Information communicated etc. by persons engaged in business of reporting news etc.
(6) It is a defence to a prosecution for an offence by a person against this Division that the person communicated, removed, held or otherwise dealt with the relevant information in the person's capacity as a person engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media, and:
(a) at that time, the person reasonably believed that engaging in that conduct was in the public interest (see subsection (7)); or
(b) the person:
(i) was, at that time, a member of the administrative staff of an entity that was engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media; and
(ii) acted under the direction of a journalist, editor or lawyer who was also a member of the staff of the entity, and who reasonably believed that engaging in that conduct was in the public interest (see subsection (7)).
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
(7) Without limiting paragraph (6)(a) or (b), a person may not reasonably believe that communicating, removing, holding or otherwise dealing with information is in the public interest if:
(a) engaging in that conduct would be an offence under section 92 of the Australian Security Intelligence Organisation Act 1979 (publication of identity of ASIO employee or ASIO affiliate); or
(b) engaging in that conduct would be an offence under section 41 of the Intelligence Services Act 2001 (publication of identity of staff); or
(c) engaging in that conduct would be an offence under section 22, 22A or 22B of the Witness Protection Act 1994 (offences relating to Commonwealth, Territory, State participants or information about the national witness protection program); or
(d) that conduct was engaged in for the purpose of directly or indirectly assisting a foreign intelligence agency or a foreign military organisation.
Information that has been previously communicated
(8) It is a defence to a prosecution for an offence by a person against this Division if:
(a) the person did not make or obtain the relevant information by reason of any of the following:
(i) his or her being, or having been, a Commonwealth officer;
(ii) his or her being otherwise engaged to perform work for a Commonwealth entity;
(iii) an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information; and
(b) the information has already been communicated, or made available, to the public (the prior publication ); and
(c) the person was not involved in the prior publication (whether directly or indirectly); and
(d) at the time of the communication, removal, holding or dealing, the person believes that engaging in that conduct will not cause harm to Australia's interests or the security or defence of Australia; and
(e) having regard to the nature, extent and place of the prior publication, the person has reasonable grounds for that belief.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
Information relating to a person etc.
(9) It is a defence to a prosecution for an offence by a person against this Division if:
(a) the person did not make or obtain the relevant information by reason of any of the following:
(i) his or her being, or having been, a Commonwealth officer;
(ii) his or her being otherwise engaged to perform work for a Commonwealth entity;
(iii) an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information; and
(b) at the time of the communication, removal, holding or dealing, the person believes that the making or obtaining of the information by the person was required or authorised by law; and
(c) having regard to the circumstances of the making or obtaining of the information, the person has reasonable grounds for that belief; and
(d) any of the following apply:
(i) the person communicates the information to the person to whom the information relates;
(ii) the person is the person to whom the information relates;
(iii) the communication, removal, holding or dealing is in accordance with the express or implied consent of the person to whom the information relates.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
(10) To avoid doubt, a defence to an offence may constitute an authorisation for the purposes of paragraph (9)(b).
Removing, holding or otherwise dealing with information for the purposes of communicating information
(11) For the purposes of subsection (3), (4), (5) or (5A), it is not necessary to prove that information, that was removed, held or otherwise dealt with for the purposes of communicating it, was actually communicated.
Burden of proof for integrity agency officials
(12) Despite subsection 13.3(3), in a prosecution for an offence against this Division, a person mentioned in subparagraph (3)(a)(i), (ii), (iia) or (iii) does not bear an evidential burden in relation to the matter in:
(a) subsection (1), (4) or (4A); or
(b) either of the following:
(i) subparagraph (3)(a)(i), (ii), (iia) or (iii);
(ii) paragraph (3)(b), to the extent that that paragraph relates to the Inspector-General of Intelligence and Security, the Ombudsman, the Australian Information Commissioner or the Law Enforcement Integrity Commissioner.
Defences do not limit each other
(13) No defence in this section limits the operation of any other defence in this section.
Division 123 - Miscellaneous
123.1 Injunctions
Enforceable provisions
(1) The provisions of Division 122 are enforceable under Part 7 of the Regulatory Powers Act.
Note: Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.
Authorised person and relevant court
(2) For the purposes of Part 7 of the Regulatory Powers Act, as that Part applies to the provisions of Division 122 of this Act:
(a) the Minister is an authorised person; and
(b) each of the following is a relevant court:
(i) the Federal Court of Australia;
(ii) the Federal Circuit Court of Australia;
(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Extension to external Territories
(3) Part 7 of the Regulatory Powers Act, as that Part applies to the provisions of Division 122 of this Act, extends to every external Territory.
123.2 Forfeiture of articles etc.
(1) A sketch, article, record or document which is made, obtained, recorded, retained, possessed or otherwise dealt with in contravention of this Part is forfeited to the Commonwealth.
(2) In subsection (1), sketch , article and record have the same respective meanings as in Part 5.2.
123.3 Extended geographical jurisdiction - category D
Section 15.4 (extended geographical jurisdiction - category D) applies to an offence against this Part.
123.4 Effect of this Part on other rights, privileges, immunities or defences
Nothing in this Part limits or affects any other right, privilege, immunity or defence existing apart from this Part.
123.5 Requirements before proceedings can be initiated
(1) Proceedings for the commitment of a person for trial for an offence against this Part must not be instituted without:
(a) the written consent of the Attorney-General; and
(b) for proceedings that relate to security classified information - a certification by the Attorney-General that, at the time of the conduct that is alleged to constitute the offence, it was appropriate that the information had a security classification.
(2) However, the following steps may be taken (but no further steps in proceedings may be taken) without consent or certification having been obtained:
(a) a person may be arrested for the offence and a warrant for such an arrest may be issued and executed;
(b) a person may be charged with the offence;
(c) a person so charged may be remanded in custody or on bail.
(3) Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time.
(4) In deciding whether to consent, the Attorney-General must consider whether the conduct might be authorised in a way mentioned in section 122.5.