Senate

Revised Explanatory Memorandum

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

PART 1 - MAIN AMENDMENTS

Criminal Code Act 1995

Item 1

25. Item 1 repeals the heading of Part 5.1 of the Criminal Code and substitutes a new heading. The heading is changing from 'Treason, urging violence and advocating terrorism or genocide' to 'Treason and related offences'. The heading requires updating to reflect the broader range of offences within Part 5.1 due to the enactment of new sabotage offences in Division 82 and new offences dealing with other threats to security in new Division 83following the repeal of Part II of the Crimes Act (by Item 43 of Schedule 1).

Item 2

26. Item 2 repeals the heading of section 80.1A of the Criminal Code and substitutes a new heading. The heading is changing from 'Definition of organisation' to 'Definitions'. This change is needed because an additional definition is being added to section 80.1A by Item 3.

Item 3

27. Item 3 inserts a new definition of party in section 80.1A of the Criminal Code. This term is used in the new treason offence in section 80.1AA (to be inserted by Item 4) and is defined to include a person, body or group of any kind. This is intended to reflect the broad range of organisations or groups who may engage in armed conflict with the Commonwealth or the Australian Defence Force. This will range from nation states through to organised armed groups using force to achieve their purposes. An example of an organised armed group would be a separatist or rebel group seeking to overthrow the government of another nation state.

Item 3A

28. This item inserts a new section 80.1AAA in the Criminal Code to clarify that nothing in Division 80 affects the interpretation of key terms in the Australian Security Intelligence Organisation Act 1979 unless the ASIO Act expressly provides otherwise. Division 80, as amended by Schedule 1 of the Bill, contains offences relating to treason, urging violence, advocating terrorism and advocating genocide.

Item 4

Section 80.1AA - Treason - assisting enemy to engage in armed conflict

29. Item 4 repeals existing section 80.1AA, which contains two offences of 'Assisting enemies at war with the Commonwealth' (at subsection 80.1AA(1)) and 'Assisting countries etc. engaged in armed hostilities against the ADF' (at subsection 80.1AA(4)).

30. Item 4 combines the existing offences in subsections 80.1AA(1) and (4) into one new offence titled 'Treason - assisting enemy to engage in armed conflict'. This new offence simplifies the structure of the treason offences, updates the references in the offence to reflect modern international terminology about armed conflict and removes the confusing terminology at existing subsection 80.1AA(4) about 'armed hostilities'. The new offence carries a maximum penalty of life imprisonment, which is consistent with the existing treason offences at subsections 80.1AA(1) and (4).

31. Consistent with the existing treason offences, this offence will only be able to be committed by a person who owes an allegiance to the Commonwealth (paragraph 80.1AA(1)(f)). The person must know that they owe an allegiance to the Commonwealth. This is appropriate because only persons who benefit from the protection of the Australian nation state should be able to commit treason against Australia.

32. The offence will also only be able to be committed if the Commonwealth has, by proclamation made by the Governor-General, declared a party to be an enemy engaged in armed conflict involving the Commonwealth or the Australian Defence Force (paragraph 80.1AA(1)(a)), that is, if a party is the Commonwealth's adversary in armed conflict. A person should not be able to commit treason against Australia if it was impossible for them to know that another party was Australia's enemy. The requirement for the Commonwealth to proclaim its enemies for the purpose of the treason offence at section 80.1AA ensures that there is a publicly accessible record of enemies against whom the Commonwealth is engaged in an armed conflict for the purposes of the treason offence at section 80.1AA.

33. An example of this offence is as follows. Person A is a dual citizen of Australia and Country X, a repressive regime seeking to expand its territory. As part of a coalition of nation states, Australia has been engaged in an international armed conflict with Country X for two years (and the Governor-General has declared Country X to be an enemy for the purpose of section 80.1AA). Hostilities between Country X and the Australia are occurring primarily in the airspace above Country X's territorial sea. Person A still holds a strong connection to Country X and does not support Australia's military action. Person A has access to classified information about Royal Australian Air Force (RAAF) operations and passes details of a planned operation to a friend who works in the military forces of Country X. As a result, Country X uses anti-aircraft weapons to shoot down Australian aircraft, resulting in casualties to RAAF personnel and destroying Australia's aircraft, thereby enabling Country X to gain a military advantage over Australia.

34. To establish this offence, the prosecution will have to prove beyond a reasonable doubt that:

•

a party (the enemy) was engaged in armed conflict involving the Commonwealth or the Australian Defence Force and the person was reckless as to this element

•

the enemy was identified in a Proclamation made under section 80.1AB

•

the person intentionally engaged in conduct

•

the person intended that his or her conduct would materially assist the enemy to engage in armed conflict involving the Commonwealth or the Australian Defence Force

•

the conduct materially assisted the enemy to engage in armed conflict involving the Commonwealth or the Australian Defence Force, and

•

at the time he or she engaged in the conduct, the person was:

o

was an Australian citizen, and knew that he or she was an Australian citizen

o

was a resident of Australia, and knew that he or she was an Australian citizen

o

had voluntarily put him or herself under the protection of the Commonwealth, and knew that he or she had done so, or

o

was a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

35. Recklessness is the fault element for paragraph 80.1AA(1)(a). Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

•

a circumstance if he or she is aware of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

36. Strict liability will apply to paragraph 80.1AA(1)(b) consistent with subsection 80.1AA(2).

37. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 80.1AA(1)(c). Intention also applies to paragraph 80.1AA(1)(d). Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

38. Absolute liability applies to paragraph 80.1AA consistent with subsection 80.1AA(3).

39. The fault element for subparagraphs 80.1AA(1)(f)(i) and (ii) is knowledge. Under section 5.3 of the Criminal Code, a person has knowledge of a circumstance if he or she is aware that it exists or that it will exist in the ordinary course of events.

40. Strict liability applies to paragraph 80.1AA(1)(f)(iii) due to the application of subsection 80.1AA(2).

41. For paragraph 80.1AA(1)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that a party (the 'enemy') is engaged in armed conflict involving the Commonwealth or the Australian Defence Force and that the person was reckless as to this element. The term party is defined in section 80.1A (as amended by Item 3) to include a person, body or group of any kind. The use of the term 'armed conflict' is intended to cover both international armed conflicts and non-international armed conflicts. The prosecution will also have to prove that the defendant was aware of a substantial risk that an enemy was engaged in armed conflict involving the Commonwealth or Australian Defence Force and that, having regard to the circumstances known to him or her, it was unjustifiable to take the risk.

42. For paragraph 80.1AA(1)(b) of the offence, the prosecution will have to prove beyond a reasonable doubt that the enemy is identified in a Proclamation made under section 80.1AB. Consistent with subsection 80.1AA(2), strict liability will apply to paragraph 80.1AA(1)(b). Strict liability is set out in section 6.1 of the Criminal Code. The effect of applying strict liability to an element of an offence means that no fault element needs to be proved and the defence of mistake of fact is available.

43. Applying strict liability to this element of the offence is appropriate because it is not necessary for the person to have a state of mind as to the specific nature of a Proclamation made under section 80.1AB. The prosecution is already required to prove that the person was reckless as to whether the enemy was engaged in armed conflict involving the Commonwealth or the Australian Defence Force under paragraph 80.1AA(1)(a). It would be inappropriate for the defendant to be able to avoid criminal liability for the offence because they lacked specific knowledge of the Proclamation, especially because the prosecution is required to prove that the person was reckless as to whether their conduct would materially assist an enemy to engage in armed conflict involving the Commonwealth or the Australian Defence Force in paragraph 80.1AA(1)(a)). The purpose of the Proclamation is to ensure that a person can identify whether there are any 'enemies' for the purpose of the treason offences should they wish to check, not for them to be specifically aware of the Proclamation in order to commit the offence.

44. The defence of mistake of fact is set out in section 9.2 of the Criminal Code. The defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

•

at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

•

had those facts existed, the conduct would not have constituted an offence.

45. This defence would be available if, for example, a defendant had specifically turned his or her mind to whether there was a Proclamation under section 80.1AB and had mistakenly, but reasonably, concluded that no such Proclamation existed.

46. The defendant bears an evidential burden in relation to this defence. Section 13.3 of the Criminal Code provides that in the case of a standard 'evidential burden' defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).

47. For paragraph 80.1AA(1)(c), the prosecution will have to prove beyond a reasonable doubt that the person intentionally engaged in conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to 'engages in conduct' in paragraph 80.1AA(1)(c) means to do an act or to omit to perform an act.

48. For paragraph 80.1AA(1)(d), the prosecution will have to prove beyond a reasonable doubt that the person intended that his or her conduct would materially assist the enemy to engage in armed conflict involving the Commonwealth or the Australian Defence Force. The term 'materially assist' is not defined and will be given its ordinary meaning. It is intended that this term will cover assistance in the form of money or practical goods, and that the assistance will have to be more than merely trivial in order to 'materially' assist. The conduct must also be intended to materially assist the enemy in armed conflict.

49. For paragraph 80.1AA(1)(e), the prosecution must prove beyond a reasonable doubt that the person's conduct materially assisted the enemy to engage in armed conflict involving the Commonwealth or the Australian Defence Force. This result must occur for the offence in section80.1AA to be committed. Absolute liability applies to this element, consistent with subsection 80.1AA(3). Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying absolute liability to an element of an offence is that no fault element needs to be proved and the defence of mistake of fact is unavailable.

50. Absolute liability is appropriate for this element because the prosecution is already required to prove the person's intention to materially assist the enemy in paragraph 80.1AA(1)(d). The purpose of the element in paragraph 80.1AA(1)(e) is to require proof of the physical element that the person's conduct materially assisted the enemy to engage in armed conflict involving the Commonwealth or the Australian Defence Force.

51. If absolute liability did not apply then, consistent with section 5.6 of the Criminal Code, recklessness would be the fault element for paragraph 80.1AA(1)(e). It is unnecessary for the prosecution to prove the lower fault element of recklessness for paragraph 80.1AA(1)(e) when the prosecution will already have proved the higher fault element of intention for the same physical element in paragraph 80.1AA(1)(d).

52. For subparagraph 80.1AA(1)(f)(i) or (ii), the prosecution will have to prove beyond a reasonable that, at the time he or she engaged in the conduct, the person was, and knew that he or she was:

•

an Australian citizen (defined in section 2B of the Acts Interpretation Act and section 4 of the Australian Citizenship Act)

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a resident of Australia (defined in the Dictionary to the Criminal Code as an individual who is a resident of Australia), or

•

voluntarily under the protection of the Commonwealth (for example through the grant of asylum).

53. Under section 5.3 of the Criminal Code, a person has knowledge of a circumstance if he or she is aware that it exists or that it will exist in the ordinary course of events.

54. For subparagraph 80.1AA(1)(f)(iii), the prosecution will have to prove that the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory. Strict liability is appropriate for this element because section 12.3 of the Criminal Code (which provides that where knowledge is a fault element, the element attributed to a body corporate is that they 'expressly, tacitly or impliedly authorised or permitted the commission of the offence') does not fit well with establishing that the body corporate 'knows' it is incorporated under a law of the Commonwealth. The defence of mistake of fact, set out in section 9.2 of the Criminal Code, will apply.

55. Paragraph 80.1AA(1)(f) ensures that a person only commits this offence if he or she knows that they owe an allegiance to the Commonwealth. This is appropriate because only persons who benefit from the protection of the Australian state should be able to commit treason against the Commonwealth.

56. The penalty for this offence is life imprisonment. This is appropriate because the offence, at its core, represents a violation or betrayal of a person's allegiance to Australia by providing assistance to an enemy in an armed conflict against which Australia is engaged in fighting. This is one of the most serious offences in Commonwealth criminal law and is deserving of the most serious penalty.

57. Note 1 under subsection 80.1AA(1) clarifies that the existing defence in section 80.3 for acts done in good faith is available in relation to the offence at subsection 80.1AA(1).

58. Note 2 under subsection 80.1AA(1) clarifies the effect of subsection 4B(3) of the Crimes Act. Subsection 4B(3) provides that, if a body corporate is convicted of an offence against subsection 80.1AA(1), a court may impose a fine of up to 10,000 penalty units.

59. Subsection 80.1AA(4) provides a defence to the offence at subsection 80.1AA(1) if a person engaged in conduct solely by way of, or for the purposes of, the provision of aid or assistance of a humanitarian nature. The provision of aid or assistance of a humanitarian nature would include activities that are humanitarian in character and are conducted by or in association with the International Committee of the Red Cross, the United Nations or its agencies, and agencies contracted or mandated to work with the UN or its agencies. This is consistent with the existing defence in subsection 80.1AA(6) and is intended to ensure that a person is not criminally liable for this offence if they provided material assistance to a party, for example by providing financial aid or food, but intended genuinely to engage in humanitarian activities instead of to support the party to engage in armed conflict against Australia.

60. The Note under the defence at subsection 80.1AA(4) clarifies that the defendant will bear an evidential burden in relation to this defence. The Guide to Framing Commonwealth Offences provides (at paragraph 4.3.1) that it is appropriate for a matter to be included in an offence-specific defence where it is peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. The defence at subsection 80.1AA(4) satisfies both of these criteria. Evidence of a person's conduct and intention in providing aid or assistance of a humanitarian nature is peculiarly within the knowledge of the defendant. In addition, it would be difficult and more costly for the prosecution to prove, beyond a reasonable doubt, that the person was not acting solely by way of, or for the purposes of providing humanitarian aid or assistance which may include a vast range of activities conducted by or in association with the ICRC, the UN, or any other agency contracted or mandated to work with the UN or its agencies. Section 13.3 of the Criminal Code provides that in the case of a standard 'evidential burden' defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. For the defence at subsection 80.1AA(4) the person will need to point to evidence that suggests a reasonable possibility that the defence is made out, which could include the fact that the conduct was undertaken through the UN, ICRC, an agency contracted or mandated to work with the UN or its agencies or a legitimate, registered charity. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).

Section 80.1AB - Proclamation of enemy engaged in armed conflict

61. Section 80.1AB empowers the Governor-General to, by Proclamation, declare a party identified in the Proclamation to be an enemy engaged in armed conflict involving the Commonwealth or the Australian Defence Force.

62. A person should not be able to commit treason against Australia if it was impossible for them to know that another party was an enemy of Australia or the Australian Defence Force. The requirement for the Commonwealth to proclaim its enemies for the purpose of the treason offence at section 80.1AA ensures that there is a publicly accessible record of enemies with whom the Commonwealth is engaged in armed conflict.

63. The Proclamation as described at section 80.1AB will be subject to Parliamentary scrutiny and will be publically accessible. In accordance with the Legislation Act 2003, unless exempt, declarations by legislative instrument can be disallowed by Parliament. In accordance with section 38 of the Legislation Act, disallowable instruments must be tabled in each House of Parliament within six days of the instrument being registered. If a legislative instrument is disallowed, then it is repealed and ceases to have effect.

64. A Note to section 80.1AB notifies the reader that the offence provision at subsection 80.1AA(1) deals with the effect of the Proclamation.

Section 80.1AC - Treachery

65. Section 80.1AC will replace the existing treachery offence at subsection 24AA(1) of the Crimes Act, which is repealed by Item 43 of Schedule 1. The new treachery offence will criminalise the use of force or violence intended to overthrow the Constitution, the Government of the Commonwealth or of a State or Territory or the lawful authority of the government of the Commonwealth. The new treachery offence will carry a penalty of life imprisonment.

66. The existing treachery offence at subsection 24AA(1) is not being replicated in the new treachery offence at section 80.1AC to the extent that it relates to acts intended to overthrow the government of a proclaimed country. These are more appropriately dealt with by the laws of the relevant country or through the foreign incursions offences in Part 5.5 of the Criminal Code.

67. The existing treachery offence at subsection 24AA(2) is not being replicated in the new treachery offence because assisting enemies of the Australian Defence Force is covered by the treason offence in section 80.1AA, as inserted by Item 4 of Schedule 1.

68. An example of the offence is as follows. Person B holds the strong view that Australia's constitutional democracy does not best serve the interests of the Australian people and that anarchy is preferable. Person B forms an anarchist group with a large number of like-minded people and they storm Parliament House. Using weapons and violence, the group seeks to cause harm to a large number of parliamentarians, intending that the anarchist movement will remove the established government.

69. This offence complements the existing treason offence at section 80.1 of the Criminal Code targeting conduct causing death or harm to the Sovereign, Governor-General or Prime Minister and the offence at section 80.2 of the Criminal Code regarding urging another person to overthrow, by force or violence, the Constitution, the Government of the Commonwealth or a State or Territory or the lawful authority of the Government of the Commonwealth.

70. To establish this offence, the prosecution will need to prove beyond a reasonable doubt that:

•

the person intentionally engaged in conduct

•

the conduct involves force or violence and the person was reckless as to this element

•

the person engaged in the conduct with the intention of overthrowing:

o

the Constitution

o

the Government of the Commonwealth or of a State or Territory, or

o

the lawful authority of the government of the Commonwealth.

71. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 80.1AC(1)(a). Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

72. Recklessness is the fault element for paragraph 80.1AC(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 of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

73. For paragraph 80.1AC(1)(a), the prosecution will have to prove beyond a reasonable doubt that the person intentionally engaged in conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to 'engages in conduct' in paragraph 80.1AC(1)(a) means to do an act or to omit to perform an act.

74. For paragraph 80.1AC(1)(b), the prosecution will have to prove beyond a reasonable doubt that the person's conduct involved force or violence and that the person was reckless as to this element. Therefore, the defendant must have been aware of a substantial risk that his or conduct involved force or violence and, having regard to the circumstances known to him or her it was unjustifiable to take that risk. Consistent with the offences in Subdivision C of Division 80 of the Criminal Code, the term 'force or violence' is not defined and will have its ordinary meaning. The offence is not intended to capture the conduct of a person with a delusional aim of overthrowing the government where the conduct results in minor force being applied to a government building.

75. For paragraph 80.1AC(1)(c), the prosecution will have to prove beyond a reasonable doubt that the person engaged in his or her conduct with the intention of overthrowing the Constitution, the Government of the Commonwealth or a State or Territory or the lawful authority of the Government of the Commonwealth. The term 'lawful authority of the Government of the Commonwealth' is used for consistency with the existing offence of 'urging violence against the Constitution' in section 80.2 of the Criminal Code. Overthrow of the lawful authority of the Government of the Commonwealth could include the overthrow of an arm of the Government. For example, if a person intended to overthrow the Executive Government then this will be sufficient even if they do not intend to overthrow the Parliament or the judiciary. Overthrow of the lawful authority of the Government of Commonwealth may also include for example, overthrow of the Australian Defence Force. The application of intention to this result element means that the prosecution will have to prove that the person means to bring about the overthrow or is aware that it will occur in the ordinary course of events.

76. Whether or not the overthrow of the Constitution or government occurs or the conduct is capable of bringing it about is not relevant to the defendant's culpability for the offence. For example, Person B's conduct may not be capable of defeating the security measures in place at Parliament House and therefore Person B's conduct was not capable of overthrowing the Government. The defendant could still commit the offence despite the fact that this outcome does not occur, or is not capable of occurring.

77. The offence at section 80.1AC will be punishable by a maximum penalty of life imprisonment. This is appropriate because of the serious threat to the stability and security of Australia caused by conduct involving force or violence that is intended to overthrow an Australian government or the Constitution. The penalty is also consistent with the existing penalty of life imprisonment for the treachery offence at section 24AA of the Crimes Act.

78. Note 1 under subsection 80.1AC(1) clarifies that the existing defence in section 80.3 for acts done in good faith is available in relation to the offence at subsection 80.1AC(1).

79. Note 2 under subsection 80.1AC(1) clarifies the effect of subsection 4B(3) of the Crimes Act. Subsection 4B(3) provides that, if a body corporate is convicted of an offence against subsection 80.1AC(1), a court may impose a fine of up to 10,000 penalty units.

Item 5

80. Item 5 amends subsection 80.3(1) of the Criminal Code to insert the words 'and sections 83.1 and 83.4' after the words 'Subdivisions B and C'. The effect of this amendment is to apply the defence for acts done in good faith in section 80.3 to the new offences of 'Advocating mutiny' in new section 83.1 and 'Interference with political rights and duties' in new section 83.4.

Item 6

81. Item 6 repeals existing paragraphs 80.3(2)(b), (c), (d) and (e) of the Criminal Code and creates a new paragraph 80.3(2)(b) that reflects the language of the new treason offence at section 80.1AA.

82. Paragraph 80.3(2)(b) provides clarity about the matters the Court can have regard to when considering whether the defence of acts of good faith applies. Under new paragraph 80.3(2)(b), to be inserted by Item 6, the Court may have regard to any matter, including whether the acts constituting the offence were done with the intention of assisting an enemy:

•

engaged in armed conflict involving the Commonwealth or the Australian Defence Force, and

•

declared in a Proclamation made under section 80.1AB to be an enemy engaged in armed conflict involving the Commonwealth or the Australian Defence Force.

83. This amendment ensures that the matters the Court may take into account when considering the applicability of the defence at subsection 80.3(1) are consistent with the language of the new treason offence at section 80.1AA.

84. Item 6 repeals paragraphs 80.3(2)(c), (d) and (e) of the Criminal Code. This amendment is required to reflect the repeal of the existing offences at subsection 80.1AA(4) and section 24AA of the Crimes Act.

85. Existing paragraph 80.3(2)(c) provides that a Court may take into account whether a person's acts were done with the intention of assisting another country, or an organisation, that is engaged in armed hostilities against the Australian Defence Force. This reflects the elements of the existing offence of 'Assisting countries etc. engaged in armed hostilities against the ADF' in subsection 80.1AA(4), which is being repealed by Item 4 of Schedule 1.

86. Following the repeal of the offence at subsection 80.1AA(4), it will not be necessary for a Court to be able to take these matters into account when considering a defence under subsection 80.3(1).

87. Existing paragraph 80.3(2)(d) provides that a Court may take into account whether a person's acts were done with the intention of assisting a proclaimed enemy of a proclaimed country (within the meaning of subsection 24AA(4) of the Crimes Act). Existing paragraph 80.3(2)(e) provides that a Court may take into account whether a person's acts were done with the intention of assisting persons specified in paragraphs 24AA(2)(a) of the Crimes Act. These paragraphs reflect the elements of the existing offence of treachery in section 24AA of the Crimes Act, which is being repealed by Item 43 of Schedule 1. These aspects of the treachery offence are not being replicated in the new offence of treachery proposed to be created in section 80.1AC through Item 4 of Schedule 1.

88. Following the repeal of the offence at section 24AA of the Crimes Act, it will not be necessary for a Court to be able to take these matters into account when considering a defence under subsection 80.3(1).

Item 7

89. Item 7 amends subsection 80.4(2) of the Criminal Code to insert the words 'section 80.1AC'. This has the effect of applying Section 15.2 (extended geographical jurisdiction-Category B) to the treachery offence in section 80.1AC of the Criminal Code (to be inserted by Item 4 of Schedule 1).

90. Under section 15.2, the effect of Category B geographical jurisdiction is that the offence applies:

•

if the conduct constituting the offence occurs wholly or partly in Australia

•

if the result of that conduct occurs wholly or partly in Australia, and

•

if the conduct occurs outside Australia and at the time of committing the offence, the person is an Australian citizen, resident or body corporate.

91. Category B jurisdiction is appropriate to ensure that this offence appropriately protects Australia from acts of treachery that occur in Australia or where the result of such acts occur in Australia. The application of Category B jurisdiction also prevents Australian citizens, residents or bodies corporate from engaging in a treachery offence, wherever the conduct occurs.

Item 8

92. Item 8 inserts new Division 82 - Sabotage at the end of Part 5.1 of the Criminal Code. The Commonwealth's current sabotage offence (section 24AB of the Crimes Act) was introduced in 1960 and has not evolved to reflect the modern threat environment. The existing sabotage offence only protects Defence facilities. New Division 82 will comprise two subdivisions. Subdivision A-Preliminary will contain the definitions provisions and Subdivision B-Offences will contain the offence provisions.

Division 82 - Sabotage

Subdivision A-Preliminary

Section 82.1 - Definitions

93. Section 82.1 inserts definitions relevant to the sabotage offences in Division 82.

94. Conduct will not advantage the national security of a foreign country if the conduct will advantage Australia's national security to an equivalent extent.

95. The definition of advantage is intended to ensure that a person cannot commit a sabotage offence on the basis of advantaging a foreign country's national security if that person intended that, or was reckless as to whether, his or her conduct would also equally advantage Australia's national security.

96. The PJCIS report concluded (at paragraphs 3.74) that 'further legislative clarity is required to reduce the likelihood of non-malicious conduct falling under the term 'advantage the national security of a foreign country' for the purposes of the proposed sabotage and espionage offences.' The PJCIS report also stated (at paragraph 3.75) that 'it would be inappropriate to criminalise activity that is undertaken for the mutual benefit of both Australia and a foreign country.'

97. The qualification that the advantage be to an equivalent extent is intended to ensure that a person cannot evade liability because they intended for their conduct to have some advantage to Australia's national security when they also intended for their conduct to provide a greater degree of advantage to the foreign country's national security.

98. The requirement for the mutual advantage to be of an equivalent extent will allow the prosecution to argue, in appropriate circumstances, that despite there being some intention to advantage Australia's national security, the intention to advantage the foreign country's national security was to a greater extent.

99. Conduct will result in damage to public infrastructure if any of the paragraphs in the definition apply in relation to public infrastructure (as defined in section 82.2). The paragraphs in the definition are:

•

the conduct destroys it or results in its destruction

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the conduct involves interfering with it, or abandoning it, resulting in it being lost or rendered unserviceable

•

the conduct results in it suffering a loss of function or becoming unsafe or unfit for its purpose

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the conduct limits or prevents access to it or any part of it by persons who are ordinarily entitled to access it or that part of it

•

the conduct results in it or any part of it becoming defective or being contaminated

•

the conduct significantly degrades its quality, or

•

if it is an electronic system-the conduct seriously disrupts it.

100. Section 82.1 defines foreign principal as having the meaning given by section 90.2. Section 90.2 provides that each of the following is a foreign principal:

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a foreign government principal

•

a public international organisation

•

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

•

an entity or organisation directed or controlled by:

o

a public international organisation

o

a terrorist organisation within the meaning of Division 102

•

an entity or organisation directed or controlled by two or more foreign principals within the meaning of any other paragraph of the definition.

101. The definition of foreign principal in section 90.2 is explained in detail at Item 16 of Schedule 1.

102. Section 82.1 defines national security as having the meaning given by section 90.4. Section 90.4 provides that the national security of Australia or a foreign country means:

•

the defence of the country

•

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 90.4(2)

•

the protection of the integrity of the country's territory and borders from serious threats

•

the carrying out of the country's responsibilities to any other country in relation to the protection of the integrity of the country's territory and borders from serious threats and the activities covered by subsection 90.4(2), and

•

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

103. Subsection 90.4(2) provides that, for the purposes of subsection 90.4(1), this subsection covers the following activities relating to a country, whether or not directed from, or committed within, the country:

•

espionage

•

sabotage

•

terrorism

•

political violence

•

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, and

•

foreign interference.

104. Section 82.1 defines prejudice to clarify that embarrassment alone is not sufficient to prejudice Australia's national security.

105. The PJCIS report stated (at paragraph 3.72) that: The Committee recognises that, in some circumstances, embarrassment to the Australian Government could result in harm to Australia's political, military or economic relationships. However, the Committee considers that greater clarity is required to ensure that prejudice cannot consist of embarrassment to the Australian Government or other Australian entity alone, but must also include a degree of damage or harm.

106. This definition ensures that a person cannot be prosecuted for a sabotage offence in Division 82 if that person intended that, or was reckless as to whether, his or her conduct would cause embarrassment alone. Where the person intended that, or was reckless as to whether, his or her conduct would cause embarrassment alone, and that embarrassment eventuates, it will be immaterial whether that embarrassment in turn results in some harm or damage to Australia's national security (for example, a loss of confidence in, or a reduced willingness to share information with, the Australian Government by a foreign partner).

107. This definition reflects case law regarding the meaning of 'prejudice to national security', including Commonwealth v Fairfax (1980) 147 CLR 39 at 52, in which a single judge of the High Court (Mason J) indicated that mere embarrassment was not sufficient to constitute prejudice to national security.

108. Section 82.1 defines public infrastructure to have the meaning given by section 82.2. Section 82.2 defines public infrastructure to mean any of the following:

•

any infrastructure, facility, premises, network or electronic system that belongs to the Commonwealth

•

defence premises within the meaning of Part VIA of the Defence Act

•

service property and service land, within the meaning of the Defence Force Discipline Act

•

any part of the infrastructure of a telecommunications network within the meaning of the Telecommunications Act, and

•

any infrastructure, facility, premises, network or electronic system (including an information, telecommunications or financial system) that:

o

provides or relates to providing the public with utilities or services (including transport of people or goods) of any kind

o

is located in Australia, and

o

belongs to or is operated by a constitutional corporation or is used to facilitate constitutional trade and commerce.

109. The definition of public infrastructure covers infrastructure and services that are essential to everyday life in Australia. A disruption to public infrastructure due to sabotage could have a range of serious implications for business, governments and the community.

Section 82.2 - Public infrastructure

110. Section 82.2 sets out a definition of public infrastructure for the purpose of the sabotage offences in Division 82.

111. Paragraph 82.2(1)(a) deals with any infrastructure, facility, premises, network or electronic system that belongs to the Commonwealth.

•

Infrastructure is not defined and is intended to take its ordinary meaning, which would include the structures and facilities needed for the operation of society.

•

Facilities is not defined and is intended to take its ordinary meaning, which would include a place, amenity or piece of equipment.

•

Premises is not defined and is intended to take its ordinary meaning, which would include a building, together with its land, occupied by a business or used in an official context.

•

Network is not defined and is intended to take its ordinary meaning. This is primarily intended to cover networks of interconnected computers or other machines.

•

Electronic system is not defined and is intended to take its ordinary meaning, which would include a physical interconnection of components or parts that gather various amounts of information together. This may include databases or software and may or may not be connected to other computers or machines as part of a network.

112. Consistent with subsection 82.2(1), the infrastructure, facility, premises, network or electronic system must belong to the Commonwealth. Subsection 82.2(2) provides that whether the property belongs to the Commonwealth is to be determined in the same way as it would be under Chapter 7 of the Criminal Code, specifically section 130.2 of the Criminal Code.

113. Under section 130.2, property belongs to a person if, and only if:

•

the person has possession or control of the property

•

the person has a proprietary right or interest in the property, other than an equitable interest arising only from:

o

an agreement to transfer an interest

o

an agreement to grant an interest, or

o

a constructive trust.

114. Paragraph 82.2(1)(b) deals with defence premises within the meaning of Part VIA of the Defence Act.

115. Section 71A of the Defence Act defines defence premises to mean any of the following that is in Australia, and is owned or occupied by the Commonwealth for use by the Defence Force or the Department:

•

an area of land or any other place (whether or not it is enclosed or built on)

•

a building or other structure

•

a vehicle, vessel or aircraft, including any fixed or moveable ramp, stairs or other means of access to, or exit from, the vehicle, vessel or aircraft

•

a prohibited area, within the meaning of the Defence (Special Undertakings) Act 1952, or

•

Woomera Prohibited Area.

116. The Defence (Special Undertakings) Act defines a prohibited area as a place, or an area, that is a prohibited area under section 7, 8 or 8A.

•

Section 7 defines a prohibited area as a place being used or occupied for the purpose of a special defence undertaking (as defined in section 6).

•

Section 8 allows the Minister to declare a prohibited area if it is necessary for the purposes of the defence of the Commonwealth.

•

Section 8A provides that the Joint Defence Facility Pine Gap is a prohibited area.

117. The Defence Act defines the Woomera Prohibited Area in section 72TA as an area prescribed by the Rules that is intended for use for the purposes of testing war materiel and may be used for those purposes. The Woomera Prohibited Area Rule 2014 defines the Woomera Prohibited Area.

118. Paragraph 82.2(1)(c) deals with service property and service land within the meaning of the Defence Force Discipline Act.

119. Section 3 of the Defence Force Discipline Act defines service property as property used by, or in the possession or under the control of:

•

the Defence Force

•

an allied force (also defined in section 3 to mean a force of another country that is acting in cooperation with the Defence Force), or

•

an institution of the Defence Force or of an allied force.

120. Section 3 of the Defence Force Discipline Act defines service land as land (including a building or other structure) used or occupied by:

•

the Defence Force

•

an allied force (also defined in section 3 to mean a force of another country that is acting in cooperation with the Defence Force), or

•

an institution of the Defence Force or of an allied force.

121. Paragraph 82.2(1)(d) deals with any part of the infrastructure of a telecommunications network within the meaning of the Telecommunications Act.

122. Section 7 of the Telecommunications Act defines telecommunications network as a system, or series of systems, that carries, or is capable of carrying, communications by means of guided and/or unguided electromagnetic energy.

123. The reference in paragraph 82.2(1)(d) to 'any part of the infrastructure of a telecommunications network', is intended to clarify that the definition does not include customer cabling or equipment.

124. Paragraph 82.2(1)(e) deals with any infrastructure, facility, premises, network or electronic system (including an information, telecommunications or financial system) that:

•

provides or relates to providing the public with utilities or services (including transport of people or goods) of any kind

•

is located in Australia, and

•

belongs to or is operated by a constitutional corporation or used to facilitate constitutional trade and commerce.

125. The terms 'infrastructure, facility, premises, network or electronic system' are described in detail in the explanation of paragraph 82.2(1)(a), above.

126. Paragraph 82.2(1)(e) is intended to cover essential services that are provided to the Australian community but do not belong to the Government. This would include private companies (that are a constitutional corporation within the existing definition of constitutional corporation in the Dictionary to the Criminal Code or are engaged in activities that facilitate constitutional trade and commerce within the definition to be inserted into the Dictionary to the Criminal Code by Item 24 of Schedule 1).

127. The Dictionary to the Criminal Code defines constitutional corporation as meaning a corporation to which paragraph 51(xx) of the Constitution applies.

128. Item 24 of Schedule 1 will insert a definition of constitutional trade and commerce into the Dictionary to the Criminal Code. The term will be defined to mean trade and commerce:

•

with other countries

•

among the States

•

between a State and Territory, or

•

between two Territories.

129. It is essential to cover privately owned infrastructure within the definition of public infrastructure because the consequences flowing from damage to these types of infrastructure could be as damaging as damage to infrastructure owned by the Commonwealth.

130. Subsection 82.2(2) provides that, for the purposes of the application of paragraphs 82.2(1)(a) (e) in relation to property within the meaning of Chapter 7, whether the property belongs to the Commonwealth or a constitutional corporation is to be determined in the same way as it would be under Chapter 7. The effect of section 130.2 is described above in relation to paragraph 82.2(1)(a).

131. Subsection 82.2(3) provides that, for the purposes of a reference in an element of an offence to public infrastructure (within the meaning of Division 82), absolute liability applies:

•

in relation to public infrastructure within the meaning of paragraph (1)(a) of the definition - to the element that the infrastructure, facility, premises, network or electronic system belongs to the Commonwealth, and

•

in relation to public infrastructure within the meaning of paragraph (1)(e) - to the element that the infrastructure, facility, premises, network or electronic system belongs to or is operated by a constitutional corporation or is used to facilitate constitutional trade and commerce.

132. It is appropriate to apply absolute liability to offences that rely on paragraphs 82.2(1)(a) or (e) because these are jurisdictional elements. A jurisdictional element of the offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do.

133. The application of absolute liability to the element of the offence that the infrastructure 'belongs' to the Commonwealth is consistent with other offences dealing with property belonging to the Commonwealth. For example, section 131.1 of the Criminal Code (dealing with theft of Commonwealth property) applies absolute liability to the element of the offence that the property belongs to a Commonwealth entity.

134. Similarly, it is consistent with existing offences in the Criminal Code to apply absolute liability to offences dealing with activities undertaken by constitutional corporations or that facilitate constitutional trade and commerce. For example, section 380.2 of the Criminal Code (dealing with contaminating goods) applies absolute liability to the element of the offence relevant to constitutional corporations and facilitating constitutional trade and commerce (subsection 380.2(3)).

135. The implications of applying absolute liability to the relevant elements of the sabotage offences are considered below in the discussion of each offence.

Section 82.2A - Expressions used in the Australian Security Intelligence Organisation Act 1979

136. Section 82.2A clarifies that nothing in Division 82 (Sabotage) affects the interpretation of key terms in the Australian Security Intelligence Organisation Act 1979, unless that Act expressly provides otherwise.

Subdivision B-Offences

Section 82.3 - Offence of sabotage involving foreign principal with intention as to national security

137. Subsection 82.3(1) will make it an offence to engage in conduct on behalf of a foreign principal or directed, funded or supervised by a foreign principal, that results in damage to public infrastructure, with an intention to prejudice Australia's national security or advantage the national security of a foreign country.

138. This offence will be punishable by a maximum penalty of 25 years imprisonment.

139. An example of this offence is as follows. Person A is an employee of Country B, an adversary of Australia. At the direction of Country B, Person A gains access to a sensitive Defence facility and damages electronic equipment, meaning that the Australian Defence Force is unable to undertake essential satellite monitoring. Person A intended that the damage to the equipment would advantage the national security of Country B by enabling it to undertake missile launches without timely detection by the Australian Government.

140. To establish this offence, the prosecution will need to prove, beyond a reasonable doubt, that:

•

a person intentionally engages in conduct

•

the person's conduct results in damage to public infrastructure and the person is reckless as to this element

•

the person intends that their conduct will prejudice Australia's national security or advantage the national security of a foreign country

•

the conduct was engaged in:

o

on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal and the person was reckless as to this, or

o

the conduct was directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal and the person was reckless as to this.

141. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraphs 82.3(1)(a). Intention is also the fault element in relation to paragraph 82.3(1) c). Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

142. Recklessness is the fault element applying to paragraphs 82.3(1)(b) and (d). Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

•

a circumstance if he or she is aware of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

143. For paragraph 82.3(1)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intended to engage in the relevant conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to 'engages in conduct' in paragraph 82.3(1)(a) means to do an act or to omit to perform an act.

144. For paragraph 82.3(1)(b) of the offence, the prosecution will have to prove, beyond a reasonable doubt, that the person's conduct resulted in damage to public infrastructure and that the person was reckless as to this element. Therefore, the defendant must have been aware of a substantial risk that their act or omission would result in damage to public infrastructure and that, having regard to the circumstances known to him or her that it is unjustifiable to take that risk.

145. Paragraph 82.3(1)(b) refers to conduct that results in damage to public infrastructure, which section 82.1 defines to mean any of the following in relation to public infrastructure:

•

the conduct destroys it or results in its destruction

•

the conduct involves interfering with it, or abandoning it, resulting in it being lost or rendered unserviceable

•

the conduct results in it suffering a loss of function or becoming unsafe or unfit for its purpose

•

the conduct limits or prevents access to it or any part of it by persons who are ordinarily entitled to access it or that part of it

•

the conduct results in it or any part of it becoming defective or being contaminated

•

the conduct significantly degrades its quality, or

•

if it is an electronic system-the conduct seriously disrupts it.

146. Section 82.2 defines public infrastructure to mean any of the following:

•

any infrastructure, facility, premises, network or electronic system that belongs to the Commonwealth

•

defence premises within the meaning of Part VIA of the Defence Act

•

service property and service land, within the meaning of the Defence Force Discipline Act

•

any part of the infrastructure of a telecommunications network within the meaning of the Telecommunications Act 1997, and

•

any infrastructure, facility, premises, network or electronic system (including an information, telecommunications or financial system) that:

o

provides or relates to providing the public with utilities or services (including transport of people or goods) of any kind

o

is located in Australia, and

o

belongs to or is operated by a constitutional corporation or used to facilitate constitutional trade and commerce.

147. To the extent that the prosecution is relying on paragraph 82.2(1)(a) of the definition of public infrastructure, absolute liability will apply to the element that the infrastructure, facility or premises, network or electronic system belongs to the Commonwealth. To the extent that the prosecution is relying on paragraph 82.2(1)(e) of the definition of public infrastructure, absolute liability will apply to the element that the infrastructure, facility or premises, network or electronic system belongs to, or is operated by, a constitutional corporation or is used to facilitate constitutional trade or commerce.

148. It is appropriate to apply absolute liability to these matters because these are jurisdictional elements. A jurisdictional element of the offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences.

149. Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying absolute liability to an element of an offence is that no fault element needs to be proved and the defence of mistake of fact is unavailable. Accordingly, the prosecution will be required to prove only the physical element that the relevant infrastructure:

•

belongs to the Commonwealth

•

belongs to a constitutional corporation

•

is operated by a constitutional corporation, or

•

is used to facilitate constitutional trade or commerce.

150. For paragraph 82.3(1)(c) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intended for their act or omission to prejudice Australia's national security or advantage the national security of a foreign country. The national security of Australia or a foreign country is defined in section 90.4 and covers a broad range of possible prejudice to Australia's national security, such as damage to Australia's defence operations or harm to Australia's international relations.

151. The term 'prejudice' is intended to capture a broad range of intended conduct, including an intention to harm or injure Australia's national security or to cause disadvantage to Australia. The term is also intended to cover impairment or loss to Australia's national security interests. The prejudice to Australia's national security is not required to be serious or substantial but is intended to be more than a minor or trivial prejudice that has no long-lasting effect, nor embarrassment to an Australian person or Australia's people. The term is defined in section 82.1 to clarify that embarrassment alone is not sufficient to prejudice Australia's national security. Where the person intended that, or was reckless as to whether, his or her conduct would cause embarrassment alone, and that embarrassment eventuates, it will be immaterial whether that embarrassment in turn results in some harm or damage to Australia's national security (for example, a loss of confidence in, or a reduced willingness to share information with, the Australian Government by a foreign partner).

152. The term 'advantage' is intended to capture an intention to put another country's national security in a favourable or superior position compared to Australia's position or to benefit or profit another's country's national security compared to Australia's national security. Section 82.1 defines advantage to clarify that conduct will not advantage the national security of a foreign country if the conduct will advantage Australia's national security to an equivalent extent.

153. Whether or not the prejudice to Australia's national security or advantage to the national security of a foreign country occurs or the conduct is capable of bringing it about is not relevant to the defendant's culpability for the offence. For example, the equipment that Person A damaged may not have been capable of disabling the satellite monitoring system, and therefore Person A's conduct was not capable of advantaging the national security of Country B.

154. For subparagraph 82.3(1)(c)(ii), the person must intend to advantage the national security of a 'foreign country', not a 'foreign principal'. This is because the interests of nation states in relation to 'national security' are unique and often relate to the protection to the territory of the country.

155. Foreign country is intended to cover countries other than Australia and is defined in the Dictionary to the Criminal Code as including:

•

a colony or overseas territory

•

a territory outside Australia, where a foreign country is to any extent responsible for the international relations of the territory, and

•

a territory outside Australia that is, to some extent self-governing, but that is not recognised as an independent sovereign state by Australia.

156. Consistent with subsection 82.3(2), for the purposes of subparagraph 82.3(1)(c)(ii), the person does not need to have in mind a particular foreign country and may have in mind more than one foreign country. For example, a person's conduct may be directed by a foreign political organisation (which falls within the definition of foreign principal in section 90.2) and may be aware of a substantial risk that their conduct will advantage the national security of a foreign country but will not know, or necessarily care, which foreign country that is. Similarly, a person may intend to advantage the national security of more than one foreign country by damaging Australian public infrastructure.

157. For paragraph 82.3(1)(d) the prosecution will have to prove beyond a reasonable doubt that the defendant's conduct was engaged in on behalf of, or in collaboration with, a foreign principal (as defined in section 90.2), on behalf of, or in collaboration with, a person acting on behalf of a foreign principal, directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal. The prosecution will also have to prove that the person was reckless as to this element. Therefore, the person must be aware of a substantial risk that their act or omission was engaged in on behalf of, or in collaboration with, a foreign principal, on behalf of, or in collaboration with, a person acting on behalf of a foreign principal, directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal, or and that, having regard to the circumstances known to him or her that it is unjustifiable to take that risk.

158. For subparagraph 82.3(1)(d)(i), the term 'on behalf of' is intended to include where a person or entity represents, acts in the interests of, or acts as a proxy for, a foreign government principal.

159. It is possible that a defendant will know, or be reckless, as to the fact that they are engaging in conduct for a foreign government because they are being tasked by a person who identifies himself or herself as an official of a foreign government. In this case, the person will be engaging in the conduct on behalf of the foreign principal.

160. However, it may also be the case that the defendant is not tasked directly by a foreign government official, but by an intermediary. In this case, the prosecution will have to prove beyond a reasonable doubt that the defendant was aware of a substantial risk that he or she was being tasked by a person acting on behalf of a foreign principal and that it was unjustifiable to take that risk. This may be the case where, for example, the intermediary advises the defendant that the intermediary acts in coordination with foreign officials, or the intermediary facilitates preferential treatment for the defendant from a foreign government.

161. Consistent with subsection 82.3(3), for the purposes of paragraph 82.3(1)(d), the person will not need to have in mind a particular foreign principal and may have in mind more than one foreign principal. For example, a defendant may assist an individual who has identified themselves to the defendant as a foreign official, but has not specified which foreign country they represent. Or, a defendant may provide assistance in the knowledge this assistance will or could assist multiple foreign principals at the same time.

162. The maximum penalty for the offence in section 82.3 is 25 years imprisonment. The commission of this offence would have serious consequences for the sovereignty and national security of Australia. It is unacceptable for foreign principals to seek to damage Australia's public infrastructure. In the worst case scenario, Australians could be killed or seriously harmed as a result of damage caused to public infrastructure by a person acting on behalf of a foreign principal intending to harm Australia's national security. This justifies the serious maximum penalty for the offence.

163. The Note to section 82.3 notes that an alternative verdict may be available for an offence against section 82.3. The alternative verdicts for sabotage offences are set out at section 82.12.

Section 82.4 - Offence of sabotage involving foreign principal reckless as to national security

164. Subsection 82.4(1) will make it an offence to engage in conduct on behalf of, or in collaboration with, a foreign principal or directed, funded or supervised by a foreign principal, that results in damage to public infrastructure, reckless as to whether the conduct will prejudice Australia's national security or advantage the national security of a foreign country.

165. The offence will be punishable by a maximum penalty of 20 years imprisonment.

166. An example of this offence is as follows. Person C is an employee of Country D, an adversary of Australia. At the direction of Country D, Person C damages electricity substations in Canberra, interrupting the power supply to several parts of the city, including areas in which Commonwealth departments are located. Person C is aware that the damage to the equipment is likely to prevent the Department of Defence and Australian intelligence agencies from operating.

167. To establish the offence, the prosecution will need to prove, beyond a reasonable doubt, that:

•

a person intentionally engages in conduct

•

the person's conduct results in damage to public infrastructure and the person is reckless as to this element

•

the person is reckless as to whether their conduct will prejudice Australia's national security or advantage the national security of a foreign country

•

the conduct was engaged in:

o

on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal and the person was reckless as to this, or

o

the conduct was directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal and the person was reckless as to this.

168. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 82.4(1)(a). Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

169. Recklessness is the fault element for paragraphs 82.4(1)(b), (c) and (d). Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

•

a circumstance if he or she is aware of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

170. For paragraph 82.4(1)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intended to engage in the relevant conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to 'engages in conduct' in paragraph 82.4(1)(a) means to do an act or to omit to perform an act.

171. For paragraph 82.4(1)(b) of the offence, the prosecution will have to prove, beyond a reasonable doubt, that the person's conduct resulted in damage to public infrastructure and that the person was reckless as to this element. Therefore, the defendant must have been aware of a substantial risk that their act or omission would result in damage to public infrastructure and that, having regard to the circumstances known to him or her that it is unjustifiable to take that risk.

172. Paragraph 82.4(1)(b) refers to conduct that results in damage to public infrastructure, which section 82.1 defines to mean any of the following in relation to public infrastructure:

•

the conduct destroys it or results in its destruction

•

the conduct involves interfering with it, or abandoning it, resulting in it being lost or rendered unserviceable

•

the conduct results in it suffering a loss of function or becoming unsafe or unfit for its purpose

•

the conduct limits or prevents access to it or any part of it by persons who are ordinarily entitled to access it or that part of it

•

the conduct results in it or any part of it becoming defective or being contaminated

•

the conduct significantly degrades its quality, or

•

if it is an electronic system-the conduct seriously disrupts it.

173. Section 82.2 defines public infrastructure to mean any of the following:

•

any infrastructure, facility, premises, network or electronic system that belongs to the Commonwealth

•

defence premises within the meaning of Part VIA of the Defence Act

•

service property and service land, within the meaning of the Defence Force Discipline Act

•

any part of the infrastructure of a telecommunications network within the meaning of the Telecommunications Act, and

•

any infrastructure, facility, premises, network or electronic system (including an information, telecommunications or financial system) that:

o

provides or relates to providing the public with utilities or services (including transport of people or goods) of any kind

o

is located in Australia, and

o

belongs to or is operated by a constitutional corporation or used to facilitate constitutional trade and commerce.

174. To the extent that the prosecution is relying on paragraph 82.2(1)(a) of the definition of public infrastructure, absolute liability will apply to the element that the infrastructure, facility or premises, network or electronic system belongs to the Commonwealth. To the extent that the prosecution is relying on paragraph 82.2(1)(e) of the definition of public infrastructure, absolute liability will apply to the element that the infrastructure, facility or premises, network or electronic system belongs to, or is operated by, a constitutional corporation or is used to facilitate constitutional trade or commerce.

175. It is appropriate to apply absolute liability to these matters because these are jurisdictional elements. A jurisdictional element of the offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences.

176. Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying absolute liability to an element of an offence is that no fault element needs to be proved and the defence of mistake of fact is unavailable. Accordingly, the prosecution will be required to prove only the fact that the relevant infrastructure:

•

belongs to the Commonwealth

•

belongs to a constitutional corporation

•

is operated by a constitutional corporation, or

•

is used to facilitate constitutional trade or commerce.

177. For paragraph 82.4(1)(c) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant was aware of a substantial risk that their act or omission would prejudice to Australia's national security or advantage the national security of a foreign country and that, having regard to the circumstances known to him or her that it is unjustifiable to take that risk.

178. National security is defined in section 90.4 and covers a broad range of possible prejudice to Australia's national security, such as damage to Australia's defence operations or harm to Australia's international relations.

179. The term 'prejudice' is intended to capture a broad range of intended conduct, including an intention to harm or injure Australia's national security or to cause disadvantage to Australia. The term is also intended to cover impairment or loss to Australia's national security interests. The prejudice to Australia's national security is not required to be serious or substantial but is intended to be more than a minor or trivial prejudice that has no long-lasting effect, nor embarrassment to an Australian person or Australia's people. The term is defined in section 82.1 to clarify that embarrassment alone is not sufficient to prejudice Australia's national security. Where the person intended that, or was reckless as to whether, his or her conduct would cause embarrassment alone, and that embarrassment eventuates, it will be immaterial whether that embarrassment in turn results in some harm or damage to Australia's national security (for example, a loss of confidence in, or a reduced willingness to share information with, the Australian Government by a foreign partner).

180. The term 'advantage' is intended to capture an intention to put another country's national security in a favourable or superior position compared to Australia's position or to benefit or profit another's country's national security compared to Australia's national security. Section 82.1 defines advantage to clarify that conduct will not advantage the national security of a foreign country if the conduct will advantage Australia's national security to an equivalent extent.

181. Whether or not the prejudice to Australia's national security or advantage to a foreign country's national security occurs or the conduct is capable of bringing it about is not relevant to the defendant's culpability for the offence. For example, the departments and agencies that Person C intended to prevent from operating may have had power available from generators and their power supply may not have been interrupted and therefore Person C's conduct was not capable of prejudicing Australia's national security.

182. For subparagraph 82.4(1)(c)(ii), the person must be reckless as to whether his or her conduct will advantage the national security of a 'foreign country', not a 'foreign principal'. This is because the interests of nation states in relation to 'national security' are unique and often relate to the protection to the territory of the country.

183. Foreign country is intended to cover countries other than Australia and is defined in the Dictionary to the Criminal Code as including:

•

a colony or overseas territory

•

a territory outside Australia, where a foreign country is to any extent responsible for the international relations of the territory, and

•

a territory outside Australia that is, to some extent self-governing, but that is not recognised as an independent sovereign state by Australia.

184. Consistent with subsection 82.4(2), for the purposes of subparagraph 82.4(1)(c)(ii), the person does not need to have in mind a particular foreign country and may have in mind more than one foreign country. For example, a person's conduct may be directed by a foreign political organisation (which falls within the definition of foreign principal in section 90.2) and may be aware of a substantial risk that their conduct will advantage the national security of a foreign country but will not know, or necessarily care, which foreign country that is. Similarly, a person may intend to advantage the national security of more than one foreign country by damaging Australian public infrastructure.

185. For paragraph 82.4(1)(d) the prosecution will have to prove beyond a reasonable doubt that the defendant's conduct was engaged in on behalf of, or in collaboration with, a foreign principal (as defined in section 90.2), on behalf of, or in collaboration with, a person acting on behalf of a foreign principal, directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal. The prosecution will also have to prove that the person was reckless as to this element. Therefore, the person must be aware of a substantial risk that their act or omission was engaged in on behalf of, or in collaboration with, a foreign principal, on behalf of, or in collaboration with, a person acting on behalf of a foreign principal, directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal, or and that, having regard to the circumstances known to him or her that it is unjustifiable to take that risk.

186. It is possible that a defendant will know, or be reckless, as to the fact that they are engaging in conduct for a foreign principal because they are being tasked by a person who identifies himself or herself as an official of a foreign government. In this case, the person will be engaging in the conduct on behalf of the foreign principal.

187. However, it may also be the case that the defendant is not tasked directly by a foreign government official, but by an intermediary. In this case, the prosecution will have to prove beyond a reasonable doubt that the defendant was aware of a substantial risk that he or she was being tasked by a person acting on behalf of a foreign principal and that it was unjustifiable to take that risk. This may be the case where, for example, the intermediary advises the defendant that the intermediary acts in coordination with foreign officials, or the intermediary facilitates preferential treatment for the defendant from a foreign government.

188. Consistent with subsection 82.4(3), for the purposes of paragraph 82.4(1)(d), the person will not need to have in mind a particular foreign principal and may have in mind more than one foreign principal. For example, a defendant may assist an individual who has identified themselves to the defendant as a foreign official, but has not specified which foreign country they represent. Or, a defendant may provide assistance in the knowledge this assistance will or could assist multiple foreign principals at the same time.

189. The maximum penalty for the offence in section 82.4 is 20 years imprisonment. It is unacceptable for foreign principals to seek to damage Australia's public infrastructure, reckless as to whether it will prejudice Australia's national security or advantage the national security of a foreign country. In the worst case scenario, Australians could be killed or seriously harmed as a result of damage to public infrastructure. This justifies the serious maximum penalty for the offence.

190. The Note to section 82.4 notes that an alternative verdict may be available for an offence against section 82.3. The alternative verdicts for sabotage offences are set out at section 82.12.

Section 82.5 - Offence of sabotage with intention as to national security

191. Section 82.5 will make it an offence to engage in conduct that results in damage to public infrastructure, with an intention to prejudice Australia's national security or advantage the national security of a foreign country.

192. The offence will be punishable by a maximum penalty of 20 years imprisonment.

193. An example of this offence is as follows. Person E is an employee of a Defence contractor. Person E is entitled to access highly sensitive Defence systems and uses that access to take the system offline at a critical point in a Defence operation. Person E is aware of the ongoing operation and knows that the system is essential to the success of the operation.

194. To establish the offence, the prosecution will need to prove, beyond a reasonable doubt, that:

•

the person intentionally engages in conduct

•

the conduct results in damage to public infrastructure and the person is reckless as to this element, and

•

the person intends that his or her conduct will prejudice Australia's national security or advantage the national security of a foreign country.

195. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 82.5(1)(a). Intention is also the fault element for paragraph 82.5(1)(c). Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

196. Recklessness is the fault element for paragraph 82.5(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 of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

197. For paragraph 82.5(1)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intended to engage in the relevant conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to 'engages in conduct' in paragraph 82.4(1)(a) means to do an act or to omit to perform an act.

198. For paragraph 82.5(1)(b) of the offence, the prosecution will have to prove, beyond a reasonable doubt, that the person's conduct resulted in damage to public infrastructure and that the person was reckless as to this element. Therefore, the defendant must have been aware of a substantial risk that their act or omission would result in damage to public infrastructure and that, having regard to the circumstances known to him or her that it is unjustifiable to take that risk.

199. Paragraph 82.5(1)(b) refers to conduct that results in damage to public infrastructure, which section 82.1 defines to mean any of the following in relation to public infrastructure:

•

the conduct destroys it or results in its destruction

•

the conduct involves interfering with it, or abandoning it, resulting in it being lost or rendered unserviceable

•

the conduct results in it suffering a loss of function or becoming unsafe or unfit for its purpose

•

the conduct limits or prevents access to it or any part of it by persons who are ordinarily entitled to access it or that part of it

•

the conduct results in it or any part of it becoming defective or being contaminated

•

the conduct significantly degrades its quality, or

•

if it is an electronic system-the conduct seriously disrupts it.

200. Section 82.2 defines public infrastructure to mean any of the following:

•

any infrastructure, facility, premises, network or electronic system that belongs to the Commonwealth

•

defence premises within the meaning of Part VIA of the Defence Act

•

service property and service land, within the meaning of the Defence Force Discipline Act

•

any part of the infrastructure of a telecommunications network within the meaning of the Telecommunications Act, and

•

any infrastructure, facility, premises, network or electronic system (including an information, telecommunications or financial system) that:

o

provides or relates to providing the public with utilities or services (including transport of people or goods) of any kind

o

is located in Australia, and

o

belongs to or is operated by a constitutional corporation or used to facilitate constitutional trade and commerce.

201. To the extent that the prosecution is relying on paragraph 82.2(1)(a) of the definition of public infrastructure, absolute liability will apply to the element that the infrastructure, facility or premises, network or electronic system belongs to the Commonwealth. To the extent that the prosecution is relying on paragraph 82.2(1)(e) of the definition of public infrastructure, absolute liability will apply to the element that the infrastructure, facility or premises, network or electronic system belongs to, or is operated by, a constitutional corporation or is used to facilitate constitutional trade or commerce.

202. It is appropriate to apply absolute liability to these matters because these are jurisdictional elements. A jurisdictional element of the offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences.

203. Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying absolute liability to an element of an offence is that no fault element needs to be proved and the defence of mistake of fact is unavailable. Accordingly, the prosecution will be required to prove only the physical element that the relevant infrastructure:

•

belongs to the Commonwealth

•

belongs to a constitutional corporation

•

is operated by a constitutional corporation, or

•

is used to facilitate constitutional trade or commerce.

204. For paragraph 82.5(1)(c) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intended for their act or omission to prejudice Australia's national security or advantage the national security of a foreign country. The national security of Australia or a foreign country is defined in section 90.4 and covers a broad range of possible prejudice to Australia's national security, such as damage to Australia's defence operations or harm to Australia's international relations.

205. The term 'prejudice' is intended to capture a broad range of intended conduct, including an intention to harm or injure Australia's national security or to cause disadvantage to Australia. The term is also intended to cover impairment or loss to Australia's national security interests. The prejudice to Australia's national security is not required to be serious or substantial but is intended to be more than a minor or trivial prejudice that has no long-lasting effect, nor embarrassment to an Australian person or Australia's people. The term is defined in section 82.1 to clarify that embarrassment alone is not sufficient to prejudice Australia's national security. Where the person intended that, or was reckless as to whether, his or her conduct would cause embarrassment alone, and that embarrassment eventuates, it will be immaterial whether that embarrassment in turn results in some harm or damage to Australia's national security (for example, a loss of confidence in, or a reduced willingness to share information with, the Australian Government by a foreign partner).

206. The term 'advantage' is intended to capture an intention to put another country's national security in a favourable or superior position compared to Australia's position or to benefit or profit another's country's national security compared to Australia's national security. Section 82.1 defines advantage to clarify that conduct will not advantage the national security of a foreign country if the conduct will advantage Australia's national security to an equivalent extent.

207. Whether or not the prejudice to Australia's national security or advantage to the national security of the foreign country occurs or the conduct is capable of bringing it about is not relevant to the defendant's culpability for the offence. For example, the system that Person E took offline may not actually have been essential to the mission and therefore Person E's conduct was not capable of prejudicing Australia's national security.

208. For subparagraph 82.5(1)(c)(ii), the person must intend to advantage the national security of a 'foreign country', not a 'foreign principal'. This is because the interests of countries in relation to 'national security' are unique and often relate to the protection to the territory of the country.

209. Foreign country is intended to cover countries other than Australia and is defined in the Dictionary to the Criminal Code as including:

•

a colony or overseas territory

•

a territory outside Australia, where a foreign country is to any extent responsible for the international relations of the territory, and

•

a territory outside Australia that is, to some extent self-governing, but that is not recognised as an independent sovereign state by Australia.

210. Consistent with subsection 82.5(2), for the purposes of subparagraph 82.5(1)(c)(ii), the person does not need to have in mind a particular foreign country and may have in mind more than one foreign country. For example, a person's conduct may be directed by a foreign political organisation (which falls within the definition of foreign principal in section 90.2) and may be aware of a substantial risk that their conduct will advantage the national security of a foreign country but will not know, or necessarily care, which foreign country that is. Similarly, a person may intend to advantage the national security of more than one foreign country by damaging Australian public infrastructure.

211. The maximum penalty for the offence in section 82.5 is 20 years imprisonment. The commission of this offence would have serious consequences for the sovereignty and national security of Australia. It is unacceptable for persons to seek to damage Australia's public infrastructure intending to prejudice Australia's national security or advantage the national security of a foreign principal. In the worst case scenario, Australians could be killed or seriously harmed as a result of infrastructure damage by a person intending to harm Australia's national security. This justifies the serious maximum penalty for the offence.

212. The Note to section 82.5 notes that an alternative verdict may be available for an offence against section 82.3. The alternative verdicts are set out at section 82.12.

Section 82.6 - Offence of sabotage reckless as to national security

213. Section 82.6 will make it an offence to engage in conduct that results in damage to public infrastructure, reckless as to whether that conduct will prejudice Australia's national security or advantage the national security of a foreign country.

214. The offence will be punishable by a maximum penalty of 15 years imprisonment.

215. An example of this offence is as follows. Person F places several locks on the gates of part of a Defence facility in a foreign country which is used as a base for troops involved in an international armed conflict. It would take up to 30 minutes to cut the locks off and gain access to the weapons. Person F is aware of an imminent planned attack on the Defence facility.

216. To establish the offence, the prosecution will need to prove, beyond a reasonable doubt, that:

•

a person intentionally engages in conduct;

•

the person's conduct results in damage to public infrastructure and the person is reckless as to this element, and

•

the person is reckless as to whether the person's conduct will prejudice Australia's national security or advantage the national security of a foreign country.

217. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 82.6(1)(a). Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

218. Recklessness is the fault element of recklessness for paragraphs 82.6(1)(b) and (c). Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

•

a circumstance if he or she is aware of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

219. For paragraph 82.6(1)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intended to engage in the relevant conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to 'engages in conduct' in paragraph 82.6(1)(a) means to do an act or to omit to perform an act.

220. For paragraph 82.6(1)(b) of the offence, the prosecution will have to prove, beyond a reasonable doubt, that the defendant was aware of a substantial risk that their act or omission would result in damage to public infrastructure and that, having regard to the circumstances known to him or her that it is unjustifiable to take that risk.

221. Paragraph 82.6(1)(b) refers to conduct that results in damage to public infrastructure, which subsection 82.1 defines to mean any of the following in relation to public infrastructure:

•

the conduct destroys it or results in its destruction

•

the conduct involves interfering with it, or abandoning it, resulting in it being lost or rendered unserviceable

•

the conduct results in it suffering a loss of function or becoming unsafe or unfit for its purpose

•

the conduct limits or prevents access to it or any part of it by persons who are ordinarily entitled to access it or that part of it

•

the conduct results in it or any part of it becoming defective or being contaminated

•

the conduct significantly degrades its quality, or

•

if it is an electronic system-the conduct seriously disrupts it.

222. Section 82.2 defines public infrastructure to mean any of the following:

•

any infrastructure, facility, premises, network or electronic system that belongs to the Commonwealth

•

defence premises within the meaning of Part VIA of the Defence Act

•

service property and service land, within the meaning of the Defence Force Discipline Act

•

any part of the infrastructure of a telecommunications network within the meaning of the Telecommunications Act, and

•

any infrastructure, facility, premises, network or electronic system (including an information, telecommunications or financial system) that:

o

provides or relates to providing the public with utilities or services (including transport of people or goods) of any kind

o

is located in Australia, and

o

belongs to or is operated by a constitutional corporation or used to facilitate constitutional trade and commerce.

223. To the extent that the prosecution is relying on paragraph 82.2(1)(a) of the definition of public infrastructure, absolute liability will apply to the element that the infrastructure, facility or premises, network or electronic system belongs to the Commonwealth. To the extent that the prosecution is relying on paragraph 82.2(1)(e) of the definition of public infrastructure, absolute liability will apply to the element that the infrastructure, facility or premises, network or electronic system belongs to, or is operated by, a constitutional corporation or is used to facilitate constitutional trade or commerce.

224. It is appropriate to apply absolute liability to these matters because these are jurisdictional elements. A jurisdictional element of the offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences.

225. Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying absolute liability to an element of an offence is that no fault element needs to be proved and the defence of mistake of fact is unavailable. Accordingly, the prosecution will be required to prove only the fact that the relevant infrastructure:

•

belongs to the Commonwealth

•

belongs to a constitutional corporation

•

is operated by a constitutional corporation, or

•

is used to facilitate constitutional trade or commerce.

226. For paragraph 82.6(1)(c) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant was aware of a substantial risk that their act or omission would prejudice Australia's national security or advantage the national security of a foreign country and that, having regard to the circumstances known to him or her that it is unjustifiable to take that risk. The national security of Australia or a foreign country is defined in section 90.4 and covers a broad range of possible prejudice to Australia's national security, such as damage to Australia's defence operations or harm to Australia's international relations.

227. The term 'prejudice' is intended to capture a broad range of intended conduct, including an intention to harm or injure Australia's national security or to cause disadvantage to Australia. The term is also intended to cover impairment or loss to Australia's national security interests. The prejudice to Australia's national security is not required to be serious or substantial but is intended to be more than a minor or trivial prejudice that has no long-lasting effect. The term is defined in section 82.1 to clarify that embarrassment alone is not sufficient to prejudice Australia's national security. Where the person intended that, or was reckless as to whether, his or her conduct would cause embarrassment alone, and that embarrassment eventuates, it will be immaterial whether that embarrassment in turn results in some harm or damage to Australia's national security (for example, a loss of confidence in, or a reduced willingness to share information with, the Australian Government by a foreign partner).

228. The term 'advantage' is intended to capture an intention to put another country's national security in a favourable or superior position compared to Australia's position or to benefit or profit another's country's national security compared to Australia's national security. Section 82.1 defines advantage to clarify that conduct will not advantage the national security of a foreign country if the conduct will advantage Australia's national security to an equivalent extent.

229. Whether or not prejudice to Australia's national security or advantage to the national security of a foreign country occurs or the conduct is capable of bringing it about is not relevant to the defendant's culpability for the offence. For example, the weapons which Person F has prevented Defence personnel from accessing may not be critical to protecting the facility from an attack and therefore Person F's conduct may not have been capable of prejudicing Australia's national security.

230. For subparagraph 82.6(1)(c)(ii), the person must be reckless as to whether his or her conduct will advantage the national security of a 'foreign country', not a 'foreign principal'. This is because the interests of nation states in relation to 'national security' are unique and often relate to the protection to the territory of the country.

231. Foreign country is intended to cover countries other than Australia and is defined in the Dictionary to the Criminal Code as including:

•

a colony or overseas territory

•

a territory outside Australia, where a foreign country is to any extent responsible for the international relations of the territory, and

•

a territory outside Australia that is, to some extent self-governing, but that is not recognised as an independent sovereign state by Australia.

232. Consistent with subsection 82.6(2), for the purposes of subparagraph 82.6(1)(c), the person does not need to have in mind a particular foreign country and may have in mind more than one foreign country. For example, a person's conduct may be directed by a foreign political organisation (which falls within the definition of foreign principal in section 90.2 and may be aware of a substantial risk that their conduct will advantage the national security of a foreign country but will not know, or necessarily care, which foreign country that is. Similarly, a person may intend to advantage the national security of more than one foreign country by damaging Australian public infrastructure.

233. The maximum penalty for the offence in section 82.6 is 15 years imprisonment. The commission of this offence would have serious consequences for the sovereignty and national security of Australia. It is unacceptable for persons to seek to damage Australia's public infrastructure reckless as to whether his or her conduct would prejudice Australia's national security or advantage the national security of a foreign country. In the worst case scenario, Australians could be killed or seriously harmed as a result of infrastructure damage by a person reckless so to whether their conduct will harm Australia's national security. This justifies the serious maximum penalty for the offence.

Section 82.7 - Offence of introducing vulnerability with intention as to national security

234. Section 82.7 will make it an offence for a person to engage in conduct that results in an article, thing or software that is, or is part of, public infrastructure becoming vulnerable to misuse, impairment or unauthorised access or modification where the conduct is intended to prejudice Australia's national security.

235. The offence will be punishable by a maximum penalty of 15 years imprisonment.

236. An example of this offence is as follows. Person G is a subcontractor engaged to build a software system to be used by a Commonwealth department involved in national security. When building the system, Person G deliberately creates a backdoor through which an intrusion into the software will be possible in future. Person G intends that this will enable a person to hack into the system in future and extract data. Person G intends to sell information about this vulnerability to a foreign country in order to harm Australia's national security by enabling that country to use the vulnerability to access highly sensitive data relating to operational activity of an Australian intelligence activity.

237. To establish the offence, the prosecution will need to prove, beyond a reasonable doubt, that:

•

a person intentionally engages in conduct

•

the person's conduct has the result that an article or thing, or software becoming vulnerable to:

o

misuse or impairment, or

o

to being accessed or modified by person not entitled to access or modify it

and the person is reckless as to this element

•

the article or thing or software, is or is part of public infrastructure and the person is reckless as to this element

•

the person engages in the conduct intending that prejudice to Australia's national security will occur (whether at the time or at a future time).

238. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 82.7(a). Intention is also the fault element for paragraph 82.7(d). Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

239. Recklessness is the fault element for paragraphs 82.7(b) and (c). Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

•

a circumstance if he or she is aware of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

240. For paragraph 82.7(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intended to engage in the relevant conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to 'engages in conduct' in paragraph 82.7(a) means to do an act or to omit to perform an act.

241. For paragraph 82.7(b) of the offence, the prosecution will have to prove, beyond a reasonable doubt, that the defendant's conduct had the result that an article or thing or software becomes vulnerable to misuse or impairment or to being accessed or modified by a person not entitled to access or modify it. The person must be reckless as to this element. Therefore, the defendant must be aware of a substantial risk that their act or omission would result in an article, thing or software becoming vulnerable to misuse, impairment or access or modification by a person not entitled to access or modify it and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk.

242. For the purposes of paragraph 82.7(b):

•

Article is intended to include substances and materials.

•

Thing is intended to cover all objects.

•

Software is intended to cover programs and operating systems used by computers.

•

Vulnerable is intended to cover leaving the article, thing or software exposed to the possibility of being attacked or harmed.

•

Misuse is intended to cover using something in the wrong way or for an unauthorised purpose.

•

Impairment is intended to include weakening or damaging something or rendering it unusable.

243. For paragraph 82.7(c) of the offence, the prosecution will have to prove, beyond a reasonable doubt, that the article or thing or software is, or is part of, public infrastructure. The defendant must be reckless in relation to this element. Therefore, the defendant must have been aware of a substantial risk that the article, thing or software was part of public infrastructure and that, having regard to those circumstances, it is unjustifiable to take the risk.

244. Section 82.2 defines public infrastructure to mean any of the following:

•

any infrastructure, facility, premises, network or electronic system that belongs to the Commonwealth

•

defence premises within the meaning of Part VIA of the Defence Act

•

service property and service land, within the meaning of the Defence Force Discipline Act

•

any part of the infrastructure of a telecommunications network within the meaning of the Telecommunications Act, and

•

any infrastructure, facility, premises, network or electronic system (including an information, telecommunications or financial system) that:

o

provides or relates to providing the public with utilities or services (including transport of people or goods) of any kind

o

is located in Australia, and

o

belongs to or is operated by a constitutional corporation or used to facilitate constitutional trade and commerce.

245. To the extent that the prosecution is relying on paragraph 82.2(1)(a) of the definition of public infrastructure, absolute liability will apply to the element that the infrastructure, facility or premises, network or electronic system belongs to the Commonwealth. To the extent that the prosecution is relying on paragraph 82.2(1)(e) of the definition of public infrastructure, absolute liability will apply to the element that the infrastructure, facility or premises, network or electronic system belongs to, or is operated by, a constitutional corporation or is used to facilitate constitutional trade or commerce.

246. It is appropriate to apply absolute liability to these matters because these are jurisdictional elements. A jurisdictional element of the offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences.

247. Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying absolute liability to an element of an offence is that no fault element needs to be proved and the defence of mistake of fact is unavailable. Accordingly, the prosecution will be required to prove only the physical element that the relevant infrastructure:

•

belongs to the Commonwealth

•

belongs to a constitutional corporation

•

is operated by a constitutional corporation, or

•

is used to facilitate constitutional trade or commerce.

248. For paragraph 82.7(d) of the offence, the prosecution will have to prove, beyond a reasonable doubt, that the defendant undertook their act or omission with the intention that prejudice to Australia's national security would occur, whether at the time or at a future time.

249. Whether prejudice to Australia's national security occurs or the conduct is capable of bringing it about is not relevant to the defendant's culpability for the offence. For example, Person G's backdoor in the relevant software may actually not allow for data to be extracted in the future.

250. The term 'prejudice' is intended to capture a broad range of intended conduct, including an intention to harm or injure Australia's national security or to cause disadvantage to Australia. The term is also intended to cover impairment or loss to Australia's national security interests. The prejudice to Australia's national security is not required to be serious or substantial but is intended to be more than a minor or trivial prejudice that has no long-lasting effect, nor embarrassment to an Australian person or Australia's people. The term is defined in section 82.1 to clarify that embarrassment alone is not sufficient to prejudice Australia's national security. Where the person intended that, or was reckless as to whether, his or her conduct would cause embarrassment alone, and that embarrassment eventuates, it will be immaterial whether that embarrassment in turn results in some harm or damage to Australia's national security (for example, a loss of confidence in, or a reduced willingness to share information with, the Australian Government by a foreign partner).

251. The national security of Australia is defined in section 90.4 and covers a broad range of possible prejudice to Australia's national security, such as damage to Australia's defence operations or harm to Australia's international relations.

252. The offence will be punishable by a maximum penalty of 15 years imprisonment. The commission of this offence would have serious consequences for Australia's national security. It is unacceptable for persons to enable the misuse, impairment or unauthorised access or modification of an article, thing or software that is or is part of public infrastructure. In the worst case scenario, Australians could be killed or seriously harmed as a result of the modification or impairment of public infrastructure by a person intending to harm Australia's national security. This justifies the serious maximum penalty for the offence.

Section 82.8 - Offence of introducing vulnerability reckless as to national security

253. Section 82.8 will make it an offence for a person to engage in conduct that results in an article, thing or software that is or is part of public infrastructure becoming vulnerable to misuse, impairment or unauthorised access or modification where the person is reckless as to whether it will prejudice Australia's national security.

254. The offence will be punishable by a maximum penalty of 10 years imprisonment.

255. To establish the offence, the prosecution will need to prove, beyond a reasonable doubt, that:

•

a person intentionally engages in conduct

•

the person's conduct has the result that an article or thing, or software becoming vulnerable to:

o

misuse or impairment, or

o

to being accessed or modified by person not entitled to access or modify it

and the person is reckless as to this element

•

the article or thing or software, is or is part of public infrastructure and the person is reckless as to this element

•

the person engages in the conduct reckless as to whether prejudice to Australia's national security will occur (whether at the time or at a future time).

256. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 82.8(a). Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

257. Recklessness will be the fault element in relation to paragraphs 82.8(b), (c) and (d). Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

•

a circumstance if he or she is aware of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

258. For paragraph 82.8(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intended to engage in the relevant conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to 'engages in conduct' in paragraph 82.8(a) means to do an act or to omit to perform an act.

259. For paragraph 82.8(b) of the offence, the prosecution will have to prove, beyond a reasonable doubt, that the defendant's conduct had the result that an article, thing or software becomes vulnerable to misuse or impairment or to being accessed or modified by a person not entitled to access or modify it. Recklessness is the fault element for this element. Therefore, the defendant must have been aware of a substantial risk that their act or omission would result in an article, thing or software becoming vulnerable to misuse, impairment or access or modification by a person not entitled to access or modify it and, having regard to the circumstances known to him or her that it is unjustifiable to take that risk.

260. For the purposes of paragraph 82.8(b):

•

Article is intended to include substances and materials.

•

Thing is intended to cover all objects.

•

Software is intended to cover programs and operating systems used by computers.

•

Vulnerable is intended to cover leaving the article, thing or software exposed to the possibility of being attacked or harmed.

•

Misuse is intended to cover using something in the wrong way or for an unauthorised purpose.

•

Impairment is intended to include weakening or damaging something or rendering it unusable.

261. For paragraph 82.8(c) of the offence, the prosecution will have to prove, beyond a reasonable doubt, that the article or thing or software is or is part of public infrastructure and that, having regard to those circumstances, it is unjustifiable to take the risk. Recklessness is the fault element for this element. Therefore, the defendant must have been aware of a substantial risk that the article, thing or software was part of public infrastructure and that, having regard to those circumstances, it is unjustifiable to take the risk.

262. Section 82.2 defines public infrastructure to mean any of the following:

•

any infrastructure, facility, premises, network or electronic system that belongs to the Commonwealth

•

defence premises within the meaning of Part VIA of the Defence Act

•

service property and service land, within the meaning of the Defence Force Discipline Act

•

any part of the infrastructure of a telecommunications network within the meaning of the Telecommunications Act, and

•

any infrastructure, facility, premises, network or electronic system (including an information, telecommunications or financial system) that:

o

provides or relates to providing the public with utilities or services (including transport of people or goods) of any kind

o

is located in Australia, and

o

belongs to or is operated by a constitutional corporation or used to facilitate constitutional trade and commerce.

263. To the extent that the prosecution is relying on paragraph 82.2(1)(a) of the definition of public infrastructure, absolute liability will apply to the element that the infrastructure, facility or premises, network or electronic system belongs to the Commonwealth. To the extent that the prosecution is relying on paragraph 82.2(1)(e) of the definition of public infrastructure, absolute liability will apply to the element that the infrastructure, facility or premises, network or electronic system belongs to, or is operated by, a constitutional corporation or is used to facilitate constitutional trade or commerce.

264. It is appropriate to apply absolute liability to these matters because these are jurisdictional elements. A jurisdictional element of the offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences.

265. Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying absolute liability to an element of an offence is that no fault element needs to be proved and the defence of mistake of fact is unavailable. Accordingly, the prosecution will be required to prove only the fact that the relevant infrastructure:

•

belongs to the Commonwealth

•

belongs to a constitutional corporation

•

is operated by a constitutional corporation, or

•

is used to facilitate constitutional trade or commerce.

266. For paragraph 82.8(d) of the offence, the prosecution will have to prove, beyond a reasonable doubt, that the defendant undertook their act or omission with the intention that prejudice to Australia's national security would occur, whether at the time or at a future time.

267. Whether or not the one of these matters occurs or the conduct is capable of bringing it about is not relevant to the defendant's culpability for the offence.

268. The term 'prejudice' is intended to capture a broad range of intended conduct, including an intention to harm or injure Australia's national security or to cause disadvantage to Australia. The term is also intended to cover impairment or loss to Australia's national security interests. The prejudice to Australia's national security is not required to be serious or substantial but is intended to be more than a minor or trivial prejudice that has no long-lasting effect. The term is defined in section 82.1 to clarify that embarrassment alone is not sufficient to prejudice Australia's national security. Where the person intended that, or was reckless as to whether, his or her conduct would cause embarrassment alone, and that embarrassment eventuates, it will be immaterial whether that embarrassment in turn results in some harm or damage to Australia's national security (for example, a loss of confidence in, or a reduced willingness to share information with, the Australian Government by a foreign partner).

269. The national security of Australia is defined in section 90.4 and covers a broad range of possible prejudice to Australia's national security, such as damage to Australia's defence operations or harm to Australia's international relations.

270. The offence will be punishable by a maximum penalty of 10 years' imprisonment. The commission of this offence would have serious consequences for Australia's national security. It is unacceptable for persons to enable the misuse, impairment or unauthorised access or modification of an article, thing or software that is or is part of public infrastructure. In the worst case scenario, Australians could be killed or seriously harmed as a result of the modification or impairment of public infrastructure by a person who is reckless as to the harm to national security that may result. This justifies the serious maximum penalty for the offence.

Section 82.9 - Offence of preparing for, or planning, a sabotage offence

271. Section 82.9 will establish a new offence of preparing for a sabotage offence. The new offence will criminalise conduct in preparation for, or planning, an offence against Division 82 (sabotage).

272. The offence will be punishable by a maximum penalty of seven years imprisonment.

273. An example of this offence is as follows. Person H intends to damage public infrastructure in another city. Person H has arranged travel to the city, has purchased the equipment needed to cause damage and has communicated with other people about his/her intention to damage the facility, including their intention to cause the damage in order to prejudice Australia's national security.

274. The purpose of the offence is to give law enforcement authorities the means to deal with preparatory conduct and enable a person to be arrested before Australia's national security is prejudiced.

275. To establish the offence, the prosecution will need to prove, beyond a reasonable doubt, that:

•

a person intentionally engages in conduct, and

•

the person does so with the intention of preparing for, or planning, an offence against Division 82 (sabotage).

276. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 82.9(1)(a). Under section 5.2 of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

277. For paragraph 82.9(1)(a), the prosecution will have to prove beyond a reasonable doubt that the defendant intentionally engaged in the relevant conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to 'engages in conduct' in paragraph 82.9(1)(a) means to do an act or to omit to perform an act.

278. For paragraph 82.9(1)(b), the prosecution will have to prove beyond a reasonable doubt that the person engages in conduct with the intention of preparing for, or planning, an offence against Division 82 (sabotage). The terms preparing and planning are not defined and are intended to take their ordinary meanings.

•

The term 'preparing' could include acts to conceive, formulate, make ready, arrange, and assemble an idea, plan, thing, or person for an offence against Division 82 (sabotage).

•

The term 'planning' could include acts to organise, arrange, design, draft, or setup an idea, plan, thing, or person for an offence against Division 82 (sabotage).

279. Given the offences are directed at behaviour at the planning or preparation stage, it is appropriate to impose the fault element of intention on both of the elements of the offence. This will ensure that a person will only be guilty of this offence where there is sufficient evidence that the person intended to prepare for, or plan, a sabotage offence.

280. The maximum penalty for this offence is seven years imprisonment. While persons who attempt to commit offences are generally subject to the same penalty as if the actual offence had been carried out, the offence at subsection 82.9(1) is intended to capture behaviour at the planning stage, rather than the more advanced stage at which an ancillary offence of attempt could otherwise apply.

281. Subsection 82.9(2) specifies that section 11.1 (attempt) does not apply to an offence against subsection 82.9(1). Section 11.1 of the Criminal Code extends criminal responsibility for all Commonwealth offences and operates to automatically provide for ancillary offences such as attempting to commit an offence or inciting the commission of an offence. Subsection 82.9(2) modifies the automatic application of section 11.1 in relation to the ancillary offence of attempt. This is appropriate because the offence is already directed at conduct that is preparatory in nature.

282. Under paragraph 82.9(3)(a), the preparatory offence at subsection 82.9(1) will apply whether or not an offence against Division 82 is actually committed. This is consistent with the intention behind the offence to allow intervention by law enforcement prior to an act of sabotage occurring.

283. Under paragraph 82.9(3)(b), the preparatory offence at subsection 82.9(1) will apply whether or not the person engages in conduct in preparation for, or planning, a specific offence against a provision of Division 82. This clarifies that it is not necessary for the prosecution to identify a specific offence. It will be sufficient for the prosecution to prove that the particular conduct was related to 'an' offence. This ensures that the offence will be available where a person has planned a range of activities preparatory to committing a sabotage offence that are still in the formative stages. For example, where a person has not necessarily decided on a particular target, time or date or other specific details that would constitute one of the specified offences against Division 82.

284. Under paragraph 82.9(3)(c), the preparatory offence at subsection 82.9(1) will apply whether or not the act is done in preparation for, or planning, more than one offence against a provision of Division 82. This clarifies that the offence will still apply where a person has engaged in preparatory conduct in relation to several sabotage offences.

Section 82.10 - Defence

285. The general defences available under Part 2.3 of the Criminal Code will be available to a person accused of an offence under Division 82. In addition, section 82.10 creates a specific defence.

286. The defence at subsection 82.10(1) provides for a defence to prosecution for an offence against Division 82 if:

•

the person is, at the time of the offence, a public official (as defined in the Dictionary to the Criminal Code)

•

the person engaged in the conduct in good faith in the course of performing duties as a public official, and

•

the conduct is reasonable in the circumstances for the purpose of performing those duties.

287. Public official is defined in the Dictionary to the Criminal Code to include:

•

a Commonwealth public official

•

an officer or employee of the Commonwealth or of a State or Territory

•

an individual who performs work for the Commonwealth, or for a State or Territory, under a contract

•

an individual who holds or performs the duties of an office established by a law of the Commonwealth or of a State or Territory

•

an individual who is otherwise in the service of the Commonwealth or of a State or Territory (including service as a member of a military force or police force)

•

a member of the executive, judiciary or magistracy of the Commonwealth or of a State or Territory, and

•

an officer or employee of:

o

an authority of the Commonwealth, or

o

an authority of a State or Territory.

288. Commonwealth public official is defined in the Dictionary to the Criminal Code to mean:

•

the Governor-General

•

a person appointed to administer the Government of the Commonwealth under section 4 of the Constitution

•

a Parliamentary Secretary

•

a member of either House of the Parliament

•

an individual who holds an appointment under section 67 of the Constitution

•

the Administrator, an Acting Administrator, or a Deputy Administrator, of the Northern Territory

•

a Commonwealth judicial officer (as defined in the Dictionary to the Criminal Code)

•

an APS employee

•

an individual employed by the Commonwealth other than under the Public Service Act 1999

•

a member of the Australian Defence Force

•

a member or special member of the AFP

•

an individual (other than an official of a registered industrial organisation) who holds or performs the duties of an office established by or under a law of the Commonwealth, other than:

o

the Corporations (Aboriginal and Torres Strait Islander) Act 2006

o

the Australian Capital Territory (Self-Government) Act 1988

o

the Corporations Act 2001

o

the Norfolk Island Act 1979, or

o

the Northern Territory (Self-Government) Act 1978

•

an officer or employee of a Commonwealth authority

•

an individual who is a contracted service provider for a Commonwealth contract

•

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

•

an individual (other than an official of a registered industrial organisation) who exercises powers, or performs functions, conferred on the person by or under a law of the Commonwealth, other than:

o

the Corporations (Aboriginal and Torres Strait Islander) Act 2006

o

the Australian Capital Territory (Self-Government) Act 1988

o

the Corporations Act 2001

o

the Norfolk Island Act 1979

o

the Northern Territory (Self-Government) Act 1978, or

o

a provision specified in the regulations

•

an individual who exercises powers, or performs functions, conferred on the person under a law in force in the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands (whether the law is a law of the Commonwealth or a law of the Territory concerned), or

•

the Registrar, or a Deputy Registrar, of Aboriginal and Torres Strait Islander Corporations.

289. An example of where this defence would apply would be where a Commonwealth department engages a contractor to conduct a penetration test of the department's electronic systems for vulnerabilities.

290. The defence at subsection 82.10(2) provides for a defence to prosecution for an offence against Division 82 if:

•

the person is, at the time of the offence:

o

an owner or operator of the public infrastructure, or

o

acting on behalf of, or with the consent of, an owner or operator of the public infrastructure

•

the person engaged in the conduct in good faith

•

the conduct is within the lawful authority of the owner or operator, and

•

the conduct is reasonable in the circumstances for the purpose of performing those duties

291. For example, the operator of an essential telecommunications network that is relied upon by intelligence agencies may shut down the network and this might prejudice national security because it interferes with the activities of the intelligence agency. Unless it was reasonable in the circumstances to shut down the network, for example in order to conduct essential maintenance, it should not be covered by the defence.

292. The Notes under the defences at subsections 82.10(1) and (2) clarify that the defendant will bear an evidentiary burden in relation to these defences. The Guide to Framing Commonwealth Offences provides (at paragraph 4.3.1) that it is appropriate for a matter to be included in an offence-specific defence where it is peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. The defence at section 82.10 satisfies both of these criteria.

293. The source of the alleged authority for the defendant's actions is peculiarly within the defendant's knowledge. The defendant should be readily able to point to evidence that the conduct engaged in was in their capacity as a public official or private owner or operator of public infrastructure (or acting on behalf of an owner or operator), within their lawful authority and in good faith. It would be difficult and more costly for the prosecution to prove, beyond a reasonable doubt, that the person was not acting in their relevant proper capacity. To do this, it would be necessary to negate the fact that there was authority for the person's actions in any aspect of the person's duty or in any of the instructions given by the person's supervisors (at any level). Conversely, if a Commonwealth officer, for example, had a particular reason for thinking that they were acting within their capacity as a public official it would not be difficult for them to describe where they thought that authority arose. In addition, this is expected to be a rare situation and is unlikely to be a feature of every case that is investigated and referred for prosecution. It would be unnecessary and significantly costly if the prosecution was required to disprove this for every prosecution of a sabotage offence. It is appropriate to include it as a defence and allow the defendant to raise the matter if the facts and circumstances are appropriate.

294. Consistent with section 13.3 of the Criminal Code, the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. If the defendant discharges an evidential burden, the prosecution must disprove those matters beyond reasonable doubt, consistent with section 13.1 of the Criminal Code.

295. Both AFP and CDPP consider the availability of any defences when considering whether to investigate and prosecute criminal offences. In relation to prosecution decisions, the Prosecution Policy of the Commonwealth specifically requires the CDPP to take into account any lines of defence which are plainly open to, or have been indicated by, the alleged offender in deciding whether there is a reasonable prospect of a conviction being secured. Subsection 82.13(4) requires the Attorney-General consider whether the defendant's conduct is authorised under the defences in section 82.10 before providing his or her consent to the institution of proceedings for the commitment of a person for trial for an offence to which the defence applies.

Section 82.11 - Geographical jurisdiction

296. Section 82.11 applies Section 15.4 (extended geographical jurisdiction-Category D) to each offence against Division 82 (Sabotage). Under section 15.4, the effect of Category D geographical jurisdiction is that the offence applies:

•

whether or not the conduct constituting the alleged offence occurs in Australia, and

•

whether or not a result of the conduct constituting the alleged offence occurs in Australia.

297. Category D jurisdiction is appropriate because acts of sabotage may be undertaken from outside of Australia, particularly in relation to accessing software or electronic systems.

298. The application of Category D jurisdiction is consistent with other offences dealing with Commonwealth property, such as Part 7.2 of the Criminal Code.

299. Category D is also necessary to protect Defence facilities located outside Australia from sabotage.

Section 82.12 - Alternative verdicts

300. Subsection 82.12(1) provides that if the trier of fact is not satisfied that a person is guilty of an offence specific in column 1 (see table below) and is satisfied, beyond reasonable doubt, that the person is guilty of an offence against the corresponding offence specified in column 2 then it may find the person not guilty of the column 1 offence but guilty of the column 2 offence.

301. Subsection 82.12(2) provides that subsection 82.12(1) only applies if the person has been accorded procedural fairness in relation to the finding of guilt for the relevant offence specified in column 2.

302. For example, if the defendant is on trial for an offence against new subsection 82.3 (offence of sabotage involving foreign principal with intention as to national security) and the jury is not satisfied that the defendant is guilty of an offence against that section, but is satisfied that he or she is guilty of an offence against new subsection 82.4 (offence of sabotage involving foreign principal reckless as to national security), it will be able to find the defendant guilty of the offence against section 82.4 instead.

Section 82.13 - Consent of Attorney-General required for prosecutions

303. Section 82.13 requires the written consent of the Attorney-General to commence proceedings against a person for offences in Division 82 of the Criminal Code, and is intended to ensure that there is appropriate oversight of prosecutions. This is appropriate given the seriousness of offences in Division 82 and the potential for national security or international considerations to arise.

304. The Attorney-General's consent is commonly required to commence proceedings that could affect Australia's international relations or national security. These are considerations that the Commonwealth Director of Public Prosecutions (CDPP) is not able to take into account under the Prosecution Policy of the Commonwealth.

305. Section 82.13 provides the Attorney-General opportunity to receive advice from relevant agencies and other Ministers about sensitivities that might arise if proceedings are commenced for offences under Division 82, and provides opportunity for consideration of whether the prosecution could be detrimental to Australia's foreign relations and national security. Section 82.13 is particularly appropriate given the nature of the new offence at section 82.3 of sabotage involving a foreign government principal.

306. Subsection 82.13(2) clarifies that the following steps can be taken towards preparing for proceedings, without the written consent of the Attorney-General having been given:

•

a person may be arrested for the offence and a warrant for such an arrest may be issued and executed

•

a person may be charged with the offence, and

•

a person so charged may be remanded in custody or on bail.

307. Given the seriousness of offences contained in Division 82 of the Criminal Code, it is appropriate that some measures towards commencing proceeds be permitted without the consent of the Attorney-General. The steps specified at subsection 82.13(2) are intended to ensure that law enforcement agencies can intervene to prevent a person from continuing to offend, promoting the protection of the Australian public and Australia's national interests.

308. Subsection 82.13(3) provides that nothing in subsection 82.13(2) prevents the discharge of the accused if proceedings are not continued within a reasonable time. Australian common law recognises that a prosecution may be stayed where there is undue delay, to protect Australia's justice system from abuse of processes. The right to stay a prosecution also supports the Court's role in providing procedural fairness to a defendant, and helps maintain public confidence in the administration of justice. It is therefore appropriate that subsection 82.13(3) specify that the steps towards commencing proceedings as described at subsection 82.13(2) do not prevent the discharge of the accused if proceedings are not continued within a reasonable time.

309. Subsection 82.13(4) provides that the Attorney-General must consider whether the conduct constituting an offence against Division 82 of the Criminal Code might be authorised by section 82.10, which provides a defence to offences against Division 82 where:

•

the person engaged in conduct in good faith in the course of performing duties as a public official, and the conduct was reasonable in the circumstances for the purpose of performing those duties, or

•

the person engaged in the conduct in good faith within their lawful authority as an owner or operator of public infrastructure (or acting on behalf of or with the consent of an owner or operator of public infrastructure), and the conduct was reasonable in the circumstances for the purpose of exercising that lawful authority.

310. In this example, the Attorney-General must consider whether an accused's conduct might be authorised as described in the defence at subsection 82.10 when considering whether to provide consent to prosecute a sabotage offence.

Division 83 - Other threats to security

Section 83.1A - Expressions also used in the Australian Security Intelligence Organisation Act 1979

311. Section 83.1A clarifies that nothing in Division 83 (Other threats to security) affects the interpretation of key terms in the Australian Security Intelligence Organisation Act 1979, unless that Act expressly provides otherwise.

Section 83.1 - Advocating mutiny

312. Section 83.1 will replace the existing offence of inciting mutiny at section 25 of the Crimes Act, which will be repealed by Item 43 of Schedule 1.

313. Section 83.1 creates an offence that applies where a person engages in conduct that involves advocating mutiny, reckless as to whether the result will be that a defence member takes part in a mutiny.

314. The offence will carry a maximum penalty of seven years imprisonment.

315. An example of this offence is as follows. Person A is an Australian citizen and is married to a member of the Australian Defence Force. Person A is aware that his spouse is unhappy in her role and encourages his spouse to convince other members of the Australian Defence Force to resist orders from their superiors so that a particular Defence operation against one of Australia's enemies cannot take place.

316. This offence is required in addition to the existing offence of incitement (section 11.4 of the Criminal Code) because of the broader definition of the term 'advocating' compared to the definition of incitement. The ancillary offence of incitement means to 'urge' the commission of an offence whereas the term 'advocates' is defined in subsection 83.1(1A) to mean if the person counsels, promotes, encourages, or urges mutiny. The ancillary offence of incitement also requires the person to intend that the offence incited be committed (subsection 11.4(2) of the Criminal Code) whereas section 83.1 will apply where a person is reckless as to whether the result will be that a defence member will take part in a mutiny. It is appropriate to criminalise this broader range of conduct due to the potentially serious military consequences of the commission of a mutiny offence by a defence force member.

317. To establish this offence, the prosecution will need to prove beyond a reasonable doubt that:

•

the person (the advocate) intentionally engages in conduct

•

the advocate's conduct involves advocating mutiny and the advocate is reckless as to this element

•

the advocate engages in the conduct reckless as to whether the result will be that a defence member (within the meaning of the Defence Force Discipline Act) will take part in a mutiny, and

•

at the time he or she engaged in the conduct, the advocate was:

o

was an Australian citizen, and knew that he or she was an Australian citizen

o

was a resident of Australia, and knew that he or she was an Australian citizen

o

had voluntarily put him or herself under the protection of the Commonwealth, and knew that he or she had done so, or

o

was a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

318. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 83.1(1)(a). Under section 5.2 of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

319. Recklessness is the fault element for paragraphs 83.1(1)(b) and (c). Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

•

a circumstance if he or she is aware of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

320. Knowledge is the fault element for subparagraphs 83.1(1)(d)(i) and (ii). Section 5.3 of the Criminal Code provides that a person has knowledge of a circumstance if he or she is aware that it exists or will exist in the ordinary course of events.

321. Strict liability will apply to subparagraph 83.1(1)(d)(iii) consistent with subsection 83.1(3).

322. For paragraph 83.1(1)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intentionally engaged in the relevant conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to 'engages in conduct' in paragraph 83.1(1)(a) means to do an act or to omit to perform an act.

323. For paragraph 83.1(1)(b) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant's conduct involves advocating mutiny. The fault element for this element is recklessness. Therefore, the defendant must have been aware of a substantial risk that his or her conduct constituted advocating mutiny, and having regard to the circumstances known to him or her it was unjustifiable to take that risk.

324. The Note under subsection 83.1(1) notes that the defence in section 80.3 for acts done in good faith applies to this offence.

325. The term advocates is defined at subsection 83.1(1A). Paragraph 83.1(1A)(a) will provide that a person advocates mutiny if the person counsels, promotes, encourages or urges mutiny. This definition is consistent with the existing definitions of advocates for the purpose of the advocating terrorism offence in subsection 80.2C(3) and the advocating genocide offence in subsection 80.2D(3) of the Criminal Code.

326. Paragraph 83.1(1A)(b) will clarify that a reference to advocating mutiny includes advocating mutiny even if the mutiny does not occur, advocating a single mutiny and advocating multiple acts of mutiny. This amendment is consistent with subsections 80.2C(4) and 80.2D(4) of the Criminal Code, which relate to the offences of advocating terrorism and advocating genocide, respectively.

327. The term 'mutiny' is defined at subsection 83.1(2) as a combination between persons who are, or at least two of whom are, members of the Australian Defence Force:

•

to overthrow lawful authority in the Australian Defence Force or in a force of another country that is acting in cooperation with the Australian Defence Force, or

•

to resist such lawful authority in such a manner as to substantially prejudice the operational efficiency of the Australian Defence Force, or of a part of, a force of another country that is acting in cooperation with the Australian Defence Force.

328. This definition is consistent with the definition of mutiny in section 3 of the Defence Force Discipline Act.

329. For paragraph 83.1(1)(c) the prosecution will have to prove beyond a reasonable doubt that the defendant engaged in the conduct reckless as to whether the result would be that a defence member (within the meaning of the Defence Force Discipline Act) would take part in a mutiny. Therefore, the defendant must have been aware of a substantial risk that his or her conduct would result in a defence member taking part in a mutiny and having regard to the circumstances known to him or her it was unjustifiable to take that risk.

330. Paragraph 83.1(1)(c) specifies that the term 'defence member' takes its meaning from its definition in the Defence Force Discipline Act. The term is defined in section 3 of the Defence Force Discipline Act as:

•

a member of the Permanent Navy, the Regular Army or the Permanent Air Force, or

•

a member of the Reserves who is:

o

rendering continuous full-time service, or

o

is on duty or in uniform.

331. Section 3 of the Defence Force Discipline Act defines 'Reserves' as meaning the Naval Reserve, the Army Reserve and the Air Force Reserve.

332. Any person, not just a defence member, will be able to commit the offence of advocating mutiny under section 83.1 even though they are not able to commit the primary offence of mutiny that exists at section 20 of the Defence Force Discipline Act. However, in accordance with paragraph 83.1(1)(d), the person will have to have an allegiance to Australia in order to be able to commit the offence.

333. Subsection 20(1) of the Defence Force Discipline Act creates an offence of mutiny (as defined in section 3 of that Act), punishable by a maximum penalty of 10 years imprisonment, where a defence member takes part in a mutiny. Subsection 20(2) creates an offence, punishment by imprisonment for life, where a defence member takes part in a mutiny and the mutiny's object, or one of its objects, is the refusal or avoidance of duty or service in connection with operations against the enemy or the impeding of the performance of such a duty or service.

334. The offence at section 83.1 complements these offences by ensuring that a person advocating the commission of these serious offences by a defence member is also subject to serious criminal penalties.

335. For subparagraphs 83.1(1)(d)(i) and (ii), the prosecution will have to prove beyond a reasonable that, at the time he or she engaged in the conduct, the person was, and knew that he or she was:

•

an Australian citizen (defined in section 2B of the Acts Interpretation Act and section 4 of the Australian Citizenship Act)

•

a resident of Australia (defined in the Dictionary to the Criminal Code as an individual who is a resident of Australia), or

•

voluntarily under the protection of the Commonwealth (for example through the grant of asylum).

336. Under section 5.3 of the Criminal Code, a person has knowledge of a circumstance if he or she is aware that it exists or that it will exist in the ordinary course of events.

337. For subparagraph 83.1(1)(d)(iii), the prosecution will have to prove that the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory. Strict liability is appropriate for this element because section 12.3 of the Criminal Code (which provides that where knowledge is a fault element, the element attributed to a body corporate is that they 'expressly, tacitly or impliedly authorised or permitted the commission of the offence') fits well with establishing that the body corporate 'knows' it is incorporated under a law of the Commonwealth.

338. Strict liability is set out in section 6.1 of the Criminal Code. The effect of applying strict liability to an element of an offence means that no fault element needs to be proved and the defence of mistake of fact is available.

339. The defence of mistake of fact is set out in section 9.2 of the Criminal Code. The defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

•

at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

•

had those facts existed, the conduct would not have constituted an offence.

340. This offence will only be able to be committed by a person who owes an allegiance to the Commonwealth (paragraph 83.1(1)(d)). The person must know that they owe an allegiance to the Commonwealth. This is appropriate because only persons who benefit from the protection of the Australian state should be penalised for advocating that members of the Australian Defence Force take part in a mutiny.

341. Subsection 83.1(4) applies Section 15.4 (extended geographical jurisdiction-Category D) to the offence at subsection 83.1 (advocating mutiny). Under section 15.4, the effect of Category D geographical jurisdiction is that the offence applies:

•

whether or not the conduct constituting the alleged offence occurs in Australia, and

•

whether or not a result of the conduct constituting the alleged offence occurs in Australia.

342. Category D jurisdiction is appropriate because the Australian Defence Force engages in conduct that is outside Australian territory and members of the ADF may be vulnerable to a person advocating mutiny while overseas. Consistent with section 83.1(1)(d), only persons who owe an allegiance to Australia will be able to commit the offence, regardless of where the conduct occurs.

343. Section 83.1 replaces section 25 of the Crimes Act which carries a maximum penalty of life imprisonment. Section 25 of the Crimes Act was enacted in the original Crimes Act in 1914 and the penalty of life imprisonment does not reflect contemporary standards. It is not appropriate for an offence of advocating mutiny (especially where committed by a civilian rather than a defence member) to carry the same penalty as the most serious mutiny offence applying to defence members (subsection 20(2) of the Defence Force Discipline Act).

344. The maximum penalty of seven years imprisonment is consistent with maximum penalties for the Criminal Code offences of urging violence (section 80.2) and advocating genocide (section 80.2D), which also carry maximum penalties of seven years imprisonment.

Section 83.2 - Assisting prisoners of war to escape

345. Section 83.2 will replace the existing offence of assisting prisoners of war to escape at section 26 of the Crimes Act, which will be repealed by Item 43 of Schedule 1.

346. Section 83.2 creates an offence that applies where a person assists one or more prisoners of war to escape from custody controlled by the Commonwealth or Australian Defence Force in the context of an international armed conflict. The offence will be punishable by a maximum penalty of 15 years imprisonment.

347. An example of this offence is as follows. Australia is engaged in an international armed conflict on the territory of another country. Person A is a detention officer that works in a Commonwealth controlled detention facility in that country. Person A intentionally leaves the facility unlocked overnight so that a number of prisoners of war are able to escape.

348. To establish the offence, prosecution will need to prove beyond reasonable doubt that:

•

the person intentionally engages in conduct

•

the person's conduct assists one or more prisoners of war (within the meaning of Article 4 of the Third Geneva Convention) to escape from custody and the person is reckless as to this element

•

the custody is controlled wholly or partly by the Commonwealth or the Australian Defence Force and the person is reckless as to this element, and

•

the conduct takes place in the context of, and is associated with, an international armed conflict.

349. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 83.2(1)(a). Under section 5.2 of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

350. Recklessness is the fault element for paragraphs 83.2(1)(b) and (c). Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

•

a circumstance if he or she is aware of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

351. Absolute liability will apply to paragraph 83.2(1)(d) consistent with subsection 83.2(2).

352. For paragraph 83.2(1)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intentionally engaged in the relevant conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to 'engages in conduct' in paragraph 83.2(1)(a) means to do an act or to omit to perform an act.

353. For paragraph 83.2(1)(b) of the offence, the prosecution will have to prove beyond a reasonable doubt that the conduct assists one or more prisoners of war (within the meaning of Article 4 of the Third Geneva Convention) to escape from custody. The terms escape and custody are not defined and are intended to take their ordinary meaning.

354. Article 4 of the Third Geneva Convention defines prisoners of war as 'those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of persons a Part to the conflict or Occupying Power of which they are nationals'. Prisoners of war are therefore members of the armed forces of one of the parties to a conflict who fall into the hands of the adverse party.

355. The term escape in intended to include a continuum of conduct that could include physically breaking free from a place of detention and other conduct that contributes to a person eluding, avoiding, evading, or breaking free from the custody of the Commonwealth or the Australian Defence Force.

356. The term custody is intended to describe when a person is in the care or control of the Commonwealth or the Australian Defence Force. It is not intended that the term custody be linked to a particular type or location of detention. The term is intended to include custody that could take place in permanent, temporary or itinerant locations, both within and outside of Australian territory.

357. The fault element for paragraph 83.2(1)(b) is recklessness. Therefore, the defendant must have been aware of a substantial risk that his or her conduct assists one or more prisoners of war (within the meaning of Article 4 of the Third Geneva Convention) to escape from custody, and having regard to the circumstances known to him or her it was unjustifiable to take that risk.

358. For paragraph 83.2(1)(c) of the offence, the prosecution will have to prove beyond a reasonable doubt that the custody is controlled wholly or partly by the Commonwealth or the Australian Defence Force. The fault element for this element is recklessness. Therefore, the defendant must have been aware of a substantial risk that the custody is controlled wholly or partly by the Commonwealth or the Australian Defence Force and that, having regard to the circumstances known to him or her it was unjustifiable to take that risk.

359. The term controlled could include financial, administrative or operational power, authority, governance, leadership or command.

360. For paragraph 83.2(1)(d), the prosecution will have to prove beyond a reasonable doubt that the conduct takes place in the context of, and is associated with, an international armed conflict.

361. The term international armed conflict is intended to take its meaning from International Humanitarian Law. Common Article 2 to the Geneva Conventions of 1949 states the Conventions 'shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.' Accordingly, the term international armed conflict in the context of the offence at section 83.2 means armed conflict between two nation States. It is not intended for the term international armed conflict to include conflict with or between non-state actors such as terrorist groups, or conflict within a State, such as in times of civil war or internal disturbance.

362. The terms 'in the context of', and 'associated with' are not defined and are intended to take their ordinary meaning. Both terms are intended to establish a clear connection between the conduct and the circumstance of international armed conflict.

363. Subsection 83.2(2) applies absolute liability to paragraph 83.2(1)(d). Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying absolute liability to an element of an offence is that no fault element needs to be proved and the defence of mistake of fact is unavailable. Accordingly, prosecution will not be required to prove that the person knew or was reckless as to the fact that the defendant's conduct took place in the context of, and in association with, an international armed conflict.

364. Absolute liability is appropriate and required for the element of the offence that the conduct takes place in the context of, and is associated with, an international armed conflict. This element reflects the circumstances in which Article 4 of the Third Geneva Conventions apply, which is limited to international armed conflict, and does not relate to the substance of the offence.

365. As described above, the prosecution will need to prove that the defendant was aware of a substantial risk that his or her conduct assists one or more prisoners of war to escape from custody that is controlled by the Commonwealth or the Australian Defence Force, and having regard to the circumstances known to him or her it was unjustifiable to take that risk. The issue of whether the person knows that their conduct takes place in the context of, and in association with, an international armed conflict is not relevant to their culpability. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences.

366. The application of absolute liability to paragraph 83.2(1)(d) also ensures that a person cannot avoid criminal responsibility because they were unaware of the type of conflict that gave rise to the circumstance of the Commonwealth or Australian Defence Force having custody of one or more prisoners of war. With the application of absolute liability, a defendant could, for example, admit that they knew they were assisting a prisoner of war to escape from the custody of the Commonwealth or Australian Defence Force, but thought that they had done so in the context of non-international armed conflict, rather than an international armed conflict.

367. Subsection 83.2(3) applies Section 15.4 (extended geographical jurisdiction-Category D) to section 83.2. Under section 15.4, the effect of Category D geographical jurisdiction is that the offence applies:

•

whether or not the conduct constituting the alleged offence occurs in Australia, and

•

whether or not a result of the conduct constituting the alleged offence occurs in Australia.

368. Category D jurisdiction is appropriate in order to cover offences that occur within the context of international armed conflicts that do not take place within Australian territory, for example, when Australia is taking part in military operations overseas. It is foreseeable that the Australian Defence Force would have custody of prisoners of war (within the meaning of Article 4 of the Third Geneva Convention) wholly outside of Australia. This offence needs to criminalise conduct that assists such prisoners of war to escape.

369. Section 83.2 replaces section 26 of the Crimes Act which carries a maximum penalty of life imprisonment. Section 26 of the Crimes Act was enacted in the original Crimes Act in 1914 and the existing penalty of life imprisonment does not reflect contemporary standards of seriousness. The maximum penalty of 15 years imprisonment is comparable with maximum penalties for offences relating to escaping criminal detention. For example, section 47A of the Crimes Act specifies a maximum penalty of 14 years imprisonment for the offence of rescuing a prisoner from criminal detention.

Section 83.3 - Military-style training involving foreign government principal etc.

370. Section 83.3 creates an offence that applies where a person provides, receives or participates in training that involves using arms or practising military exercises, movements or evolutions. The offence applies when that training is provided on behalf of a foreign government principal or foreign political organisation, or is directed, funded or supervised by a foreign government or foreign political organisation. Appropriate defences apply to permit training expressly authorised by the Commonwealth, as part of service with the armed forces of the government of a foreign country, where a declaration in relation to specified armed forces is made, or where the training is for the purposes of humanitarian activities. The offence is punishable by a maximum penalty of 20 years imprisonment.

371. An example of this offence is as follows. Person A participates in training in Australia which is provided by Country E. The training involves the use of weapons and military-style drills. Country E is undertaking the training at a hidden rural location and intends for the training to assist it to conduct military operations against Country F, a close neighbour of Australia. Person A is intending to participate in those future military operations against Country F.

372. To establish this offence, the prosecution will need to prove beyond a reasonable doubt that:

•

the person intentionally provides, receives, or participates in, training

•

the training involves using arms or practising military exercises, movements or evolutions and the person is reckless as to this element, and

•

the training is provided on behalf of a foreign government principal or foreign political organisation, or is directed, funded or supervised by a foreign government principal or foreign political organisation (or a person acting on behalf of a foreign government principal or foreign political organisation) and the person is reckless as to this element.

373. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 83.3(1)(a). Under section 5.2 of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

374. Recklessness is the fault element for paragraphs 83.3(1)(b) and (c). Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

•

a circumstance if he or she is aware of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

375. For paragraph 83.3(1)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intentionally provides, receives or participates in training. The terms provides, receives and participates are not defined and are intended to take their ordinary meanings.

376. The term 'provides' could include organising, facilitating, supplying, and delivering training. The term is intended to include any conduct that actually constitutes the delivery of the content of the training. However, it could also include conduct that contributes to the provision of training, such as supplying weapons or constructing the training course.

377. The terms 'receives' and 'participates' could include being given or accepting, taking part in, engaging in, joining, being involved in and partaking in training. The terms are intended to cover situations where a person only received or participates in part of the training. For example, Person A might engage in just one day of a ten day training course of the type described in subsection 83.3(1).

378. The term 'training' could include instruction, tuition, preparation, guidance, lessons, drilling and priming.

379. The prosecution will have to prove beyond a reasonable doubt that the training involves using arms or practising military exercises, movements or evolutions. The fault element for this element is recklessness. Therefore, the defendant must have been aware of a substantial risk that his or her conduct involves the use of arms or practising military exercises, movements or evolutions and, having regard to the circumstances known to him or her it is not justifiable to take that risk.

380. The terms 'using', 'arms', 'practising' and 'military exercises, movements or evolutions' are not defined and are intended to take their ordinary meanings.

381. The term 'use of' could include to take hold of, deploy, operate, wield and handle.

382. The term 'arms' is intended to include any instrument or instrumentality used to inflict bodily harm or physical damage. The term is intended to be interpreted broadly and could include items that were not originally designed for the purpose of being used as arms. Examples of arms could include:

•

items with blades including knives, machetes, axes and spears

•

items with ammunition including guns and rifles

•

items with explosive capability including land mines, bombs and grenades

•

items that disperse hazardous substances such as hazardous gas, and

•

items repurposed as arms, for example tools, sports equipment, construction materials and objects made of glass.

383. The term 'practising' could include rehearsing, working at, working on and running through. This term is intended to include conduct that involves physical activity such as practising military drills, and non-physical activity such as studying or learning about the use of arms, military exercises, movements or evolutions.

384. The term 'military exercises, movements or evolutions' is intended to include activities that involve the use of military resources in training for military purposes. This could include activities to increase capabilities in operations, combat or strategy. The term 'military' is not intended to restrict the exercises, movements or evolutions to those conducted by State armed forces. The term is intended to relate to the character of the 'exercises, movements or evolutions' in that they involve the use of arms and are organised and coordinated in their delivery. The term 'evolutions' is intended to capture military manoeuvres involving planned and regulated movements of troops or tactical exercises carried out in the field.

385. The prosecution will have to prove beyond a reasonable doubt that the training is provided on behalf of a foreign government principal, or is directed, funded or supervised by a foreign government principal. The fault element for this element is recklessness. Therefore, the defendant must have been aware of a substantial risk that the circumstances described at paragraph 83.3(1)(c) exist, and having regard to the circumstance known to him or her it was unjustifiable to take that risk.

386. The terms 'on behalf of', and 'directed', 'funded' and 'supervised' are not defined and are intended to take their ordinary meanings.

387. Subparagraph 83.3(1)(c)(i) provides that 'foreign government principal' has the meaning given to it by Part 5.2 of the Criminal Code, and is defined at section 90.3.

388. Section 90.3 provides that each of the following is a foreign government principal:

•

the government of a foreign country or a part of a foreign country

•

an authority of the government of a foreign country

•

an authority of the government of part of a foreign country

•

a foreign local government body or foreign regional government body

•

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

•

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, or

•

an entity or organisation directed or controlled:

o

by a foreign government principal within the meaning of any other paragraph of this definition, or

o

by two or more such foreign government principals that are foreign government principals of the same foreign country.

389. Paragraphs (a) to (d) of this definition cover governments or authorities of foreign countries. Foreign country is defined in the Dictionary to the Criminal Code as including:

•

a colony or overseas territory

•

a territory outside Australia, where a foreign country is to any extent responsible for the international relations of the territory, and

•

a territory outside Australia that is to some extent self-governing, but that is not recognised as an independent sovereign state by Australia.

390. Subsection 90.1(1) defines foreign political organisation as including:

•

a foreign political party

•

a foreign organisation that exists primarily to pursue political objectives, and

•

a foreign organisation that exists to pursue militant, extremist or revolutionary objectives.

391. For subparagraph 83.3(1)(c)(i), the term 'on behalf of' is intended to include where a person or entity represents, acts in the interests of, or acts as a proxy for, a foreign government principal or foreign political organisation.

392. For subparagraph 83.3(1)(c)(ii), the term 'directed' and 'supervised' could include controlled, managed, governed, instructed, administered, overseen, presided over and run. The term is intended to include where the direction or supervision is in part or in whole. For example, a foreign government principal might instruct that training be conducted, but the details of that training are overseen by a subcontracted company that delivers the training.

393. For subparagraph 83.3(1)(c)(ii), the term 'funded' is intended to include when a foreign government principal, foreign political organisation, or person acting on their behalf provides resources towards the training described in subsection 83.3(1). The term is intended to include where the funding is in part or in whole. The term is also intended to include financing, loans, agreements, appropriations, contracts or promises of funding, in part or in whole.

394. It is possible that a defendant will know, or be reckless, as to the fact that they are providing, receiving or participating in training that is provided by, directed, funded or supervised by a person who identifies himself or herself as an official of a foreign government. In this case, the person will be engaging in the conduct on behalf of the foreign principal or foreign political organisation and the defendant will have satisfied the elements of the offence as described at subparagraph 83.3(1)(c).

395. However, it may also be the case that the defendant provides, receives or participates in training that is provided by, directed, funded or supervised by an intermediary, and not by a foreign government principal or foreign political organisation. In this case, the prosecution will have to prove beyond a reasonable doubt that the defendant was aware of a substantial risk that he or she was engaging in training provided on behalf of, directed, funded or supervised by a person acting on behalf of a foreign government principal or foreign political organisation and that it was unjustifiable to take that risk. This may be the case where, for example, the intermediary advises the defendant that the intermediary acts in coordination with foreign officials, or the intermediary facilitates preferential treatment for the defendant from a foreign government.

396. The maximum penalty of 20 years imprisonment is comparable with maximum penalties for offences for providing or receiving training connected to terrorist acts which carry penalties of 15 and 25 years imprisonment. The maximum penalty is appropriate to recognise the serious harm to Australia's sovereignty, national security and other defence interests that could result from the provision and receipt of military style training by a foreign government principal or foreign political organisation.

397. Subsection 83.3(2) provides that the offence created by subsection 83.3(1) does not apply to a person in relation to conduct engaged in by the person that is authorised by written agreement to which the Commonwealth is a party. The term 'written agreement' could include agreement through a memorandum of understanding, diplomatic correspondence, the exchange of letters or emails, or an international instrument. The term 'Commonwealth' is intended to include Commonwealth entities including Commonwealth departments and agencies.

398. An example of where the defence at subsection 83.3(2) could apply is where members of the Australian Defence Force are permitted through a memorandum of understanding to undertake training of the kind described at subsection 83.3(1) with the military forces of a foreign government.

399. The Note under subsection 83.3(2) notes that the defendant will bear an evidential burden in relation to the defence at subsection 83.3(2). The Guide to Framing Commonwealth Offences provides (at paragraph 4.3.1) that it is appropriate for a matter to be included in an offence-specific defence where it is peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. The defence at subsection 83.3(2) satisfies both of these criteria. Evidence of the existence of the type of agreement described at subsection 83.3(2) would be within the defendant's knowledge. Given that this is not expected to be a relevant factor in every prosecution, it would be significantly more cost-effective for the defendant to assert this matter rather than the prosecution needing to disprove the existence of any written agreement with the defendant to which the Commonwealth is a party in every prosecution for this offence. Consistent with section 13.3 of the Criminal Code, the defendant will need to point to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt.

400. Subsection 83.3(3) provides that the offence created by subsection 83.3(1) does not apply in relation to training in the course of, or as part of a person's service with:

•

the armed forces of the government of a foreign country, or

•

any other armed force if a declaration under subsection 119.8(1) covers the person and the circumstances of the person's service in or with the armed force.

401. For paragraph 83.3(3)(a), it is appropriate that a defence be available to a person in the course of, and as part of, a person's service with the armed forces of the government of a foreign country. For example, a person may be required to undertake compulsory military service with the armed forces of the government of a foreign country of which they are a citizen. In this example, the defence at paragraph 83.3(3)(a) would be available.

402. The defendant will bear an evidential burden in relation to the defence at paragraph 83.3(3)(a). The Guide to Framing Commonwealth Offences provides (at paragraph 4.3.1) that it is appropriate for a matter to be included in an offence-specific defence where it is peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. The defence at paragraph 83.3(3)(a) satisfies both of these criteria. Evidence of a person's service in or with the armed forces of the government of a foreign country is evidence peculiarly within the knowledge of the defendant. It would be significantly more cost-effective for the defendant to assert this matter rather than the prosecution needing to disprove that the person did not serve in or with the armed forces of any foreign government. Consistent with section 13.3 of the Criminal Code, the defendant will need to point to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt.

403. In relation to paragraph 83.3(3)(b), subsection 119.8(1) of the Criminal Code provides that the Minister may by legislative instrument make a declaration concerning a specified person or class of persons. To make such a declaration, the Minister must be satisfied that it is in the interests of the defence or international relations of Australia to permit service with a specified armed force in a foreign country.

404. An example of when a declaration might be made under subsection 119.8(1) could include where an individual is providing training assistance on behalf of a foreign government with the consent of both the Australian and foreign governments.

405. The defendant will bear an evidential burden in relation to the defence at paragraph 83.3(3)(b). The Guide to Framing Commonwealth Offences provides (at paragraph 4.3.1) that it is appropriate for a matter to be included in an offence-specific defence where it is peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. The defence at paragraph 83.3(3)(b) satisfies both of these criteria. Evidence of a person's service in or with any other armed force for which a declaration under subsection 119.8(1) is made is peculiarly within the defendant's knowledge. It is significantly more cost-effective for the defendant to assert this matter rather than the prosecution needing to disprove that the person does not serve in or with any other armed force. For example, the prosecution is unlikely to hold information about the particular fact that the person's service with the specific foreign armed forces comes within a particular declaration. Consistent with section 13.3 of the Criminal Code, the defendant will need to point to evidence that suggests a reasonable possibility that the defence is made out. Once the person has provided preliminary information suggesting they were serving pursuant to a declaration, the prosecution would need to disprove that evidence beyond reasonable doubt.

406. Subsection 83.3(4) specifies that subsection 83.3(3) does not apply if at the time of engaging in the conduct described at 83.3(1), the person is:

•

in or with a listed terrorist organisation within the meaning at Part 5.3 or a prescribed organisation within the meaning of Part 5.5, or

•

the training is wholly or partly funded by a listed terrorist organisation within the meaning at Part 5.3 or a prescribed organisation within the meaning of Part 5.5.

407. Part 5.3 of the Criminal Code defines 'listed terrorist organisation' as an organisation that is specified by regulations for the purposes of paragraph (b) of the definition of 'terrorist organisation' in section 102.1.

408. Part 5.5 of the Criminal Code defines 'prescribed organisation' as an organisation prescribed by the regulations for the purpose of this paragraph, or an organisation referred to paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1).

409. Subsection 83.3(4) is appropriate to ensure the offence is consistent with, and complements, Commonwealth terrorism offences at Division 101 of the Criminal Code. Subsection 83.3(4) also guards against situations where the armed forces of a foreign country, or a foreign country's government, itself is listed terrorist or other prescribed organisations.

410. Subsection 83.3(4A) provides that the offence created by subsection 83.3(1) does not apply where the relevant conduct is solely or primarily for the purpose of:

•

providing aid of a humanitarian nature, or

•

performing an official duty for the United Nations (UN) or one of its agencies or the International Red Cross Red Crescent Movement (IRCM).

411. It is appropriate that individuals undertaking official duties for the UN or the IRCM have confidence that, in fulfilling their official mandate, they are not contravening the military-style training offence.

412. The offence at section 83.3 requires proof that the training involved using arms or practising military exercises, movements or evolutions and that the person was reckless as to this. The UN and IRCM may participate in training that involves military exercises by providing advice or training about international humanitarian law. This would be considered to fall within the defence. Where the training being delivered is training in the actual use of arms, this would not be 'aid of a humanitarian nature', and would not be covered by paragraph 83.3(4A)(a) of the defence.

413. The Note under subsection 83.3(4A) clarifies that the defendant will bear an evidentiary burden in relation to this defence. The Guide to Framing Commonwealth Offences provides (at paragraph 4.3.1) that it is appropriate for a matter to be included in an offence-specific defence where it is peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. The defence at subsection 83.3(4A) satisfies both of these criteria. A defendant is likely to be in the best position to easily point to evidence that he or she was providing aid of a humanitarian nature or performing an official duty for the UN or IRCM. In addition, this is expected to be a rare situation and is unlikely to be a feature of every case that is investigated and referred for prosecution. It would be unnecessary and significantly costly if the prosecution was required to disprove this for every prosecution of a military-style training offence. It is appropriate to include it as a defence and allow the defendant to raise the matter if the facts and circumstances are appropriate.

414. Consistent with section 13.3 of the Criminal Code, the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. If the defendant discharges an evidential burden, the prosecution must disprove those matters beyond reasonable doubt, consistent with section 13.1 of the Criminal Code. Subsection 83.3(5) applies Section 15.2 of the Criminal Code (extended geographical jurisdiction - Category B) to section 83.3. Under section 15.2, the effect of Category B jurisdiction is that the offence applies:

•

if the conduct constituting the offence occurs wholly or partly in Australia

•

if the result of that conduct occurs wholly or partly in Australia, and

•

if the conduct occurs outside Australia and at the time of committing the offence, the person is an Australian citizen, resident or body corporate.

415. Category B jurisdiction is appropriate to ensure that this offence appropriately protects Australia's from military threats caused by unlawful military training undertaken on behalf of a foreign government principal, wherever that conduct occurs.

Section 83.4 - Interference with political rights and duties

416. Section 83.4 will replace the existing offence of interfering with political liberty at section 28 of the Crimes Act, which will be repealed by Item 43 of Schedule 1.

417. Section 83.4 creates an offence that applies where a person uses force, violence, threats or intimidation to interfere with a person's democratic or political right under the Constitution or Commonwealth law.

418. The offence will be punishable by a maximum penalty of three years imprisonment.

419. An example of this offence is where Person C wishes to prevent Person D from exercising their right to vote because Person C knows that Person D is going to vote for a particular Senate candidate in a federal election. Person C considers the relevant candidate unfit to hold public office because of their extreme views. Person C threatens to cause serious physical harm to Person D if they vote for that particular candidate in the election.

420. To establish the offence, prosecution will need to prove beyond reasonable doubt that:

•

the person intentionally engages in conduct

•

the person's conduct involves:

o

the use of force

o

violence

o

intimidation, or

o

the making of threats of any kind

and the person is reckless as to this element

•

the person's conduct will result in interference with the exercise or performance, by another person, of an Australian democratic or political right and the person is reckless to this element, and

•

the right arises under the Constitution or a law of the Commonwealth.

421. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 83.4(1)(a). Under section 5.2 of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

422. Recklessness is the fault element applying to paragraphs 83.4(1)(b) and (c). Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

•

a circumstance if he or she is aware of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk.

423. Absolute liability will apply to the circumstance in paragraph 83.5(1)(d) consistent with subsection 83.4(2).

424. For paragraph 83.4(1)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intentionally engaged in the relevant conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to 'engages in conduct' in paragraph 83.4(1)(a) means to do an act or to omit to perform an act.

425. While it is unlikely that an omission could constitute force, violence, intimidation or threats, the term 'engages in conduct' allows the prosecution to allege a course of conduct in charging an offence rather than being required to identify a particular act as constituting the offending conduct.

426. For paragraph 83.4(1)(b) of the offence, the prosecution will have to prove beyond a reasonable doubt that the person's conduct involves the use of force or violence, or intimidation, or the making of threats of any kind. The fault element for this element is recklessness. Therefore, the defendant must have been aware of a substantial risk that his or her conduct involves force, violence, intimidation or threats and, having regard to the circumstances known to him or her it was unjustifiable to take that risk.

427. The terms force, violence and intimidation are not defined and are intended to take their ordinary meanings.

•

The term force could include acts such as restraining, manipulating, coercing and physically making a person do something against their will.

•

The term violence is not intended to require evidence of actual harm to establish that an act of violence has been conducted. For example, a person might set off an explosive device to interfere with a political protest, but the device does not actually cause harm to any person. For the purposes of paragraph 83.4(1)(b), it is intended that this conduct would be considered an act of violence and would satisfy this element of the offence.

•

The term intimidation is intended to include conduct that makes a person timid or fearful.

•

The term threat is defined in the Dictionary to the Criminal Code as including a threat made by any conduct, whether express or implied and whether conditional or unconditional.

428. For paragraph 83.4(1)(c) of the offence, the prosecution will have to prove beyond a reasonable doubt that the person's conduct results in interference with the exercise or performance, by any other person, of an Australian democratic or political right. Recklessness is the fault element for this offence. Therefore, the defendant must have been aware of a substantial risk that his or conduct would result in interference with the exercise or performance, by any other person, of an Australian democratic or political right and, having regard to the circumstances known to him or her it was unjustifiable to take that risk.

429. The term Australian democratic or political right is intended to cover a broad range of rights held by Australians in relation to participation in Australia's democracy, including voting in elections and referenda and participating in lawful protests. The limitation to 'Australian' democratic and political rights is intended to limit the operation of this paragraph only to rights that arise because of a person's status as Australian. For example, it is not intended to cover a situation where a person is a joint citizen of Australia and the United Kingdom and has a right to vote in United Kingdom elections while physically located in Australia. This would be a United Kingdom democratic right, rather than an Australian democratic right, even though it is being exercised 'in' Australia.

430. Where 'political rights and duties' encompass the rights and duties of Members of Parliament, the availability of the offence at section 83.4 will not affect the power of the Australian Parliament to deal with such matters as contempt of Parliament. In these circumstances, section 4C of the Crimes Act will apply to ensure a person is not punished twice for the same act or omission.

431. For paragraph 83.4(1)(d) of the offence, the prosecution will have to prove beyond reasonable doubt that the democratic or political right referred to in paragraph 83.4(1)(c) arises under the Constitution or a law of the Commonwealth. This paragraph ties the offence to Commonwealth jurisdiction. For example, interference with democratic and political rights arising under state and territory law would not captured by this offence. Examples of democratic and political rights under the Constitution or a law of the Commonwealth include:

•

the right to vote

•

the implied right to freedom of political communication

•

making political donations

432. Subsection 83.4(2) applies absolute liability to paragraph 83.4(1)(d). Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying absolute liability to an element of an offence is that no fault element needs to be proved and the defence of mistake of fact is unavailable. Accordingly, for paragraph 83.4(1)(d), the prosecution will be required to prove only the physical element that the Australian democratic and political right 'arises under the Constitution or a law of the Commonwealth.'

433. Absolute liability is appropriate and required for the element of the offence that the right arises under the Constitution or a law of the Commonwealth because this element is a jurisdictional element of the offence. A jurisdictional element of the offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do not. The issue of whether the person knew that the right arose under the Constitution or a law of the Commonwealth is not relevant to their culpability. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences.

434. The application of absolute liability to paragraph 83.4(1)(d) also ensures that a person cannot avoid criminal responsibility because they were unaware of the level of government law that gave rise to a particular Australian democratic or political right, for example by admitting that they knew they were interfering with the exercise by another person of an Australian democratic or political right but thought that the right arose due to a law of a State rather than a law of the Commonwealth.

435. The Note to subsection 83.4(1) clarifies that the defence for acts of done in good faith at subsection 80.3 applies to the offence at section 83.4.

436. An example of where the defence at section 80.3 could apply is where a person participates in a counter-protest and forcefully and aggressively shouts at the opposing protestors in an intimidating way, but does so in order to point out, in good faith, the errors in the arguments or position of the opposing protestors.

437. The defendant will bear an evidential burden in relation to the defence at section 80.3 in relation to acts done in good faith. The Guide to Framing Commonwealth Offences provides (at paragraph 4.3.1) that it is appropriate for a matter to be included in an offence-specific defence where it is peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. The defence at section 80.3 satisfies both of these criteria. The defendant is placed to explain their motivations when engaging in the relevant conduct and it is peculiarly within their knowledge as to how and why they should be considered to be acting in good faith. It would be difficult and more costly for the prosecution to prove, beyond a reasonable doubt, that the person was not acting in good faith. To do this, it would be necessary for the prosecution to have detailed knowledge of the defendant's thoughts and intentions, which is not likely to be available. Section 13.3 of the Criminal Code provides that in the case of a standard 'evidential burden' defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).

438. The maximum penalty of three years' imprisonment is appropriate and appropriately criminalises conduct involving force or violence that interferes with a person's exercise of their democratic or political rights or duties. Section 83.4 replaces the existing offence of 'interference with political liberty' at section 28 of the Crimes Act, which attracted a maximum penalty of three years imprisonment. This penalty will be retained for the updated version of this offence at section 83.4.

Section 83.5 - Consent of Attorney-General required for prosecutions

439. Section 83.5 requires the written consent of the Attorney-General to commence proceedings against a person for offences in Division 83 of the Criminal Code, and is intended to ensure that there is appropriate oversight of prosecutions. This is appropriate given the nature of the offences in Division 83 and the potential for national security or international considerations to arise.

440. The Attorney-General's consent is commonly required to commence proceedings that could affect Australia's international relations or national security. These are considerations that the CDPP is not able to take into account under the Prosecution Policy of the Commonwealth.

441. Section 83.5 provides the Attorney-General with an opportunity to receive advice from relevant agencies and other Ministers about sensitivities that might arise if proceedings are commenced for offences under Division 83, and provides opportunity for consideration of whether the prosecution could be detrimental to Australia's foreign relations and national security.

442. Subsection 83.5(2) clarifies that the following steps can be taken towards preparing for proceedings, without the written consent of the Attorney-General having been given:

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a person may be arrested for the offence and a warrant for such an arrest may be issued and executed

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a person may be charged with the offence, and

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a person so charged may be remanded in custody or on bail.

443. Given the seriousness of offences contained in Division 83 of the Criminal Code, it is appropriate that some measures towards commencing proceeds be permitted without the consent of the Attorney-General. The steps specified at subsection 83.5(2) are intended to ensure that law enforcement agencies can intervene to prevent a person from continuing to offend, promoting the protection of the Australian public and Australia's national interests.

444. Subsection 83.5(3) provides that nothing in subsection 83.5(2) prevents the discharge of the accused if proceedings are not continued within a reasonable time. Australian common law recognises that a prosecution may be stayed where there is undue delay, to protect Australia's justice system from abuse of processes. The right to stay a prosecution also supports the Court's role in providing procedural fairness to a defendant, and helps maintain public confidence in the administration of justice. It is therefore appropriate that subsection 83.5(3) specify that the steps towards commencing proceedings as described at subsection 83.5(2) do not prevent the discharge of the accused if proceedings are not continued within a reasonable time.

445. Subsection 83.5(4) provides that the Attorney-General must consider whether the conduct constituting an offence against Division 83 of the Criminal Code might be authorised by subsections 83.3(2), (3) or (4A) which provide defences to an offence against section 83.3, or sections 80.3 or 83.1, which provide defences to an offence against section 83.4.

Item 9

446. Item 9 repeals the heading of Part 5.2 and substitutes a new heading. The heading is changing from 'Offences relating to espionage and similar activities to 'Espionage and related offences. The heading requires updating to reflect the broader range of offences that will be housed within Part 5.2 due to the enactment of new foreign interference offences.

Item 10

Section 90.1 - Definitions

447. Item 10 inserts the following new definitions relevant to the espionage offences into section 90.1 of the Criminal Code:

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advantage

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concerns

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deals

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foreign government principal

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foreign political organisation, and

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foreign principal.

448. Section 90.1 defines advantage for the purpose of the espionage offences in Part 5.2. The definition clarifies that conduct will not advantage the national security of a foreign country if the conduct will advantage Australia's national security to an equivalent extent.

449. The PJCIS report concluded (at paragraphs 3.74) that 'further legislative clarity is required to reduce the likelihood of non-malicious conduct falling under the term 'advantage the national security of a foreign country' for the purposes of the proposed sabotage and espionage offences.' The PJCIS report also stated (at paragraph 3.75) that 'it would be inappropriate to criminalise activity that is undertaken for the mutual benefit of both Australia and a foreign country.'

450. The new definition of advantage is intended to ensure that a person cannot commit a espionage offence on the basis of advantaging a foreign country's national security if that person intended that, or was reckless as to whether, his or her conduct would also equally advantage Australia's national security.

451. The qualification that the advantage be to an equivalent extent is intended to ensure that a person cannot evade liability because they intended for their conduct to have some advantage to Australia's national security when they also intended for their conduct to provide a greater degree of advantage to the foreign country's national security. This may be the case where a person acts as a double agent and provides information to an Australian security agency but also provides information to a foreign intelligence agency with the intention of advantaging the foreign country's national security to a greater extent than Australia. Another example is where a person is persuaded to provide information to a foreign intelligence agency on the assurances that they are also benefitting Australia's national security.

452. The requirement for the mutual advantage to be of an equivalent extent will allow the prosecution to argue, in appropriate circumstances, that despite there being some intention to advantage Australia's national security, the intention to advantage the foreign country's national security was to a greater extent.

453. Section 90.1 defines concerns for the purposes of the espionage offences in Part 5.2. Information or an article concerns Australia's national security if the information or article relates to, or is connected with, or is of interest or importance to, or affects, Australia's national security. This is consistent with the definition of the term in the Macquarie Dictionary.

454. Section 90.1 defines deals for the purposes of the espionage offences in Part 5.2. A person deals with information or an article if the person does any of the following in relation to the information or article:

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receives or obtains it

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collects it

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possesses it

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makes a record of it

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copies it

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alters it

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conceals it

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communicates it

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publishes it, or

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makes it available.

455. Descriptions of what these terms are intended to cover and examples of the types of conduct that would fall within each term are as follows.

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Receives is intended to cover being given or presented with information or an article. This would include a person being given a classified document by another person.

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Obtains is intended to cover getting or acquiring information or an article. This is intended to be a more active term than 'receives' and implies that a person made an active effort to acquire information or an article. This may include a person opening a filing cabinet or accessing an electronic filing system to get or acquire a document or article.

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Possesses is intended to cover a person intentionally exercising control over information or an article. This would include a person having actual physical custody of information or an article, such as having a classified document in their direct custody by storing it in their house or carrying it in their bag. The term is also intended to cover the concept of 'constructive possession' where the person has the ability to control the object even if they have no physical contact with it. An example of this would be where the person has removed a classified document from his or her workplace and secured it in a bank safety deposit box. Although the bank may technically have physical custody of the document, the fact that the person placed the document there and holds the key to the safety deposit box would be sufficient for the person to be 'possessing' the document.

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Makes a record of it is intended to cover the situation where a makes notes of the content of classified document. The notes would convey the content of the information but the person would not actually be dealing with the classified document by other than reading it. The notes of the content would be a 'record' of the information for the purposes of this definition.

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Copies is intended to cover reproducing or making an identical version of information or an article. The most obvious example of this would be where a person photocopies a classified document and makes an identical copy of the document. It may also include where a person copies the information by making notes that entirely replicate the content of a document. This overlaps with the definition of 'makes a record' to some extent, but 'copies' is intended to cover the situation where the content is replicated entirely whereas a person may 'make a record' of information by making notes that summarise or paraphrase the information.

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Alters is intended to cover the situation where a person amends or changes the information or article in any way. This may include amending a classified document to change or remove the classification level, extracting excerpts from a classified document to create a new document, or substituting text to remove recognisable details without losing the essential information.

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Conceals is intended to cover hiding or preventing from being seen. This would include a person hiding documents by sliding them between the pages of books or putting them in the bottom of boxes holding other household items that prevent the documents from being seen.

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Communicates is intended to cover any actions that disclose, divulge, convey, impart, relay, convey, transmit or pass on information or an article. This would include a person passing a document to another person, whether in person or via electronic means. It would also include a person having a conversation with another person and telling them the information.

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Publishes is intended to cover conduct that makes information or an article generally known. For example, a person would 'publish' information for the purpose of these offences if they made information available online. By contrast to 'communicates' or 'makes available', the term 'publishes' implies that the information is made available to a number of people at the same time, as opposed to being disclosed or conveyed in a more direct form to another person.

•

Makes it available is intended to cover the passage of information or articles other than by disclosing or publishing it. Make available is defined in subsection 90.1(1) to include placing the information or article somewhere it can be accessed by another person, giving it to an intermediary to give to the intended recipient, or describing how to access it, or describing methods that are likely to facilitate access to it (for example, the name of a website, IP address, a URL, passport or the name of a newsgroup). This is intended to cover situations where arrangements are made between two individuals to pass information using a pre-arranged location, without the individuals needing to meet. For example, Person A may leave a classified document in a particular letterbox and Person B (who is acting on behalf of a foreign principal) will later come and collect it. Another example would be where Person A gives the document to Person C, who will then pass it on to Person B (who is acting on behalf of a foreign principal). Although it is arguable that Person A has 'communicated' the document in these situations, it is intended that the term 'makes it available' will provide clarity in situations where intermediaries are used.

456. The definition of deals is intended to be broad to cover the full range of conduct that can constitute espionage offences. This is to ensure the offences comprehensively address the full continuum of criminal behaviour that is undertaken in the commission of espionage offences, and to allow authorities to intervene at any stage. While the definition of deals captures a range of conduct, a person will only commit an espionage offence where every element of the offence is satisfied.

457. For example, a person will only commit an offence under subsection 91.1(1) where he or she deals with security classified information or information concerning Australia's security, and the person intends for the conduct to prejudice Australia's national security or advantage the national security of a foreign country, and this results or will result in the information being made available to a foreign principal. In relation to the espionage offences in sections 91.1, 91.2 and 91.3, the fault element of intention will apply to the physical element of the offence that a person communicates or deals with the information. Consistent with subsection 5.2(1) of the Criminal Code, this means that the person must have meant to engage in the conduct - mere receipt of information would not satisfy this fault element.

458. Section 90.1 provides that foreign government principal has the meaning given to it by section 90.3. This term is used in the definition of foreign principal in section 90.2 (to be inserted by Item 16) and in Division 92A, which creates a new theft of trade secrets offence.

459. Foreign political organisation is defined to include:

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a foreign political party

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a foreign organisation that exists primarily to pursue political objectives, and

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a foreign organisation that exists to pursue militant, extremist or revolutionary objectives.

460. The term is intended to capture organisations that have a political focus but are not 'political parties' per se, including (but not limited to) militant, extremist and revolutionary groups.

461. Espionage can be conducted by foreign political entities that are not parties or governments, and the precise nature and format of these entities may change over time. It is therefore necessary to maintain a broad formulation of 'foreign political organisation' that allows for such activities to be categorised as espionage where necessary. A narrow and exhaustive definition of foreign political organisation would prevent these activities from being rightly considered as espionage or related activity.

462. Section 90.1 provides that foreign principal has the meaning given to it by section 90.2. This term is used throughout Part 5.2 for the purpose of the espionage and foreign interference offences.

Item 11

463. Item 11 repeals the definition of intelligence or security agency from section 90.1 of the Criminal Code. This term is not used in the new espionage offences inserted into Part 5.2 of the Criminal Code by Item 16 and is therefore obsolete.

Item 12

464. Item 12 inserts the following new definitions relevant to the espionage offences into section 90.1 of the Criminal Code:

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make available

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national security

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prejudice, and

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security classification

465. Section 90.1 provides that make available information or an article includes:

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placing it somewhere it can be accessed by another person

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giving it to an intermediary to give to the intended recipient, and

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describing how to obtain access, or methods that are likely to facilitate access, to it (for example, setting out the name of a website, an IP address, a URL, a password, or the name of a newsgroup).

466. A person can make available information using the internet or an online vector.

467. The definition is intended to cover the passing on of information or articles other than by disclosing or publishing them. This is intended to cover situations where arrangements are made between two individuals to pass information using a pre-arranged location, without the individuals needing to meet. For example, Person A may leave a classified document in a particular letterbox and Person B (who is acting on behalf of a foreign principal) will later come and collect it. Another example would be where Person A gives a document to Person C, who will then pass it on to Person B (who is acting on behalf of a foreign principal). Although it is arguable that Person A has 'communicated' the document in these situations, it is intended that the term 'make available' will provide clarity in situations where intermediaries are used.

468. Section 90.1 provides that national security has the meaning given to it by section 90.4. This term is used throughout Part 5.2 and also supports the sabotage offences in Division 82.

469. Section 90.1 provides for the definition of prejudice (for the purpose of the espionage and foreign interference offences in Part 5.2) to clarify that embarrassment alone is not sufficient to prejudice Australia's national security.

470. The PJCIS report stated (at paragraph 3.72) that:

The Committee recognises that, in some circumstances, embarrassment to the Australian Government could result in harm to Australia's political, military or economic relationships. However, the Committee considers that greater clarity is required to ensure that prejudice cannot consist of embarrassment to the Australian Government or other Australian entity alone, but must also include a degree of damage or harm.

471. This definition will ensure that a person cannot be prosecuted for an espionage or foreign interference offence in Part 5.2 if that person intended that, or was reckless as to whether, his or her conduct would cause embarrassment alone. Where the person intended that, or was reckless as to whether, his or her conduct would cause embarrassment alone, and that embarrassment eventuates, it will be immaterial whether that embarrassment in turn results in some harm or damage to Australia's national security (for example, a loss of confidence in, or a reduced willingness to share information with, the Australian Government by a foreign partner).

472. This definition reflects case law regarding the meaning of 'prejudice to national security', including Commonwealth v Fairfax (1980) 147 CLR 39 at 52, in which a single judge of the High Court (Mason J) indicated that mere embarrassment was not sufficient to constitute prejudice to national security.

473. Section 90.1 provides that security classification has the meaning given to it by section 90.5. This term is used in the espionage offences in Part 5.2 and the secrecy offences in Schedule 2.

Item 13

474. Item 13 repeals the existing definition of security or defence from section 90.1 of the Criminal Code. This term is not used in the new espionage offences inserted into Part 5.2 of the Criminal Code by Item 16 and is therefore obsolete.

Item 14

475. Item 14 repeals the definition of the Commonwealth from section 90.1 of the Criminal Code. This term is not relevant for the new espionage offences inserted into Part 5.2 of the Criminal Code by Item 16 and is therefore obsolete.

Item 15

476. Item 15 repeals existing subsections 90.1(2) and (3) and inserts new subsection 90.2(2). Existing subsection 90.1(2) provides that, for Part 5.2, unless the contrary intention appears:

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expressions referring to obtaining, recording, using, having in possession, communicating or retaining including obtaining, recording, using, having in possession, communicating or retaining in whole or in part, and whether the article or information itself, or only the substance, effect or description of the article or information, is obtained, recorded, used, possessed, communicated or retained, and

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a reference to a sketch, document or article or to information is to be read as including a reference to a copy of, a part of or a copy of a part of a sketch, document or article or information.

477. This provision can be simplified due to the new definition of deals, to be inserted in section 90.1 by Item 10. Item 15 inserts a new subsection 90.1(2), which provides that in Part 5.2, dealing with information or an article includes:

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dealing with all or part of the information or article, and

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dealing only with the substance, effect or description or article.

478. An example of this would be where Person X describes an aspect of a military capability that allows it to effectively countered by a foreign adversary, but does not describe the capability as a whole.

479. Existing subsection 90.1(3) provides that, for the purposes of Part 5.2 of the Criminal Code, a place that is occupied by, or a thing that is under the control of, the Commonwealth is taken to belong to the Commonwealth. This provision is not necessary for the new espionage offences inserted by Schedule 1, and is therefore being repealed by Item 15.

Item 16

480. Item 16 inserts the following new definitions relevant to the espionage offences into section 90.1 of the Criminal Code:

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foreign principal

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foreign government principal,

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national security, and

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security classification

Section 90.2 - Definition of foreign principal

481. Section 90.2 defines foreign principal as each of the following:

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a foreign government principal

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a foreign political organisation

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

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

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an entity or organisation directed or controlled by:

o

a public international organisation

o

a terrorist organisation within the meaning of Division 102

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an entity or organisation directed or controlled by two or more foreign principals within the meaning of any other paragraph of the definition.

482. The term foreign government principal in paragraph 90.2(a) is further defined at section 90.3, described in detail below. The term foreign political organisation is defined in subsection 90.1(1) to include:

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a foreign political party

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a foreign organisation that exists primarily to pursue political objectives, and

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a foreign organisation that exists to pursue militant, extremist or revolutionary objectives.

483. The term public international organisation in paragraph 90.2(b) refers to the definition in section 70.1 of the Criminal Code. The term public international organisation is defined in section 70.1 of the Criminal Code to mean:

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an organisation:

o

of which two or more countries, or the governments of two or more countries, are members, or

o

that is constituted by persons representing two or more countries, or representing the governments of two or more countries, or

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an organisation established by, or a group of organisations constituted by:

o

organisations of which two or more countries, or the governments of two or more countries, are members, or

o

organisations that are constituted by the representatives of two or more countries, or the governments of two or more countries, or

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an organisation that is:

o

an organ of, or office within, an organisation described above

o

a commission, council or other body established by an organisation so described or such an organ, or

o

a committee, or sub-committee of a committee, of an organisation described above, or of such an organ, council or body.

484. The term will include multi-lateral international organisations such as the World Bank, the World Trade Organisation and the International Monetary Fund. In some situations, the provision of information to such organisations could prejudice Australia's national security and constitute espionage. For example, Person I is an official of International Organisation Z and obtains confidential information concerning a significant impending change in Australia's economic policies from Person J, an Australian official who intends to harm Australian interests for ideological reasons. International Organisation Z uses this information to undermine Australia's position in multilateral trade negotiations, causing significant damage to Australia's international relationships.

485. The definition extends to entities that are 'owned, directed or controlled' by other foreign principals to ensure that there are no gaps in coverage that can be exploited by Australia's foreign adversaries. It is important that foreign principals cannot avoid the application of the offences by simply, for example, conducting the harmful conduct through a company that operates at its direction or under its control.

486. The term terrorist organisation within the meaning of Division 102 of the Criminal Code in paragraph (c) of the definition refers to the definition in section102.1 of the Criminal Code.

487. Section 102.1 of the Criminal Code defines terrorist organisation to mean:

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an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, or

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an organisation that is specified by the regulations.

488. It is appropriate to cover terrorist organisations within the definition of foreign principal because of the significant consequences for Australia's security an offence against Part 5.2 be committed by a person acting on behalf of a terrorist organisation.

489. Paragraph 90.2(e) covers entities or organisations directed or controlled by a public international organisation or a terrorist organisation within the meaning of Division 102. This ensures that foreign principals cannot avoid falling within the definition by using another entity or organisation to undertake espionage or foreign interference activities.

490. Paragraph 90.2(e) covers entities or organisations directed or controlled by two or more foreign principals within the meaning of paragraphs 90.2(a), (b) or (c). For example, two foreign countries with shared interests may jointly establish and control a company which is used to conceal espionage activities against Australia. Paragraph 90.2(e) ensures that such entities fall within the definition of foreign principal.

Section 90.3 - Definition of foreign government principal

491. Section 90.3 defines foreign government principal for the purposes of Part 5.2 of the Criminal Code. This term is used in the definition of foreign principal in section 90.2 and in the offence in Division 92A regarding theft of trade secrets.

492. Section 90.3 provides that each of the following is a foreign government principal:

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the government of a foreign country or a part of a foreign country

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an authority of the government of a foreign country

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an authority of the government of part of a foreign country

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a foreign local government body or foreign regional government body

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

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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, or

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an entity or organisation directed or controlled:

o

by a foreign government principal within the meaning of any other paragraph of this definition, or

o

by two or more such foreign government principals that are foreign government principals of the same foreign country.

493. Paragraphs 90.3(a) to (d) cover governments or authorities of foreign countries. Foreign country is defined in the Dictionary to the Criminal Code as including:

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a colony or overseas territory

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a territory outside Australia, where a foreign country is to any extent responsible for the international relations of the territory, and

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a territory outside Australia that is to some extent self-governing, but that is not recognised as an independent sovereign state by Australia.

494. Paragraphs 90.3(a) to (d) ensure that the definition of foreign government principal comprehensively covers the governments and authorities of foreign countries. Historically, foreign countries are the most likely to seek to engage in espionage and foreign interference activities and it is essential that their activities are covered by the definition regardless of which level of government, or which type of government department or agency, is responsible for the conduct.

495. Under paragraph 90.3(e) of foreign government principal, a company will fall within the definition if any of the subparagraphs of paragraph (a) of the definition of foreign public enterprise in section 70.1 applies. Paragraph (a) of the definition of foreign public enterprise means a company where one of the following applies:

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the government of a foreign country or of part of a foreign country holds more than 50% of the issued share capital of the company

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the government of a foreign country or of part of a foreign country holds more than 50% of the voting power in the country

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the government of a foreign country or of part of a foreign country is in a position to appoint more than 50% of the company's board of directors

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the directors (however described) of the company are accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of the government of a foreign country or of part of a foreign country, or

•

the government of a foreign country or of part of a foreign country is in a position to exercise control over the company.

496. Under paragraph 90.3(f) of the definition of foreign government principal, a company will fall within the definition if either of the subparagraphs of paragraph (b) of the definition of foreign public enterprise in section 70.1 applies. Paragraph (b) of the definition of foreign public enterprise means a body or association (other than a company, which is covered by paragraph (a) of the definition in section 70.1) where one of the following applies:

•

the members of the executive committee (however described) of the body or association are accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of the government of a foreign country or of part of a foreign country, or

•

the government of a foreign country or of part of a foreign country is in a position to exercise control over the body or association.

497. Paragraphs (a) and (b) of the definition of foreign public enterprise cover state-owned enterprises and other bodies and associations that are controlled by foreign governments. It is essential that these bodies are covered by the definition of foreign government principal so that there are no gaps in the espionage and foreign interference offences that could be exploited by foreign governments.

498. Paragraph 90.3(h) covers an entity or organisation directed or controlled:

•

by a foreign government principal within the meaning of any other paragraph of this definition, or

•

by two or more such government principals that are foreign government principals of the same foreign country.

499. Paragraph 90.3(h) ensures that foreign government principals are not able to avoid the application of the espionage and foreign interference activities by channelling their activities through another organisation that is a front for the foreign government principal.

500. Paragraph 90.3(h) also ensures that entities or organisations directed or controlled by more than one foreign government principals (from the same foreign country) are covered by the definition. For example, two authorities of a foreign country may jointly establish an entity and use that organisation to direct espionage in Australia. In this respect, paragraph (h) is limited to situations where the two (or more) foreign government principals are from the same foreign country. This is because entities or organisations that are directed or controlled by more than one foreign country fall within paragraph 90.2(f) of the definition of foreign principal.

Section 90.4 - Definition of national security

501. Section 90.4 provides that the national security of Australia or a foreign country means:

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the defence of the country

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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 90.4(2)

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the protection of the integrity of the country's territory and borders from serious threats

•

the carrying out of the country's responsibilities to any other country in relation to the protection of the integrity of the country's territory and borders from serious threats and the activities covered by subsection 90.4(2), and

•

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

502. Subsection 90.4(2) provides that, for the purposes of subsection 90.4(1), this subsection covers the following activities relating to a country, whether or not directed from, or committed within, the country:

•

espionage

•

sabotage

•

terrorism

•

political violence

•

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, and

•

foreign interference.

503. The purpose of the definition of national security is to exhaustively cover the matters relevant to the security and defence of a country. The definition needs to cover matters relevant to Australia's national security as well as the national security of a foreign country. This is due to the use of this defined term in the espionage offences where a person commits the offence if they intend to prejudice Australia's national security or advantage the national security of a foreign country. The definition has been drafted consistent with definitions in other Commonwealth legislation, to ensure it reflects contemporary matters relevant to a nation's ability to protect itself from threats. This includes the definition of 'security' in section 4 of the Australian Security Intelligence Organisation Act 1979 (ASIO Act) and the definition of 'national security' in section 8 of the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act).

504. This definition reflects traditional concepts of national security that fall within the Commonwealth's legislative power. This includes matters relating to the defence of a country from hostilities and military threats (paragraph 90.4(1)(a)) as well as the protection of a country from espionage, sabotage, terrorism, political violence and foreign interference, whether or not directed from, or committed within, the country (paragraph 90.4(1)(b) and subsection 90.4(2)). Because the definition of national security also covers foreign countries, the terms espionage, sabotage, terrorism, political violence and foreign interference are not further defined. This ensures that the terms are not limited by Australian concepts of these matters and are flexible to accommodate the meaning of these terms in foreign countries.

505. In the Australian context, the terms sabotage, espionage and foreign interference may include, for example, the activities described in proposed Divisions 82, 91 and 92 of the Criminal Code respectively. Terrorism offences may include the activities described in Division 101 of the Criminal Code while political violence may include activities described in proposed Divisions 80 and 83 as well covering terrorism offences in Division 101 of the Criminal Code.

506. The definition also covers the protection of the integrity of a country's territory and borders from serious threats (paragraph 90.4(1)(c)). This is limited to 'serious' threats so that it does not include matters that, although rightly criminal, do not amount to national security threats, such as smuggling of illicit tobacco or other prohibited goods.

507. The definition also reflects the importance of international relationships to national security. Paragraphs 90.4(1)(d) and (e) deal with:

•

the carrying out of the country's responsibilities to any other country in relation to:

o

the protection of the integrity of the country's territory and borders from serious threats, and

o

espionage, sabotage, terrorism, political violence and foreign interference (whether or not directed from, or committed within the country), and

•

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

508. This definition substantially implements the recommendations of the Australian Law Reform Commission (ALRC) in Keeping Secrets: The Protection of Classified and Security Sensitive Information (Report 98, June 2004). This report recommended that 'national security information' be defined by reference to the Commonwealth Protective Security Manual that existed at that time, which included reference to 'international relations' in the same terms as appear in section 10 of the NSI Act (see paragraph 2.7 of the ALRC's Report). The reference to 'political, military and economic relations' in section 90.4 of the Bill aligns with the definition of 'international relations' in the NSI Act.

Section 90.5 - Definition of security classification

509. Subsection 90.5(1) provides that security classification will be defined to mean:

•

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 that, if disclosed in an unauthorised manner, could be expected to:

o

for a classification of secret-cause serious damage to the national interest, organisations or individuals, or

o

for a classification of top secret-cause exceptionally grave damage to the national interest; or

•

any equivalent classification or marking prescribed by the regulations.

510. The definition is based on harm-based criteria, as the classification provides clarity about the fact that the policy framework must have been developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying information:

•

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

•

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.

511. These definitions align with the definitions of SECRET and TOP SECRET in the Australian Government's Protective Security Policy Framework (available at www.protectivesecurity.gov.au ).

512. Paragraph 90.5(1)(b) provides the ability for any other equivalent classification or marking to be prescribed in regulations. This provides flexibility to ensure the definition can be kept up to date if new protective markings of equivalent seriousness are introduced, or to ensure information bearing former protective markings of equivalent seriousness can continue to be protected.

513. The reference to an 'equivalent' classification means that lower levels of classification are not able to be prescribed. For example, the classification level of PROTECTED could not be prescribed in the regulations as, the unauthorised release of the information would cause damage that is equivalent to the level of harm that is required for information at the SECRET level (which requires that unauthorised release of the information could cause serious damage to the national interest) or TOP SECRET level (which requires that unauthorised release of the information could cause exceptionally grave damage to the national interest).

514. For paragraph 90.5(1)(a), the prosecution will also be required to prove that the security classification was applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying information:

•

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

•

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.

515. For paragraph 90.5(1)(a), the prosecution will not be required to prove any actual or likely damage to the national interest in relation to the information that is the subject of the security classification.

516. The effect of subsection 90.5(1A) in applying strict liability to this element of the definition of security classification is that the prosecution will not need to prove that the person who dealt with the information knew or was reckless as to whether the security classification was applied in accordance with the policy framework developed by the Commonwealth.

517. Strict liability is appropriate for this element because the person's state of mind about the fact that the classification was applied under an appropriate Commonwealth policy framework for the purpose of identifying such information is not relevant to their culpability. It is sufficient for the prosecution to prove that the person was reckless as to the fact that the information was classified as SECRET or TOP SECRET. It is not reasonable to expect that a person would be familiar with the methods for applying classifications to information, nor the exact meaning of the classifications. There is unlikely to be sufficient evidence to allow the prosecution to prove that a person was reckless about this level of detail about the policy framework sitting behind the application of a classification of SECRET or TOP SECRET.

518. For paragraph 90.5(1)(a), the prosecution will need to prove that the person was reckless as to the fact that the information had a classification equivalent to SECRET or TOP SECRET. However, the effect of subsection 90.5(1A) is that the prosecution will not need to prove that the person who dealt with the information knew or was reckless as to the fact that this was prescribed by regulations. Strict liability is appropriate for this element because the person's state of mind about the fact that the classification was prescribed by regulations is not relevant to their culpability. It is sufficient for the prosecution to prove that the person was reckless as to the fact that the information had a classification equivalent to SECRET or TOP SECRET. It is not reasonable to expect a person to be intimately familiar with the method for prescribing equivalent classifications. There is unlikely to be sufficient evidence to allow the prosecution to prove that a person was reckless about this level of detail about the process for prescribing an equivalent classification.

519. Strict liability is set out in section 6.1 of the Criminal Code. The effect of applying strict liability to an element of an offence means that no fault element needs to be proved and the defence of mistake of fact is available.

520. The defence of mistake of fact is set out in section 9.2 of the Criminal Code. The defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

•

at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

•

had those facts existed, the conduct would not have constituted an offence.

521. Subsection 90.5(2) requires that, before the Governor-General makes regulations for the purposes of subsection 90.5(1), the Minister must be satisfied that the regulations are not inconsistent with the policy framework mentioned in paragraph 90.5(1)(a). The intention is to allow the protective markings set out in the Protective Security Policy Framework to be reproduced in the regulations and kept updated in accordance with any changes to that Framework.

522. Subsection 90.5(3) provides that, despite subsection 14(2) of the Legislation Act, regulations made for the purposes of subsection 90.5(1) 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.

523. This provision is included to allow the Australian Government information security management guidelines - Australian Government security classification system or other documents that exist as part of the Protective Security Policy Framework to be incorporated into the regulations if this is considered an efficient and appropriate manner of ensuring the definition of security classification is consistent with the Australian Government's policies relating to protective security. Importantly, these documents must be publicly available. This will ensure that every person interested in or affected by the espionage and secrecy offences (which use the terminology 'security classification') will be able to readily and freely access its terms.

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

524. Section 90.6 clarifies that nothing in Part 5.2 (Espionage and related offences) affects the interpretation of key terms in the Australian Security Intelligence Organisation Act 1979, unless that Act expressly provides otherwise.

Item 17

525. Item 17 repeals Division 91 of the Criminal Code, titled 'Offences relating to espionage and similar activities' and substitutes a new Division 91 titled 'Espionage'.

526. New Division 91 has three subdivisions:

•

Subdivision A - Espionage

•

Subdivision B - Espionage on behalf of foreign principal

•

Subdivision C - Espionage-related offences.

527. Subdivision A introduces new tiered espionage offences to the Criminal Code.

•

The most serious offence in section 91.1 applies where a person deals with information concerning Australia's national security and the person intended, or was reckless as to whether, their conduct would prejudice Australia's national security or advantage the national security of a foreign country. These offences are the most serious as the risks to Australia's national security are far higher if a person is dealing with information that concerns Australia's national security.

•

A second tier of offences in section 91.2 applies where a person deals with any information and the person intended, or was reckless as to whether, their conduct would prejudice Australia's national security. As these offences can be committed even if the information the person deals with does not relate to national security, the offences only apply where the person intends to prejudice Australia's national security.

•

Section 91.3 applies where a person makes security classified information available to a foreign principal.

•

A range of aggravating factors are set out at section 91.6, including where a person deals with high volumes of classified information or holds a security clearance.

528. The maximum penalties for the offences in Subdivision A range from life imprisonment to 20 years imprisonment. This reflects the extreme harm that is likely to result from the conduct covered by the offences and the threat that espionage poses to Australia's security, prosperity and sovereignty.

Division 91 - Espionage

Subdivision A - Espionage

Section 91.1 - Espionage - dealing with information etc. concerning national security which is or will be communicated or made available to a foreign principal

Intention as to national security

529. Subsection 91.1(1) will make it an offence for a person to deal with information or an article that is security classified or concerns Australia's national security where the person intends to prejudice Australia's national security or advantage the national security of a foreign country. The offence will only apply where the conduct has resulted in, or will result in the information or article being communicated or made available to a foreign principal.

530. This offence will carry a maximum penalty of life imprisonment.

531. An example of this offence is as follows. Person A is employed in a Commonwealth government department and has access to highly sensitive, classified information about Country Y's espionage activities in Australia and Australia's attempts to combat them. Person A has a close affiliation with Country Y, having spent time studying there during university and having become a specialist in the affairs of Country Y over the course of their employment with the Commonwealth. Person A makes a copy of one highly sensitive, classified document and takes it home. Person A hides the document in a spare room then makes contact with an official at Country Y's embassy to describe the content of the document and to offer to provide the document. Person Y intends to disclose the document because it would assist Country Y to avoid or disrupt Australia's activities. Person A arranges to leave the document in a particular location in suburban Canberra and a representative of Country Y collects it shortly thereafter.

532. To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

•

a person intentionally dealt with information or an article

•

either:

o

the information or article had a security classification and the defendant is reckless as to this element, or

o

the information or article concerns Australia's national security and the defendant is reckless as to this element

•

the person intended that his or her conduct would prejudice Australia's national security or advantage the national security of a foreign country, and

•

the person's conduct resulted, or would result in, the information being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal and the person was reckless as to this.

533. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 91.1(1)(a) and (c). Intention is also the fault element for paragraph 91.1(1)(c). Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

534. Recklessness is the fault element for subparagraphs 91.1(1)(b)(i) and (ii), and paragraph 91.1(d). Strict liability will apply to some elements of the definition of security classification (as outlined below). Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

•

a circumstance if he or she is aware of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

535. For paragraph 91.1(1)(a) the prosecution will have to prove beyond reasonable doubt that the defendant intentionally deals with information or an article. Consistent with the definition of deals in section 90.1, this may include receiving, obtaining, collecting, possessing, making a record or copying, altering, concealing, communicating, publishing or making available the information or article. In the example of the offence above, Person A has 'dealt' with the information by:

•

copying the document

•

concealing the document (by hiding it in the spare room)

•

communicating the information (by describing the content of the document to the embassy official), and

•

making the document available (by leaving it in the prearranged location in suburban Canberra)

536. For subparagraph 91.1(1)(b)(i), the prosecution will need to prove beyond a reasonable doubt that the information has a security classification, and that the person is reckless as to this. Therefore, the defendant must have been aware of a substantial risk that the information had a security classification and, having regard to the circumstances known to him or her it was unjustifiable to take that risk.

537. Security classification is defined in section 90.5, to be inserted by Item 16 of Schedule 1, to mean:

•

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 that, if disclosed in an unauthorised manner, could be expected to:

o

for a classification of secret-cause serious damage to the national interest, organisations or individuals, or

o

for a classification of top secret-cause exceptionally grave damage to the national interest; or

•

any equivalent classification or marking prescribed by the regulations.

538. Under new subsection 90.5(1A), strict liability will apply to some aspects of the definition of security classification. Subsection 90.5(1A) provides that strict liability applies to the element that:

•

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

•

a classification or marking was prescribed by regulations as mentioned in paragraph 90.5(1)(b).

539. The effect of applying strict liability is that no fault element needs to be proved in relation to those parts of the definition. Applying strict liability to these elements of the definition is appropriate because the person's state of mind about the fact that the classification was applied under an appropriate Commonwealth policy framework or prescribed by regulations is not relevant to their culpability. It is sufficient for the prosecution to prove that the person was reckless as to the fact that the information was classified as SECRET or TOP SECRET. It is not reasonable to expect that a person would be familiar with the methods for applying classifications to information or prescribing equivalent classifications in regulations. There is unlikely to be sufficient evidence to allow the prosecution to prove that a person was reckless about this level of detail about the relevant policy framework or the process for prescribing an equivalent classification.

540. Strict liability is set out in section 6.1 of the Criminal Code. The effect of applying strict liability to an element of an offence means that no fault element needs to be proved and the defence of mistake of fact is available.

541. The defence of mistake of fact is set out in section 9.2 of the Criminal Code. The defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

•

at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

•

had those facts existed, the conduct would not have constituted an offence.

542. For subparagraph 91.1(1)(b)(ii), the prosecution will need to prove that the information or article dealt with by the defendant concerned Australia's national security. Consistent with the definition of national security in section 90.4, this could include information or articles relating to:

•

the defence of Australia (paragraphs 90.4(1)(a) and (e) and 90.4(2)(e))

•

Australia's border protection (paragraph 90.4(1)(c))

•

activities of Australia's intelligence agencies, including ASIO (subsection 90.4(2)), and

•

Australia's relationships with other countries (paragraph 90.4(1)(e)).

543. In the example above, the information in the document 'concerns national security' because it relates to Australia's intelligence activities to prevent Country Y from engaging in espionage in Australia and falls within paragraph 90.4(1)(b) of the definition of national security.

544. The prosecution will also have to prove that the defendant was reckless as to whether the information or article concerns Australia's national security. Therefore, the defendant must have been aware of a substantial risk that the information concerns Australia's national security and, having regard to the circumstances known to him or her it was unjustifiable to take that risk.

545. For paragraph 91.1(1)(c), the prosecution will have to prove beyond reasonable doubt that the defendant intended that his or her conduct would prejudice Australia's national security or advantage the national security of a foreign country.

546. The term 'prejudice' is intended to capture a broad range of intended conduct, including an intention to harm or injure Australia's national security or to cause disadvantage to Australia. The term is also intended to cover impairment or loss to Australia's national security interests. The prejudice to Australia's national security is not required to be serious or substantial but is intended to be more than a minor or trivial prejudice that has no long-lasting effect nor embarrassment to an Australian person or Australia's people. The term is defined in section 90.1 to clarify that embarrassment alone is not sufficient to prejudice Australia's national security. Where the person intended that, or was reckless as to whether, his or her conduct would cause embarrassment alone, and that embarrassment eventuates, it will be immaterial whether that embarrassment in turn results in some harm or damage to Australia's national security (for example, a loss of confidence in, or a reduced willingness to share information with, the Australian Government by a foreign partner).

547. The term 'advantage' is intended to capture an intention to put another country's national security in a favourable or superior position than it would have been without the communication of this information. Section 90.1 also defines advantage to clarify that conduct will not advantage the national security of a foreign country if the conduct will advantage Australia's national security to an equivalent extent.

548. For subparagraph 91.1(1)(c)(ii), the person must intend to advantage the national security of a 'foreign country', not a 'foreign principal'. This is because the interests of countries in relation to 'national security' are unique and often relate to the protection to the territory of the country.

549. Foreign country is intended to cover countries other than Australia and is defined in the Dictionary to the Criminal Code as including:

•

a colony or overseas territory

•

a territory outside Australia, where a foreign country is to any extent responsible for the international relations of the territory, and

•

a territory outside Australia that is, to some extent self-governing, but that is not recognised as an independent sovereign state by Australia.

550. In the example listed above, Person A has dealt with the document intending to advantage the national security of a foreign country. Person A made the document available to Country Y to allow them to successfully pursue espionage activities in Australia.

551. Whether or not the prejudice to Australia's national security or advantage to the national security of the foreign country occurs or the conduct is capable of bringing it about is not relevant to the defendant's culpability for the offence. For example, if the foreign country already had a copy of the document provided by the defendant then the disclosure by the defendant may not prejudice Australia's national security of advantage the national security of the foreign principal).

552. Consistent with subsection 91.1(4), for the purposes of subparagraph 91.1(1)(c)(ii) the person does not need to have in mind a particular foreign country and may have in mind more than one foreign country. For example, a person may be in possession of classified information and be willing to pass the information to whichever country is the highest bidder. The person may still be reckless as to whether passing the information to a foreign country will prejudice the national security of Australia or advantage the national security of a foreign country.

553. For paragraph 91.1(1)(d), the prosecution will have to prove beyond reasonable doubt that the defendant's conduct resulted in, or would result in, the information or article being communicated or made available to a foreign principal. The prosecution must also prove that the defendant was reckless as to this element. Therefore, the defendant must have been aware of a substantial risk that the information or article would be communicated or made available to a foreign principal and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

554. In the example above, Person A was aware that Country Y would collect the document from the prearranged location and Country Y did collect it. By leaving the document in that location, Person A was aware of a substantial risk that the document would be made available to Country Y. Person A would also have been aware that it was unjustifiable to take the risk given the highly sensitive nature of the classified document.

555. Consistent with subsection 91.1(5), for the purposes of paragraph 91.1(1)(d), the person will not need to have in mind a particular foreign principal and may have in mind more than one foreign principal. For example, a defendant may assist an individual who has identified themselves to the defendant as a foreign official, but has not specified which foreign country they represent. Or, a defendant may provide assistance in the knowledge this assistance will or could assist multiple foreign principals at the same time.

556. The maximum penalty for this offence is life imprisonment. The maximum penalty needs to be adequate to deter and punish a worst case offence, including repeat offences. For the offence at subsection 91.1(1), the worst case scenario is a person disclosing highly classified information to a foreign country, intending to prejudice Australia's national security. The risks that may be posed to Australia's safety and security by such a disclosure are extreme and it is appropriate that the offence be punishable by the most serious penalty of life imprisonment.

557. The Note to subsection 91.1(1) specifies that an alternative verdict may be available for an offence against section 91.1(1) in accordance with section 93.5.

Reckless as to national security

558. Subsection 91.1(2) will make it an offence for a person to deal with information or an article that is security classified or concerns Australia's national security where the person is reckless as to whether their conduct will prejudice Australia's national security or advantage the national security of a foreign country and where the conduct has resulted in, or will result in, the information or article being communicated or made available to a foreign principal.

559. This offence will carry a maximum penalty of 25 years imprisonment.

560. An example of this offence is as follows. Person A is employed in a Commonwealth government department and has access to highly sensitive, classified information. Person A has an association with Person B, who is an academic and a citizen of Country X. Person B has told Person A that he provides advice and commentary on Australia's foreign policy activities to Country X and has strong links to government in Country X. Person B asks Person A to collect privileged/classified intelligence information about a topical issue involving Australia and Country X and provide it to Person B in exchange for money. Person B says that this information will assist him/her in providing advice to Country X. Person A accepts this request, searches the department's internal electronic files and locates a classified document which contains intelligence information about the Australian Government's position on the topical issue. Person A prints a copy of this document and provides this to Person B.

561. To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

•

a person intentionally dealt with information or an article

•

either:

o

the information or article had a security classification and the person was reckless as to this element, or

o

the information or article concerns Australia's national security and the person was reckless as to this element

•

the person was reckless as to whether his or her conduct would prejudice Australia's national security or advantage the national security of a foreign country, and

•

the person's conduct resulted, or would result, in the information being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal and the person was reckless as to this.

562. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 91.1(2)(a). Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

563. Recklessness is the fault element for subparagraph 91.1(2)(b)(i), (ii) and paragraphs 91.1(2)(c) and (d). Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

•

a circumstance if he or she is aware of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

564. For paragraph 91.1(2)(a) the prosecution will have to prove beyond a reasonable doubt that the defendant intentionally deals with information or an article. Consistent with the definition of deals in section 90.1, this may include receiving, obtaining, collecting, possessing, making a record or copying, altering, concealing, communicating, publishing or making available the information or article. In the example of the offence above, Person A has 'dealt' with the information by:

•

obtaining the information (by making an active effort to search the department's internal files for intelligence information on the topical issue)

•

copying the document by printing it, and

•

making it available (by passing the document to Person B).

565. For subparagraph 91.1(2)(b)(i), the prosecution will need to prove beyond a reasonable doubt that the information has a security classification and the defendant is reckless as to this. Therefore, the defendant must have been aware of a substantial risk that the information had a security classification and, having regard to the circumstances known to him or her it was unjustifiable to take that risk. Security classification is defined in section 90.5, to be inserted by Item 16 of Schedule 1, to mean:

•

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 that, if disclosed in an unauthorised manner, could be expected to:

o

for a classification of secret-cause serious damage to the national interest, organisations or individuals, or

o

for a classification of top secret-cause exceptionally grave damage to the national interest; or

•

any equivalent classification or marking prescribed by the regulations.

566. Under new subsection 90.5(1A), strict liability will apply to some aspects of the definition of security classification. Subsection 90.5(1A) provides that strict liability applies to the element that:

•

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

•

a classification or marking was prescribed by regulations as mentioned in paragraph 90.5(1)(b).

567. The effect of applying strict liability is that no fault element needs to be proved in relation to those parts of the definition. Applying strict liability to these elements of the definition is appropriate because the person's state of mind about the fact that the classification was applied under an appropriate Commonwealth policy framework or prescribed by regulations is not relevant to their culpability. It is sufficient for the prosecution to prove that the person was reckless as to the fact that the information was classified as SECRET or TOP SECRET. It is not reasonable to expect that a person would be familiar with the methods for applying classifications to information or prescribing equivalent classifications in regulations. There is unlikely to be sufficient evidence to allow the prosecution to prove that a person was reckless about this level of detail about the relevant policy framework or the process for prescribing an equivalent classification.

568. Strict liability is set out in section 6.1 of the Criminal Code. The effect of applying strict liability to an element of an offence means that the defence of mistake of fact is available. The defence of mistake of fact is set out in section 9.2 of the Criminal Code. The defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

•

at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

•

had those facts existed, the conduct would not have constituted an offence.

569. The defendant bears an evidential burden in relation to this defence. Section 13.3 of the Criminal Code provides that in the case of a standard 'evidential burden' defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).

570. For subparagraph 91.1(2)(b)(ii), the prosecution will need to prove that the information or article dealt with by the defendant concerned Australia's national security. Consistent with the definition of national security in section 90.4, this could include information or articles relating to:

•

the defence of Australia (paragraphs 90.4(1)(a) and (e) and 90.4(2)(e))

•

Australia's border protection (paragraph 90.4(1)(c))

•

activities of Australia's intelligence agencies, including ASIO (subsection 90.4(2)), and

•

Australia's relationships with other countries (paragraph 90.4(1)(e)).

571. In the example above, the information in the document 'concerns national security' because it is intelligence information on a topic issue involving Australia and another country and falls within paragraph 90.4(1)(e) of the definition of national security. Depending on the topic, the information may also relate to other categories of national security in section 90.4. For example, the topical issue may relate to the Australia's military activities, in which case it could fall within paragraphs 90.4(1)(a) or (c) of the definition of national security.

572. The prosecution will also have to prove that the defendant was reckless as to whether the information or article concerns Australia's national security. Therefore, the defendant must have been aware of a substantial risk that the information concerns Australia's national security and, having regard to the circumstances known to him or her it was unjustifiable to take that risk.

573. For subparagraph 91.1(2)(c)(ii), the prosecution will have to prove beyond reasonable doubt that the defendant was reckless as to whether his or her conduct would prejudice Australia's national security or advantage the national security of a foreign country. Therefore, the defendant must have been aware of a substantial risk that the information or article could prejudice Australia's national security or advantage the national security of a foreign country, and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

574. The term 'prejudice' is intended to capture a broad range of intended conduct, including an intention to harm or injure Australia's national security or to cause disadvantage to Australia. The term is also intended to cover impairment or loss to Australia's national security interests. The prejudice to Australia's national security is not required to be serious or substantial but is intended to be more than a minor or trivial prejudice that has no long-lasting effect. The term is defined in section 90.1 to clarify that embarrassment alone is not sufficient to prejudice Australia's national security. Where the person intended that, or was reckless as to whether, his or her conduct would cause embarrassment alone, and that embarrassment eventuates, it will be immaterial whether that embarrassment in turn results in some harm or damage to Australia's national security (for example, a loss of confidence in, or a reduced willingness to share information with, the Australian Government by a foreign partner).

575. The term 'advantage' is intended to cover putting another country's national security in a favourable or superior position than it would have been without the communication of this information. Section 90.1 defines advantage to clarify that conduct will not advantage the national security of a foreign country if the conduct will advantage Australia's national security to an equivalent extent.

576. For paragraph 91.1(2)(c), the person must be reckless as to whether his or her conduct would advantage the national security of a 'foreign country'. This is because the interests of countries in relation to 'national security' are unique and often relate to the protection to the territory of the country.

577. Foreign country is intended to cover countries other than Australia and is defined in the Dictionary to the Criminal Code as including:

•

a colony or overseas territory

•

a territory outside Australia, where a foreign country is to any extent responsible for the international relations of the territory, and

•

a territory outside Australia that is, to some extent self-governing, but that is not recognised as an independent sovereign state by Australia.

578. In the example listed above, Person A has dealt with the document reckless as to whether it would prejudice Australia's national security or advantage the national security of a foreign country. Person A knows that Person B is a citizen of Country X and that Person B advises, and has strong links to government, in Country X. Therefore, Person A would be aware of the substantial risk that providing intelligence information about Australia's position on the topical issue to Person B would assist Country X to devise a strategy which effectively counters Australia's position in favour of Country X's interests.

579. Whether or not the prejudice to Australia's national security or advantage to the national security of a foreign country occurs or the conduct is capable of bringing it about is not relevant to the defendant's culpability for the offence. For example, if the foreign country already had a copy of the document provided by the defendant then the disclosure by the defendant may not prejudice Australia's national security of advantage the national security of the foreign actor).

580. Consistent with subsection 91.1(4), for the purposes of subparagraph 91.1(2)(c)(ii), the person does not need to have in mind a particular foreign country and may have in mind more than one foreign country. For example, a person may be in possession of classified information and be willing to pass the information to whichever country is the highest bidder. The person may still be reckless as to whether passing the information to a foreign country will prejudice the national security of Australia or advantage the national security of a foreign country.

581. For paragraph 91.1(2)(d), the prosecution will have to prove beyond reasonable doubt that the defendant's conduct resulted in, or would result in, the information or article being made available to a foreign principal. The prosecution must also prove that the person was reckless as to this element. Therefore, the defendant must have been aware of a substantial risk that the information or article would be communicated or made available to a foreign principal and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

582. In the example above, Person A is aware that Person B provides advice to, and has strong links in, the government of Country X. Person B has told Person A that the information he/she provides will assist Person B in advising the government of Country X. By providing Person B with the document, Person A was aware of the substantial risk that the document or information in the document would be made available to Country Y. Person A would be aware that it was unjustifiable to take that risk given that the document contained sensitive/classified intelligence information.

583. Consistent with subsection 91.1(5), for the purposes of paragraph 91.1(2)(d), the person will not need to have in mind a particular foreign principal and may have in mind more than one foreign principal. For example, a defendant may assist an individual who has identified themselves to the defendant as a foreign official, but has not specified which foreign country they represent. Or, a defendant may provide assistance in the knowledge this assistance will or could assist multiple foreign principals at the same time.

584. The maximum penalty for this offence is 25 years imprisonment. The maximum penalty needs to be adequate to deter and punish a worst case offence, including repeat offences. For the offence at subsection 91.1(2), the worst case scenario is a person disclosing highly classified information to a foreign country, aware of a substantial risk that such a disclosure would prejudice Australia's national security. The risks that may be posed to Australia's safety and security by such a disclosure are extreme and it is appropriate that the offence be punishable by a serious penalty.

Section 91.2 - Espionage - dealing with information etc. which is or will be communicated or made available to foreign principal

Intention as to national security

585. Subsection 91.2(1) will make it an offence for a person to deal with information or an article where the person intends to prejudice Australia's national security. The offence will only apply where the conduct has resulted in, or will result in the information or article being communicated or made available to a foreign principal.

586. This offence should carry a maximum penalty of 25 years imprisonment.

587. An example of this offence is as follows. Person A is a Commonwealth official employed as an analyst at a government department. Person A is strongly opposed to Australia's intention to negotiate a treaty with Country B. Person A compiles a report informed by the knowledge he has gained through his role as an analyst in the government department, which contains an aggregation of sensitive, but publically available, information - informed by expertise Person A has developed as a government analyst. Person A provides this to an official of Country B with the intention of convincing Country B not to negotiate the treaty with Australia, thereby harming Australia's international relations.

588. To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

•

a person intentionally dealt with information or an article

•

the person intended that his or her conduct would prejudice Australia's national security, and

•

the person's conduct resulted, or would result in, the information being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal and the person was reckless as to this element.

589. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 91.2(1)(a). Intention also applies to paragraph 91.2(1)(b). Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

590. Recklessness is the fault element for paragraph 91.2(1)(c). Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

•

a circumstance if he or she is aware of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

591. For paragraph 91.2(1)(a) the prosecution will have to prove beyond reasonable doubt that the defendant intentionally deals with information or an article. Consistent with the definition of deals in section 90.1, this may include receiving, obtaining, collecting, possessing, making a record or copying, altering, concealing, communicating, publishing or making available the information or article. In the example of the offence above, Person A has dealt with the information by collecting it, making a record of it in the report and communicating the report to Country B.

592. For paragraph 91.2(1)(b), the prosecution will have to prove beyond reasonable doubt that the defendant intended that his or her conduct would prejudice Australia's national security, as defined in section 90.4. Unlike the offences in section 91.1, a person will not commit the offence at subsection 91.2(1) if they hold an intention to advantage the national security of a foreign country. This is because the offences in section 91.2 apply to any information, not only information carrying a security classification or concerning Australia's national security.

593. The term 'prejudice' is intended to capture a broad range of intended conduct, including an intention to harm or injure Australia's national security or to cause disadvantage to Australia. The term is also intended to cover impairment or loss to Australia's national security interests. The prejudice to Australia's national security is not required to be serious or substantial but is intended to be more than a minor or trivial prejudice that has no long-lasting effect. The term is defined in section 90.1 to clarify that embarrassment alone is not sufficient to prejudice Australia's national security. Where the person intended that, or was reckless as to whether, his or her conduct would cause embarrassment alone, and that embarrassment eventuates, it will be immaterial whether that embarrassment in turn results in some harm or damage to Australia's national security (for example, a loss of confidence in, or a reduced willingness to share information with, the Australian Government by a foreign partner).

594. Whether or not the prejudice to Australia's national security occurs or the conduct is capable of bringing it about is not relevant to the defendant's culpability for the offence. For example, if the foreign country already knew the information provided by the defendant then the disclosure by the defendant may not prejudice Australia's national security.

595. For paragraph 91.2(1)(c), the prosecution will have to prove beyond reasonable doubt that the defendant's conduct resulted in, or would result in, the information or article being made available to a foreign principal. Recklessness is the fault element for this element. Therefore, the defendant must have been aware of a substantial risk that the information or article would be made available to a foreign principal and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

596. In the example above, Person A has sent the report to Country B and would therefore have knowledge that the information was made available to a foreign principal.

597. Consistent with subsection 91.2(3), for the purpose of paragraph 91.2(1)(c), the person will not need to have in mind a particular foreign principal and may have in mind more than one foreign principal. For example, a defendant may assist an individual who has identified themselves to the defendant as a foreign official, but has not specified which foreign country they represent. Or, a defendant may provide assistance in the knowledge this assistance will or could assist multiple foreign principals at the same time.

598. The maximum penalty for this offence is 25 years imprisonment. The maximum penalty needs to be adequate to deter and punish a worst case offence, including repeat offences. For the offence at subsection 91.2(1), the worst case scenario is a person disclosing information to a foreign country, intending to prejudice Australia's national security. The risks that may be posed to Australia's safety and security by such a disclosure are extreme and it is appropriate that the offence be punishable by a serious penalty.

599. The Note to subsection 91.2(1) specifies that an alternative verdict may be available for an offence against section 91.2(1) in accordance with section 93.5.

Reckless as to national security

600. Subsection 91.2(2) will make it an offence for a person to deal with any information or an article where the person is reckless as to whether their conduct will prejudice Australia's national security and where the conduct has resulted in, or will result in, the information or article being communicated or made available to a foreign principal.

601. This offence will carry a maximum penalty of 20 years imprisonment.

602. An example of this offence is as follows. Person A is a Commonwealth official employed as an analyst at a government department. Person A is approached by Person B, a diplomat from Country X who is posted to Australia, and is offered a large sum of money if he can provide information which would assist Country X in undertaking intelligence operations in Australia. Person A compiles a report informed by the knowledge he has gained through his role as an analyst in the government department, which contains sensitive, but publically available, information about Australian interests. Person A sends the report to an email address provided by Person B at the embassy of Country X.

603. To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

•

a person intentionally dealt with information or an article

•

the person was reckless as to whether his or her conduct would prejudice Australia's national security, and

•

the person's conduct resulted, or would result, in the information being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal and the person was reckless as to this element.

604. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 91.2(2)(a). Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

605. Recklessness is the fault element for paragraphs 91.2(2)(b) and (c). Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

•

a circumstance if he or she is aware of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

606. For paragraph 91.2(2)(a) the prosecution will have to prove beyond a reasonable doubt that the defendant intentionally deals with information or an article. Consistent with the definition of deals in section 90.1, this may include receiving, obtaining, collecting, possessing, making a record or copying, altering, concealing, communicating, publishing or making available the information or article. In the example of the offence above, Person A has dealt with the information by collecting it, making a record of it in the report and communicating the report to Country X.

607. For paragraph 91.2(2)(b), the prosecution will have to prove beyond reasonable doubt that the defendant was reckless as to whether his or her conduct would prejudice Australia's national security. Unlike the offences in section 91.1, a person will not commit the offence at subsection 91.2(2) if they hold an intention to advantage the national security of a foreign country. This is because the offences in section 91.2 apply to any information, not only information carrying a security classification or concerning Australia's national security.

608. The defendant must have been aware of a substantial risk that the information or article could prejudice Australia's national security and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

609. The term 'prejudice' is intended to capture a broad range of intended conduct, including an intention to harm or injure Australia's national security or to cause disadvantage to Australia. The term is also intended to cover impairment or loss to Australia's national security interests. The prejudice to Australia's national security is not required to be serious or substantial but is intended to be more than a minor or trivial prejudice that has no long-lasting effect, nor embarrassment to an Australian person or Australia's people. The term is defined in section 90.1 to clarify that embarrassment alone is not sufficient to prejudice Australia's national security. Where the person intended that, or was reckless as to whether, his or her conduct would cause embarrassment alone, and that embarrassment eventuates, it will be immaterial whether that embarrassment in turn results in some harm or damage to Australia's national security (for example, a loss of confidence in, or a reduced willingness to share information with, the Australian Government by a foreign partner).

610. Whether or not the prejudice to Australia's national security occurs or the conduct is capable of bringing it about is not relevant to the defendant's culpability for the offence. For example, if the foreign country already knew the information provided by the defendant then the disclosure by the defendant may not prejudice Australia's national security.

611. For paragraph 91.2(2)(c), the prosecution will have to prove beyond reasonable doubt that the defendant's conduct resulted in, or would result in, the information or article being communicated or made available to a foreign principal. Recklessness is the fault element for this element. Therefore, the defendant must have been aware of a substantial risk that the information or article would be communicated or made available to a foreign principal and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

612. Consistent with subsection 91.2(3), for the purposes of paragraph 91.2(2)(c), the person will not need to have in mind a particular foreign principal and may have in mind more than one foreign principal. For example, a defendant may assist an individual who has identified themselves to the defendant as a foreign official, but has not specified which foreign country they represent. Or, a defendant may provide assistance in the knowledge this assistance will or could assist multiple foreign principals at the same time.

613. The maximum penalty for this offence is 20 years imprisonment. The maximum penalty needs to be adequate to deter and punish a worst case offence, including repeat offences. For the offence at subsection 91.2(2), the worst case scenario is a person disclosing information to a foreign country, aware of a substantial risk that such a disclosure would prejudice Australia's national security. The risks that may be posed to Australia's safety and security by such a disclosure are very high and it is appropriate that the offence be punishable by a serious penalty.

Section 91.3 - Espionage - security classified information etc.

614. Section 91.3 will make it an offence for a person to deal with information or an article that has a security classification with the primary purpose of communicating the information or article, or making it available, to a foreign principal or a person acting on behalf of the foreign principal, where their conduct has resulted in, or will result in, the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal.

615. This offence will carry a maximum penalty of 20 years imprisonment.

616. An example of this offence is as follows: Person A is a Commonwealth official with access to classified information. Person A copies a document classified as TOP SECRET, makes contact with an official from Country X. Person A arranges to leave the document in an agreed public location and a representative of Country X collects it shortly thereafter.

617. To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

•

a person intentionally dealt with information or an article

•

the person dealt with the information or an article for the primary purpose of communicating the information or article, or making it available to a foreign principal or a person acting on behalf of a foreign principal

•

the person's conduct results in, or will result in, the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal and the person is reckless as to this element, and

•

the information or article has a security classification.

618. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 91.3(1)(a). Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

619. Subsection 91.3(3) will apply strict liability to paragraph 91.3(1)(aa).

620. Recklessness is the fault element for paragraphs 91.3(1)(b) and (c). Strict liability will apply to certain elements of the definition of security classification (as explained below). Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

•

a circumstance if he or she is aware of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

621. For paragraph 91.3(1)(a), the prosecution will have to prove beyond reasonable doubt that the defendant intentionally deals with information or an article. Consistent with the definition of deals in section 90.1, this may include receiving, obtaining, collecting, possessing, making a record or copying, altering, concealing, communicating, publishing or making available the information or article. In the example above, Person A has dealt with the information by copying a document and making it available to Country X. For paragraph 91.3(aa), strict liability applies so the prosecution will not need to prove that the person was reckless as to whether he or she dealt with information or article for the primary purpose of making the information or article available to a foreign principal or person acting on behalf of a foreign principal. Strict liability is appropriate for this element because it already contains a quasi-fault element of 'primary purpose'. Given the prosecution is required to prove that the person's primary purpose was to make the information or article available to a foreign principal, it is unnecessary to additionally require the prosecution to prove any other fault element.

622. Strict liability is set out in section 6.1 of the Criminal Code. The effect of applying strict liability to an element of an offence means that no fault element needs to be proved and the defence of mistake of fact is available.

623. The defence of mistake of fact is set out in section 9.2 of the Criminal Code. The defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

•

at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

•

had those facts existed, the conduct would not have constituted an offence.

624. For paragraph 91.3(1)(b), the prosecution will have to prove beyond reasonable doubt that the defendant's conduct resulted in, or would result in, the information or article being communicated or made available to a foreign principal or person acting on behalf of a foreign principal. Recklessness is the fault element for this element. Therefore, the defendant must have been aware of a substantial risk that the information or article would be made available to a foreign principal and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

625. In the example above, Person A is aware that Country X would collect the document from a prearranged location. By leaving that document in that location, Person A was aware of the substantial risk that the document would be made available to Country X. Person A would have been aware that it is unjustifiable to take that risk given the sensitive nature of the TOP SECRET document.

626. Consistent with subsection 91.3(2), for the purposes of paragraphs 91.3(1)(aa) and (b), the person will not need to have in mind a particular foreign principal and may have in mind more than one foreign principal. For example, a defendant may assist an individual who has identified themselves to the defendant as a foreign official, but has not specified which foreign country they represent. Or, a defendant may provide assistance in the knowledge this assistance will or could assist multiple foreign principals at the same time.

627. For subparagraph 91.3(1)(c), the prosecution will need to prove beyond a reasonable doubt that the information or article has a security classification, and the person was reckless as to this. Security classification is defined in section 90.5, to be inserted by Item 16 of Schedule 1, to mean:

•

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 that, if disclosed in an unauthorised manner, could be expected to:

o

for a classification of secret-cause serious damage to the national interest, organisations or individuals, or

o

for a classification of top secret-cause exceptionally grave damage to the national interest; or

•

any equivalent classification or marking prescribed by the regulations.

628. Under new subsection 90.5(1A), strict liability will apply to some aspects of the definition of security classification. Subsection 90.5(1A) provides that strict liability applies to the element that:

•

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

•

a classification or marking was prescribed by regulations as mentioned in paragraph 90.5(1)(b).

629. The effect of applying strict liability is that no fault element needs to be proved in relation to those parts of the definition. Applying strict liability to these elements of the definition is appropriate because the person's state of mind about the fact that the classification was applied under an appropriate Commonwealth policy framework or prescribed by regulations is not relevant to their culpability. It is sufficient for the prosecution to prove that the person was reckless as to the fact that the information was classified as SECRET or TOP SECRET. It is not reasonable to expect that a person would be familiar with the methods for applying classifications to information or prescribing equivalent classifications in regulations. There is unlikely to be sufficient evidence to allow the prosecution to prove that a person was reckless about this level of detail about the relevant policy framework or the process for prescribing an equivalent classification.

630. In the example above, Person A has dealt with a document containing a security classification of 'TOP SECRET'. The prosecution would need to prove beyond a reasonable doubt that the document contained a TOP SECRET security classification, and that the person was reckless as to this. However, the prosecution would not need to prove that the person was reckless as to whether the security classification was applied in accordance with the relevant policy framework.

631. Strict liability is set out in section 6.1 of the Criminal Code. The effect of applying strict liability to an element of an offence means that the defence of mistake of fact is available. The defence of mistake of fact is set out in section 9.2 of the Criminal Code. The defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

•

at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

•

had those facts existed, the conduct would not have constituted an offence.

632. The defendant bears an evidential burden in relation to this defence. Section 13.3 of the Criminal Code provides that in the case of a standard 'evidential burden' defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).

633. The maximum penalty for this offence is 20 years imprisonment. The maximum penalty needs to be adequate to deter and punish a worst case offence, including repeat offences. For the offence at subsection 91.3, the worst case scenario is a person disclosing highly classified information to a foreign country. The risks that may be posed to Australia's safety and security by such a disclosure are very high and it is appropriate that the offence be punishable by a serious penalty.

Section 91.4 - Defences

634. The general defences available under Part 2.3 of the Criminal Code will be available to a person accused of an offence under Subdivision A. In addition, section 91.4 creates specific defences.

635. The offences in Subdivision A are only intended to apply where a person's dealing with information is not a proper or legitimate part of their work. There are a vast range of legitimate circumstances in which public officials deal with information concerning Australia's national security (including highly classified information) in performing their duties. For example, possessing or copying information concerning national security is a day to day occurrence in many Commonwealth departments and agencies and for Ministers and their staff. It is not intended to criminalise these dealings.

636. Lawful authority is currently included as a physical element of some of the existing espionage offences in Division 91 of the Criminal Code where a person communicates, or makes available, information intending to give an advantage another country's security or defence (for example, subparagraph 91.1(2)(b)(i)). This requires the prosecution to prove, beyond a reasonable doubt, that the person did not have lawful authority for their actions. In contrast, subsection 91.4(1) casts the matter of lawful authority as a defence, which has the effect of placing an evidentiary burden of proof on the defendant.

637. If lawful authority was an element of the espionage offences in Subdivision A, it would be necessary for the prosecution to prove, beyond a reasonable doubt, that there was no authority in any law or in any aspect of the person's duties that authorised the person to deal with the information or article in the relevant manner. This is a significant barrier to prosecutions.

638. It is appropriate for the matter of lawful authority to be cast as a defence because the source of the alleged authority for the defendant's actions is peculiarly within the defendant's knowledge. It is significantly more cost-effective for the defendant to assert this matter rather than the prosecution needing to disprove the existence of any authority, from any source. Consistent with section 13.3 of the Criminal Code, in the case of an evidential burden, the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. If the defendant discharges an evidential burden, the prosecution must disprove those matters beyond reasonable doubt, consistent with section 13.1 of the Criminal Code.

639. Subsection 91.4(1) will provide a defence if a person dealt with the relevant information or article:

•

in accordance with a law of the Commonwealth (paragraph 91.4(1)(a)), or

•

in accordance with an arrangement or agreement to which the Commonwealth is party and which allows for the exchange of information or articles (paragraph 91.4(1)(b)), or

•

in the person's capacity as a public official (paragraph 91.4(1)(c)).

640. Section 10.5 of the Criminal Code provides a general defence of lawful authority applicable to all Commonwealth offences. This defence is narrow and only applies to conduct that is specifically justified or excused by a law. Consistent with the definition of law in the Dictionary to the Criminal Code, this means the conduct must be specifically justified or excused by a law of the Commonwealth, and includes the Criminal Code.

641. The defence at paragraph 91.4(1)(a) is broader than the lawful authority defence available under section 10.5 and will cover a person acting 'in accordance' with a law of the Commonwealth, rather than the law of the Commonwealth needing to specifically justify or excuse the person's conduct. An example of conduct covered by the specific defence created in section 91.4(1)(a), but not by the general defence of lawful authority, includes where a person acts in accordance with their duties as an APS employee as set out in the Public Service Act 1999 or the Public Service Regulations 1999, despite nothing specific in those laws authorising the person's actions.

642. The defence at paragraph 91.4(1)(b) applies when person dealt with the information or article in accordance with an agreement or arrangement to which the Commonwealth is party allowing for the exchange of information or articles. Many departments and agencies share information with international counterparts as part of their normal business dealings. Often this information is highly sensitive and highly classified. This defence provides that the espionage offences in Subdivision A do not apply if a person was sharing information or articles in accordance with an agreement or arrangement to which the Commonwealth was a party and which allows for the exchange of information or articles.

643. The terms 'arrangement' and 'agreement' are not defined and will be given their ordinary meaning. The term 'agreement' is not intended to be limited by the meaning of 'agreement' in Australian international practice as being a treaty, nor is it intended to require evidence of a formal contractual or legal agreement. It is intended that such terms will capture agreements or arrangements in a range of forms, including those made by exchange of letters or as a memorandum of understanding.

644. The defence at paragraph 91.4(1)(c) applies when a person dealt with the information or article in the person's capacity as a public official. Public official is defined in the Dictionary to the Criminal Code to include:

•

a Commonwealth public official

•

an officer or employee of the Commonwealth or of a State or Territory

•

an individual who performs work for the Commonwealth, or for a State or Territory, under a contract

•

an individual who holds or performs the duties of an office established by a law of the Commonwealth or of a State or Territory

•

an individual who is otherwise in the service of the Commonwealth or of a State or Territory (including service as a member of a military force or police force)

•

a member of the executive, judiciary or magistracy of the Commonwealth or of a State or Territory, and

•

an officer or employee of:

o

an authority of the Commonwealth, or

o

an authority of a State or Territory.

645. Commonwealth public official is defined in the Dictionary to the Criminal Code to mean:

•

the Governor-General

•

a person appointed to administer the Government of the Commonwealth under section 4 of the Constitution

•

a Parliamentary Secretary

•

a member of either House of the Parliament

•

an individual who holds an appointment under section 67 of the Constitution

•

the Administrator, an Acting Administrator, or a Deputy Administrator, of the Northern Territory

•

a Commonwealth judicial officer (as defined in the Dictionary to the Criminal Code)

•

an APS employee

•

an individual employed by the Commonwealth other than under the Public Service Act 1999

•

a member of the Australian Defence Force

•

a member or special member of the AFP

•

an individual (other than an official of a registered industrial organisation) who holds or performs the duties of an office established by or under a law of the Commonwealth, other than:

o

the Corporations (Aboriginal and Torres Strait Islander) Act 2006

o

the Australian Capital Territory (Self-Government) Act 1988

o

the Corporations Act 2001

o

the Norfolk Island Act 1979, or

o

the Northern Territory (Self-Government) Act 1978

•

an officer or employee of a Commonwealth authority

•

an individual who is a contracted service provider for a Commonwealth contract

•

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

•

an individual (other than an official of a registered industrial organisation) who exercises powers, or performs functions, conferred on the person by or under a law of the Commonwealth, other than:

o

the Corporations (Aboriginal and Torres Strait Islander) Act 2006

o

the Australian Capital Territory (Self-Government) Act 1988

o

the Corporations Act 2001

o

the Norfolk Island Act 1979

o

the Northern Territory (Self-Government) Act 1978, or

o

a provision specified in the regulations

•

an individual who exercises powers, or performs functions, conferred on the person under a law in force in the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands (whether the law is a law of the Commonwealth or a law of the Territory concerned), or

•

the Registrar, or a Deputy Registrar, of Aboriginal and Torres Strait Islander Corporations.

646. This defence is intended to apply where a person discloses information concerning Australia's national security in the person's capacity as a public official. This may include, for example, an employee duty statement, a policy guidance document or employee practice manual, or previous examples of the same conduct which has been authorised by superiors. It will not be a defence to a charge of espionage where a person has gone beyond their ordinary duties.

647. Note 1 under the defence at subsection 91.4(1) clarifies that the defendant will bear an evidentiary burden in relation to this defence. The Guide to Framing Commonwealth Offences provides (at paragraph 4.3.1) that it is appropriate for a matter to be included in an offence-specific defence where it is peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. The defence at subsection 91.4(1) satisfies both of these criteria. Evidence of the source of the alleged authority for the defendant's actions is peculiarly within the defendant's knowledge. It would be difficult and more costly for the prosecution to prove, beyond a reasonable doubt, that the person was not acting in their capacity as a public official, in accordance with a law of the Commonwealth or in accordance with an information arrangement or agreement to which the Commonwealth is a party. To do this, it would be necessary to negate the fact that there was authority for the person's actions in any law or in any aspect of the person's duty or in any of the instructions given by the person's supervisors (at any level). Conversely, if a Commonwealth officer had a particular reason for thinking that they were acting in accordance with a law or with their duties, it would not be difficult for them to describe where they thought that authority arose.

648. Consistent with section 13.3 of the Criminal Code, the defendant will need to point to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1). Both AFP and CDPP consider the availability of any defences when considering whether to investigate and prosecute criminal offences. In relation to prosecution decisions, the Prosecution Policy of the Commonwealth specifically requires the CDPP to take into account any lines of defence which are plainly open to, or have been indicated by, the alleged offender in deciding whether there is a reasonable prospect of a conviction being secured. Subsection 93.1 (to be inserted by Item 18 of Schedule 1) requires the Attorney-General consider whether the defendant's conduct is authorised under the defences in section 91.4 before providing his or her consent to the institution of proceedings for the commitment of a person for trial for an offence to which the defence applies.

649. Section 91.4(2) will insert a defence based on existing section 91.2 of the Criminal Code where the information or article has already been communicated or made available to the public with the authority of the Commonwealth.

650. The defence under section 91.4(2) only applies where the relevant information or article is in the public domain with the authority of the Commonwealth. This defence is expressly limited to information or articles which are communicated or made publically available on an authorised basis. It will not be a defence to a charge of espionage against Subdivision A where the information is initially communicated or made available without the authority of the Commonwealth in the nature of a 'leak'. For example, a person who, without authority, places information regarding the security or defence of the Commonwealth on an obscure internet website and subsequently communicates that information to a foreign organisation for the purpose of giving an advantage to another country's security or defence will not be able to rely on this defence.

651. Note 1 under the defence at subsection 91.4(2) clarifies that the defendant will bear an evidentiary burden in relation to this offence. The Guide to Framing Commonwealth Offences provides (at paragraph 4.3.1) that it is appropriate for a matter to be included in an offence-specific defence where it is peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. The defence at subsection 91.4(2) satisfies both of these criteria. Evidence that the defendant acquired the relevant information or article indirectly from a publically available source is evidence peculiarly within the knowledge of the defendant. It would be significantly more cost-effective for the defendant to assert this matter rather than the prosecution needing to disprove the existence of any publically available source of the information. Consistent with section 13.3 of the Criminal Code, the defendant will need to point to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).

652. The defence under subsection 91.4(3) applies to a prosecution for an offence against section 91.1, in which the prosecution relies on subparagraph 91.1(1)(c)(ii) or (2)(c)(ii), or against section 91.3. The new defence will provide a defence to a prosecution for the espionage offences specified if there has been a prior publication of that information in certain circumstances.

653. The defence will apply if:

•

the person did not make or obtain the information by reason of any of the following:

o

his or her being, or having been, a public official

o

his or her being otherwise engaged to perform work for a Commonwealth entity

o

an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information

•

the information has already been communicated, or made available, to the public (the prior publication)

•

the person was not involved in the prior publication (whether directly or indirectly)

•

at the time of the person deals with the information or article, the person believes doing so will not prejudice Australia's national security, and

•

having regard to the nature, extent and place of the prior publication, the person has reasonable grounds for that belief.

654. The defence is limited to the offences against subparagraph 91.1(1)(c)(ii) or (2)(c)(ii), or against section 91.3 as these offences do not have an element of intention to prejudice Australia's national security. It would not be coherent for this defence to apply to offences which have intention to prejudice Australia's national security as an element of the offence, given the defence requires that the person believe they will not prejudice Australia's national security. In respect of offences that require intention to prejudice Australia's national security, the prosecution will already be required to disprove the defence in order to make out the elements of the offence.

655. The defence is in similar terms to the defence at new subsection 122.5(8) for secrecy offences. The defence is drafted in similar terms to the prior publication defence contained in subsection 35P(3A) of the ASIO Act. Subsection 35P(3A) was inserted following the recommendation of the then-Independent National Security Legislation Monitor, the Hon Roger Gyles AO QC, in his Report on the impact on journalists of the operation of section 35P of the ASIO Act, which was tabled in the Parliament on 2 February 2016.

656. It is intended that paragraph 91.4(3)(a) will limit the availability of the defence to individuals who did not receive the relevant information in an official capacity. Persons who have received information in their official capacity will not be criminally liable for communicating or dealing with the information in their official capacity, by reason of the defence in subsection 91.4(1). The limitation of the prior publication defence in subsection 91.4(3) to persons who did not receive the relevant information in an official capacity is consistent with the Monitor's recommendation, and the drafting of subsection 35P(3A).

657. The defence under subsection 91.4(3) seeks to strike a balance between freedom of expression on the one hand, and recognition that further dissemination of information to a foreign principal could cause additional harm on the other hand. Before disclosing information that has already been published, a person must believe on reasonable grounds that the subsequent disclosure will not cause harm. This is because in some cases, even where information is considered to have been published and in the public domain, subsequent disclosure will still result in harm. For example, this would be the case where information is brought into the public domain inadvertently, such as where a security classified document or information provided to the Australian Government in accordance with a legal obligation is revealed as a result of a technical or administrative error. Where steps are quickly taken to reverse the disclosure, subsequent publication of that information is likely to bring that information to the attention of a foreign principal and could result in considerable new or additional harm.

658. The Note under the defence at subsection 91.4(3) clarifies that the defendant will bear an evidential burden in relation to this defence. Section 13.3 of the Criminal Code provides that in the case of a standard 'evidential burden' defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).

659. The Guide to Framing Commonwealth Offences provides (at paragraph 4.3.1) that it is appropriate for a matter to be included in an offence-specific defence where it is peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.

660. The imposition of the evidential burden on the defendant is appropriate because the defendant should be readily able to point to evidence founding a suggestion that there is a reasonable possibility that they did not receive the information in an official capacity, the information has already been communicated, or made available, to the public, that the person was not involved in the prior publication, and that they believed on reasonable grounds that their communication would not prejudice Australia's national security. In addition, this is expected to be a rare situation and is unlikely to be a feature of every case that is investigated and referred for prosecution. It would be unnecessary and significantly costly if the prosecution was required to disprove this for every prosecution of offence against subparagraph 91.1(c)(ii), subparagraph 91.1(2)(c)(ii) or section 91.3. It is appropriate to include it as a defence and allow the defendant to raise the matter if the facts and circumstances are appropriate.

Section 91.5 - Matters affecting sentencing for offence against subsection 91.1(1)

661. Section 91.5 provides that in sentencing a person convicted of an offence against subsection 91.1(1) (punishable by a maximum of life imprisonment), the court must consider the following circumstances (set out in paragraph 91.6(1)(b)), if relevant:

•

whether the person dealt with information or an article from a foreign intelligence agency (paragraph 91.6(1)(b)(ii))

•

whether the person dealt with five or more records or articles each of which has a security classification (paragraph 91.6(1)(b)(iii))

•

whether the person altered a record or article to remove or conceal its security classification (paragraph 91.6(1)(b)(iv)), or

•

whether, at the time the person dealt with the information or thing, the person held an Australian Government security clearance allowing access to information that has, or articles that have, a security classification of at least SECRET (paragraph 91.6(1)(b)(v)).

662. The circumstances listed in paragraph 91.6(1)(b) are considered to be so serious as to warrant a specific aggravated offence with a higher maximum penalty reflecting a higher level of culpability. However, the offence against subsection 91.1(1) carries a maximum penalty of life imprisonment. It is not possible to impose a higher maximum penalty than this even if aggravating circumstances are present.

663. Section 91.5 provides that, in determining the sentence to be passed in respect of a person for an offence against subsection 91.1(1) (punishable by life imprisonment, the court must take into account any circumstances set out in paragraph 91.6(1)(b) that exist in relation to the commission of the offence.

664. If any of these circumstances exist, the CDPP will be required to prove the existence of the relevant aggravating circumstance beyond a reasonable doubt at the sentencing stage.

665. Subsection 91.5(2) makes it clear that the court only need consider the circumstances in so far as they are known to the court and relevant. In practice, the CDPP will raise matters relevant to sentencing with the court.

666. Paragraph 91.5(3) provides, to avoid doubt, that consideration of the circumstances listed in paragraph 91.6(1)(b) are in addition to any other matters to which the court must take into account when sentencing. Paragraph 91.5(3) gives as an example the matters listed in section 16A(2) of the Crimes Act that a sentencing court must take into account, such as:

•

the nature and circumstances of the offence

•

other relevant offences

•

the personal circumstances of the victim

•

the degree to which the person has shown contrition

•

any guilty plea

•

cooperation with law enforcement agencies in the investigation of the offence, and

•

the character, antecedents, age, means and physical or mental condition of the person.

Section 91.6 - Aggravated espionage offence

667. Section 91.6 will create an aggravated espionage offence. This offence will apply where a person commits an offence against section 91.1 (other than subsection 91.1(1)), section 91.2 or section 91.3. The offence at subsection 91.1(1) attracts the highest possible maximum penalty of life imprisonment and the penalty is therefore unable to be increased as part of the aggravated offence. Section 91.5 deals with how the penalty for an offence against subsection 91.1(1) should be dealt with if any of the aggravating circumstances in paragraph 91.6(1)(b) exist.

668. The aggravated espionage offence will apply where:

•

that the person dealt with information or an article from a foreign intelligence agency (paragraph 91.6(1)(b)(ii))

•

that that the person dealt with 5 or more records or articles each of which has a security classification (paragraph 91.6(1)(b)(iii))

•

that the person altered a record or article to remove or conceal its security classification (paragraph 91.6(1)(b)(iv)), or

•

that at the time the person dealt with the information or article, the person held an Australian Government security clearance allowing access to information that has, or articles that have, a security classification of at least SECRET (paragraph 91.6(1)(b)(v)).

669. The aggravated offence will be punishable by a maximum penalty of:

•

life imprisonment if the maximum penalty for the underlying offence is 25 years imprisonment, or

•

25 years imprisonment if the maximum penalty for the underling offence is 20 years imprisonment.

670. An example of this offence is as follows. Person A is employed as an IT systems administrator at a Commonwealth government intelligence agency. In this role, Person A had access a large volume of highly classified information and throughout his employment Person A copied 1000 electronic files from the department's internal holdings to a personal hard drive. Over 100 of the documents copied have a security classification, including one document classified as TOP SECRET and one document from a Five-Eyes partner intelligence agency. Person A sells copies of all 1000 documents to Country X for a large sum of money.

671. To establish the aggravated offence the prosecution will first need to prove beyond reasonable doubt that a person commits an underlying offence against section 91.1 (Espionage - dealing with information etc. concerning national security which is or will be communicated or made available to a foreign principal) (other than 91.1(1)), section 91.2 (Espionage - dealing with information etc. which is or will be communicated or made available to foreign principal) or section 91.3 (Espionage - security classified information).

672. 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. The physical and fault elements constituting an offence against section 91.1, section 91.2 and section 91.3 are described above.

673. Subsection 91.6(2) provides that there is no fault element for the physical element described in paragraph 91.6(1)(a) other than the fault elements for the underlying offence. The underlying offences themselves have specific physical and fault elements that must be proved by the prosecution. 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 91.6(2) makes clear that for the purposes of the offence in section 91.6, the prosecution does not need to prove any fault elements in addition to those fault elements already applying to the underlying offences.

674. In addition to establishing the underlying offence, the prosecution will need to prove at least one of the following additional elements in relation to the commission of the underlying offence:

•

that the person dealt with information or an article from a foreign intelligence agency (paragraph 91.6(1)(b)(ii))

•

that that the person dealt with five or more records or articles each of which has a security classification (paragraph 91.6(1)(b)(iii))

•

that the person altered a record or article to remove or conceal its security classification (paragraph 91.6(1)(b)(iv)), or

•

that at the time the person dealt with the information or article, the person held an Australian Government security clearance allowing access to information that has, or articles that have, a security classification of at least SECRET (paragraph 91.6(1)(b)(v)).

675. Recklessness is the fault element for subparagraphs 91.6(1)(b) (ii), (iii), (iv) and (v). Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

•

a circumstance if he or she is aware of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

676. For subparagraph 91.6(1)(b)(ii), the prosecution will need to prove beyond reasonable doubt that the defendant was reckless as to whether the information or article he or she dealt with in relation to the underlying offence was from a foreign intelligence agency. Foreign intelligence agency will be defined in the Dictionary to the Criminal Code (as amended by Item 24 of Schedule 1), as an intelligence or security service (however described) of a foreign country.

677. Information from foreign intelligence agencies is communicated to the Australian government in the highest confidence and with the expectation that all necessary steps will be taken to maintain the confidentially of such information. Espionage involving information from a foreign intelligence agency can therefore not only cause grave damage to Australia's national security and international relations, but also to the interests of foreign countries.

678. In the example above, Person A has dealt with information from a foreign intelligence agency because Person A copied a document from a Five-Eyes intelligence agency and made it available to Country X, which would fall within subparagraph 91.6(1)(b)(ii).

679. The prosecution will have to prove that the defendant was reckless as to whether the information or thing was from a foreign intelligence agency. Therefore, the defendant must have been aware of a substantial risk that the information or article is from a foreign intelligence agency and, having regard to the circumstances known to him or her it was unjustifiable to take that risk.

680. For subparagraph 91.6(1)(b)(iii), the prosecution will need to prove that the defendant dealt with five or more records or articles, each of which had a security classification, and that the defendant was reckless as to this. Therefore, the defendant must have been aware of a substantial risk that the information or articles each had a security classification and, having regard to the circumstances known to him or her it was unjustifiable to take that risk.

681. Security classification is defined in section 90.5 to mean:

•

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 that, if disclosed in an unauthorised manner, could be expected to:

o

for a classification of secret-cause serious damage to the national interest, organisations or individuals, or

o

for a classification of top secret-cause exceptionally grave damage to the national interest; or

•

any equivalent classification or marking prescribed by the regulations.

682. Under new subsection 90.5(1A), strict liability will apply to some aspects of the definition of security classification. Subsection 90.5(1A) provides that strict liability applies to the element that:

•

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

•

a classification or marking was prescribed by regulations as mentioned in paragraph 90.5(1)(b).

683. The effect of applying strict liability is that no fault element needs to be proved in relation to those parts of the definition. Applying strict liability to these elements of the definition is appropriate because the person's state of mind about the fact that the classification was applied under an appropriate Commonwealth policy framework or prescribed by regulations is not relevant to their culpability. It is sufficient for the prosecution to prove that the person was reckless as to the fact that the information was classified as SECRET or TOP SECRET. It is not reasonable to expect that a person would be familiar with the methods for applying classifications to information or prescribing equivalent classifications in regulations. There is unlikely to be sufficient evidence to allow the prosecution to prove that a person was reckless about this level of detail about the relevant policy framework or the process for prescribing an equivalent classification.

684. Strict liability is set out in section 6.1 of the Criminal Code. The effect of applying strict liability to an element of an offence means that the defence of mistake of fact is available. The defence of mistake of fact is set out in section 9.2 of the Criminal Code. The defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

•

at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

•

had those facts existed, the conduct would not have constituted an offence.

685. The defendant bears an evidential burden in relation to this defence. Section 13.3 of the Criminal Code provides that in the case of a standard 'evidential burden' defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).

686. Security classification is defined in section 90.5 to mean:

•

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 that, if disclosed in an unauthorised manner, could be expected to:

o

for a classification of secret-cause serious damage to the national interest, organisations or individuals, or

o

for a classification of top secret-cause exceptionally grave damage to the national interest; or

•

any equivalent classification or marking prescribed by the regulations.

687. The terms 'altered', 'conceal' and 'remove' are not defined and are intended to take their ordinary meanings:

•

The term altered is intended to cover the situation where a person amends or changes information in any way. This includes amending a classified document to change or delete the classification marker or to change specific terms in a document to remove identifying details while retaining the original meaning of the document.

•

The term conceals is intended to cover hiding or preventing the security classification from being seen.

•

The term remove is intended to cover erasing or taking away the security classification. This would include editing a document to delete the security classification.

688. Removing or altering a security classification is an aggravating factor because the government imposes a security classification to a document to specifically denote the sensitivity of the information to Australian Government - and the removal or alteration of a security classification is an overt contravention of this key principle of protective security. Removing or altering security classifications can also help an individual evade detection in the process of removing a document from a secure environment.

689. For subparagraph 91.6(1)(b)(v), the prosecution will need to prove beyond reasonable doubt that the defendant was reckless as to whether he or she held an Australian Government security clearance at the time they committed the underlying offence. The prosecution will need to establish that the defendant was aware of a substantial risk that he or she held an Australian Government security clearance and, having regard to the circumstances known to him or her it was unjustifiable to take that risk.

690. A new definition of Australian Government security clearance will be inserted into the Dictionary to the Criminal Code to mean a security clearance given by the Australian Government Security Vetting Agency or another Commonwealth, State or Territory agency that is authorised or approved by the Commonwealth to issue security clearances.

691. Subparagraph 91.6(1)(b)(v) is an aggravating factor because people who hold security clearance will be aware of appropriate information handling practices and the importance of protecting information as part of the an application and screening processes to obtain the security clearance. Security clearances allowing access to SECRET and TOP SECRET information imports a high level of trust to maintain the security of information, and is commensurate with the higher culpability and penalty imposed by an aggravating offence.

692. The aggravated offence will be punishable by a maximum penalty of life imprisonment if the maximum penalty for the underlying offence is 25 years imprisonment, or, 25 years imprisonment if the maximum penalty for the underlying offence is 20 years imprisonment.

693. The higher maximum penalty reflects the higher level of culpability associated with proof of the circumstances set out in paragraph 91.6(1)(b) and the extreme risk posed to Australia's national security in such cases. The penalty for the aggravated offence is consistent with the established principal of Commonwealth criminal law policy as set out in the Guide to Framing Commonwealth Offences to impose a higher penalty where the consequences of the offence are particularly dangerous or damaging.

694. Subsection 91.6(4) provides that, for the avoidance of doubt, a person does not commit the underlying offence if the person has a defence to the underlying offence. This provision makes clear that a person does not commit the underlying offence, and cannot therefore be found liable under the aggravated offence, if a defence applies to the underlying offence.

695. In addition to the general defences in Part 2.3 of the Criminal Code, section 91.4 includes defences that provide that a person does not commit an offence against section 91.1, section 91.2 and section 91.3 if the person dealt with the information or thing:

•

in accordance with a law of the Commonwealth

•

in accordance with an arrangement or agreement, to which the Commonwealth is party, allowing for the exchange of information and things

•

in the person's capacity as a public official, or

•

the information or article has already been communicated or made available to the public with the authority of the Commonwealth.

696. Subsection 91.6(5) clarifies that a person may be convicted of an offence against section 91.6 even if the person has not been convicted of the underlying offence. 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.

697. The note to section 91.6 clarifies that an alternative verdict, in accordance with section 93.5, may be available for an offence against this subsection. The purpose of this is to ensure that offenders who have committed an offence against section 91.1, 91.2 or 91.3 do not escape conviction on these lesser charges where an aggravating factor in paragraph 91.6(1)(b) cannot be proven beyond reasonable doubt, but the underlying offence can. If a jury hearing a prosecution for an offence against section 91.6 is satisfied that all elements of the offence against either section 91.1, 91.2 or 91.3 are proven beyond reasonable doubt except the aggravating factor in paragraph 91.6(1)(b), it is appropriate that it will be able to find the defendant guilty instead of an offence against subsection 91.1, 91.2 or 91.3.

Section 91.7 - Geographical jurisdiction

698. This section will apply Section 15.4 (extended geographical jurisdiction-Category D) to each offence against Subdivision A.

699. Under section 15.4, the effect of Category D geographical jurisdiction is that each offences against Subdivision C applies:

•

whether or not the conduct constituting the alleged offence occurs in Australia, and

•

whether or not a result of the conduct constituting the alleged offence occurs in Australia.

700. Category D geographical jurisdiction is appropriate because intelligence agencies may undertake key facets of espionage activities against Australia in foreign countries to conceal these activities from hostile authorities. For example, an official from Country X may direct Person X to travel to Country Y to physically pass classified documents to the foreign official, without Person X having to travel directly to Country X.

Subdivision B - Espionage on behalf of a foreign principal

Section 91.8 - Espionage on behalf of a foreign principal

Intention as to national security

701. Subsection 91.8(1) will make it an offence for a person to deal with information or an article where the person intends to prejudice Australia's national security or advantage the national security of a foreign country. The offence will only apply where the person is reckless as to whether his or her conduct involves the commission, by the person or any other person, of an offence against Subdivision A (espionage). The person's conduct must also have been directed by, funded by, supervised by or engaged in on behalf of a foreign principal or a person acting on behalf of a foreign principal.

702. This offence will carry a maximum penalty of 25 years imprisonment.

703. An example of this offence is as follows. Person A is an official of Country D temporarily located in Australia, but does not have diplomatic immunity. Person A knows Person B, an employee of a Commonwealth government department, and is aware that Person B is unhappy at work as he believes he has been overlooked for promotion. Person B tells Person A that he has made copies of classified information and is willing to pass it to Person A. Person A is keen to gain access to the documents as they would give Country D a significant advantage in upcoming treaty negotiations. Person A obtains the documents from Person B.

704. To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

•

a person intentionally dealt with information or an article

•

the person intended that his or her conduct would prejudice Australia's national security or advantage the national security of a foreign country

•

the person is reckless as to whether the conduct involves the commission, by the person or any other person, of an offence against Subdivision A (espionage), and

•

the:

o

person engaged in the conduct on behalf of a foreign principal

o

person engaged in the conduct on behalf of a person acting on behalf of a foreign principal

o

person engaged in the conduct in collaboration with a foreign principal

o

person engaged in the conduct in collaboration with a person acting on behalf of a foreign principal

o

conduct was directed, funded or supervised by a foreign principal, or

o

conduct was directed, funded or supervised by a person acting on behalf of a foreign principal

and the person is reckless as to this element.

705. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 91.8(1)(a). Intention will also apply to paragraph 91.8(1)(b). Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

706. Recklessness is the fault element for paragraphs 91.8(1)(c) and (d). Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

•

a circumstance if he or she is aware of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

707. For paragraph 91.8(1)(a) the prosecution will have to prove beyond reasonable doubt that the defendant intentionally deals with information or an article. Consistent with the definition of deals in section 90.1, this may include receiving, obtaining, collecting, possessing, making a record or copying, altering, concealing, communicating, publishing or making available the information or article. In the example of the offence above, Person A has 'dealt' with the information by obtaining the information from Person B.

708. For paragraph 91.8(1)(b), the prosecution will have to prove beyond reasonable doubt that the defendant intended that his or her conduct would prejudice Australia's national security or advantage the national security of a foreign country.

709. The term 'prejudice' is intended to capture a broad range of intended conduct, including an intention to harm or injure Australia's national security or to cause disadvantage to Australia. The term is also intended to cover impairment or loss to Australia's national security interests. The prejudice to Australia's national security is not required to be serious or substantial but is intended to be more than a minor or trivial prejudice that has no long-lasting effect, nor embarrassment to an Australian person or Australia's people. The term is defined in section 90.1 to clarify that embarrassment alone is not sufficient to prejudice Australia's national security. Where the person intended that, or was reckless as to whether, his or her conduct would cause embarrassment alone, and that embarrassment eventuates, it will be immaterial whether that embarrassment in turn results in some harm or damage to Australia's national security (for example, a loss of confidence in, or a reduced willingness to share information with, the Australian Government by a foreign partner).

710. The term 'advantage' is intended to capture an intention to put another country's national security in a favourable or superior position compared to Australia's position or to benefit or profit another's country's national security compared to Australia's national security. Section 90.1 defines advantage to clarify that conduct will not advantage the national security of a foreign country if the conduct will advantage Australia's national security to an equivalent extent.

711. For subparagraph 91.8(1)(b)(ii), the person must intend to advantage the national security of a 'foreign country', not a 'foreign principal'. This is because the interests of countries in relation to 'national security' are unique and often relate to the protection to the territory of the country.

712. Foreign country is intended to cover countries other than Australia and is defined in the Dictionary to the Criminal Code as including:

•

a colony or overseas territory

•

a territory outside Australia, where a foreign country is to any extent responsible for the international relations of the territory, and

•

a territory outside Australia that is, to some extent self-governing, but that is not recognised as an independent sovereign state by Australia.

713. In the example listed above, Person A has dealt with the document intending to advantage the national security of a foreign country by giving Country D an advantage in upcoming treaty negotiations.

714. Consistent with subsection 91.8(4), for the purposes of subparagraph 91.8(1)(b)(ii), the person does not need to have in mind a particular foreign country and may have in mind more than one foreign country. For example, a person may be in possession of classified information and be willing to pass the information to whichever country is the highest bidder. The person may still be reckless as to whether passing the information to a foreign country will prejudice the national security of Australia or advantage the national security of a foreign country.

715. For paragraph 91.8(1)(c), the prosecution will have to prove beyond a reasonable doubt that the person's is reckless as to whether the conduct involves the commission, by the person or any other person, of an offence against Subdivision A (espionage). Therefore, the defendant must have been aware of a substantial risk that his or her conduct, or the conduct of any other person, involves the commission of an offence under Subdivision A (espionage).

716. Subdivision A creates the following offences:

•

Espionage - dealing with information etc. concerning national security which is or will be communicated or made available to a foreign principal (section 91.1)

•

Espionage - dealing with information etc. which is or will be communicated or made available to a foreign principal (section 91.2), and

•

Espionage - security classified information etc. (section 91.3).

717. In proving the element at paragraph 91.11(1)(c), it will not be necessary for the prosecution to prove the physical or fault elements of the offence against Subdivision A, only that the defendant was reckless as to whether the conduct involved the commission, by the defendant or any other person, of an offence against Subdivision A.

718. In the example above, Person A would be aware of a substantial risk that Person B was committing an espionage offence by passing classified information obtained from his employment as a government employee to a foreign embassy.

719. For paragraph 91.8(1)(d), the prosecution will have to prove beyond a reasonable doubt that the defendant's conduct was engaged in on behalf of, or in collaboration with, a foreign principal, on behalf of a person acting on behalf of a foreign principal, directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal. Recklessness is the fault element for this element. Therefore, the defendant must have been aware of a substantial risk that his or her conduct was engaged in on behalf of, or in collaboration with, a foreign principal, on behalf of a person acting on behalf of a foreign principal, directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk.

720. It is possible that a defendant will know, or be reckless, as to the fact that they are engaging in conduct a foreign government because they are being tasked by a person who identifies himself or herself as an official of a foreign government. In this case, the person will be engaging in the conduct on behalf of the foreign principal.

721. However, it may also be the case that the defendant is not tasked directly by a foreign government official, but by an intermediary. In this case, the prosecution will have to prove beyond a reasonable doubt that the defendant was aware of a substantial risk that he or she was being tasked by a person acting on behalf of a foreign principal and that it was unjustifiable to take that risk. This may be the case where, for example, the intermediary advises the defendant that the intermediary acts in coordination with foreign officials, or the intermediary facilitates preferential treatment for the defendant from a foreign government.

722. Consistent with subsection 91.8(5), for the purposes of paragraph 91.8(1)(d), the person will not need to have in mind a particular foreign principal and may have in mind more than one foreign principal. For example, a defendant may assist an individual who has identified themselves to the defendant as a foreign official, but has not specified which foreign country they represent. Or, a defendant may provide assistance in the knowledge this assistance will or could assist multiple foreign principals at the same time.

723. The maximum penalty for this offence is 25 years imprisonment. The maximum penalty needs to be adequate to deter and punish a worst case offence, including repeat offences. This offence punishes the foreign actor who engages in espionage against the Australian government. For the offence at subsection 91.8(1), the worst case scenario is a foreign person receiving highly classified information, aware of a substantial risk that the information has been provided due to the commission of an espionage offence, with an intention to prejudice Australia's national security. The risks that may be posed to Australia's safety and security by such a disclosure are very high and it is appropriate that the offence be punishable by a serious penalty.

724. The Note to subsection 91.8(1) specifies that an alternative verdict may be available for an offence against section 91.8(1) in accordance with section 93.5.

Reckless as to national security

725. Subsection 91.8(2) will make it an offence for a person to deal with information or a article where the person is reckless as to whether the person's conduct will prejudice Australia's national security or advantage the national security of a foreign country. The offence will only apply where the person is reckless as to whether his or her conduct involves the commission, by the person or any other person, of an offence against Subdivision A (espionage). The person's conduct must also have been directed by, funded by, supervised by or engaged in on behalf of a foreign principal or a person acting on behalf of a foreign principal.

726. This offence will carry a maximum penalty of 20 years imprisonment.

727. An example of this offence is as follows. Person A is an Australian citizen with close links to the intelligence services of Country D. Person A acts as an intermediary for Country D in Australia and receives information from a former employee of a defence contractor who engages in work for the Commonwealth. Person A believes that access to the information could assist Country D to gain an advantage over Australia's armed forces. Person A passes the information to the intelligence service of Country D.

728. To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

•

a person intentionally dealt with information or an article

•

the person is reckless as to whether his or her conduct would prejudice Australia's national security or advantage the national security of a foreign country

•

the person is reckless as to whether the conduct involves the commission, by the person or any other person, of an offence against Subdivision A (espionage), and

•

the:

o

person engaged in the conduct on behalf of a foreign principal

o

person engaged in the conduct on behalf of a person acting on behalf of a foreign principal

o

person engaged in the conduct in collaboration with a foreign principal

o

person engaged in the conduct in collaboration with a person acting on behalf of a foreign principal

o

conduct was directed, funded or supervised by a foreign principal, or

o

conduct was directed, funded or supervised by a person acting on behalf of a foreign principal

and the person is reckless as to this element.

729. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 91.8(2)(a). Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

730. Recklessness is the fault element for paragraphs 91.8(2)(b), (c) and (d). Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

•

a circumstance if he or she is aware of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

731. For paragraph 91.8(2)(a) the prosecution will have to prove beyond reasonable doubt that the defendant intentionally deals with information or n article. Consistent with the definition of deals in section 90.1, this may include receiving, obtaining, collecting, possessing, making a record or copying, altering, concealing, communicating, publishing or making available the information or an article. In the example of the offence above, Person A has 'dealt' with the information by receiving the information from the former employee of a defence contractor and communicating the information to the intelligence service of Country D.

732. For paragraph 91.8(2)(b), the prosecution will have to prove beyond reasonable doubt that the defendant is reckless as to whether his or her conduct would prejudice Australia's national security or advantage the national security of a foreign country. Therefore, the defendant will need to be aware of a substantial risk that his or her conduct will prejudice Australia's national security or advantage the national security of a foreign country and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk.

733. The term 'prejudice' is intended to capture a broad range of intended conduct, including an intention to harm or injure Australia's national security or to cause disadvantage to Australia. The term is also intended to cover impairment or loss to Australia's national security interests. The prejudice to Australia's national security is not required to be serious or substantial but is intended to be more than a minor or trivial prejudice that has no long-lasting effect, nor embarrassment to an Australian person or Australia's people. The term is defined in section 90.1 to clarify that embarrassment alone is not sufficient to prejudice Australia's national security. Where the person intended that, or was reckless as to whether, his or her conduct would cause embarrassment alone, and that embarrassment eventuates, it will be immaterial whether that embarrassment in turn results in some harm or damage to Australia's national security (for example, a loss of confidence in, or a reduced willingness to share information with, the Australian Government by a foreign partner).

734. The term 'advantage' is intended to capture an intention to put another country's national security in a favourable or superior position compared to Australia's position or to benefit or profit another's country's national security compared to Australia's national security. Section 90.1 also defines advantage to clarify that conduct will not advantage the national security of a foreign country if the conduct will advantage Australia's national security to an equivalent extent.

735. For subparagraph 91.8(2)(b)(ii), the person must intend to advantage the national security of a 'foreign country', not a 'foreign principal'. This is because the interests of countries in relation to 'national security' are unique and often relate to the protection to the territory of the country.

736. Foreign country is intended to cover countries other than Australia and is defined in the Dictionary to the Criminal Code as including:

•

a colony or overseas territory

•

a territory outside Australia, where a foreign country is to any extent responsible for the international relations of the territory, and

•

a territory outside Australia that is, to some extent self-governing, but that is not recognised as an independent sovereign state by Australia.

737. In the example listed above, Person A is aware of a substantial risk that proving the information to Country D will advantage that country's national security by giving them an advantage over Australia's defence forces. Person A would be aware that in these circumstances, passing the information to a foreign country is unjustifiable.

738. Whether or not the prejudice to Australia's national security or advantage to the national security of a foreign country occurs or the conduct is capable of bringing it about is not relevant to the defendant's culpability for the offence. For example, if the foreign country already had a copy of the document provided by the defendant then the disclosure by the defendant may not prejudice Australia's national security.

739. Consistent with subsection 91.8(4), for the purposes of subparagraph 91.8(2)(b)(ii), the person does not need to have in mind a particular foreign country and may have in mind more than one foreign country. For example, a person may be in possession of classified information and be willing to pass the information to whichever country is the highest bidder. The person may still be reckless as to whether passing the information to a foreign country will prejudice the national security of Australia or advantage the national security of a foreign country.

740. For paragraph 91.8(2)(c), the prosecution will have to prove beyond a reasonable doubt that the person is reckless as to whether the conduct involves the commission, by the person or any other person, of an offence against Subdivision A (espionage). Therefore, the defendant must have been aware of a substantial risk that his or her conduct, or the conduct of any other person, involves the commission of an offence under Subdivision A (espionage).

741. Subdivision A creates the following offences:

•

Espionage - dealing with information etc. concerning national security which could be made available to a foreign principal (section 91.1)

•

Espionage - dealing with information etc. which is or will be made available to a foreign principal (section 91.2), and

•

Espionage - security classified information etc. (section 91.3).

742. In proving the element at paragraph 91.8(2)(c), it will not be necessary for the prosecution to prove the physical or fault elements of the offence against Subdivision A, only that the defendant was reckless as to whether the conduct involved the commission, by the defendant or any other person, of an offence against Subdivision A.

743. In the example above, Person A would be aware of a substantial risk that they may be committing an espionage offence by passing sensitive information about defence matters to the intelligence service of a foreign government.

744. For paragraph 91.8(2)(d), the prosecution will have to prove beyond a reasonable doubt that the defendant's conduct was engaged in on behalf of, or in collaboration with, a foreign principal, on behalf of a person acting on behalf of a foreign principal, directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal. Recklessness is the fault element for this element. Therefore, the defendant must have been aware of a substantial risk that his or her conduct was engaged in on behalf of, or in collaboration with, a foreign principal, on behalf of a person acting on behalf of a foreign principal, directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk.

745. It is possible that a defendant will know, or be reckless, as to the fact that they are engaging in conduct a foreign government because they are being tasked by a person who identifies himself or herself as an official of a foreign government. In this case, the person will be engaging in the conduct on behalf of the foreign principal.

746. However, it may also be the case that the defendant is not tasked directly by a foreign government official, but by an intermediary. In this case, the prosecution will have to prove beyond a reasonable doubt that the defendant was aware of a substantial risk that he or she was being tasked by a person acting on behalf of a foreign principal and that it was unjustifiable to take that risk. This may be the case where, for example, the intermediary advises the defendant that the intermediary acts in coordination with foreign officials, or the intermediary facilitates preferential treatment for the defendant from a foreign government. .

747. Consistent with subsection 91.8(5), for the purposes of paragraph 91.8(2)(d) the person will not need to have in mind a particular foreign principal and may have in mind more than one foreign principal. For example, a defendant may assist an individual who has identified themselves to the defendant as a foreign official, but has not specified which foreign country they represent. Or, a defendant may provide assistance in the knowledge this assistance will or could assist multiple foreign principals at the same time.

748. The maximum penalty for this offence is 20 years imprisonment. The maximum penalty needs to be adequate to deter and punish a worst case offence, including repeat offences. This offence punishes the foreign actor who engages in espionage against the Australian government. For the offence at subsection 91.8(2), the worst case scenario is a foreign person receiving highly classified information due to the commission of an espionage offence, reckless as to whether Australia's national security will be prejudiced. The risks that may be posed to Australia's safety and security by such a disclosure are very high and it is appropriate that the offence be punishable by a serious penalty.

Conduct on behalf of a foreign principal

749. Subsection 91.8(3) will make it an offence for a person to deal with information or an article where the person is reckless as to whether his or her conduct involves the commission, by the person or any other person, of an offence against Subdivision A (espionage). The person's conduct must also have been directed by, funded by, supervised by or engaged in on behalf of a foreign principal or a person acting on behalf of a foreign principal.

750. This offence will carry a maximum penalty of 15 years imprisonment.

751. An example of this offence is as follows. Person A is an undeclared intelligence agent for Country B and is located in Australia. Person A has been cultivating Person C, an employee of a Commonwealth department, as a source. Person C knows that Person A works at Country B's embassy but is not aware that Person A is an intelligence officer. Person C provides Person A with a sensitive document about Country B from one of Australia's foreign partners. Person A passes that document on to their employer in Country B.

752. To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

•

a person intentionally dealt with information or an article

•

the person is reckless as to whether the conduct involves the commission, by the person or any other person, of an offence against Subdivision A (espionage), and

•

the:

o

person engaged in the conduct on behalf of a foreign principal

o

person engaged in the conduct on behalf of a person acting on behalf of a foreign principal

o

person engaged in the conduct in collaboration with a foreign principal

o

person engaged in the conduct in collaboration with a person acting on behalf of a foreign principal

o

conduct was directed, funded or supervised by a foreign principal, or

o

conduct was directed, funded or supervised by a person acting on behalf of a foreign principal

and the person is reckless as to this element.

753. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 91.8(3)(a). Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

754. Recklessness is the fault element for paragraphs 91.8(3)(b) and (c). Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

•

a circumstance if he or she is aware of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

755. For paragraph 91.8(3)(a) the prosecution will have to prove beyond reasonable doubt that the defendant intentionally deals with information or an article. Consistent with the definition of deals in section 90.1, this may include receiving, obtaining, collecting, possessing, making a record or copying, altering, concealing, communicating, publishing or making available the information or article. In the example of the offence above, Person A has 'dealt' with the information by obtaining the information from Person B.

756. For paragraph 91.8(3)(b), the prosecution will have to prove beyond a reasonable doubt that the person is reckless as to whether the conduct involves the commission, by the person or any other person, of an offence against Subdivision A (espionage). Therefore, the defendant must have been aware of a substantial risk that his or her conduct, or the conduct of any other person, involves the commission of an offence under Subdivision A (espionage).

757. Subdivision A creates the following offences:

•

Espionage - dealing with information etc. concerning national security which is or will be communicated or made available to a foreign principal (section 91.1)

•

Espionage - dealing with information etc. which is or will be communicated or made available to a foreign principal (section 91.2), and

•

Espionage - security classified information etc. (section 91.3).

758. In proving the element at paragraph 91.8(3)(b), it will not be necessary for the prosecution to prove the physical or fault elements of the offence against Subdivision A, only that the defendant was reckless as to whether the conduct involved the commission, by the defendant or any other person, of an offence against Subdivision A.

759. In the example above, Person A would be aware of a substantial risk that they may be committing an espionage offence by passing a sensitive document from one of Australia's foreign partners to a foreign embassy.

760. For paragraph 91.8(3)(c), the prosecution will have to prove beyond a reasonable doubt that the defendant's conduct was engaged in on behalf of, or in collaboration with, a foreign principal, on behalf of a person acting on behalf of a foreign principal, directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal. Recklessness is the fault element for this element. Therefore, the defendant must have been aware of a substantial risk that his or her conduct was engaged in on behalf of, or in collaboration with, a foreign principal, on behalf of a person acting on behalf of a foreign principal, directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk.

761. It is possible that a defendant will know, or be reckless, as to the fact that they are engaging in conduct a foreign government because they are being tasked by a person who identifies himself or herself as an official of a foreign government. In this case, the person will be engaging in the conduct on behalf of the foreign principal.

762. However, it may also be the case that the defendant is not tasked directly by a foreign government official, but by an intermediary. In this case, the prosecution will have to prove beyond a reasonable doubt that the defendant was aware of a substantial risk that he or she was being tasked by a person acting on behalf of a foreign principal and that it was unjustifiable to take that risk. This may be the case where, for example, the intermediary advises the defendant that the intermediary acts in coordination with foreign officials, or the intermediary facilitates preferential treatment for the defendant from a foreign government.

763. Consistent with subsection 91.8(5), for the purposes of paragraph 91.8(3)(c) the person will not need to have in mind a particular foreign principal and may have in mind more than one foreign principal. For example, a defendant may assist an individual who has identified themselves to the defendant as a foreign official, but has not specified which foreign country they represent. Or, a defendant may provide assistance in the knowledge this assistance will or could assist multiple foreign principals at the same time.

764. The maximum penalty for this offence is 15 years imprisonment. The maximum penalty needs to be adequate to deter and punish a worst case offence, including repeat offences. This offence punishes the foreign actor who engages in espionage against the Australian government. For the offence at subsection 91.8(3), the worst case scenario is a foreign country receiving highly classified information due to the commission of an espionage offence. The risks that may be posed to Australia's safety and security by such a disclosure are very high and it is appropriate that the offence be punishable by a serious penalty.

Section 91.9 - Defences

765. The general defences available under Part 2.3 of the Criminal Code will be available to a person accused of an offence under Subdivision B. In addition, section 91.9 creates the following specific defences:

•

the person dealt with the information or article in accordance with a law of the Commonwealth

•

the person dealt with the information or article in accordance with an arrangement or agreement to which the Commonwealth is party and which allows for the exchange of information or articles, or

•

the person dealt with the information or article in the person's capacity as a public official.

766. The offences in Subdivision B are only intended to apply where a person's dealing with information is not a proper or legitimate part of their work. There are a vast range of legitimate circumstances in which public officials deal with information concerning Australia's national security (including highly classified information) in performing their duties. For example, possessing or copying information concerning national security is a day to day occurrence in many Commonwealth departments and agencies and for Ministers and their staff. It is not intended to criminalise these dealings.

767. Paragraph 91.9(1)(a) creates a defence to a prosecution for an offence against Subdivision B that the person dealt with the information or article in accordance with the law of the Commonwealth.

768. Lawful authority is currently included as a physical element of some of the existing espionage offences in Division 91 of the Criminal Code where a person communicates, or makes available, information intending to give an advantage another country's security or defence (for example, subsection 91.1(2)(b)(i)). This requires the prosecution to prove, beyond a reasonable doubt, that the person did not have lawful authority for their actions. In contrast, section 91.9(1) casts the matter of lawful authority as a defence, which has the effect of placing an evidentiary burden of proof on the defendant.

769. If lawful authority was an element of the espionage offences in Subdivision B, it would be necessary for the prosecution to prove, beyond a reasonable doubt, that there was no authority in any law or in any aspect of the person's duties that authorised the person to deal with the information or thing in the relevant manner. This is a significant barrier to prosecutions, especially in relation to the offences in Subdivision B, which target people acting on behalf of foreign principals who may have authority for their actions under foreign laws.

770. It is appropriate for the matter of lawful authority to be cast as a defence because the source of the alleged authority for the defendant's actions is peculiarly within the defendant's knowledge. It is significantly more cost-effective for the defendant to assert this matter rather than the prosecution needing to disprove the existence of any authority, from any source.

771. Consistent with section 13.3 of the Criminal Code, in the case of an evidential burden, the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. If the defendant discharges an evidential burden, the prosecution must disprove those matters beyond reasonable doubt, consistent with section 13.1 of the Criminal Code.

772. Section 10.5 of the Criminal Code provides a general defence of lawful authority applicable to all Commonwealth offences. This defence is narrow and only applies to conduct that is specifically justified or excused by a law. Consistent with the definition of law in the Dictionary to the Criminal Code, this means the conduct must be specifically justified or excused by a law of the Commonwealth.

773. The defence at paragraph 91.9(1)(a) is broader than the lawful authority defence available under section 10.5 and will cover a person acting 'in accordance' with a law of the Commonwealth, rather than the law of the Commonwealth needing to specifically justify or excuse the person's conduct. An example of conduct covered by the specific defence created in section 91.9(1)(a), but not by the general defence of lawful authority, includes where a person acts in accordance with their duties as an APS employee as set out in the Public Service Act 1999 or the Public Service Regulations 1999, despite nothing specific in those laws authorising the person's actions.

774. Paragraph 91.9(1)(b) creates a defence to a prosecution for an offence against Subdivision B that the person dealt with the information or article in accordance with an agreement or arrangement to which the Commonwealth is party which allows for the exchange of information or things. Many departments and agencies share information with international counterparts as part of their normal business dealings. Often this information is highly sensitive and highly classified. This defence provides that the espionage offences in Subdivision B do not apply if a person was sharing information or things in accordance with an agreement or arrangement to which the Commonwealth was a party and which allows for the exchange of information or articles.

775. The terms 'arrangement' and 'agreement' are not defined and will be given their ordinary meaning. The term 'agreement' is not intended to be limited by the meaning of 'agreement' in Australian international practice as being a treaty, nor is it intended to require evidence of a formal contractual or legal agreement. It is intended that such terms will capture agreements or arrangements in a range of forms, including those made by exchange of letters or as a memorandum of understanding.

776. The defence at paragraph 91.9(1)(c) applies when a person dealt with the information or thing in the person's capacity as a public official. Public official is defined in the Dictionary to the Criminal Code to include:

•

a Commonwealth public official

•

an officer or employee of the Commonwealth or of a State or Territory

•

an individual who performs work for the Commonwealth, or for a State or Territory, under a contract

•

an individual who holds or performs the duties of an office established by a law of the Commonwealth or of a State or Territory

•

an individual who is otherwise in the service of the Commonwealth or of a State or Territory (including service as a member of a military force or police force)

•

a member of the executive, judiciary or magistracy of the Commonwealth or of a State or Territory, and

•

an officer or employee of:

•

an authority of the Commonwealth, or

•

an authority of a State or Territory.

777. Commonwealth public official is defined in the Dictionary to the Criminal Code to mean:

•

the Governor-General

•

a person appointed to administer the Government of the Commonwealth under section 4 of the Constitution

•

a Parliamentary Secretary

•

a member of either House of the Parliament

•

an individual who holds an appointment under section 67 of the Constitution

•

the Administrator, an Acting Administrator, or a Deputy Administrator, of the Northern Territory

•

a Commonwealth judicial officer (as defined in the Dictionary to the Criminal Code)

•

an APS employee

•

an individual employed by the Commonwealth other than under the Public Service Act 1999

•

a member of the Australian Defence Force

•

a member or special member of the AFP

•

an individual (other than an official of a registered industrial organisation) who holds or performs the duties of an office established by or under a law of the Commonwealth, other than:

o

the Corporations (Aboriginal and Torres Strait Islander) Act 2006

o

the Australian Capital Territory (Self-Government) Act 1988

o

the Corporations Act 2001

o

the Norfolk Island Act 1979, or

o

the Northern Territory (Self-Government) Act 1978

•

an officer or employee of a Commonwealth authority

•

an individual who is a contracted service provider for a Commonwealth contract

•

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

•

an individual (other than an official of a registered industrial organisation) who exercises powers, or performs functions, conferred on the person by or under a law of the Commonwealth, other than:

o

the Corporations (Aboriginal and Torres Strait Islander) Act 2006

o

the Australian Capital Territory (Self-Government) Act 1988

o

the Corporations Act 2001

o

the Norfolk Island Act 1979

o

the Northern Territory (Self-Government) Act 1978, or

•

a provision specified in the regulations

•

an individual who exercises powers, or performs functions, conferred on the person under a law in force in the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands (whether the law is a law of the Commonwealth or a law of the Territory concerned), or

•

the Registrar, or a Deputy Registrar, of Aboriginal and Torres Strait Islander Corporations.

778. This defence is intended to apply where a person discloses information in the person's capacity as a public official. This may include, for example, an employee duty statement, a policy guidance document or employee practice manual, or previous examples of the same conduct which has been authorised by superiors. It will not be a defence to a charge of espionage where a person has gone beyond their ordinary duties.

779. Note 1 under the defence at subsection 91.9(1) clarifies that the defendant will bear an evidentiary burden in relation to this defence. The Guide to Framing Commonwealth Offences provides (at paragraph 4.3.1) that it is appropriate for a matter to be included in an offence-specific defence where it is peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. The defence at subsection 91.9(1) satisfies both of these criteria. Evidence of the source of the alleged authority for the defendant's actions is evidence peculiarly within the defendant's knowledge. It would be difficult and more costly for the prosecution to prove, beyond a reasonable doubt, that the person was not acting in their capacity as a public official, in accordance with a law of the Commonwealth or in accordance with an information arrangement or agreement to which the Commonwealth is a party. To do this, it would be necessary to negate the fact that there was authority for the person's actions in any law or in any aspect of the person's duty or in any of the instructions given by the person's supervisors (at any level). Conversely, if a Commonwealth officer had a particular reason for thinking that they were acting in accordance with a law or with their duties, it would not be difficult for them to describe where they thought that authority arose.

780. Consistent with section 13.3 of the Criminal Code, the defendant will need to point to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).

781. Both AFP and CDPP consider the availability of any defences when considering whether to investigate and prosecute criminal offences. In relation to prosecution decisions, the Prosecution Policy of the Commonwealth specifically requires the CDPP to take into account any lines of defence which are plainly open to, or have been indicated by, the alleged offender in deciding whether there is a reasonable prospect of a conviction being secured. Subsection 93.1 (to be inserted by Item 18 of Schedule 1) requires the Attorney-General consider whether the defendant's conduct is authorised under the defences in section 91.14 before providing his or her consent to the institution of proceedings for the commitment of a person for trial for an offence to which the defence applies.

782. Section 91.9(2) will insert a defence based on existing section 91.2 of the Criminal Code where the information or thing has already been communicated or made available to the public with the authority of the Commonwealth.

783. The defence under section 91.9(2) only applies where the relevant information or thing is in the public domain with the authority of the Commonwealth. This defence is expressly limited to information or things which are communicated or made publically available on an authorised basis. It will not be a defence to a charge of espionage against Subdivision B where the information is initially communicated or made available without the authority of the Commonwealth in the nature of a 'leak'. For example, a person who, without authority, places information regarding the security or defence of the Commonwealth on an obscure internet website and subsequently communicates that information to a foreign organisation for the purpose of giving an advantage to another country's security or defence will not be able to rely on this defence.

784. Note 1 under the defence at subsection 91.9(2) clarifies that the defendant will bear an evidentiary burden in relation to this offence. The Guide to Framing Commonwealth Offences provides (at paragraph 4.3.1) that it is appropriate for a matter to be included in an offence-specific defence where it is peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. The defence at subsection 91.9(2) satisfies both of these criteria. Evidence that the defendant acquired the relevant information or thing indirectly from a publically available source is evidence peculiarly within the knowledge of the defendant. It would be significantly more cost-effective for the defendant to assert this matter rather than the prosecution needing to disprove the existence of any publically available source of the information.

785. Consistent with section 13.3 of the Criminal Code, the defendant will need to point to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).

Section 91.10 - Geographical jurisdiction

786. This section will apply Section 15.4 (extended geographical jurisdiction-Category D) to each offence against Subdivision B.

787. Under section 15.4, the effect of Category D geographical jurisdiction is that each offences against Subdivision C applies:

•

whether or not the conduct constituting the alleged offence occurs in Australia, and

•

whether or not a result of the conduct constituting the alleged offence occurs in Australia.

788. Category D geographical jurisdiction is appropriate because intelligence agencies may undertake key facets of espionage activities against Australia in foreign countries to conceal these activities from relevant authorities seeking to prevent these activities. For example, an official from Country X may establish contact with Australian Person Y while on official travel in Country Z, and obtain Person Y's agreement to conduct espionage on their return to Australia.

Subdivision C - Espionage-related offences

Section 91.11 - Offence of soliciting or procuring an espionage offence or making it easier to do so

789. Section 91.11 will make it an offence to solicit or procure an espionage offence, or make it easier for a person to do so. The offence will apply where a person engages in conduct in relation to another person (the target), with the intention of soliciting or procuring, or making it easier to solicit or procure, the target to deal with information or a thing in a way that would constitute an offence against Subdivision A (espionage) or B (espionage on behalf of foreign principals).

790. The offence will be punishable by a maximum of 15 years imprisonment.

791. An example of this offence is as follows. Person C is employed by a foreign intelligence service undertaking operations in Australia. Person A knows Person D is an employee of a commonwealth department and believes that Person C has access to highly classified information. Person C joins Person D's soccer team and establishes a personal relationship with Person D. Person C does so with the intention of procuring or soliciting Person D to provide classified information at some future date.

792. The purpose of this offence is to address gaps in the current law, which does not criminalise soliciting or procuring espionage. This offence will give law enforcement the means to deal with this conduct at the time it occurs, without the need to wait until an espionage offence is committed or sensitive information is actually passed to a foreign principal.

793. To establish this offence the prosecution will need to prove beyond reasonable doubt that:

•

a person intentionally engages in conduct in relation to another person (the target)

•

the person engages in the conduct with the intention of soliciting or procuring, or making it easier to solicit or procure, the target to commit an offence against Subdivision A (espionage) or Subdivision B (espionage on behalf of foreign principals), and

•

the:

o

person engaged in the conduct on behalf of a foreign principal

o

person engaged in the conduct on behalf of a person acting on behalf of a foreign principal

o

person engaged in the conduct in collaboration with a foreign principal

o

person engaged in the conduct in collaboration with a person acting on behalf of a foreign principal

o

conduct was directed, funded or supervised by a foreign principal, or

o

conduct was directed, funded or supervised by a person acting on behalf of a foreign principal

and the person is reckless as to this element.

794. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 91.11(1)(a). Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

795. For paragraph 91.11(1)(a), the prosecution will have to prove beyond a reasonable doubt that the defendant intentionally engaged in conduct in relation to another person (the target). Consistent with subsection 4.1(2) of the Criminal Code, the reference to 'engages in conduct' in paragraph 91.11(1)(a) means to do an act or to omit to perform an act.

796. For paragraph 91.11(1)(b), the prosecution will have to prove beyond reasonable doubt that the defendant engaged in the relevant conduct intending to solicit or procure, or make it easier to solicit of procure, the target to deal with information or a thing in a way that would constitute an offence against Subdivision A (espionage) or B (espionage on behalf of foreign principals).

797. Subdivisions A and B create the following offences:

•

Espionage - dealing with information etc. concerning national security which is or will be communicated or made available to a foreign principal (section 91.1)

•

Espionage - dealing with information etc. which is or will be communicated or made available to a foreign principal (section 91.2)

•

Espionage - security classified information etc. (section 91.3), and

•

Espionage on behalf of a foreign principal (section 91.11).

798. The offence is intended to criminalise the procuring or soliciting conduct itself. Therefore, it will not be necessary for the prosecution to prove that the target actually deals with information in a manner that would constitute an offence against Subdivision A (espionage) or Subdivision B (espionage on behalf of foreign principals), only that the defendant intended that their conduct would solicit or procure, or make it easier to solicit or procure, the target to do so.

799. The term 'solicits' will take its ordinary meaning and is intended to include asking for, requesting, pressing for, or trying to obtain information or a thing from another person.

800. The term 'procure' is defined in the Dictionary to the Criminal Code in the context of sexual activity offences to mean:

•

encourage, entice or recruit the person to engage in that activity, or

•

induce the person (whether by threats, promises or otherwise) to engage in that activity.

801. Although this definition is limited to sexual activity offences, it is intended that the term procure in section 91.11 will be interpreted consistently with the definition in the Dictionary. This meaning is also appropriate in the context of procuring espionage and would cover a situation where, for example, an agent from a foreign intelligence service induces a target to commit an espionage offence by promising to pay money or provide another benefit.

802. Paragraph 91.11(1)(b) also captures conduct intended to 'make it easier' to solicit or procure espionage. This is intended to capture behaviour such as cultivating or grooming a target before the attempt to solicit or procure espionage is made. For example, a person may arrange meetings, provide gifts, or seek to establish a relationship of trust or friendship with a target. It would also include seeking passage of an unclassified government document or informed comment with the intent of procuring or soliciting the target to provide classified information in the future.

803. Paragraph 91.11(1)(b) contains the fundamental component of the offence - the prosecution must prove that the person actually intended to solicit or procure the target to engage in an espionage offence. It would not be sufficient to show that the person's conduct was of a nature that was merely suggestive of that intent.

804. In the example above, Person C has joined the same soccer team and established a friendship with Person D, intending to make it easier to solicit or procure Person D to commit an espionage offence in the future.

805. For paragraph 91.11(1)(c), the prosecution will have to prove beyond a reasonable doubt that the defendant's conduct was engaged in on behalf of, or in collaboration with, a foreign principal, on behalf of a person acting on behalf of a foreign principal, directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal. Recklessness is the fault element for this element. Therefore, the defendant must have been aware of a substantial risk that his or her conduct was engaged in on behalf of, or in collaboration with, a foreign principal, on behalf of a person acting on behalf of a foreign principal, directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk.

806. It is possible that a defendant will know, or be reckless, as to the fact that they are engaging in conduct a foreign government because they are being tasked by a person who identifies himself or herself as an official of a foreign government. In this case, the person will be engaging in the conduct on behalf of the foreign principal.

807. However, it may also be the case that the defendant is not tasked directly by a foreign government official, but by an intermediary. In this case, the prosecution will have to prove beyond a reasonable doubt that the defendant was aware of a substantial risk that he or she was being tasked by a person acting on behalf of a foreign principal and that it was unjustifiable to take that risk. This may be the case where, for example, the intermediary advises the defendant that the intermediary acts in coordination with foreign officials, or the intermediary facilitates preferential treatment for the defendant from a foreign government.

808. Consistent with subsection 91.11(2), for the purposes of paragraph 91.11(1)(c), the person does not need to have in mind a particular foreign country and may have in mind more than one foreign country. For example, a defendant may assist an individual who has identified themselves to the defendant as a foreign official, but has not specified which foreign country they represent. Or, a defendant may provide assistance in the knowledge this assistance will or could assist multiple foreign principals at the same time.

809. Section 91.11(3) provides that a person may still be found guilty of an offence against subsection 91.11(1):

•

even if an offence against Subdivision A or B is not committed (paragraph 91.11(3)(a))

•

even if it is impossible for the target to deal with the information or thing in a way that would constitute an offence against Subdivision A or B (paragraph 91.11(3)(b))

•

even if the person does not have in mind particular information or a particular thing or a particular dealing or kind of dealing with the information or thing, at the time the person engages in conduct in relation to the target (paragraph 91.11(3)(c)), or

•

whether or not it is a single dealing, or multiple dealings that the person intends to solicit or procure or make it easier to procure (paragraph 91.11(3)(d)).

810. Paragraph 91.11(3)(a) and (b) are consistent with the fundamental intention of the offence - to criminalise the person's intention to procure or solicit the target to engage in an espionage offence. Therefore, it will not matter if no offence is actually committed, or it is impossible for the offence to take place.

811. Section 91.11(3)(c) and (d) accommodate for the wide range of activity and techniques that the practice of soliciting or procuring espionage encompasses. It is possible that when the offender makes contact with a target the offender will not have particular information or a thing, or a particular kind of dealing with the information or thing, in mind. For example, the offender may only know that the target is well connected to government or that the target has access to classified information, without knowing exactly what information the target can provide. Further, there is no fixed pattern for how an offender will approach a target. In some instances the offender will meet the target and solicit information in one dealing. In other instances, the offender may build a relationship of trust with the target through multiple dealings, and intends to build up to inducing the target to commit espionage.

812. Subsection 91.11(4) specifies that section 11.1(attempt) does not apply to an offence against subsection 91.11(1). Section 11.1 of the Criminal Code extends criminal responsibility for all Commonwealth offences and operates to automatically provide for ancillary offences such as attempting to commit an offence or inciting the commission of an offence. Subsection 91.11(4) modifies the automatic application of section 11.1 in relation to the ancillary offence of attempt. This is appropriate because the offence is already directed at conduct that is preparatory in nature.

813. The maximum penalty of 15 years imprisonment is comparable with the maximum penalties for Criminal Code offences of procuring a child to engage in sexual activity outside Australia (section 272.14) and 'grooming' a child to engage in sexual activity outside Australia(section 272.15), which also carry maximum penalties of 15 years imprisonment. The maximum penalty is appropriate to deter and punish the activity of soliciting or procuring espionage in Australia. The serious harm that can flow from such activities warrants a significant penalty, especially if a foreign principal is successful in obtaining classified information that will prejudice Australia's national security.

Section 91.12 - Offence of preparing for an espionage offence

814. Section 91.12 will make it an offence to prepare for or plan an espionage offence. The new offence will criminalise conduct in preparation for, or planning, an offence of espionage, or espionage on behalf of foreign principals. The offence will be punishable by a maximum penalty of 15 years imprisonment.

815. Examples of this offence could include:

•

Example 1: Person A seeks access to a secure network that contains classified materials including national security information, at the direction of Person B, a foreign national. Person A has not yet located or determined a particular document, or documents, to obtain and pass on to Person B.

•

Example 2: Person D installs malware onto the phones of Australian government officials with the intent to listen to classified conversations and pass on information to Person E, who works for a foreign government.

816. The purpose of the offence is to give law enforcement authorities the means to deal with preparatory conduct and enable a person to be arrested before any without the need to wait until an espionage offence is committed or sensitive information is actually passed to a foreign principal.

817. To establish the offence, prosecution will need to prove beyond a reasonable doubt that:

•

a person intentionally engages in conduct, and

•

the person does so with the intention of preparing for, or planning, an offence against Subdivision A (espionage) or B (espionage on behalf of foreign principals).

818. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 91.12(1)(a). Under section 5.2 of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to 'engages in conduct' in paragraph 91.12(1)(a) means to do an act or to omit to perform an act.

819. For paragraph 91.12(1)(b), the prosecution will have to prove beyond a reasonable doubt that the person engages in conduct with the intention of preparing for, or planning, an offence against Subdivision A (espionage) or B (espionage on behalf of foreign principals). The terms preparation and planning are not defined and are intended to take their ordinary meanings.

•

The term 'preparation' could include acts to conceive, formulate, make ready, arrange, and assemble an idea, plan, thing, or person for an offence against Subdivision A (espionage) or B (espionage on behalf of foreign principals).

•

The term 'planning' could include acts to organise, arrange, design, draft, or setup an idea, plan, thing, or person for an offence against Subdivision A (espionage) or B (espionage on behalf of foreign principals).

820. Given the offences are directed at behaviour at the planning or planning stage, it is appropriate to impose the fault element of intention on both of the elements of the offence. This will ensure that a person will only be guilty of this offence where there is sufficient evidence that the person intended to prepare for, or plan, an espionage offence.

821. The maximum penalty for this offence is 15 years imprisonment. While persons who attempt to commit offences are generally subject to the same penalty as if the actual offence had been carried out, the offence at section 91.12 is intended to capture behaviour at the planning stage, rather than the more advanced stage at which an ancillary offence of attempt could otherwise apply.

822. Subsection 91.12(2) specifies that section 11.1 (attempt) does not apply to an offence against subsection 91.12(1). Section 11.1 of the Criminal Code extends criminal responsibility for all Commonwealth offences and operates to automatically provide for ancillary offences such as attempting to commit an offence or inciting the commission of an offence. Subsection 91.12(2) modifies the automatic application of section 11.1 in relation to the ancillary offence of attempt. This is appropriate because the offence is already directed at conduct that is preparatory in nature.

823. Under paragraph 91.12(3)(a), the preparatory offence at subsection 91.12(1) will apply whether or not an offence against Subdivision A or B is actually committed. This is consistent with the intention behind the offence to allow intervention by law enforcement prior to an act of espionage occurring.

824. Under paragraph 91.12(3)(b), the preparatory offence in subsection 91.12(1) will apply whether or not the person engages in conduct in preparation for, or planning, a specific offence against a provision of Subdivision A or B. This clarifies that it is not necessary for the prosecution to identify a specific offence. It will be sufficient for the prosecution to prove that the particular conduct was related to 'an' offence. This ensures that the offence will be available where a person has planned a range of activities preparatory to committing an espionage offence that are still in the formative stages. For example, where a person has not necessarily decided on a particular document to pass to a foreign principal, or where a person has made arrangements to provide a particular document to a foreign principal and has taken steps, but has not yet obtained a copy of the document.

825. Under paragraph 91.12(3)(c), the preparatory offence at subsection 91.12(1) will apply whether or not the act is done in preparation for, or planning, more than one offence against a provision of Subdivision A or B. This clarifies that the offence will still apply where a person has engaged in preparatory conduct in relation to several offences against Subdivision A or B.

Section 91.13 - Defences

826. The general defences available under Part 2.3 of the Criminal Code will be available to a person accused of an offence under Subdivision C. In addition, section 91.13 creates the following specific defences:

•

the person dealt with the information or article in accordance with a law of the Commonwealth

•

the person dealt with the information or article in accordance with an arrangement or agreement to which the Commonwealth is party and which allows for the exchange of information or articles, or

•

the person dealt with the information or article in the person's capacity as a public official.

827. The offences in Subdivision B are only intended to apply where a person's dealing with information is not a proper or legitimate part of their work. There are a vast range of legitimate circumstances in which public officials deal with information concerning Australia's national security (including highly classified information) in performing their duties. For example, possessing or copying information concerning national security is a day to day occurrence in many Commonwealth departments and agencies and for Ministers and their staff. It is not intended to criminalise these dealings.

828. Paragraph 91.13(1)(a) creates a defence to a prosecution for an offence against Subdivision B that the person dealt with the information or article in accordance with the law of the Commonwealth.

829. Lawful authority is currently included as a physical element of some of the existing espionage offences in Division 91 of the Criminal Code where a person communicates, or makes available, information intending to give an advantage another country's security or defence (for example, subparagraph 91.1(2)(b)(i)). This requires the prosecution to prove, beyond a reasonable doubt, that the person did not have lawful authority for their actions. In contrast, section 91.13(1) casts the matter of lawful authority as a defence, which has the effect of placing an evidentiary burden of proof on the defendant.

830. If lawful authority was an element of the espionage offences in Subdivision C, it would be necessary for the prosecution to prove, beyond a reasonable doubt, that there was no authority in any law or in any aspect of the person's duties that authorised the person to deal with the information or thing in the relevant manner. This is a significant barrier to prosecutions.

831. It is appropriate for the matter of lawful authority to be cast as a defence because the source of the alleged authority for the defendant's actions is peculiarly within the defendant's knowledge. It is significantly more cost-effective for the defendant to assert this matter rather than the prosecution needing to disprove the existence of any authority, from any source.

832. Consistent with section 13.3 of the Criminal Code, in the case of an evidential burden, the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. If the defendant discharges an evidential burden, the prosecution must disprove those matters beyond reasonable doubt, consistent with section 13.1 of the Criminal Code.

833. Section 10.5 of the Criminal Code provides a general defence of lawful authority applicable to all Commonwealth offences. This defence is narrow and only applies to conduct that is specifically justified or excused by a law. Consistent with the definition of law in the Dictionary to the Criminal Code, this means the conduct must be specifically justified or excused by a law of the Commonwealth.

834. The defence at paragraph 91.13(1)(a) is broader than the lawful authority defence available under section 10.5 and will cover a person acting 'in accordance' with a law of the Commonwealth, rather than the law of the Commonwealth needing to specifically justify or excuse the person's conduct. An example of conduct covered by the specific defence created in section 91.13(1)(a), but not by the general defence of lawful authority, includes where a person acts in accordance with their duties as an APS employee as set out in the Public Service Act 1999 or the Public Service Regulations 1999, despite nothing specific in those laws authorising the person's actions.

835. Paragraph 91.13(1)(b) creates a defence to a prosecution for an offence against Subdivision B that the person dealt with the information or article in accordance with an agreement or arrangement to which the Commonwealth is party which allows for the exchange of information or things. Many departments and agencies share information with international counterparts as part of their normal business dealings. Often this information is highly sensitive and highly classified. This defence provides that the espionage offences in Subdivision B do not apply if a person was sharing information or things in accordance with an agreement or arrangement to which the Commonwealth was a party and which allows for the exchange of information or articles.

836. The terms 'arrangement' and 'agreement' are not defined and will be given their ordinary meaning. The term 'agreement' is not intended to be limited by the meaning of 'agreement' in Australian international practice as being a treaty, nor is it intended to require evidence of a formal contractual or legal agreement. It is intended that such terms will capture agreements or arrangements in a range of forms, including those made by exchange of letters or as a memorandum of understanding.

837. The defence at paragraph 91.13(1)(c) applies when a person dealt with the information or thing in the person's capacity as a public official. Public official is defined in the Dictionary to the Criminal Code to include:

•

a Commonwealth public official

•

an officer or employee of the Commonwealth or of a State or Territory

•

an individual who performs work for the Commonwealth, or for a State or Territory, under a contract

•

an individual who holds or performs the duties of an office established by a law of the Commonwealth or of a State or Territory

•

an individual who is otherwise in the service of the Commonwealth or of a State or Territory (including service as a member of a military force or police force)

•

a member of the executive, judiciary or magistracy of the Commonwealth or of a State or Territory, and

•

an officer or employee of:

•

an authority of the Commonwealth, or

•

an authority of a State or Territory.

838. Commonwealth public official is defined in the Dictionary to the Criminal Code to mean:

•

the Governor-General

•

a person appointed to administer the Government of the Commonwealth under section 4 of the Constitution

•

a Parliamentary Secretary

•

a member of either House of the Parliament

•

an individual who holds an appointment under section 67 of the Constitution

•

the Administrator, an Acting Administrator, or a Deputy Administrator, of the Northern Territory

•

a Commonwealth judicial officer (as defined in the Dictionary to the Criminal Code)

•

an APS employee

•

an individual employed by the Commonwealth other than under the Public Service Act 1999

•

a member of the Australian Defence Force

•

a member or special member of the AFP

•

an individual (other than an official of a registered industrial organisation) who holds or performs the duties of an office established by or under a law of the Commonwealth, other than:

o

the Corporations (Aboriginal and Torres Strait Islander) Act 2006

o

the Australian Capital Territory (Self-Government) Act 1988

o

the Corporations Act 2001

o

the Norfolk Island Act 1979, or

o

the Northern Territory (Self-Government) Act 1978

•

an officer or employee of a Commonwealth authority

•

an individual who is a contracted service provider for a Commonwealth contract

•

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

•

an individual (other than an official of a registered industrial organisation) who exercises powers, or performs functions, conferred on the person by or under a law of the Commonwealth, other than:

o

the Corporations (Aboriginal and Torres Strait Islander) Act 2006

o

the Australian Capital Territory (Self-Government) Act 1988

o

the Corporations Act 2001

o

the Norfolk Island Act 1979

o

the Northern Territory (Self-Government) Act 1978, or

•

a provision specified in the regulations

•

an individual who exercises powers, or performs functions, conferred on the person under a law in force in the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands (whether the law is a law of the Commonwealth or a law of the Territory concerned), or

•

the Registrar, or a Deputy Registrar, of Aboriginal and Torres Strait Islander Corporations.

839. This defence is intended to apply where a person discloses information in the person's capacity as a public official. This may include, for example, an employee duty statement, a policy guidance document or employee practice manual, or previous examples of the same conduct which has been authorised by superiors. It will not be a defence to a charge of espionage where a person has gone beyond their ordinary duties.

840. Note 1 under the defence at section 91.13 clarifies that the defendant will bear an evidentiary burden in relation to this defence. The Guide to Framing Commonwealth Offences provides (at paragraph 4.3.1) that it is appropriate for a matter to be included in an offence-specific defence where it is peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. The defence at section 91.13 satisfies both of these criteria. Evidence of the source of the alleged authority for the defendant's actions is evidence peculiarly within the defendant's knowledge. It would be difficult and more costly for the prosecution to prove, beyond a reasonable doubt, that the person was not acting in their capacity as a public official, in accordance with a law of the Commonwealth or in accordance with an information arrangement or agreement to which the Commonwealth is a party. To do this, it would be necessary to negate the fact that there was authority for the person's actions in any law or in any aspect of the person's duty or in any of the instructions given by the person's supervisors (at any level). Conversely, if a Commonwealth officer had a particular reason for thinking that they were acting in accordance with a law or with their duties, it would not be difficult for them to describe where they thought that authority arose.

841. Consistent with section 13.3 of the Criminal Code, the defendant will need to point to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).

842. Both AFP and CDPP consider the availability of any defences when considering whether to investigate and prosecute criminal offences. In relation to prosecution decisions, the Prosecution Policy of the Commonwealth specifically requires the CDPP to take into account any lines of defence which are plainly open to, or have been indicated by, the alleged offender in deciding whether there is a reasonable prospect of a conviction being secured. Subsection 93.1 (to be inserted by Item 18 of Schedule 1) requires the Attorney-General consider whether the defendant's conduct is authorised under the defences in section 91.13 before providing his or her consent to the institution of proceedings for the commitment of a person for trial for an offence to which the defence applies.

Section 91.14 - Geographical jurisdiction

843. Section 91.14 will apply Section 15.4 (extended geographical jurisdiction-Category D) to each offence against Subdivision C

844. Under section 15.4, the effect of Category D geographical jurisdiction is that each offences against Subdivision C applies:

•

whether or not the conduct constituting the alleged offence occurs in Australia, and

•

whether or not a result of the conduct constituting the alleged offence occurs in Australia.

845. Category D geographical jurisdiction is appropriate because intelligence agencies may undertake key facets of espionage activities against Australia in foreign countries to conceal these activities from relevant authorities seeking to prevent these activities. For example, an official from Country X may establish contact with Australian Person Y while on official travel in Country Z, and obtain Person Y's agreement to conduct espionage on their return to Australia.

Division 92 - Foreign interference

Subdivision A - Preliminary

Section 92.1 - Definitions

846. New section 92.1 inserts definitions relevant to the foreign interference offences in Division 92.

847. Deception is defined to mean an intentional or reckless deception, whether by words or other conduct, and whether as to fact or as to law, and includes:

•

a deception as to the intentions of the person using the deception or any other person, and

•

conduct by a person that causes a computer, a machine or an electronic device to make a response that the person is not authorised to cause it to do.

848. This definition is consistent with the definition in section 133.1 of the Criminal Code which applies to Commonwealth fraud offences. The definition is explicit about the fault elements for deception, which may be intentional or reckless. The definition also takes into account the deception of computers, machines or electronic devices which is necessary given the pervasive nature of information technology for transactions and communications.

849. Menaces is defined to have the same meaning as in Part 7.5 of the Criminal Code, which relates to unwarranted menaces (also known as blackmail).

850. Section 138.2 of the Criminal Code defines menaces as including:

•

a threat (whether express or implied) of conduct that is detrimental or unpleasant to another person, or

•

a general threat of detrimental or unpleasant conduct that is implied because of the status, office or position of the maker of the threat.

851. Subsection 138.2(2) provides that a threat against an individual is taken not to be menaces unless:

•

both:

o

the threat would be likely to cause the individual to act unwillingly, and

o

the maker of the threat is aware of the vulnerability of the individual to the threat, or

•

the threat would be likely to cause a person of normal stability and courage to act unwillingly.

852. For example, a demand for payment accompanied by a threat to sue to recover the debt would not be considered menaces, because it suing to enforce a debt is a proper means of enforcing the demand. However, a demand for information accompanied by a threat to disclose private information about a person's marital affair that would jeopardise a person's family could qualify as menaces as it could make a person of normal stability and courage act unwillingly.

Subdivision B - Foreign interference

Section 92.2 - Offence of intentional foreign interference

853. Section 92.2 creates two offences of intentional foreign interference.

Interference generally

854. Subsection 92.2(1) will make it an offence to engage in conduct that is covert or involves deception, threats or menaces on behalf of a foreign principal with an intention to:

•

influence a political or governmental process of the Commonwealth or a State or Territory

•

influence the exercise of an Australian democratic or political right

•

support intelligence activities of a foreign principal, or

•

prejudice Australia's national security.

855. This offence will be punishable by a maximum penalty of 20 years imprisonment.

856. An example of this offence is as follows. Person A is an Australia-based intermediary who responds to direction from officers from the government of Country B, in return for payment. Country B officials task Person A to obtain classified information from Commonwealth government departments to support the intelligence priorities of Country B. Person A undertakes several activities to further this goal, including identifying people who work in the relevant departments, providing these details to Country B officials, and seeking to form relationships with these Commonwealth department employees. Person A misleads these Commonwealth department employees about the nature of Person A's employment and the fact they are pursuing these relationships at the direction and supervision of Country B, for intelligence purposes. Person A also takes steps to conceal their contact with officials from Country B, using encrypted messaging applications.

857. To establish this offence, the prosecution will need to prove beyond a reasonable doubt that:

•

a person intentionally engaged in conduct

•

the:

o

person engaged in the conduct on behalf of a foreign principal

o

person engaged in the conduct on behalf of a person acting on behalf of a foreign principal

o

person engaged in the conduct in collaboration with a foreign principal

o

person engaged in the conduct in collaboration with a person acting on behalf of a foreign principal

o

conduct was directed, funded or supervised by a foreign principal, or

o

conduct was directed, funded or supervised by a person acting on behalf of a foreign principal

and the person is reckless as to this element.

•

the person intends that their conduct will:

o

influence a political or governmental process of the Commonwealth or a State or Territory

o

influence the exercise, whether or not in Australia, of an Australian democratic or political right

o

support intelligence activities of a foreign principal, or

o

prejudice Australia's national security, and

•

any part of the conduct:

o

is covert or involves deception

o

involves the person making a threat to cause serious harm, whether to the person to whom the threat is made or any other person, or

o

involves the person making a demand with menaces

and the person is reckless as to this element.

858. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 92.2(1)(a). Intention will also apply to paragraph 92.2(1)(c). Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

859. Recklessness will be the fault element for paragraphs 92.2(1)(b) and (d). Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

•

a circumstance if he or she is aware of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

860. For paragraph 92.2(1)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intended to engage in the relevant conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to 'engages in conduct' in paragraph 92.2(1)(a) means to do an act or to omit to perform an act.

861. For paragraph 92.2(1)(b), the prosecution will have to prove beyond a reasonable doubt that the defendant's conduct was engaged in on behalf of, or in collaboration with, a foreign principal, on behalf of a person acting on behalf of a foreign principal, directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal. Recklessness is the fault element for this element. Therefore, the defendant must have been aware of a substantial risk that his or her conduct was engaged in on behalf of, or in collaboration with, a foreign principal, on behalf of a person acting on behalf of a foreign principal, directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk.

862. It is possible that a defendant will know, or be reckless, as to the fact that they are engaging in conduct a foreign principal because they are being tasked by a person who identifies himself or herself as representing a foreign principal. In this case, the person will be engaging in the conduct on behalf of the foreign principal.

863. However, it may also be the case that the defendant is not tasked directly by a foreign government official, but by an intermediary. In this case, the prosecution will have to prove beyond a reasonable doubt that the defendant was aware of a substantial risk that he or she was being tasked by a person acting on behalf of a foreign principal and that it was unjustifiable to take that risk. This may be the case where, for example, the intermediary advises the defendant that the intermediary acts in coordination with foreign officials, or the intermediary facilitates preferential treatment for the defendant from a foreign government.

864. Consistent with subsection 92.2(3), for the purposes of paragraph 92.1(1)(b), the person will not need to have in mind a particular foreign principal and may have in mind more than one foreign principal. For example, a defendant may assist an individual who has identified themselves to the defendant as a foreign official, but has not specified which foreign country they represent. Or, a defendant may provide assistance in the knowledge this assistance will or could assist multiple foreign principals at the same time.

865. For the purposes of paragraph 92.2(1)(c), the prosecution will have to prove beyond a reasonable doubt that the person intended that his or her conduct would:

•

influence a political or governmental process of the Commonwealth or a State or Territory (subparagraph 92.2(1)(c)(i))

•

influence the exercise, whether or not in Australia, of an Australian democratic or political right (subparagraph 92.2(1)(c)(ii))

•

support intelligence activities of a foreign principal (subparagraph 92.2(1)(c)(iii)), or

•

prejudice Australia's national security (subparagraph 92.2(1)(c)(iv))

866. Subparagraph 92.2(1)(c)(i) refers to a political or governmental process of the Commonwealth or a State or Territory. The reference to political processes is intended to cover matters within political parties (such as which candidate is pre-selected or the manner in which preferences are to be allocated at an election) as well as political matters within the parliamentary process (such as decisions by shadow Cabinet or decisions by political parties about policies). The reference to governmental processes is intended to cover decision making by the Executive Government, including Cabinet decisions, Executive Council decisions and decisions of individual ministers or departments. The term is intended to cover parliamentary processes such as votes on legislation and establishment and conduct of committees or inquiries.

867. Subparagraph 92.2(1)(c)(ii) refers to the exercise, whether or not in Australia, of Australian democratic or political rights. This term is intended to cover a broad range of rights held by Australians in relation to participation in Australia's democracy, including voting in elections and referenda and participating in lawful protests. The reference to 'whether or not in Australia' is intended to reflect the fact that Australia's can exercise Australian democratic rights from outside Australia. For example, this element is intended to be sufficiently broad to cover an Australian's right to vote in an Australian election while he or she is physically located outside Australia. The reference to 'Australian' democratic and political rights is intended to limit the operation of this paragraph only to rights that arise because of a person's status as Australian. For example, it is not intended to cover a situation where a person is a joint citizen of Australia and the United Kingdom and has a right to vote in United Kingdom elections while physically located in Australia. This would be a United Kingdom democratic right, rather than an Australian democratic right, even though it is being exercised 'in' Australia.

868. Subparagraph 92.2(1)(c)(iii) refers to support for the intelligence activities of a foreign principal. Intelligence activities is intended to cover the full range of information gathering and facilitation activities pursued by foreign principals to obtain or collect information about capabilities, intentions, vulnerabilities or other activities of Australian governments, government agencies or people or organisations within Australia. This could include obtaining or collecting information about the identity, finances or activities of individuals, groups or other identities. The term 'intelligence activities' is also intended to cover traditional activities of intelligence agencies, including signals intelligence and geospatial and imagery intelligence.

869. Subparagraph 92.2(1)(iv) refers to prejudicing Australia's national security. The definition of national security in section 90.4 covers a broad range of possible prejudice to Australia's national security, such as damage to Australia's defence operations or harm to Australia's international relations. The definition of prejudice in section 90.1 clarifies that embarrassment alone is not sufficient to prejudice Australia's national security. Where the person intended that, or was reckless as to whether, his or her conduct would cause embarrassment alone, and that embarrassment eventuates, it will be immaterial whether that embarrassment in turn results in some harm or damage to Australia's national security (for example, a loss of confidence in, or a reduced willingness to share information with, the Australian Government by a foreign partner).

870. In the example above, Person A intends that their conduct will support the intelligence activities of the Country B, which would fall within the definition in subparagraph 92.2(1)(c)(iii).

871. For the purposes of paragraph 92.2(1)(d), the prosecution will have to prove beyond a reasonable doubt that any part of their conduct is covert or involves deception, involves the making of a threat to cause serious harm or involves a demand with menaces. Recklessness is the fault element for this element. Therefore, the defendant will have to be aware of a substantial risk that any part of their conduct is covert or involves deception, involves the making of a threat to cause serious harm or involves a demand with menaces and that, having regard to the circumstances known to him or her that it is unjustifiable to take that risk.

872. Subparagraph 92.2(1)(d)(i) refers to any part of the conduct being covert or involving deception. The reference to 'covert' is intended to cover any conduct that is hidden or secret, or lacking transparency. For example, conduct may be covert if a person takes steps to conceal their communications with the foreign principal, such as deliberately moving onto encrypted communication platforms when dealing with the foreign principal, meeting in a concealed location, communicating by coded messages, or leaving communications in a concealed location for collection by the foreign principal. Conduct may also be covert if the defendant copies documents or listens into private conversations without the targeted person's knowledge or consent, and then passes that information to a foreign principal.

873. Subparagraph 92.2(1)(d)(i) refers to deception, which section 92.1 defines to mean an intentional or reckless deception, whether by words or other conduct, and whether as to fact or as to law, and includes:

•

a deception as to the intentions of the person using the deception or any other person, and

•

conduct by a person that causes a computer, a machine or an electronic device to make a response that the person is not authorised to cause it to do.

874. The reference to conduct 'involving deception' is intended to cover conduct that seeks to cause someone to accept as true or valid what is false or invalid. This would include a person telling lies or misleading a person. In the context of this offence, this may include a person lying about their employment with a foreign government or saying that the information is not intended for passage to a foreign principal.

875. Subparagraph 92.2(1)(d)(ii) refers to a person making a threat to cause serious harm, whether to the person to whom the threat is made or any other person. Threat is defined in the Dictionary to the Criminal Code as including a threat made by any conduct, whether express or implied and whether conditional or unconditional. Serious harm is defined in the Dictionary to the Criminal Code as meaning harm (including the cumulative effect of any harm):

•

that endangers, or is likely to endanger, a person's life, or

•

that is, or is likely to be significant and longstanding.

876. Harm is defined in the Dictionary to the Criminal Code as meaning physical harm or harm to a person's mental health, whether temporary or permanent. However, it does not include being subjected to any force or impact that is within the limits of what is acceptable as incidental to social interaction or to life in the community. Harm to a person's mental health is defined in the Dictionary to the Criminal Code as including significant psychological harm, but does not include mere ordinary emotional reactions such as those of only distress, grief, fear or anger.

877. For subparagraph 92.2(1)(d)(ii) to apply, the defendant must be the person making the threat The subparagraph applies where:

•

the defendant (Person A) makes a threat to Person B and the threat is that serious harm will be caused to Person B, or

•

the defendant (Person A) makes a threat to Person B and the threat is that serious harm will be caused to Person C.

878. It is necessary to cover both of these scenarios because foreign interference activities, particularly those undertaken on behalf of foreign governments, can involve interference with the activities or rights of diaspora or expatriate communities in Australia. For example, a person acting on behalf of Country X might seek to coercively direct the activities of Australia-based Person Y (whose family originates from Country X) by threatening that, if Person Y does not comply with Country X's wishes, serious harm will be caused to Person Y's family members who are still living in Country X.

879. Subparagraph 92.2(1)(d)(iii) refers a person making a demand with menaces. Consistent with the definition of menaces in section 92.1, the term has the same meaning as in Part 7.5 of the Criminal Code. Menaces is defined in section 138.2 of the Criminal Code as including a threat (as defined in the Dictionary to the Criminal Code), whether express or implied, of conduct that is detrimental or unpleasant to another person, or a general threat of detrimental or unpleasant conduct that is implied because of the status, office or position of the maker of the threat. A threat against an individual is taken not the be menaces unless:

•

the threat would be likely to cause the individual to act unwillingly and the maker of the threat is aware of the vulnerability of the individual to the threat, or

•

the threat would be likely to cause a person of normal stability and courage to act unwillingly.

880. Under subsection 138.2(3), a threat against a person who is not an individual is taken not to be menaces unless the threat would ordinarily cause an unwilling response, or the threat would be likely to cause an unwilling response because of a particular vulnerability of which the maker of the threat is aware.

881. Subparagraph 92.2(1)(d)(iii) is intended to capture threats that would generally be considered to be blackmail, rather than the threats to cause serious physical or mental harm covered by subparagraph 92.2(1)(d)(ii). For subparagraph 92.2(1)(d)(iii), the defendant must be the person making the demand with menaces.

882. Examples of demands with menaces would include:

•

a threat to arrest the targeted person upon their entry to another country,

•

a threat to bankrupt a business associated with a targeted person, or

•

a threat to ensure the targeted person (or one of their family members) is denied a visa for entry to another country.

883. In the example above, Person A would be aware of a substantial risk that their conduct is covert (because Person A is deliberately using an encrypted messaging application in order to hide their communications with Country B). Person A would also be aware of a substantial risk that their conduct involves deception because they are telling lies and providing misleading information about their employment and reason for being in Australia.

884. The maximum penalty for the offence in subsection 92.2(1) is 20 years imprisonment. The commission of this offence would have serious consequences for the sovereignty of Australia. It is unacceptable for foreign principals to seek to influence or intimidate Australians or Australian governments, or pursue their intelligence activities, in a manner that is covert or deceptive or involves threats to cause serious harm or demands with menaces. In the worst case scenario, Australians could be threatened with death by a person acting on behalf of a foreign principal and intending to harm Australia's national security. This justifies the serious maximum penalty for the offence.

885. The Note to subsection 92.2(1) specifies that an alternative verdict may be available for an offence against subsection 92.2(1) in accordance with section 93.5.

Interference involving targeted person

886. Subsection 92.2(2) will make it an offence to engage in conduct on behalf of a foreign principal with an intention to influence another person (the target) in relation to a political or governmental process or the exercise of an Australian democratic or political right without disclosing to the target that they are working for a foreign principal.

887. This offence will be punishable by a maximum penalty of 20 years imprisonment.

888. An example of this offence is as follows. Person C is an Australian citizen who undertakes activities for Country D in Australia in exchange for payment. Person C is specifically tasked by Country D officials to convince an Australian political party to change its policy to support free trade with Country D. Person C meets with senior party leaders to discuss this policy. In those meetings, Person C represents herself purely as an Australian citizen and does not disclose her relationship with Country D or the fact that her activities are undertaken on behalf of Country D.

889. To establish this offence, the prosecution will need to prove beyond a reasonable doubt that:

•

a person intentionally engaged in conduct

•

the:

o

person engaged in the conduct on behalf of a foreign principal

o

person engaged in the conduct on behalf of a person acting on behalf of a foreign principal

o

person engaged in the conduct in collaboration with a foreign principal

o

person engaged in the conduct in collaboration with a person acting on behalf of a foreign principal

o

conduct was directed, funded or supervised by a foreign principal, or

o

conduct was directed, funded or supervised by a person acting on behalf of a foreign principal

and the person is reckless as to this element.

•

the person intends that their conduct will influence another person (the target):

o

in relation to a political or governmental process of the Commonwealth or a State or Territory, or

o

in the target's exercise, whether or not in Australia, of an Australian democratic or political right, and

•

the person intentionally conceals from, or fails to disclose to, the target the fact that their conduct was:

o

on behalf of a foreign principal

o

on behalf of a person acting on behalf of a foreign principal

o

in collaboration with a foreign principal

o

in collaboration with a person acting on behalf of a foreign principal

o

directed, funded or supervised by a foreign principal, or

o

directed, funded or supervised by a person acting on behalf of a foreign principal.

890. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraphs 92.2(2)(a) and (d). Intention also applies to paragraph 92.2(2)(c). Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

891. Recklessness is the fault element for paragraph 92.2(2)(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 of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

892. For paragraph 92.2(2)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intended to engage in the relevant conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to 'engages in conduct' in paragraph 92.2(2)(a) means to do an act or to omit to perform an act.

893. For paragraph 92.2(2)(b), the prosecution will have to prove beyond a reasonable doubt that the defendant's conduct was engaged in on behalf of, or in collaboration with, a foreign principal, on behalf of a person acting on behalf of a foreign principal, directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal. Recklessness is the fault element for this element. Therefore, the defendant must have been aware of a substantial risk that his or her conduct was engaged in on behalf of, or in collaboration with, a foreign principal, on behalf of a person acting on behalf of a foreign principal, directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk.

894. It is possible that a defendant will know, or be reckless, as to the fact that they are engaging in conduct a foreign government because they are being tasked by a person who identifies himself or herself as an official of a foreign government. In this case, the person will be engaging in the conduct on behalf of the foreign principal.

895. However, it may also be the case that the defendant is not tasked directly by a foreign government official, but by an intermediary. In this case, the prosecution will have to prove beyond a reasonable doubt that the defendant was aware of a substantial risk that he or she was being tasked by a person acting on behalf of a foreign principal and that it was unjustifiable to take that risk. This may be the case where, for example, the intermediary advises the defendant that the intermediary acts in coordination with or provides advice to foreign officials, or the intermediary facilitates preferential treatment for the defendant from a foreign government.

896. Consistent with subsection 92.2(3), for the purposes of paragraph 92.2(1)(b), the person will not need to have in mind a particular foreign principal and may have in mind more than one foreign principal. For example, a defendant may assist an individual who has identified themselves to the defendant as a foreign official, but has not specified which foreign country they represent. Or, a defendant may provide assistance in the knowledge this assistance will or could assist multiple foreign principals at the same time.

897. For the purposes of paragraph 92.2(2)(c), the prosecution will have to prove beyond a reasonable doubt that the person intended for their act or omission to influence another person (the target):

•

in relation to a political or governmental process of the Commonwealth or a State or Territory (subparagraph 92.2(2)(c)(i)), or

•

in the target's exercise, whether or not in Australia, of an Australian democratic or political right (subparagraph 92.2(1)(c)(ii)).

898. Subparagraph 92.2(2)(c)(i) refers to a political or governmental process of the Commonwealth or a State or Territory. The reference to political processes is intended to cover matters within political parties (such as which candidate is pre-selected or the manner in which preferences are to be allocated at an election) as well as political matters within the parliamentary process (such as decisions by shadow Cabinet or decisions by political parties about policies). The reference to governmental processes is intended to cover decision making by the Executive Government, including Cabinet decisions, Executive Council decisions and decisions of individual ministers or departments. The term is intended to cover parliamentary processes such as votes on legislation and establishment and conduct of committees or inquiries.

899. Subparagraph 92.2(2)(c)(ii) refers to the exercise, whether or not in Australia, of Australian democratic or political rights. This term is intended to cover a broad range of rights held by Australians in relation to participation in Australia's democracy, including voting in elections and referenda and participating in lawful protests. The reference to 'whether or not in Australia' is intended to reflect the fact that Australia's can exercise Australian democratic rights from outside Australia. For example, this element is intended to be sufficiently broad to cover an Australian's right to vote in an Australian election while he or she is physically located outside Australia. The reference to 'Australian' democratic and political rights is intended to limit the operation of this paragraph only to rights that arise because of a person's status as Australian. For example, it is not intended to cover a situation where a person is a joint citizen of Australia and the United Kingdom and has a right to vote in United Kingdom elections while physically located in Australia. This would be a United Kingdom democratic right, rather than an Australian democratic right, even though it is being exercised 'in' Australia.

900. This offence is targeting undisclosed influence on another person in relation to one of the matters covered by subparagraphs 92.2(2)(c)(i) and (ii). Paragraph 92.2(2)(c) requires the defendant's conduct to be intended to influence another person (known as the target). For example, the defendant may, under direction from a foreign country, intentionally seek to influence a Commonwealth Member of Parliament in relation to a pending vote in the House of Representatives. Another example would be where the defendant seeks to influence an Australian citizen as to how they should vote in a Federal election.

901. Whether or not this matter occurs or the conduct is capable of bringing it about is not relevant to the defendant's culpability for the offence. The defendant can still commit the offence despite the fact that the intended influence does not occur, or is not capable of occurring.

902. For the purposes of paragraph 92.2(2)(d), the prosecution will have to prove beyond a reasonable doubt that the defendant intentionally concealed from, or failed to disclose to, the target the fact that his or her conduct was engaged in on behalf of a foreign principal and that, having regard to the circumstances known to him or her, it is unjustifiable to take that risk.

903. For example, Person A is a prominent Australian citizen with strong connections to politics. Person A, acting at the direction of Country B, calls the Minister for Foreign Affairs arguing that Australia should adopt a policy favourable to Country B. In the call Person A does not disclose that she is representing Country B's views or is working on behalf of Country B. Person A has, for the purposes of paragraph 92.2(2)(d), failed to disclose the fact that she is engaging in conduct at the direction of a foreign principal.

904. The maximum penalty for the offence in subsection 92.2(2) is 20 years imprisonment. The commission of this offence would have serious consequences for the sovereignty of Australia. It is unacceptable for foreign principals to seek to influence Australians or Australian governments in relation to political or government processes or the exercise of Australian democratic or political rights. In the worst case scenario, a decision by the Cabinet or a minister with implications for national security could be influenced by a foreign principal without the Cabinet or minister's knowledge. This justifies the serious maximum penalty for the offence.

905. The Note to subsection 92.2(2) specifies that an alternative verdict may be available for offences against subsection 92.2(2) in accordance with section 93.5.

Section 92.3 - Offence of reckless foreign interference

906. Section 92.3 creates two offences of reckless foreign interference.

Interference generally

907. Subsection 92.3(1) will make it an offence to engage in conduct that is covert or involves deception, threats or menaces on behalf of a foreign principal where the person is reckless as to whether their conduct will:

•

influence a political or governmental process of the Commonwealth or a State or Territory

•

influence the exercise of an Australian democratic or political right

•

support intelligence activities of a foreign principal, or

•

cause harm to Australia's national security.

908. This offence will be punishable by a maximum penalty of 15 years imprisonment.

909. An example of this offence is as follows. Person E is an Australian citizen who undertakes activities in Australia at the direction of the intelligence agency of Country F. Country F seeks to suppress protests in Australia regarding a humanitarian crisis in Country F. Person E sends anonymous text messages to people in Australia involved in organising the protests threatening that serious harm will come to them if they continue their activities, and makes similar threats to protest organisers on social media. Person E is aware that the right to protest is an essential part of Australia's democratic processes.

910. To establish this offence, the prosecution will need to prove beyond a reasonable doubt that:

•

a person intentionally engaged in conduct

•

the:

o

person engaged in the conduct on behalf of a foreign principal

o

person engaged in the conduct on behalf of a person acting on behalf of a foreign principal

o

person engaged in the conduct in collaboration with a foreign principal

o

person engaged in the conduct in collaboration with a person acting on behalf of a foreign principal

o

conduct was directed, funded or supervised by a foreign principal, or

o

conduct was directed, funded or supervised by a person acting on behalf of a foreign principal

and the person is reckless as to this element.

•

the person was reckless as to whether his or her conduct would:

o

influence a political or governmental process of the Commonwealth or a State or Territory

o

influence the exercise, whether or not in Australia, of an Australian democratic or political right

o

support intelligence activities of a foreign principal, or

o

prejudice Australia's national security, and

•

any part of the conduct:

o

is covert or involves deception

o

involves the person making a threat to cause serious harm, whether to the person to whom the threat is made or any other person, or

o

involves the person making a demand with menaces

and the person is reckless as to this element.

911. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 92.3(1)(a). Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

912. Recklessness is the fault element for paragraphs 92.3(1)(b), (c) and (d). Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

•

a circumstance if he or she is aware of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

913. For paragraph 92.3(1)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intended to engage in the relevant conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to 'engages in conduct' in paragraph 92.3(1)(a) means to do an act or to omit to perform an act.

914. For paragraph 92.3(1)(b), the prosecution will have to prove beyond a reasonable doubt that the defendant's conduct was engaged in on behalf of, or in collaboration with, a foreign principal, on behalf of a person acting on behalf of a foreign principal, directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal. Recklessness is the fault element for this element. Therefore, the defendant must have been aware of a substantial risk that his or her conduct was engaged in on behalf of, or in collaboration with, a foreign principal, on behalf of a person acting on behalf of a foreign principal, directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk.

915. It is possible that a defendant will know, or be reckless, as to the fact that they are engaging in conduct a foreign government because they are being tasked by a person who identifies himself or herself as an official of a foreign government. In this case, the person will be engaging in the conduct on behalf of the foreign principal.

916. However, it may also be the case that the defendant is not tasked directly by a foreign government official, but by an intermediary. In this case, the prosecution will have to prove beyond a reasonable doubt that the defendant was aware of a substantial risk that he or she was being tasked by a person acting on behalf of a foreign principal and that it was unjustifiable to take that risk. This may be the case where, for example, the intermediary advises the defendant that the intermediary acts in coordination with or provides advice to foreign officials, or the intermediary facilitates preferential treatment for the defendant from a foreign government.

917. Consistent with subsection 92.3(3), for the purposes of paragraph 92.3(1)(b), the person will not need to have in mind a particular foreign principal and may have in mind more than one foreign principal. For example, a defendant may assist an individual who has identified themselves to the defendant as a foreign official, but has not specified which foreign country they represent. Or, a defendant may provide assistance in the knowledge this assistance will or could assist multiple foreign principals at the same time.

918. For the purposes of paragraph 92.3(1)(c), the prosecution will have to prove beyond a reasonable doubt that the person was reckless as to whether their act or omission would:

•

influence a political or governmental process of the Commonwealth or a State or Territory (subparagraph 92.3(1)(c)(i))

•

influence the exercise, whether or not in Australia, of an Australian democratic or political right (subparagraph 92.3(1)(c)(ii))

•

support intelligence activities of a foreign principal (subparagraph 92.3(1)(c)(iii)), or

•

prejudice Australia's national security (subparagraph 92.3(1)(c)(iv))

919. Subparagraph 92.3(1)(c)(i) refers to a political or governmental process of the Commonwealth or a State or Territory. The reference to political processes is intended to cover matters within political parties (such as which candidate is pre-selected or the manner in which preferences are to be allocated at an election) as well as political matters within the parliamentary process (such as decisions by shadow Cabinet or decisions by political parties about policies). The reference to governmental processes is intended to cover decision making by the Executive Government, including Cabinet decisions, Executive Council decisions and decisions of individual ministers or departments. The term is intended to cover parliamentary processes such as votes on legislation and establishment and conduct of committees or inquiries.

920. Subparagraph 92.3(1)(c)(ii) refers to the exercise, whether or not in Australia, of Australian democratic or political rights. This term is intended to cover a broad range of rights held by Australians in relation to participation in Australia's democracy, including voting in elections and referenda and participating in lawful protests. The reference to 'whether or not in Australia' is intended to reflect the fact that Australia's can exercise Australian democratic rights from outside Australia. For example, this element is intended to be sufficiently broad to cover an Australian's right to vote in an Australian election while he or she is physically located outside Australia. The reference to 'Australian' democratic and political rights is intended to limit the operation of this paragraph only to rights that arise because of a person's status as Australian. For example, it is not intended to cover a situation where a person is a joint citizen of Australia and the United Kingdom and has a right to vote in United Kingdom elections while physically located in Australia. This would be a United Kingdom democratic right, rather than an Australian democratic right, even though it is being exercised 'in' Australia.

921. Subparagraph 92.3(1)(c)(iii) refers to support for the intelligence activities of a foreign principal. Intelligence activities is intended to cover the full range of information gathering and facilitation activities pursued by foreign principals to obtain or collect information about capabilities, intentions, vulnerabilities or other activities of Australian governments, government agencies or people or organisations within Australia. This could include obtaining or collecting information about the identity, finances or activities of individuals, groups or other identities. The term 'intelligence activities' is also intended to cover traditional activities of intelligence agencies, including signals intelligence and geospatial and imagery intelligence.

922. Subparagraph 92.3(1)(iv) refers to prejudicing Australia's national security. As defined in section 90.4, national security covers a broad range of possible prejudice to Australia's national security, such as damage to Australia's defence operations or harm to Australia's international relations. The definition of prejudice in section 90.1 clarifies that embarrassment alone is not sufficient to prejudice Australia's national security. Where the person intended that, or was reckless as to whether, his or her conduct would cause embarrassment alone, and that embarrassment eventuates, it will be immaterial whether that embarrassment in turn results in some harm or damage to Australia's national security (for example, a loss of confidence in, or a reduced willingness to share information with, the Australian Government by a foreign partner).

923. In the example above, Person E would be aware of a substantial risk that their conduct would influence the exercise in Australia of an Australian democratic or political right, being the right to protest.

924. For the purposes of paragraph 92.3(1)(d), the prosecution will have to prove beyond a reasonable doubt that any part of their conduct is covert or involves deception, involves the making of a threat to cause serious harm or involves a demand with menaces. Recklessness is the fault element for this element. Therefore, the defendant will have to be aware of a substantial risk that any part of their conduct is covert or involves deception, involves the making of a threat to cause serious harm or involves a demand with menaces and that, having regard to the circumstances known to him or her that it is unjustifiable to take that risk.

925. Subparagraph 92.3(1)(d)(i) refers to any part of the conduct being covert or involving deception. The reference to 'covert' is intended to cover any conduct that is hidden or secret, or lacking transparency. For example, conduct may be covert if a person takes steps to mask or hide their communications with the foreign principal, such as deliberately moving onto encrypted communication platforms when dealing with the foreign principal, meeting in a concealed location, communicating by coded messages, or leaving communications in a concealed location for collection by the foreign principal. Conduct may also be covert if the defendant copies documents or listens into private conversations without the targeted person's knowledge or consent, and then passes that information to a foreign principal.

926. Subparagraph 92.3(1)(d)(i) refers to deception, which section 92.1 defines to mean an intentional or reckless deception, whether by words or other conduct, and whether as to fact or as to law, and includes:

•

a deception as to the intentions of the person using the deception or any other person, and

•

conduct by a person that causes a computer, a machine or an electronic device to make a response that the person is not authorised to cause it to do.

927. The reference to conduct 'involving deception' is intended to cover conduct that seeks to cause someone to accept as true or valid what is false or invalid. This would include a person telling lies or misleading a person. In the context of this offence, this may include a person lying about their employment with a foreign government or that the information a person is seeking is intended for passage to a foreign principal.

928. Subparagraph 92.3(1)(d)(ii) refers to a person making a threat to cause serious harm, whether to the person to whom the threat is made or any other person. Threat is defined in the Dictionary to the Criminal Code as including a threat made by any conduct, whether express or implied and whether conditional or unconditional. Serious harm is defined in the Dictionary to the Criminal Code as meaning harm (including the cumulative effect of any harm):

•

that endangers, or is likely to endanger, a person's life, or

•

that is, or is likely to be significant and longstanding.

929. Harm is defined in the Dictionary to the Criminal Code as meaning physical harm or harm to a person's mental health, whether temporary or permanent. However, it does not include being subjected to any force or impact that is within the limits of what is acceptable as incidental to social interaction or to life in the community. Harm to a person's mental health is defined in the Dictionary to the Criminal Code as including significant psychological harm, but does not include mere ordinary emotional reactions such as those of only distress, grief, fear or anger.

930. For subparagraph 92.3(1)(d)(ii) to apply, the defendant must be the person making the threat The subparagraph applies where:

•

the defendant (Person A) makes a threat to Person B and the threat is that serious harm will be caused to Person B, or

•

the defendant (Person A) makes a threat to Person B and the threat is that serious harm will be caused to Person C.

931. It is necessary to cover both of these scenarios because foreign interference activities, particularly those undertaken on behalf of foreign governments, often involve interference with the rights of diaspora communities in Australia. For example, a person acting on behalf of Country X might seek to influence the activities of Person Y (a prominent leader of a diaspora community in Australia) by threatening that serious harm will be caused to Person Y's family members who are still living in Country X if Person Y's activities in Australia do not comply with Country X's wishes.

932. Subparagraph 92.3(1)(d)(iii) refers a person making a demand with menaces. Consistent with the definition in section 92.1, the term has the same meaning as in Part 7.5 of the Criminal Code. Menaces is defined in section 138.2 of the Criminal Code as including a threat (as defined in the Dictionary to the Criminal Code), whether express or implied, of conduct that is detrimental or unpleasant to another person, or a general threat of detrimental or unpleasant conduct that is implied because of the status, office or position of the maker of the threat. A threat against an individual is taken not the be menaces unless:

•

the threat would be likely to cause the individual to act unwillingly and the maker of the threat is aware of the vulnerability of the individual to the threat, or

•

the threat would be likely to cause a person of normal stability and courage to act unwillingly.

933. Under subsection 138.2(3), a threat against a person who is not an individual is taken not to be menaces unless the threat would ordinarily cause an unwilling response, or the threat would be likely to cause an unwilling response because of a particular vulnerability of which the maker of the threat is aware.

934. Subparagraph 92.3(1)(d)(iii) is intended to capture threats that would generally be considered to be blackmail, rather than the threats to cause serious physical or mental harm covered by subparagraph 92.3(1)(d)(ii). For subparagraph 92.3(1)(d)(iii), the defendant must be the person making the demand with menaces.

935. Examples of demands with menaces would include:

•

a threat to arrest the targeted person upon their entry to another country,

•

a threat to bankrupt a business associated with a targeted person, or

•

a threat to ensure the targeted person (or one of their family members) is denied a visa for entry to another country.

936. In the example above, Person E would be aware of a substantial risk that their conduct involved making a threat to cause serious harm and, given the circumstances known to Person E, it is unjustifiable to take that risk.

937. The maximum penalty for the offence in subsection 92.3(1) is 15 years imprisonment. The commission of this offence would have serious consequences for the sovereignty of Australia. It is unacceptable for foreign principals to seek to influence or intimidate Australians or Australian governments, or pursue their intelligence activities, in a manner that is covert or deceptive or involves threats to cause serious harm or demands with menaces. In the worst case scenario, Australians could be threatened with death by a person acting on behalf of a foreign principal who is aware of a substantial risk that their conduct will prejudice Australia's national security. This justifies the maximum penalty for the offence.

Interference involving targeted person

938. Subsection 92.3(2) will make it an offence to engage in conduct on behalf of a foreign principal reckless as to whether their conduct will influence another person (the target) in relation to a political or governmental process or the exercise of an Australian democratic or political right without disclosing to the target that they are working for a foreign principal.

939. This offence will be punishable by a maximum penalty of 15 years imprisonment.

940. An example of this offence is as follows. Person G is a director of Company H. Although Company H purports to be a private company, in fact its activities are directed and supervised by the government of Country I, which in turn uses the company as a front for its activities. Using Company H's business activities as a justification, Person G builds connections with several members of the Federal parliament and then seeks to convince them to vote in favour of imposing trade sanctions on Country J, a military rival of Country I. Person G presents himself as representing the views of Company H and does not disclose the relationship to Country I to the members of parliament.

941. To establish this offence, the prosecution will need to prove beyond a reasonable doubt that:

•

a person intentionally engaged in conduct

•

the:

o

person engaged in the conduct on behalf of a foreign principal

o

person engaged in the conduct on behalf of a person acting on behalf of a foreign principal

o

person engaged in the conduct in collaboration with a foreign principal

o

person engaged in the conduct in collaboration with a person acting on behalf of a foreign principal

o

conduct was directed, funded or supervised by a foreign principal, or

o

conduct was directed, funded or supervised by a person acting on behalf of a foreign principal

and the person is reckless as to this element.

•

the person was reckless as to whether the conduct would influence another person (the target):

o

in relation to a political or governmental process of the Commonwealth or a State or Territory, or

o

in the target's exercise, whether or not in Australia, of an Australian democratic or political right, and

•

the person intentionally conceals from, or fails to disclose to, the target the fact that their conduct was:

o

on behalf of a foreign principal

o

on behalf of a person acting on behalf of a foreign principal

o

in collaboration with a foreign principal

o

in collaboration with a person acting on behalf of a foreign principal

o

directed, funded or supervised by a foreign principal, or

o

directed, funded or supervised by a person acting on behalf of a foreign principal.

942. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 92.3(2)(a) and (d). Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

943. Recklessness is the fault element for paragraphs 92.3(2)(b) and (c). Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

•

a circumstance if he or she is aware of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

944. For paragraph 92.3(2)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intended to engage in the relevant conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to 'engages in conduct' in paragraph 92.3(2)(a) means to do an act or to omit to perform an act.

945. For paragraph 92.3(2)(b), the prosecution will have to prove beyond a reasonable doubt that the defendant's conduct was engaged in on behalf of, or in collaboration with, a foreign principal, on behalf of a person acting on behalf of a foreign principal, directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal. Recklessness is the fault element for this element. Therefore, the defendant must have been aware of a substantial risk that his or her conduct was engaged in on behalf of, or in collaboration with, a foreign principal, on behalf of a person acting on behalf of a foreign principal, directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk.

946. It is possible that a defendant will know, or be reckless, as to the fact that they are engaging in conduct a foreign government because they are being tasked by a person who identifies himself or herself as an official of a foreign government. In this case, the person will be engaging in the conduct on behalf of the foreign principal.

947. However, it may also be the case that the defendant is not tasked directly by a foreign government official, but by an intermediary. In this case, the prosecution will have to prove beyond a reasonable doubt that the defendant was aware of a substantial risk that he or she was being tasked by a person acting on behalf of a foreign principal and that it was unjustifiable to take that risk. This may be the case where, for example, the intermediary advises the defendant that the intermediary acts in coordination with or provides advice to foreign officials, or the intermediary facilitates preferential treatment for the defendant from a foreign government.

948. Consistent with subsection 92.3(3), for the purposes of paragraph 92.3(2)(b), the person will not need to have in mind a particular foreign principal and may have in mind more than one foreign principal. For example, a defendant may assist an individual who has identified themselves to the defendant as a foreign official, but has not specified which foreign country they represent. Or, a defendant may provide assistance in the knowledge this assistance will or could assist multiple foreign principals at the same time.

949. For the purposes of paragraph 92.3(2)(c), the prosecution will have to prove beyond a reasonable doubt that the person was reckless as to whether their act or omission would influence another person (the target):

•

in relation to a political or governmental process of the Commonwealth or a State or Territory (subparagraph 92.3(2)(c)(i)), or

•

in the target's exercise, whether or not in Australia, of an Australian democratic or political right (subparagraph 92.3(1)(c)(ii)).

950. Subparagraph 92.3(2)(c)(i) refers to a political or governmental process of the Commonwealth or a State or Territory. The reference to political processes is intended to cover matters within political parties (such as which candidate is pre-selected or the manner in which preferences are to be allocated at an election) as well as political matters within the parliamentary process (such as decisions by shadow Cabinet or decisions by political parties about policies). The reference to governmental processes is intended to cover decision making by the Executive Government, including Cabinet decisions, Executive Council decisions and decisions of individual ministers or departments. The term is intended to cover parliamentary processes such as votes on legislation and establishment and conduct of committees or inquiries.

951. Subparagraph 92.3(2)(c)(ii) refers to the exercise, whether or not in Australia, of Australian democratic or political rights. This term is intended to cover a broad range of rights held by Australians in relation to participation in Australia's democracy, including voting in elections and referenda and participating in lawful protests. The reference to 'whether or not in Australia' is intended to reflect the fact that Australia's can exercise Australian democratic rights from outside Australia. For example, this element is intended to be sufficiently broad to cover an Australian's right to vote in an Australian election while he or she is physically located outside Australia. The reference to 'Australian' democratic and political rights is intended to limit the operation of this paragraph only to rights that arise because of a person's status as Australian. For example, it is not intended to cover a situation where a person is a joint citizen of Australia and the United Kingdom and has a right to vote in United Kingdom elections while physically located in Australia. This would be a United Kingdom democratic right, rather than an Australian democratic right, even though it is being exercised 'in' Australia.

952. The offence is targeting undisclosed influence on another person in relation to one of the matters covered by subparagraphs 92.3(2)(c)(i) and (ii). Paragraph 92.3(2)(c) requires the defendant's to be reckless as to whether their conduct would influence another person (known as the target). For example, the defendant may, under direction from a foreign country, seek to influence a Commonwealth Member of Parliament in relation to a pending vote in the House of Representatives. Another example would be where the defendant seeks to influence an Australian citizen as to how they should vote in a Federal election.

953. In the example above, Person G would be aware of a significant risk that their conduct was influencing another person in relation a political or governmental process, being a vote in Federal Parliament.

954. For the purposes of paragraph 92.3(2)(d), the prosecution will have to prove beyond a reasonable doubt that the defendant intentionally concealed from, or failed to disclose to, the target the fact that his or her conduct was engaged in on behalf of a foreign principal and that, having regard to the circumstances known to him or her, it is unjustifiable to take that risk.

955. In the example above, Person G has disclosed their affiliation with Company H but has not disclosed that their conduct was undertaken on behalf of, or at the direction of, Country H.

956. The maximum penalty for the offence in subsection 92.3(2) is 15 years imprisonment. The commission of this offence would have serious consequences for the sovereignty of Australia. It is unacceptable for foreign principals to seek to influence Australians or Australian governments in relation to political or government processes or the exercise of Australian democratic or political rights. In the worst case scenario, a person could have engaged in conduct in relation to a decision of the Australian Government, aware of a substantial risk that it would influence that decision, without disclosing that the influence is being brought to bear on behalf of a foreign principal. This justifies the maximum penalty for the offence.

Section 92.4 - Offence of preparing for a foreign interference offence

957. Section 92.4 will establish the offence of preparing for a foreign interference offence. The offence will criminalise conduct in preparation for, or planning, an offence of foreign interference. The offence will be punishable by a maximum penalty of 10 years imprisonment.

958. An example of this offence is as follows. Person A is an Australian citizen who is tasked with influencing Australian Government policy on Country B. Person A sets up encrypted communications channels with Country B, received detailed tasking about the outcome to be achieved and sets up meetings with several Australian Government ministers.

959. The purpose of this offence is to give law enforcement means to deal with preparatory conduct and enable intervention before foreign interference occurs.

960. To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

•

the person intentionally engages in conduct, and

•

the person does so with the intention of preparing for, or planning, an offence against another provision in Subdivision A (foreign interference).

961. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 92.4(1)(a). Under section 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

962. For paragraph 92.4(1)(a), the prosecution will have to prove beyond a reasonable doubt that the defendant intentionally engaged in the relevant conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to 'engages in conduct' in paragraph 92.4(1)(a) means to do an act or to omit to perform an act.

963. For paragraph 92.4(1)(b), the prosecution will have to prove beyond a reasonable doubt that the person engaged in the conduct with the intention of preparing for, or planning, an offence against another provision in Subdivision A (foreign interference).

964. The terms preparing and planning are not defined and are intended to take their ordinary meanings.

•

The term 'preparing' could include acts to conceive, formulate, make ready, arrange, and assemble an idea, plan, thing, or person for an offence against another provision in Subdivision A (foreign interference).

•

The term 'planning' could include acts to organise, arrange, design, draft, or setup an idea, plan, thing, or person for an offence against another provision in Subdivision A (foreign interference).

965. Given the offences are directed at behaviour at the planning, or planning, stage, it is appropriate to impose the fault element of intention on both of the elements of the offence. This will ensure that a person will only be guilty of this offence where there is sufficient evidence that the person intended to prepare for, or plan, a foreign interference offence.

966. The maximum penalty for this offence is 10 years imprisonment. While persons who attempt to commit offences are generally subject to the same penalty as if the actual offence had been carried out, the offence at subsection 92.4(1) is intended to capture behaviour at the planning stage, rather than the more advanced stage at which an ancillary offence of attempt could otherwise apply.

967. Subsection 92.4(2) specifies that section 11.1 (attempt) does not apply to an offence against subsection 92.4(1). Section 11.1 of the Criminal Code extends criminal responsibility for all Commonwealth offences and operates to automatically provide for ancillary offences such as attempting to commit an offence or inciting the commission of an offence. Subsection 92.4(2) modifies the automatic application of section 11.1 in relation to the ancillary offence of attempt. This is appropriate because the offence is already directed at conduct that is preparatory in nature.

968. Under paragraph 92.4(3)(a), the preparatory offence at subsection 92.4(1) will apply whether or not an offence against Subdivision B is actually committed. This is consistent with the intention behind the offence to allow intervention by law enforcement prior to foreign interference occurring.

969. Under paragraph 92.4(3)(b), the preparatory offence at subsection 92.4(1) will apply whether or not the person engages in conduct in preparation for, or planning, a specific offence against a provision of Subdivision B. This clarifies that it is not necessary for the prosecution to identify a specific offence - it will be sufficient for the prosecution to prove that the particular conduct was related to 'an' offence. This ensures that the offence will be available where a person has planned a range of activities preparatory to committing a foreign interference offence that are still in the formative stages. For example, where a person has not necessarily decided on a particular target, time or date or other specific details that would constitute one of the specified offences against Subdivision B.

970. Under paragraph 92.4(3)(c), the preparatory offence at subsection 92.4(1) will apply whether or not the act is done in preparation for, or planning, more than one offence against a provision of Subdivision B. This clarifies that the offence will still apply where a person has engaged in preparatory conduct in relation to several offences against Subdivision B.

Section 92.5 - Defence

971. The general defences available under Part 2.3 of the Criminal Code will be available to a person accused of an offence under Subdivision B of Division 92. In addition, section 92.5 creates specific defences.

972. Section 92.5 provides a defence if a person dealt with the relevant information or article:

•

in accordance with a law of the Commonwealth (paragraph 92.5(a)), or

•

in accordance with an arrangement or agreement to which the Commonwealth is party (paragraph 92.5(b), or

•

in the person's capacity as a public official (paragraph 92.5(c)).

973. It is appropriate for these matters relating to lawful authority to be cast as defences because the source of the alleged authority for the defendant's actions is peculiarly within the defendant's knowledge. It is significantly more cost-effective for the defendant to assert this matter rather than the prosecution needing to disprove the existence of any authority, from any source.

974. Consistent with section 13.3 of the Criminal Code, in the case of an evidential burden, the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. If the defendant discharges an evidential burden, the prosecution must disprove those matters beyond reasonable doubt, consistent with section 13.1 of the Criminal Code.

975. Section 10.5 of the Criminal Code provides a general defence of lawful authority applicable to all Commonwealth offences. This defence is narrow and only applies to conduct that is specifically justified or excused by a law. Consistent with the definition of law in the Dictionary to the Criminal Code, this means the conduct must be specifically justified or excused by a law of the Commonwealth, and includes the Criminal Code.

976. The defence at paragraph 92.5(a) is broader than the lawful authority defence available under section 10.5 and will cover a person acting 'in accordance' with a law of the Commonwealth, rather than the law of the Commonwealth needing to specifically justify or excuse the person's conduct. An example of conduct covered by the specific defence created in section 92.5(a), but not by the general defence of lawful authority, includes where a person acts in accordance with their duties as an APS employee as set out in the Public Service Act 1999 or the Public Service Regulations 1999, despite nothing specific in those laws authorising the person's actions.

977. The defence at paragraph 92.5(b) applies when person dealt with the information or article in accordance with an agreement or arrangement to which the Commonwealth is party. This defence provides that the foreign interference offences in Subdivision B do not apply if a person's conduct was in accordance with an agreement or arrangement to which the Commonwealth was a party.

978. The terms 'arrangement' and 'agreement' are not defined and will be given their ordinary meaning. The term 'agreement' is not intended to be limited by the meaning of 'agreement' in Australian international practice as being a treaty, nor is it intended to require evidence of a formal contractual or legal agreement. It is intended that such terms will capture agreements or arrangements in a range of forms, including those made by exchange of letters or as a memorandum of understanding.

979. The defence at paragraph 92.5(c) applies when a person dealt with the information or article in the person's capacity as a public official. Public official is defined in the Dictionary to the Criminal Code to include:

•

a Commonwealth public official

•

an officer or employee of the Commonwealth or of a State or Territory

•

an individual who performs work for the Commonwealth, or for a State or Territory, under a contract

•

an individual who holds or performs the duties of an office established by a law of the Commonwealth or of a State or Territory

•

an individual who is otherwise in the service of the Commonwealth or of a State or Territory (including service as a member of a military force or police force)

•

a member of the executive, judiciary or magistracy of the Commonwealth or of a State or Territory, and

•

an officer or employee of:

o

an authority of the Commonwealth, or

o

an authority of a State or Territory.

980. Commonwealth public official is defined in the Dictionary to the Criminal Code to mean:

•

the Governor-General

•

a person appointed to administer the Government of the Commonwealth under section 4 of the Constitution

•

a Parliamentary Secretary

•

a member of either House of the Parliament

•

an individual who holds an appointment under section 67 of the Constitution

•

the Administrator, an Acting Administrator, or a Deputy Administrator, of the Northern Territory

•

a Commonwealth judicial officer (as defined in the Dictionary to the Criminal Code)

•

an APS employee

•

an individual employed by the Commonwealth other than under the Public Service Act 1999

•

a member of the Australian Defence Force

•

a member or special member of the AFP

•

an individual (other than an official of a registered industrial organisation) who holds or performs the duties of an office established by or under a law of the Commonwealth, other than:

o

the Corporations (Aboriginal and Torres Strait Islander) Act 2006

o

the Australian Capital Territory (Self-Government) Act 1988

o

the Corporations Act 2001

o

the Norfolk Island Act 1979, or

o

the Northern Territory (Self-Government) Act 1978

•

an officer or employee of a Commonwealth authority

•

an individual who is a contracted service provider for a Commonwealth contract

•

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

•

an individual (other than an official of a registered industrial organisation) who exercises powers, or performs functions, conferred on the person by or under a law of the Commonwealth, other than:

o

the Corporations (Aboriginal and Torres Strait Islander) Act 2006

o

the Australian Capital Territory (Self-Government) Act 1988

o

the Corporations Act 2001

o

the Norfolk Island Act 1979

o

the Northern Territory (Self-Government) Act 1978, or

o

a provision specified in the regulations

•

an individual who exercises powers, or performs functions, conferred on the person under a law in force in the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands (whether the law is a law of the Commonwealth or a law of the Territory concerned), or

•

the Registrar, or a Deputy Registrar, of Aboriginal and Torres Strait Islander Corporations.

981. This defence is intended to apply where a person engages in conduct covered by the foreign interference offences in the person's capacity as a public official. This may include, for example, an employee duty statement, a policy guidance document or employee practice manual, or previous examples of the same conduct which has been authorised by superiors.

982. Many departments and agencies engage in joint activities with international counterparts as part of their normal business dealings. The offences in Subdivision B are only intended to apply where a person's conduct is not a proper or legitimate part of their work. It will not be a defence to a charge of foreign interference where a person has gone beyond their ordinary duties.

983. Note 1 under the defence at section 92.5 clarifies that the defendant will bear an evidentiary burden in relation to this defence. The Guide to Framing Commonwealth Offences provides (at paragraph 4.3.1) that it is appropriate for a matter to be included in an offence-specific defence where it is peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. The defence at section 92.5 satisfies both of these criteria. Evidence of the source of the alleged authority for the defendant's actions is evidence peculiarly within the defendant's knowledge. It would be difficult and more costly for the prosecution to prove, beyond a reasonable doubt, that the person was not acting in their capacity as a public official, in accordance with a law of the Commonwealth or in accordance with an information arrangement or agreement to which the Commonwealth is a party. To do this, it would be necessary to negate the fact that there was authority for the person's actions in any law or in any aspect of the person's duty or in any of the instructions given by the person's supervisors (at any level). Conversely, if a Commonwealth officer had a particular reason for thinking that they were acting in accordance with a law or with their duties, it would not be difficult for them to describe where they thought that authority arose.

984. Consistent with section 13.3 of the Criminal Code, the defendant will need to point to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).

985. Both AFP and CDPP consider the availability of any defences when considering whether to investigate and prosecute criminal offences. In relation to prosecution decisions, the Prosecution Policy of the Commonwealth specifically requires the CDPP to take into account any lines of defence which are plainly open to, or have been indicated by, the alleged offender in deciding whether there is a reasonable prospect of a conviction being secured. Subsection 93.1 (to be inserted by Item 18 of Schedule 1) requires the Attorney-General consider whether the defendant's conduct is authorised under the defences in section 92.5 before providing his or her consent to the institution of proceedings for the commitment of a person for trial for an offence to which the defence applies.

Section 92.6 - Geographical jurisdiction

986. Section 92.6 applies Section 15.2 of the Criminal Code (extended geographical jurisdiction - Category B) to Subdivision B of Division 92.

987. Under section 15.2, the effect of Category B jurisdiction is that the offence applies:

•

if the conduct constituting the offence occurs wholly or partly in Australia

•

if the result of that conduct occurs wholly or partly in Australia, and

•

if the conduct occurs outside Australia and at the time of committing the offence, the person is an Australian citizen, resident or body corporate.

988. Category B jurisdiction is appropriate to ensure that this offence appropriately protects Australia's from foreign interference that occurs in Australia or where the result occurs in Australia. The application of Category B jurisdiction also prevents Australian citizens, residents or bodies corporate from engaging in foreign interference offences, wherever that conduct occurs.

Subdivision C - Foreign interference involving foreign intelligence agencies

Section 92.7 - Knowingly supporting foreign intelligence agency

989. Section 92.7 makes it an offence to provide resources or material support to an organisation or a person acting on behalf on an organisation where the person knows that the organisation is a foreign intelligence organisation. This offence will be punishable by a maximum of 15 years imprisonment.

990. An example of this offence is as follows. Person A is an Australian citizen with an ongoing relationship with Person B, whom Person A knows is a foreign intelligence service officer. In response to specific requests from Person B, Person A makes a series of administrative arrangements that will facilitate Person B's movements and activities within Australia. Person A believes that Person B is travelling to Australia for operational purposes but is unaware of the specific activity Person B is conducting.

991. To establish this offence, the prosecution will have to prove beyond reasonable doubt that:

•

a person intentionally provides support or resources to an organisation or a person acting on behalf of an organisation, and

•

the organisation is a foreign intelligence agency and the person knows this.

992. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 92.7(a). Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

993. Paragraph 92.7(b) specifies that a fault element of knowledge applies. Under section 5.3 of the Criminal Code, a person has knowledge of a circumstance if he or she is aware that it exists or will exist in the ordinary course of events.

994. For paragraph 92.7(a), the prosecution must prove beyond reasonable doubt that the defendant intended to provide material support or resources to an organisation, or a person acting on behalf of the organisation.

995. The terms 'material support' and 'resources' are not defined and will be given their ordinary meaning. What constitutes providing material support or resources to an organisation will depend on the facts of each case but it is intended to cover assistance in the form of providing a benefit or other practical goods or aid. It does not extend to non-material support, for example a journalist reporting positively, or neutrally about a foreign intelligence agency. News reporting, editorial or opinion writing and humanitarian assistance will not constitute 'material support'.

996. In the example above, Person A has provided support and resources to Person B by subscribing multiple telephones and booking a hotel room for Person B to use while in Australia.

997. For paragraph 92.7(b), the prosecution will have to prove that the organisation to which the person provides material support or resources is a foreign intelligence agency. The person will have to know that the organisation is a foreign intelligence agency.

998. The definition of foreign intelligence agency in the Dictionary to the Criminal Code, to be inserted by Item 24 of Schedule 1, means an intelligence or security service (however described) of a foreign country. The term foreign country is defined in the Dictionary to the Criminal Code as including a colony or overseas territory, and a territory outside Australia, where a foreign country is to any extent responsible for the international relations of the territory, and a territory outside Australia this is to some extent self-governing, but that is not recognised as an independent sovereign state by Australia.

999. The definition of 'foreign intelligence agency' is intentionally broad to capture the range of intelligence agencies that exist in various countries. Such agencies will generally, but not always, have comparable functions to agencies in the Australian Intelligence Community, as set out at the definition of domestic intelligence agency in section 121.1 of Schedule 2 of this Bill. This includes:

•

the Australian Secret Intelligence Service

•

ASIO

•

the Australian Geospatial-Intelligence Organisation

•

the Defence Intelligence Organisation

•

the Australian Signals Directorate, and

•

the Office of National Assessments.

1000. To prove knowledge on the part of the defendant, the prosecution will have to demonstrate either that the defendant knew the organisation engaged in intelligence activities on behalf of a foreign country, or, if the organisation is a declared or publicly acknowledged foreign intelligence organisation, that the defendant knew this fact.

1001. In the example above, Person A is aware that Person B is acting on behalf of a foreign intelligence service, which clearly meets the definition of foreign intelligence agency in the Dictionary. Therefore, Person A knows that the organisation to which he or she is providing support and resources is a foreign intelligence agency.

1002. The note to section 92.7 specifies that an alternative verdict may be available for an offence against section 92.7 in accordance with section 93.5.

1003. The maximum penalty of 15 years imprisonment is appropriate when compared with the maximum penalty for the offence of providing support to a terrorist organisation in section 102.7 of the Criminal Code, which carries a penalty of 25 years imprisonment. This higher penalty applying to section 102.7 reflects the higher risk to the life of members of the public associated with supporting a terrorist organisation. A penalty of 15 years for this offence is appropriate to recognise the serious harm that can be caused to Australia's sovereignty, national security and other interests as a result of foreign intelligence organisations undertaking operations in, or against, Australia.

Section 92.8 - Recklessly supporting foreign intelligence agency

1004. Section 92.8 makes it an offence to provide resources or material support to an organisation or a person acting on behalf on an organisation where the person knows that the organisation is a foreign intelligence organisation. This offence will be punishable by a maximum of 10 years imprisonment.

1005. An example of this offence is as follows. Person A is an Australian citizen with an ongoing relationship with Person B. Person A knows that Person B is employed by a foreign government, but does not know the specific agency. Person B insists that Person A follow specific communication methods whenever contacting Person B, and Person A is aware that Person B uses several different names. In response to specific requests from Person B, Person A attends dissident group meetings in Australia and provides a list of attendees to Person B. Person A also uses open source materials to find identifying details for several of the attendees, which Person A passes to Person B.

1006. To establish this offence, the prosecution will have to prove beyond reasonable doubt that:

•

a person intentionally provides support or resources to an organisation or a person acting on behalf of an organisation, and

•

the organisation is a foreign intelligence agency and the person was reckless as to this element.

1007. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 92.8(a). Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

1008. Recklessness is the fault element for paragraph 92.8(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 of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

1009. For paragraph 92.8(a), the prosecution must prove beyond reasonable doubt that the defendant intended to provide support or resources to an organisation, or a person acting on behalf of the organisation.

1010. The terms 'support' and 'resources' are not defined and will be given their ordinary meaning. What constitutes providing support or resources to an organisation will depend on the facts of each case but it is intended to cover assistance in the form of providing a benefit or other practical goods and materials, as well as engaging in conduct intended to aid, assist or enhance an organisations activities, operations, or objectives.

1011. In the example above, Person A has provided support and resources to Person B by compiling a list of attendees at dissident group meetings and providing their addresses and phone numbers.

1012. For paragraph 92.8(b), the prosecution will have to prove that the organisation to which they provide support or resources is a foreign intelligence agency. Recklessness is the fault element for this element. Therefore, the person will need to be aware of a substantial risk that the organisation is a foreign intelligence agency and, having regard to the circumstances known to the person, it is unjustifiable to take the risk.

1013. The definition of foreign intelligence agency in the Dictionary to the Criminal Code, to be inserted by Item 24 of Schedule 1, means an intelligence or security service (however described) of a foreign country. The term foreign country is defined in the Dictionary to the Criminal Code as including a colony or overseas territory, and a territory outside Australia, where a foreign country is to any extent responsible for the international relations of the territory, and a territory outside Australia this is to some extent self-governing, but that is not recognised as an independent sovereign state by Australia.

1014. The definition of 'foreign intelligence agency' is intentionally broad to capture the range of intelligence agencies that exist in various countries. Such agencies will generally, but not always, have comparable functions to agencies in the Australian Intelligence Community, as set out at the definition of domestic intelligence agency in section 121.1 of Schedule 2 of this Bill. This includes:

•

the Australian Secret Intelligence Service

•

ASIO

•

the Australian Geospatial-Intelligence Organisation

•

the Defence Intelligence Organisation

•

the Australian Signals Directorate, and

•

the Office of National Assessments.

1015. In the example above, Person A is aware that Person B is employed by a foreign government, uses several different identities and insists on using encrypted communications. Therefore, Person A would be aware of a substantial risk that Person B is a person acting on behalf of a foreign intelligence agency.

1016. The maximum penalty of 10 years imprisonment is less than the more serious offence of knowingly supporting a foreign intelligence agency at section 92.7. A penalty of 10 years for this offence is appropriate to recognise the serious harm that can be caused to Australia's sovereignty, national security and other interests as a result of foreign intelligence organisations undertaking operations in, or against, Australia.

Section 92.9 - Knowingly funding or being funded by foreign intelligence agency

1017. Section 92.9 will make it an offence for a person to fund or be funded by a foreign intelligence agency. The offence will apply where a person receives or obtains funds from, make funds available to, or collects funds for or on behalf of, a foreign intelligence agency. The offence will only apply where the person knows that the organisation is a foreign intelligence agency. This offence will be punishable by a maximum of 15 years imprisonment.

1018. An example of this offence is as follows. Person A is an Australian citizen, and maintains an information technology business that is used to support the activities of foreign nationals Person A knows to be foreign intelligence officers of Country X. These officers of Country X transfer substantial funds to Person A to support the business, on the understanding the business is kept viable for future use in Country X's intelligence activities.

1019. To establish this offence, the prosecution will have to prove beyond reasonable doubt that:

•

a person intentionally (either directly or indirectly):

o

receives or obtains funds from an organisation

o

receives or obtains funds from a person acting on behalf of an organisation

o

makes funds available to an organisation

o

makes funds available to a person acting on behalf of an organisation

o

collects funds for or on behalf of an organisation, or

o

collects funds for or on behalf a person acting on behalf of an organisation, and

•

the organisation is a foreign intelligence agency and the person knows this.

1020. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to subparagraphs 92.9(a)(i) and (ii). Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

1021. Paragraph 92.9(b) specifies that the fault element for this element is knowledge. Under section 5.3 of the Criminal Code, a person has knowledge of a circumstance if he or she is aware that it exists or will exist in the ordinary course of events.

1022. For paragraph 92.9(a), the prosecution must prove beyond reasonable doubt that the defendant intentionally receives or obtain funds from, make funds available to, or collect fund for or on behalf of, an organisation or a person acting on behalf of an organisation. This can occur either directly or indirectly.

1023. The term 'funds' is not defined and will take it ordinary meaning. It is intended that the term will be construed broadly and would cover financing through money, loans, agreements, appropriations, contracts, or promises of funding, in whole or in part.

1024. Subparagraph 92.9(a)(i) applies where a person receives or obtains funds from an organisation or a person is acting on behalf of the organisation, or where a person makes funds available to an organisation or a person acting on behalf of an organisation. A person 'receives' or 'obtains' funds where the person is given, provided or otherwise acquires the funds from the organisation. A person makes funds available when they give or provide the funds to the organisation by whatever means available. This includes where a person provides or loans money to an organisation on the understanding that the money will later be returned or paid back.

1025. In the example above, Person A has made funds directly available to a person acting on behalf of an organisation by providing money to an employee of the intelligence services of Country X. Person A has also received funds from the intelligence services in Country X. This has occurred indirectly in the form of a loan form company Y.

1026. Subparagraph 92.9(a)(ii) applies where a person collects funds for on behalf of an organisation or a person acting on behalf of an organisation. The phrase 'on behalf of' is intended to include where a person or entity represents, acts in the interests of, or acts as a proxy for, the organisation. For example, a person may act as an intermediary for a foreign intelligence service in Australia and be instructed to collect funds from a specific person or location and then provide the funds to an employee of the foreign intelligence service. In this case the person would be collecting funds on behalf of an organisation.

1027. For paragraph 92.9(b), the prosecution will have to prove that the organisation to which the person provides support or resources is a foreign intelligence agency. The person must know that the organisation is a foreign intelligence agency.

1028. The definition of foreign intelligence agency in the Dictionary to the Criminal Code, to be inserted by Item 24 of Schedule 1, means an intelligence or security service (however described) of a foreign country. The term foreign country is defined in the Dictionary to the Criminal Code as including a colony or overseas territory, and a territory outside Australia, where a foreign country is to any extent responsible for the international relations of the territory, and a territory outside Australia this is to some extent self-governing, but that is not recognised as an independent sovereign state by Australia.

1029. The definition of 'foreign intelligence agency' is intentionally broad to capture the range of intelligence agencies that exist in various countries. Such agencies will generally, but not always, have comparable functions to agencies within the Australian Intelligence Community, as set out at the definition of domestic intelligence agency in section 121.1 of Schedule 2 of this Bill. This includes:

•

the Australian Secret Intelligence Service

•

ASIO

•

the Australian Geospatial-Intelligence Organisation

•

the Defence Intelligence Organisation

•

the Australian Signals Directorate, and

•

the Office of National Assessments.

1030. To prove knowledge on the part of the defendant, the prosecution will have to demonstrate either that the defendant knew the organisation engaged in intelligence activities on behalf of a foreign country, or, if the organisation is a declared or publically acknowledged foreign intelligence organisation, that the defendant knew this fact.

1031. The note to section 92.9 specifies that an alternative verdict may be available for an offence against section 92.9 in accordance with section 93.5. Section 93.5 allows for an alternative verdict if the trier of fact is not satisfied that the defendant is guilty of the offence in section 92.9, but is satisfied of the offence against section 92.10 (i.e. if the trier of fact is not satisfied that the defendant knew the organisation was a foreign intelligence organisation but is satisfied that the defendant was reckless as to whether the organisation is a foreign intelligence organisation).

1032. The maximum penalty of 15 years imprisonment is appropriate when compared with the maximum penalty for the offence of providing funds to a terrorist organisation in section 102.6 of the Criminal Code, which carries a penalty of 25 years imprisonment. This higher penalty applying to section 102.6 reflects the higher risk to the life of members of the public associated with supporting a terrorist organisation. A penalty of 15 years for this offence is appropriate to recognise the serious harm that can be caused to Australia's sovereignty, national security and other interests as a result of foreign intelligence organisations undertaking operations in, or against, Australia.

Section 92.10 - Recklessly funding or being funded by foreign intelligence agency

1033. Section 92.10 will make it an offence for a person to fund or be funded by a foreign intelligence agency. The offence will apply where a person receives or obtains funds from, make funds available to, or collects funds for or on behalf of, a foreign intelligence agency. The offence will apply where the person is reckless as to whether the organisation is a foreign intelligence agency. This offence will be punishable by a maximum of 10 years imprisonment.

1034. An example of this offence is as follows. Person B is an Australian citizen who undertakes ad hoc tasks for foreign individuals employed by the government of Country Y, in return for preferential treatment they facilitate in Country Y. Based on the requests made, Person B suspects these officials are foreign intelligence officers. In response to a specific request from these Country Y officers, Person B attends a prearranged location and gives a large sum of Person B's own money to Person C, a visiting Country Y national Person B has not met before. Person B does not know what the money will be used for.

1035. To establish this offence, the prosecution will have to prove beyond reasonable doubt that:

•

a person intentionally (either directly or indirectly):

o

receives or obtains funds from an organisation

o

receives or obtains funds from a person acting on behalf of an organisation

o

makes funds available to an organisation

o

makes funds available to a person acting on behalf of an organisation

o

collects funds for or on behalf of an organisation, or

o

collects funds for or on behalf a person acting on behalf of an organisation, and

•

the organisation is a foreign intelligence agency and the person is reckless as to this element.

1036. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to subparagraphs 92.10(a)(i) and (ii). Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

1037. Recklessness is the fault element for paragraph 92.10(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 of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

1038. For paragraph 92.10(a), the prosecution must prove beyond reasonable doubt that the defendant intentionally receives or obtain funds from, make funds available to, or collect fund for or on behalf of, an organisation or a person acting on behalf of an organisation. This can occur either directly or indirectly.

1039. The term 'funds' is not defined and will take it ordinary meaning. It is intended that the term will be construed broadly and would cover financing through money, loans, agreements, appropriations, contracts, or promises of funding, in whole or in part.

1040. Subparagraph 92.10(a)(i) applies where a person receives or obtains funds from an organisation or a person is acting on behalf of the organisation, or where a person makes funds available to an organisation or a person acting on behalf of an organisation. A person 'receives' or 'obtains' funds where the person is given, provided or otherwise acquires the funds from the organisation. A person makes funds available when they give or provide the funds to the organisation by whatever means available. This includes where a person provides or loans money to an organisation on the understanding that the money will later be returned or paid back.

1041. In the example above, Person C has received funds from, and is in the process of making funds available to a person acting on behalf of an organisation. This has occurred directly in the form Person C collecting and delivering cash.

1042. Subparagraph 92.10(a)(ii) applies where a person collects funds for on behalf of an organisation or a person acting on behalf of an organisation. The phrase 'on behalf of' is intended to include where a person or entity represents, acts in the interests of, or acts as a proxy for, the organisation. For example, a person may act as an intermediary for a foreign intelligence service in Australia and be instructed to collect funds from a specific person or location and then provide the funds to an employee of the foreign intelligence service. In this case the person would be collecting funds on behalf of an organisation.

1043. For paragraph 92.10(b), the prosecution will have to prove that the organisation to which they provide support or resources is a foreign intelligence agency. Recklessness is the fault element for this element. Therefore, the person will need to be aware of a substantial risk that the organisation is a foreign intelligence agency and, having regard to the circumstances known to the person, it is unjustifiable to take the risk.

1044. The definition of foreign intelligence agency in the Dictionary to the Criminal Code, to be inserted by Item 24 of Schedule 1, means an intelligence or security service (however described) of a foreign country. The term foreign country is defined in the Dictionary to the Criminal Code as including a colony or overseas territory, and a territory outside Australia, where a foreign country is to any extent responsible for the international relations of the territory, and a territory outside Australia this is to some extent self-governing, but that is not recognised as an independent sovereign state by Australia.

1045. The definition of 'foreign intelligence agency' is intentionally broad to capture the range of intelligence agencies that exist in various countries. Such agencies will generally, but not always, have comparable functions to agencies within the Australian Intelligence Community, as set out at the definition of domestic intelligence agency in section 121.1 of Schedule 2 of this Bill. This includes:

•

the Australian Secret Intelligence Service

•

ASIO

•

the Australian Geospatial-Intelligence Organisation

•

the Defence Intelligence Organisation

•

the Australian Signals Directorate, and

•

the Office of National Assessments.

1046. In the example above, Person C has received the money from someone who is suspected to be a foreign intelligence official. The arrangements for communication and collection of the money also suggest that the money is being made available to a foreign intelligence agency.

1047. The maximum penalty of 10 years imprisonment is less than the more serious offence of knowingly supporting a foreign intelligence agency at section 92.9. A penalty of 10 years for this offence is appropriate to recognise the serious harm that can be caused to Australia's sovereignty, national security and other interests as a result of foreign intelligence organisations undertaking operations in, or against, Australia.

Section 92.11 - Defence

1048. The general defences available under Part 2.3 of the Criminal Code will be available to a person accused of an offence against Subdivision C of Division 92. In addition, section 92.11 creates specific defences.

1049. Section 92.11 provides a defence if a person dealt with the relevant information or article:

•

in accordance with a law of the Commonwealth (paragraph 92.11(a)), or

•

in accordance with an arrangement or agreement to which the Commonwealth is party (paragraph 92.11(b), or

•

in the person's capacity as a public official (paragraph 92.11(c)).

1050. It is appropriate for these matters relating to lawful authority to be cast as defences because the source of the alleged authority for the defendant's actions is peculiarly within the defendant's knowledge. It is significantly more cost-effective for the defendant to assert this matter rather than the prosecution needing to disprove the existence of any authority, from any source.

1051. Consistent with section 13.3 of the Criminal Code, in the case of an evidential burden, the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. If the defendant discharges an evidential burden, the prosecution must disprove those matters beyond reasonable doubt, consistent with section 13.1 of the Criminal Code.

1052. Section 10.5 of the Criminal Code provides a general defence of lawful authority applicable to all Commonwealth offences. This defence is narrow and only applies to conduct that is specifically justified or excused by a law. Consistent with the definition of law in the Dictionary to the Criminal Code, this means the conduct must be specifically justified or excused by a law of the Commonwealth, and includes the Criminal Code.

1053. The defence at paragraph 92.11(a) is broader than the lawful authority defence available under section 10.5 and will cover a person acting 'in accordance' with a law of the Commonwealth, rather than the law of the Commonwealth needing to specifically justify or excuse the person's conduct. An example of conduct covered by the specific defence created in section 92.11(a), but not by the general defence of lawful authority, includes where a person acts in accordance with their duties as an APS employee as set out in the Public Service Act 1999 or the Public Service Regulations 1999, despite nothing specific in those laws authorising the person's actions.

1054. The defence at paragraph 92.11(b) applies when person dealt with the information or article in accordance with an agreement or arrangement to which the Commonwealth is party. This defence provides that the foreign interference offences in Subdivision C do not apply if a person's conduct was in accordance with an agreement or arrangement to which the Commonwealth was a party.

1055. The terms 'arrangement' and 'agreement' are not defined and will be given their ordinary meaning. The term "agreement" is not intended to be limited by the meaning of 'agreement' in Australian international practice as being a treaty, nor is it intended to require evidence of a formal contractual or legal agreement. It is intended that such terms will capture agreements or arrangements in a range of forms, including those made by exchange of letters or as a memorandum of understanding.

1056. The defence at paragraph 92.11(c) applies when a person dealt with the information or article in the person's capacity as a public official. Public official is defined in the Dictionary to the Criminal Code to include:

•

a Commonwealth public official

•

an officer or employee of the Commonwealth or of a State or Territory

•

an individual who performs work for the Commonwealth, or for a State or Territory, under a contract

•

an individual who holds or performs the duties of an office established by a law of the Commonwealth or of a State or Territory

•

an individual who is otherwise in the service of the Commonwealth or of a State or Territory (including service as a member of a military force or police force)

•

a member of the executive, judiciary or magistracy of the Commonwealth or of a State or Territory, and

•

an officer or employee of:

o

an authority of the Commonwealth, or

o

an authority of a State or Territory.

1057. Commonwealth public official is defined in the Dictionary to the Criminal Code to mean:

•

the Governor-General

•

a person appointed to administer the Government of the Commonwealth under section 4 of the Constitution

•

a Parliamentary Secretary

•

a member of either House of the Parliament

•

an individual who holds an appointment under section 67 of the Constitution

•

the Administrator, an Acting Administrator, or a Deputy Administrator, of the Northern Territory

•

a Commonwealth judicial officer (as defined in the Dictionary to the Criminal Code)

•

an APS employee

•

an individual employed by the Commonwealth other than under the Public Service Act 1999

•

a member of the Australian Defence Force

•

a member or special member of the AFP

•

an individual (other than an official of a registered industrial organisation) who holds or performs the duties of an office established by or under a law of the Commonwealth, other than:

o

the Corporations (Aboriginal and Torres Strait Islander) Act 2006

o

the Australian Capital Territory (Self-Government) Act 1988

o

the Corporations Act 2001

o

the Norfolk Island Act 1979, or

o

the Northern Territory (Self-Government) Act 1978

•

an officer or employee of a Commonwealth authority

•

an individual who is a contracted service provider for a Commonwealth contract

•

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

•

an individual (other than an official of a registered industrial organisation) who exercises powers, or performs functions, conferred on the person by or under a law of the Commonwealth, other than:

o

the Corporations (Aboriginal and Torres Strait Islander) Act 2006

o

the Australian Capital Territory (Self-Government) Act 1988

o

the Corporations Act 2001

o

the Norfolk Island Act 1979

o

the Northern Territory (Self-Government) Act 1978, or

o

a provision specified in the regulations

•

an individual who exercises powers, or performs functions, conferred on the person under a law in force in the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands (whether the law is a law of the Commonwealth or a law of the Territory concerned), or

•

the Registrar, or a Deputy Registrar, of Aboriginal and Torres Strait Islander Corporations.

1058. This defence is intended to apply where a person engages in conduct covered by the foreign interference offences in the person's capacity as a public official. This may include, for example, an employee duty statement, a policy guidance document or employee practice manual, or previous examples of the same conduct which has been authorised by superiors.

1059. Many departments and agencies provide support to the foreign intelligence agencies of allies as part of their normal business dealings. The offences in Subdivision C are only intended to apply where a person's conduct is not a proper or legitimate part of their work. It will not be a defence to a charge of foreign interference where a person has gone beyond their ordinary duties.

1060. Note 1 under the defence at section 92.11 clarifies that the defendant will bear an evidentiary burden in relation to this defence. The Guide to Framing Commonwealth Offences provides (at paragraph 4.3.1) that it is appropriate for a matter to be included in an offence-specific defence where it is peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. The defence at section 92.11 satisfies both of these criteria. Evidence the source of the alleged authority for the defendant's actions is evidence peculiarly within the defendant's knowledge. It would be difficult and more costly for the prosecution to prove, beyond a reasonable doubt, that the person was not acting in their capacity as a public official, in accordance with a law of the Commonwealth or in accordance with an information arrangement or agreement to which the Commonwealth is a party. To do this, it would be necessary to negate the fact that there was authority for the person's actions in any law or in any aspect of the person's duty or in any of the instructions given by the person's supervisors (at any level). Conversely, if a Commonwealth officer had a particular reason for thinking that they were acting in accordance with a law or with their duties, it would not be difficult for them to describe where they thought that authority arose.

1061. Consistent with section 13.3 of the Criminal Code, the defendant will need to point to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).

1062. Both AFP and CDPP consider the availability of any defences when considering whether to investigate and prosecute criminal offences. In relation to prosecution decisions, the Prosecution Policy of the Commonwealth specifically requires the CDPP to take into account any lines of defence which are plainly open to, or have been indicated by, the alleged offender in deciding whether there is a reasonable prospect of a conviction being secured. Subsection 93.1 (to be inserted by Item 18 of Schedule 1) requires the Attorney-General consider whether the defendant's conduct is authorised under the defences in section 92.11 before providing his or her consent to the institution of proceedings for the commitment of a person for trial for an offence to which the defence applies.

Division 92A - Theft of trade secrets involving foreign government principal

Section 92A.1 - Theft of trade secrets involving foreign government principal

1063. Section 92A.1 will make it an offence to dishonestly receive, obtain, take, copy or duplicate, sell, buy or disclose information that is a trade secret on behalf of a foreign government principal.

1064. This offence will be punishable by a maximum penalty of 15 years imprisonment. An example of this offence is as follows. Person A is employed by an Australian company and works with sensitive satellite imaging technology. The technology is only able to be accessed and used by a very limited number of authorised personnel and is not public knowledge. Person A is approached by a representative of the government of Country X, who makes it clear that the technology would be very useful to Country X, and would have a high commercial value if it was provided to them. Person A secretly make copies of information related to the satellite imaging technology. Government X pays Person A a significant amount of money each time he/she provides copies of the sensitive information to them. To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

•

the person intentionally dishonestly receives, obtains, takes, copies or duplicates, sells, buys or discloses information

•

all of the following circumstances exist:

o

the information was not generally known in trade or business, or in that particular trade or business concerned

o

the information had an economic value, or a higher economic value that it otherwise would have, because it was not known in trade or business or the trade or business concerned

o

that the owner of the information had made reasonable efforts in the circumstances to prevent that information from becoming generally known, and

and the person is reckless as to these circumstances, and

•

the:

o

person engaged in the conduct on behalf of a foreign government principal

o

person engaged in the conduct on behalf of a person acting on behalf of a foreign government principal

o

person engaged in the conduct in collaboration with a foreign government principal

o

person engaged in the conduct in collaboration with a person acting on behalf of a foreign government principal

o

conduct was directed, funded or supervised by a foreign government principal, or

o

conduct was directed, funded or supervised by a person acting on behalf of a foreign government principal

and the person is reckless as to this element.

1065. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 92A.1(1)(a). Under subsection 5.2(1) of the Criminal Code, a person has the intention with respect to conduct if he or she means to engage in that conduct.

1066. Recklessness is the fault element for paragraphs 92A.1(1)(b) and (c). Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

•

a circumstance if he or she is aware of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

1067. For paragraph 92A.1(1)(a), the prosecution must prove beyond reasonable doubt that the defendant intended to dishonestly receive, obtain, take, copy or duplicate, sell, buy or disclose information. Information is defined in section 90.1 of the Criminal Code to mean information of any kind, whether true or false and whether in a material form or not, and includes an opinion and a report of a conversation.

1068. The offence at section 92A.1(1) is intended apply to conduct committed online or by other electronic means. In the modern context, trade secrets information may be created and stored wholly, or partially, online. It follows that the stealing of such information can also be conducted or facilitated exclusively through electronic means.

1069. Consistent with subsection 92A.1(2), for the purposes of paragraph 92A.1(1)(a), dishonest means:

•

dishonest according to the standards of ordinary people, and

•

known by the defendant to be dishonest according to the standards of ordinary people.

1070. Subsection 92A.1(3) provides that, in a prosecution for an offence against section 92A(1), the determination of dishonesty is a matter for the trier of fact. Subsections 92A.1(2) and (3) are consistent with other provisions in the Criminal Code relating to dishonesty (see sections 130.3 and 130.4 in Chapter 7 of the Criminal Code).

1071. For the purposes of paragraph 92A.1(1)(b), the prosecution will have to prove beyond a reasonable doubt that the information was information that was not generally known, had a commercial value because it was not known, and that the owner of the information had made reasonable efforts to prevent the information from becoming generally known. Recklessness is the fault element for this element. Therefore the person will have to be aware of a substantial risk that these circumstances exist and that having regard to the circumstances to know him or her, that it was unjustifiable for the defendant to have taken that risk

1072. Although the offence at section 92A.1 does not use the term 'trade secret', the circumstances listed at paragraph 92A.1(1)(b) are intended to cover the types of information that are considered to warrant protection. The circumstances must all apply in order for the offence to be committed. The circumstances listed in paragraph 92A.1(1) are consistent with international examples of definitions of 'trade secrets'. For example, the Canadian Security of Information Act defines a 'trade secret' to mean any information, including a formula, pattern, compilation, program, method, technique, process, negotiation position or strategy or any information contained or embodied in a product, device or mechanism that:

•

is or may be used in a trade or business

•

is not generally known in that trade or business

•

has economic value from not being generally known, and

•

is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

1073. The United States Code defines a trade secret in 18 USC 1839 to mean all forms and types of financial, business, scientific, technical, economic, or engineering information, whether tangible or intangible and however stored or compiled if:

•

the owner thereof has taken reasonable measures to keep such information secret, and

•

the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information.

1074. For paragraph 92A.1(1)(c), the prosecution will have to prove beyond a reasonable doubt that the defendant's conduct was engaged in on behalf of, or in collaboration with, a foreign principal, on behalf of a person acting on behalf of a foreign principal, directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal. Recklessness is the fault element for this element. Therefore, the defendant must have been aware of a substantial risk that his or her conduct was engaged in on behalf of, or in collaboration with, a foreign principal, on behalf of a person acting on behalf of a foreign principal, directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk.

1075. For the purposes of this section foreign government principal has the same meaning as that given is section 90.3, which provides that each of the following is a foreign government principal:

•

the government of a foreign country or a part of a foreign country

•

an authority of the government of a foreign country

•

an authority of the government of part of a foreign country

•

a foreign local government body or foreign regional government body

•

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

•

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, or

•

an entity or organisation directed or controlled:

o

by a foreign government principal within the meaning of any other paragraph of this definition, or

o

by two or more such foreign government principals that are foreign government principals of the same foreign country.

1076. It is possible that a defendant will know, or be reckless, as to the fact that they are engaging in conduct a foreign government because they are being tasked by a person who identifies himself or herself as an official of a foreign government. In this case, the person will be engaging in the conduct on behalf of the foreign principal.

1077. However, it may also be the case that the defendant is not tasked directly by a foreign government official, but by an intermediary. In this case, the prosecution will have to prove beyond a reasonable doubt that the defendant was aware of a substantial risk that he or she was being tasked by a person acting on behalf of a foreign principal and that it was unjustifiable to take that risk. This may be the case where, for example, the intermediary advises the defendant that the intermediary acts in coordination with foreign officials, or the intermediary facilitates preferential treatment for the defendant from a foreign government.

1078. Consistent with subsection 92A.1(4), for the purposes of paragraph 92A.1(1)(c), the person will not need to have in mind a particular foreign principal and may have in mind more than one foreign principal. For example, a defendant may assist an individual who has identified themselves to the defendant as a foreign official, but has not specified which foreign country they represent. Or, a defendant may provide assistance in the knowledge this assistance will or could assist multiple foreign principals at the same time.

1079. The maximum penalty for the offence in subsection 92A.1(1) is 15 years imprisonment. The commission of this offence would have serious consequences for Australia's security and economic interests. It is unacceptable for foreign principals to seek to interfere in Australia's commercial dealings and trade relations. The penalty is consistent with comparable offences in which provide for a link with a foreign principal including section 91.8 (espionage on behalf of a foreign principal) and section 92.3 (offence of reckless foreign interference).

Section 92A.2 - Geographical jurisdiction

1080. Subsection 92A.2(1) applies section 15.2 (extended geographical jurisdiction-Category B) to section 92A.1.

1081. Under section 15.2, the effect of Category B jurisdiction is that the offence applies:

•

if the conduct constituting the offence occurs wholly or partly in Australia

•

if the result of that conduct occurs wholly or partly in Australia, and

•

if the conduct occurs outside Australia and at the time of committing the offence, the person is an Australian citizen, resident or body corporate.

1082. Category B jurisdiction is appropriate to ensure that this offence appropriately protects theft of Australia's trade secrets where the conduct occurs in Australia. The application of Category B jurisdiction also prevents Australian citizens, residents or bodies corporate from engaging in theft of trade secrets on behalf of a foreign government principal, wherever that conduct occurs.

1083. Subsection 92A.2(2) makes clear that subsections 15.2(2) and 15.2(4) (defences for primary and ancillary offences) do not apply to section 92A.2. Both subsections 15.2(2) and 15.2(4) provide a defence for conduct that occurs wholly outside of Australia by an offender who is not an Australian citizen or Australian body corporate, if the foreign country where the offence has taken place does not have in force a law that makes the conduct an offence. This applies to both the primary offence and ancillary offences. The effect of subsection 92A.2(2) is that the defendant will not be able to commit this offence overseas and avoid prosecution because the country in which he or she committed the offence does not have an offence that corresponds with section 92A.1.

Item 18

1084. Item 18 repeals existing section 93.1 regarding consent of the Attorney-General to the institution of proceedings and replaces it with a new section 93.1, which provides for the consent of the Attorney-General for offences against Part 5.2 of the Criminal Code, as amended by this Bill. Currently, Part 5.2 only contains the espionage offences in section 91.1. Consistent with the amendments in this Bill, Part 5.2 will contain the following offences:

•

Espionage - Subdivision A of Division 91

•

Espionage on behalf of a foreign principal - Subdivision B of Division 91

•

Espionage-related offences - Subdivision C of Division 91

•

Foreign interference - Subdivision B of Division 92

•

Foreign interference involving foreign intelligence agencies - Subdivision C of Division 92

•

Theft of trade secrets involving foreign government principal - Division 92A

Section 93.1 - Consent of Attorney-General required for prosecutions

1085. Section 93.1 requires the written consent of the Attorney-General to commence proceedings against a person for offences in Part 5.2 of the Criminal Code, and is intended to ensure that there is appropriate oversight of prosecutions. This is appropriate given the seriousness of offences in Part 5.2 and the fact that such prosecutions inherently raise national security or international considerations.

1086. The Attorney-General's consent is commonly required to commence proceedings that could affect Australia's international relations or national security. These are considerations that the Commonwealth Director of Public Prosecutions (CDPP) is not able to take into account under the Prosecution Policy of the Commonwealth.

1087. Section 93.1 provides the Attorney-General opportunity to receive advice from relevant agencies and other Ministers on sensitivities that might arise if proceedings are commenced for offences under Part 5.2, and provides opportunity for consideration of whether the prosecution could be detrimental to Australia's foreign relations and national security.

1088. Paragraph 93.1(1)(a) requires the Attorney-General to provide written consent before proceedings for the commitment of a person for trial for an offence against Part 5.2 can be commenced. This provides the Attorney-General with the opportunity to receive advice from relevant agencies and other Ministers on sensitivities that might arise if proceedings are commenced for offences under Part 5.2, and provides opportunity for consideration of whether the prosecution could be detrimental to Australia's foreign relations and national security.

1089. Consistent with paragraph 93.1(1)(b), proceedings that relate information or an article that has a security classification (as defined in section 90.5) must also not be initiated unless the Attorney-General has certified that, at the time of the conduct that is alleged to constitute the offence, it was appropriate that the information or article had a security classification. This will ensure that a person is safeguarded from prosecution for an offence relating to information classified SECRET or TOP SECRET if the classification was not appropriate at the time the person committed the offence. For example, a document may have been created many years ago, when it appropriately carried a classification of TOP SECRET but given the passage of time the document may now not be sensitive and may be unclassified. In these circumstances, certification could not be given.

1090. As long as a classification of either SECRET or TOP SECRET is appropriate, the Attorney-General will be able to give a certification under subsection 93.1(1). For example, if a document was classified as TOP SECRET two years ago, but now appropriately carries a classification of SECRET, the Attorney-General will be able to give the certification.

1091. Subsection 93.1(2) clarifies that the following steps can be taken towards preparing for proceedings, without the written consent or certification of the Attorney-General having been given:

•

a person may be arrested for the offence and a warrant for such an arrest may be issued and executed

•

a person may be charged with the offence, and

•

a person so charged may be remanded in custody or on bail.

1092. Given the seriousness of offences contained in Part 5.2 of the Criminal Code, it is appropriate that some measures towards commencing proceeds be permitted without the consent of the Attorney-General. The steps specified at subsection 93.1(2) are intended to ensure that law enforcement agencies can intervene to prevent a person from continuing to offend, promoting the protection of the Australian public and Australia's national interests.

1093. Subsection 93.1(3) provides that nothing in subsection 93.1(2) prevents the discharge of the accused if proceedings are not continued within a reasonable time. Australian common law recognises that a prosecution may be stayed where there is undue delay, to protect Australia's justice system from abuse of processes. The right to stay a prosecution also supports the Court's role in providing procedural fairness to a defendant, and helps maintain public confidence in the administration of justice. It is therefore appropriate that subsection 93.1(3) specify that the steps towards commencing proceedings as described at subsection 93.1(2) do not prevent the discharge of the accused if proceedings are not continued within a reasonable time.

1094. Subsection 93.1(4) provides that the Attorney-General must consider whether the conduct constituting an offence against Part 5.2 of the Criminal Code might be authorised:

•

for an offence against Subdivision A of Division 91 (espionage) - in a way mentioned in subsection 91.4

•

for an offence against Subdivision B of Division 91 (espionage on behalf of a foreign principal) - in a way mentioned in subsection 91.9

•

for an offence against Subdivision B of Division 92 (foreign interference) - in a way mentioned in section 92.5, and

•

for an offence against Subdivision C of Division 92 (foreign interference involving foreign intelligence activities) - in a way mentioned in section 92.11.

1095. Each of these provisions provides defences to offences in Part 5.2. Therefore, the effect of subsection 93.1(4) is to ensure that the Attorney-General consider whether an accused's conduct might be authorised as described in a defence when considering whether to provide consent to prosecute.

Item 19

1096. Subsection 93.2(2) of the Criminal Code provides that at any time before or during a hearing, the judge or magistrate may, if satisfied that it is in the interest of the security or defence of the Commonwealth, order or make a direction to:

•

exclude the public, or certain persons from all or part of the proceedings,

•

prevent the publication of a report of the whole, or a specified part of the proceedings, and/or

•

restrict access to the Court file or any part of it, for example, an affidavit or exhibit.

1097. Subsection 93.2(2) applies to a hearing of an application or other proceedings before a federal court, a court exercising federal jurisdiction or a court of a Territory, whether under the Criminal Code or otherwise.

1098. Item 19 omits the words 'interest of the security or defence of the Commonwealth' from subsection 93.2(2) of the Criminal Code and substitutes the words 'interests of Australia's national security'. This reflects the repeal of the definition of 'security or defence' from the definitions in section 90.1 of the Criminal Code by Item 13 of Schedule 1.The effect of this change is that a judge or magistrate presiding over the proceedings will be able to order hearings in camera (or other protections) if satisfied that it is in the interests of Australia's national security.

1099. National security is defined in section 90.4, to be inserted by Item 16 of Schedule 1.

Item 20

1100. Item 20 will add new provisions at the end of Division 93 relating to fault elements for attempted espionage offences and alternative verdicts.

Section 93.4 - Fault elements for attempted espionage offences

1101. Section 93.4 provides that, despite subsection 11.1(3) of the Criminal Code, the fault element in relation to each physical element of an offence of attempting to commit an offence against Subdivision A of Division 91 (espionage) or Subdivision B of Division 91 (espionage on behalf of a foreign principal), is the fault element in relation to that physical element of the relevant offence.

1102. Subsection 11.1(3) of the Criminal Code states that for the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.

1103. The purpose of section 93.4 is to ensure that there are no barriers to prosecuting offenders in situations where a controlled operation has been undertaken under Part IAB of the Crimes Act and the defendant is dealing with substituted information (that, due to the intervention of law enforcement officers, does not concern national security) or with an undercover police officer posing as a foreign principal. It is not acceptable for it to be harder to prosecute an offence where law enforcement agencies intervened to ensure actual classified information was not passed to a foreign power by engaging in a controlled operation.

1104. Section 93.4 will disapply the automatic fault elements of intention or knowledge to an offence of attempting an offence against Subdivision A of Division 91 (espionage) or Subdivision B of Division 91 (espionage on behalf of a foreign principal), and specifies that the requisite fault element applying to each physical element of the relevant attempted offence is the ordinary fault element applicable to that physical element in the relevant offence.

1105. For example, to make out an offence against subsection 91.1(1) (espionage - dealing with information etc. concerning national security which is or will be made available to a foreign principal) one of the elements that the prosecution is must prove beyond reasonable doubt is that the defendant was reckless as to whether his or her conduct resulted in, or would result in the information being made available to a foreign principal or a person acting on behalf of a foreign principal (see paragraph 91.1(1)(d)). Applying subsection 11.1(3) of the Criminal Code to an offence of attempting to commit an offence against subsection 91.1(1), the prosecution would have to prove beyond reasonable doubt that the person knew that his or her conduct resulted in, or would result in the information being made available to a foreign principal or a person acting on behalf of a foreign principal.

1106. The effect of section 93.4 is that, for the purposes of an offence of attempting to commit an offence against subsection 91.1(1), the automatic application of knowledge as the fault element applicable to the physical element in section 91.1(1)(d) will not apply. Rather, the ordinary fault element applicable to that physical element - which is recklessness - will apply instead.

Section 93.5 - Alternative verdicts

1107. Subsection 93.5(1) provides that if the trier of fact is not satisfied that a person is guilty of an offence specific in column 1 (see table below) and is satisfied, beyond reasonable doubt, that the person is guilty of an offence against the corresponding offence specified in column 2 then it may find the person not guilty of the column 1 offence but guilty of the column 2 offence.

1108. Subsection 93.5(2) provides that subsection 93.5(1) only applies if the person has been accorded procedural fairness in relation to the finding of guilt for the relevant offence specified in column 2.

Item 21

1109. Item 21 will amend section 94.1 of the Criminal Code to remove the words 'or document which is made, obtained, recorded, retained, forged, possessed or otherwise' and replace them with 'or document which is'.

1110. Section 94.1 deals with forfeiture of items dealt with in contravention of Part 5.2. Item 10 of Schedule 1 includes a definition of deals in section 90.1. This definition will apply to the word 'dealt' in section 94.1, which allows the words 'made, obtained, recorded, retained, forged, possessed' to be repealed from the section.

Item 22

Section 132.8A - Damaging Commonwealth property

1111. Item 22 inserts a new section 132.8A after section 132.8 of the Criminal Code.

1112. Section 132.8A creates a new offence of damaging Commonwealth property to replace the existing offence of destroying or damaging Commonwealth property at section 29 of the Crimes Act, which will be repealed by Item 43 of Schedule 1.

1113. Section 132.8A creates an offence that applies where a person damages or destroys Commonwealth property. The offence will be punishable by a maximum penalty of 10 years imprisonment.

1114. An example of this offence is where Person A intentionally smashes the windscreens of a fleet of Commonwealth cars.

1115. To establish the offence, prosecution will need to prove beyond reasonable doubt that:

•

the persons intentionally engages in conduct

•

the person's conduct results in damage to, or the destruction of, property and the person is reckless as to this element, and

•

the property belongs to a Commonwealth entity

1116. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 132.8A(1)(a). Under section 5.2 of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

1117. Recklessness is the fault element for paragraph 132.8A(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 of a substantial risk 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, and

•

a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

1118. Absolute liability to paragraph 132.8A(1)(c) consistent with subsection 132.8A(2).

1119. For paragraph 132.8A(1)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intentionally engaged in the relevant conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to 'engages in conduct' in paragraph 132.8A(1)(a) means to do an act or to omit to perform an act.

1120. For paragraph 132.8A(1)(b) of the offence, the prosecution will have to prove beyond a reasonable doubt that the conduct resulted in damage to, or the destruction of, property. The terms damage, destruction and property are not defined and are intended to take their ordinary meaning. The prosecution will have to prove that the defendant is reckless as to the circumstance in paragraph 132.8A(1)(b). Therefore, the defendant must have been aware of a substantial risk that his or her conduct would result in damage to, or the destruction of, property and, having regard to the circumstances known to him or her it was unjustifiable to take that risk.

1121. The term damage is intended to have its ordinary meaning and would include conduct that impairs the value, usefulness, or normal functioning of the property, or have some other type of detrimental effect on the property.

1122. The term destruction is intended to include acts that cause so much damage that the property no longer exists, or cannot be repaired so that it is in its original state. The term could include the annihilation, obliteration, elimination or eradication of the property.

1123. The existing definition of property in section 130.1 will apply to the offence in section 132.8A. This definition includes:

•

real property

•

personal property

•

money

•

a think in action or other intangible property

•

electricity

•

a wild creature that is:

o

tamed

o

ordinarily kept in captivity, or

o

reduced (or in the course of being reduced) into the possession of a person.

1124. For paragraph 132.8A(1)(c) of the offence, the prosecution will have to prove beyond reasonable doubt that the property referred to in paragraph 132.8A(1)(b) belongs to a Commonwealth entity. This paragraph ties the offence to Commonwealth jurisdiction. For example, damage or destruction of property belonging to a State or Territory government would not be captured by the Commonwealth offence of damaging Commonwealth property.

1125. For the purposes of Chapter 7 of the Criminal Code, in which section 132.8A will be located, section 130.2 defines when property belongs to a person. Under section 130.2, property belongs to a person if, and only if:

•

the person has possession or control of the property

•

the person has a proprietary right or interest in the property, other than an equitable interest arising only from:

o

an agreement to transfer an interest

o

an agreement to grant an interest, or

o

a constructive trust.

1126. The term Commonwealth entity is defined in the Dictionary to the Criminal Code as the Commonwealth, or a Commonwealth authority.

1127. Subsection 132.8A(2) applies absolute liability to paragraph 132.8A(1)(c). Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying absolute liability to an element of an offence is that no fault element needs to be proved and the defence of mistake of fact is unavailable. Accordingly, for paragraph 132.8A(1)(c), the prosecution will be required to prove only the physical element that the property that has been damaged or destroyed belongs to a Commonwealth entity.

1128. Absolute liability is appropriate and required for the element of the offence that the right arises under the Constitution or a law of the Commonwealth because this element is a jurisdictional element of the offence. A jurisdictional element of the offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do not. The issue of whether the person knew that the property they had damaged or destroyed was Commonwealth property is not relevant to their culpability. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences.

1129. The application of absolute liability to paragraph 132.8A(1)(c) also ensures that a person cannot avoid criminal responsibility because they were unaware that the property they damaged or destroyed belongs to a Commonwealth entity, for example by admitting that they knew they had damaged or destroyed government property but thought that the property belonged to a State or Territory government.

1130. The application of absolute liability is also consistent with other Commonwealth property offences in Part 7.2 of the Criminal Code, including theft (section 131.1). Absolute liability applies to the element of the theft offence that the property belongs to a Commonwealth entity.

1131. Existing section 132.9 of the Criminal Code applies section 15.4 (extended geographical jurisdiction-category D) to all offences in Division 132.

1132. Under section 15.4, the effect of Category D geographical jurisdiction is that the offence applies:

•

whether or not the conduct constituting the alleged offence occurs in Australia, and

•

whether or not a result of the conduct constituting the alleged offence occurs in Australia.

1133. The maximum penalty of 10 years imprisonment is appropriate and consistent with the existing penalty for the offence of destroying or damaging Commonwealth property in section 29 of the Crimes Act. The maximum penalty also complements comparable offences in other Commonwealth legislation. For example, the offence of unauthorised modification of data to cause impairment at subsection 477.2 of the Criminal Code has a maximum penalty of 10 years imprisonment.

Item 23

1134. Item 23 amends subsection 132.7(5) of the Criminal Code to include a reference to the new offence of 'Damaging Commonwealth property' at section 132.8A(1) (as inserted by Item 22 of Schedule 1) to the list of property offences that form part of the offence of 'Going equipped for theft or a property offence' in section 132.7.

1135. This will mean that the offence at section 132.7 will be able to be committed by a person who, when not at home, has with him or her any article with intent to use it in the course of, or in connecting with, the offence of 'Damaging Commonwealth property' at new section 132.8A.

Item 24

1136. Item 24 amends the Dictionary to the Criminal Code to insert new definitions needed for the offences contained in Schedule 1.

Dictionary to the Criminal Code

1137. Australian Government security clearance is defined to mean a security clearance given by the Australian Government Security Vetting Agency or by another Commonwealth, State or Territory agency that is authorised or approved by the Commonwealth to issue security clearances.

1138. Constitutional trade or commerce is defined to mean trade and commerce:

•

with other countries

•

among the States

•

between a State and a Territory, or

•

between two Territories.

1139. This definition is consistent with the Commonwealth's power to legislate in relation to trade and commerce under the Constitution.

1140. Defence Minister is defined to mean the Minister administering the Defence Force Discipline Act 1982.

1141. Foreign intelligence agency is defined to mean an intelligence or security service (however defined) of a foreign country. This definition is intentionally broad to capture the range of intelligence agencies that exist in various countries, noting that some are controlled by government entities and others by political parties. International government and political organisations may also seek to establish and use intelligence agencies to further their objectives. Such agencies will generally, but not always, have comparable functions to agencies within the Australian Intelligence Community, as set out at the definition of domestic intelligence agency in section 121.1 of Schedule 2 of this Bill. This includes:

•

the Australian Secret Intelligence Service

•

ASIO

•

the Australian Geospatial-Intelligence Organisation

•

the Defence Intelligence Organisation

•

the Australian Signals Directorate, and

•

the Office of National Assessments.

1142. Mutiny is defined to have the meaning given by subsection 83.1(2), which defines mutiny as a combination between persons who are, or at least two of whom are, members of the Australian Defence Force:

•

to overthrow lawful authority in the Australian Defence Force or in a force of another country that is acting in cooperation with the Australian Defence Force, or

•

to resist such lawful authority in such a manner as to substantially prejudice the operational efficiency of the Australian Defence Force, or of a part of, a force of another country that is acting in cooperation with the Australian Defence Force.

Item 25

1143. Item 25 includes a savings provision that provides that if, immediately before the commencement of this item, a Proclamation is in effect for the purposes of paragraph 80.1AA(1)(b) of the Criminal Code as in force at that time, the Proclamation:

•

continues in effect despite the repeal and substitution of section 80.1AA of the Criminal Code by Schedule 1, and

•

has effect for the purposes of the Criminal Code as amended by this Schedule as if it had been made under section 80.1AB of the Criminal Code, as inserted by Schedule 1.

1144. Subitem (2) of Item 25 provides that subitem (1) does not prevent the Proclamation being repealed.

1145. This item allows any Proclamations made under section 80.1AA to continue to have effect once the provisions in Schedule 1 commence.

1146. No Proclamations have been made under section 80.1AA.