Senate

Revised Explanatory Memorandum

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

PART 1 - SECRECY OF INFORMATION

Crimes Act 1914

Items 1 and 2

1217. These items amend the definition of Commonwealth officer in subsection 3(1) of the Crimes Act, to omit the definition of the term for the purposes of section 70 of the Crimes Act, which is currently contained in paragraphs (c) and (d). Item 5 of Schedule 2 repeals section 70 of the Crimes Act, making the definition unnecessary.

Item 3

1218. Item 3 repeals the definition of Queen's dominions in subsection 3(1) of the Act. This term was used only in section 79 of the Crimes Act. Item 5 of this Schedule repeals section 79 of the Crimes Act, making the definition unnecessary.

Item 4

1219. Section 4J of the Crimes Act provides for circumstances in which certain indictable offences against the law of the Commonwealth may be heard and determined by a court of summary jurisdiction. Paragraph 4J(7)(a) currently provides that, notwithstanding the effect of section 4J, offences against sections 24AA (Treachery) or 24AB (Sabotage), or subsections 79(2) and (5) (being official secrets offences punishable by seven years' imprisonment) of the Crimes Act may not be tried summarily.

1220. Item 4 repeals paragraph 4J(7)(a) of the Crimes Act. Item 43 of Schedule 1 of the Bill repeals sections 24AA and 24AB, and Item 5 of this Schedule repeals section 79, making this paragraph unnecessary.

Item 5

1221. Item 5 repeals Parts VI and VII of the Crimes Act.

1222. Part VI of the Crimes Act (Offences by and against public officers) contains one secrecy offence (section 70) that applies where Commonwealth officers disclose information that he or she is under a duty not to disclose. Section 70 does not create a duty of non-disclosure for Commonwealth officials. Rather, section 70 operates to establish a criminal offence for Commonwealth officials who breach a pre-existing duty of confidence.

1223. For example, subregulation 2.1(3) of the Public Service Regulations 1999 imposes a duty on Australian Public Service employees to not disclose information which the APS employee generates in connection with their employment in certain circumstances. Subregulation 2.1(3) is not an offence provision. However, by establishing a duty of non-disclosure, the subregulation enlivens the offence provision in section 70.

1224. The drafting of section 70 is outdated and complicated, resulting in a lack of clarity about the scope of the offence. For example, section 70 will be enlivened where a Commonwealth official is subject to a duty of non-disclosure arising elsewhere. It is well-established that a statutory duty of non-disclosure may enliven the offence. Comparatively, it remains unresolved whether a duty at common law or in equity would be a relevant duty for the purposes of the offence. Similarly, the offence requires the disclosure of a 'fact or document'. The application of the offence to the disclosure of factual information or documents is well-established, however there is some uncertainty about the application of the offence to the disclosure by a Commonwealth official of matters of opinion or advice that are not factual in nature in a non-documentary form.

1225. Part VII of the Crimes Act (Official secrets and unlawful soundings) contains a range of offences relating to official secrets, prohibited places and unlawful soundings. The Part also contains a range of procedural provisions.

1226. There have been calls for significant reforms to Parts VI and VII for many years. In particular, the Australian Law Reform Commission's 2010 Report, Secrecy Laws and Open Government in Australia (Report 112) concluded that there are 'real concerns' with the operation of the existing offences, which are 'out of step with public policy developments in Australian and internationally'. Additionally, the drafting of the current offences is outmoded. As a result, it can be challenging for persons to understand when they will be subject to criminal liability, and for bring successful prosecutions.

Item 6

1227. Item 6 inserts a new Part 5.6 to the Criminal Code, entitled 'Secrecy of information'. New Part 5.6 will contain the new general secrecy offences, replacing Parts VI and VII of the Crimes Act.

Division 121-Preliminary

1228. New Division 121 of the Criminal Code contains definitions relating to the new general secrecy offences.

Section 121.1-Definitions

1229. Item 6 inserts the following new definitions relevant to the secrecy offences in section 122.1 of the Criminal Code:

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cause harm to Australia's interests

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Commonwealth officer

•

deal

•

domestic intelligence agency

•

foreign military organisation

•

information

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inherently harmful information

•

international relations

•

proper place of custody

•

Regulatory Powers Act

•

security classification

•

security classified information, and

•

security or defence of Australia

Definition of 'cause harm to Australia's interests'

1230. Item 6 inserts a new definition of cause harm to Australia's interests for the purposes of Part 5.6 of the Criminal Code. The phrase is used as part of the elements of the new general secrecy offence in section 122.2, relating to conduct causing harm to Australia's interests. The definition contains an exhaustive list of matters which represent essential national interests. Causing harm to these interests is a serious matter which, in certain circumstances set out in section 122.2, should attract criminal liability.

1231. In its 2010 report, Secrecy Laws and Open Government in Australia, the Australian Law Reform Commission recommended that (Recommendation 5-1):

The general secrecy offence should require that the disclosure of Commonwealth information did, or was reasonably likely to, or intended to:

a.

damage the security, defence or international relations of the Commonwealth;

b.

prejudice the prevention, detection, investigation, prosecution or punishment of criminal offences;

c.

endanger the life or physical safety of any person; or

d.

prejudice the protection of public safety.

1232. Paragraphs (a), (c), and (f) of the definition correspond with the categories of harm recommended by the ALRC.

1233. Paragraph (a) provides that causing harm to Australia's interests includes interfering with or prejudicing the prevention, detection, investigation, prosecution and punishment of criminal offences against the law of the Commonwealth.

1234. The inclusion of the concepts of preventing, detecting, investigating, prosecuting and punishing Commonwealth criminal offences is intended to reflect the fact that the effective enforcement of the law and the maintenance of public order require the undertaking of a wide range of activities. Similarly, paragraph (a) is not restricted to interfering with or prejudicing the performance of the functions of a particular agency in relation to these matters. A range of agencies, bodies and persons may be involved in preventing, detecting or investigating an offence, beyond those agencies directly responsible for the enforcement of the criminal law.

1235. Paragraph (b) provides that causing harm to Australia's interests includes interfering with or prejudicing the performance of the functions of the Australian Federal Police under:

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paragraph 8(1)(be) of the Australian Federal Police Act 1979 (protective and custodial functions), or

•

the Proceeds of Crime Act 2002.

1236. In relation to subparagraph (b)(i) of the definition, the AFP Act provides a function for the AFP in relation to perform protective and custodial functions. The AFP's protection operations function ensures the safety of individuals and interests deemed by the Commonwealth to be at risk from acts of terrorism, crime and issue-motivated violence. This includes protection within Australia and overseas to designated Australian and foreign dignitaries, internationally protected persons and visiting foreign dignitaries; planning and provision of security for major events; and uniform protection of designated Commonwealth establishments and diplomatic and consular missions within Australia and overseas. Protection of these individuals and interests is essential for national security.

1237. In relation to subparagraph (b)(ii) of the definition, the POCA establishes a civil forfeiture scheme to confiscate unlawfully acquired property, as well as associated powers such as asset freezing. Strong and effective action to confiscate proceeds of crime assists in attacking the profit-motive of organised crime, including illicit activities involving drug trafficking, people smuggling, money laundering and large-scale fraud. The effective performance of the Australian Federal Police's functions under the POCA is an essential public interest.

1238. The inclusion of interfering with or prejudicing proceeds of crime investigations under paragraph (b) goes beyond the ALRC's recommendation. The ALRC considered that it would be more appropriate to rely on specific secrecy provisions in sections 210, 217 and 223 the POCA (which relate to the unauthorised disclosure of information about production orders, notices to financial institutions and monitoring orders). However, those specific secrecy provisions cover only a subset of the kinds of official information that could be improperly communicated to interfere with or prejudice the performance of the Australian Federal Police's functions under the POCA, and the associated, essential public interests.

1239. Paragraph (c) deals with harming or prejudicing Australia's international relations. Paragraph (c) provides that causing harm to Australia's interests includes harming or prejudicing Australia's international relations in relation to information that was communicated in confidence:

•

by, or on behalf of, the government of a foreign country, an authority of the government of a foreign country or an international organisation, and

•

to the Government of the Commonwealth, an authority of the Commonwealth or a person receiving the communication on behalf of the Commonwealth or the authority of the Commonwealth.

1240. For the avoidance of doubt, the information referred to in paragraph (c) of the definition is the information that is disclosed under section 122.2.

1241. The concepts of a person communicating information 'on behalf of' the government of a foreign country, an authority of the government of a foreign country, or an international organisation, and a person receiving a communication 'on behalf of' the Government of the Commonwealth or an authority of the Commonwealth should be interpreted broadly. It should include any person who communicates or receives information in an official or unofficial capacity on behalf of such a government, authority or organisation. This could include, for example:

•

an officer, official or envoy of a government, however described

•

a lawyer or agent engaged to represent a government, authority or organisation, who communicates or receives information on behalf of his or her client, or

•

a person (including a contractor, employee of a contractor, subcontractor or employee of a subcontractor) engaged to perform work for a government, who communicates or receives information on behalf of the government.

1242. The requirement in paragraph (c), that a person's conduct must harm or prejudice Australia's international relations in relation to information that was communicated in confidence by a foreign government or international organisation to the Commonwealth, is consistent with the ALRC's view that not all disclosures of confidential information will cause harm, and that confidential information should only be protected by a general secrecy offence in cases where its disclosure would cause harm.

1243. Consistent with Recommendation 5-2 of the ALRC's report, the term 'international relations' is defined as having the meaning given in section 10 of the National Security Information (Criminal and Civil Proceedings) Act 2004. Section 10 of the NSI Act defines international relations to mean 'political, military and economic relations with foreign governments and international organisations'.

1244. The offences in section 122.2 will therefore apply where a person is aware of a substantial risk that their conduct will or is likely to harm or prejudice Australia's political, military or economic relations with foreign governments and international organisations, and having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

1245. The concept of harming or prejudicing Australia's international relations includes such things as:

•

the lessening or cessation of military or intelligence cooperation

•

damage to Australia's negotiating position in respect of a treaty or agreement, or within an international organisation such as the United Nations or an organ thereof

•

a reduction in the quality or quantity of information provided by a foreign government or international organisation

•

loss of confidence or trust in the Australian Government by an overseas government or international organisation

•

a detrimental impact on the ability of the Australian Government to maintain good working relations with a foreign government or international organisation, or

•

intangible damage to Australia's reputation or relationships between the Australian Government and a foreign government or international organisation, or between officials,

having the effect of diminishing the capacity of the Australian Government to function in the global political, military and economic environment.

1246. For the purposes of paragraph (c) of the definition, it is immaterial whether the harm or damage to Australia's international relations relates to the particular foreign government or international organisation who provided the information in question to the Australian Government in confidence. It is likely, for example, that the unauthorised communication of information given to the Australian Government in confidence by one foreign government would reduce the confidence or trust that multiple foreign governments and international organisations would have in the Australian Government's ability to protect each of those governments' and organisations' information.

1247. Paragraph (f) of the definition provides that causing harm to Australia's interest includes harming or prejudicing the health or safety of the Australian public or a section of the Australian public. The unauthorised communication of, or dealing in, official information that threatens public safety, or that threaten public health, are serious matters warranting criminal liability.

1248. Paragraph (g) of the definition provides that causing harm to Australia's interest includes harming or prejudicing the security or defence of Australia. The ALRC recommended that such information be covered by a general secrecy offence (Recommendation 5-1).

Definition of Commonwealth officer

1249. Item 6 inserts a new definition of Commonwealth officer. The definition of Commonwealth officer forms part of the element of each of the offences in Division 122, and the defence in section 122.5. A person will only commit an offence under Division 122 for engaging in relevant conduct in relation to information if the information was made or obtained by that or any other person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity. The definition contains an exhaustive list of individuals who are Commonwealth officers.

1250. Paragraph (a) of the definition provides that a Commonwealth officer includes an APS employee. The term APS employee should be interpreted consistently with section 2B of the Acts Interpretation Act provides that, in any Act, the term APS employee has the same meaning as in the Public Service Act 1999, being a person engaged under section 22 of that Act (Engagement of APS employees), or a person who is engaged as an APS employee under section 72 of that Act (Machinery of government changes).

1251. Paragraph (b) of the definition provides that a Commonwealth officer includes an individual appointed or employed by the Commonwealth otherwise than under the Public Service Act 1999. This includes, but is not limited to:

•

a Minister of State (including a Parliamentary Secretary) appointed by the Governor-General in Council under section 64 of the Constitution

•

statutory officers, such as the Director-General of Security appointed by the Governor-General under section 7 of the Australian Security Intelligence Organisation Act 1979

•

an individual employed under the Members of Parliament (Staff) Act 1984, or

•

an individual employed under the Parliamentary Service Act 1999.

1252. Paragraphs (c) and (d) of the definition provide that a Commonwealth officer includes a member of the Australian Defence Force and a member or special member of the Australian Federal Police. These terms are to be interpreted consistently with the definitions in the Defence Force Discipline Act and the Australian Federal Police Act 1979.

1253. Paragraph (e) of the definition provides that a Commonwealth officer includes an officer or employee of a Commonwealth authority. The term Commonwealth authority is defined in the Dictionary to the Criminal Code and means a body established by or under a law of the Commonwealth, subject to certain exceptions including for a body established under the Corporations Act 2001.

1254. Paragraphs (f) and (g) of the definition provide that a Commonwealth officer includes an individual who is a contracted service provider for a Commonwealth contract, as well as 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.

1255. Paragraph (g) makes it clear that this does not include officers or employees of, or persons engaged by, the Australian Broadcasting Corporation (ABC) or the Special Broadcasting Service Corporation (SBS). This exclusion is required to put it beyond doubt that persons employed by the ABC or SBS are not considered to be Commonwealth officers for the purposes of the general secrecy offences in Schedule 2. The effect of this amendment is that persons employed by the ABC and SBS will be covered by the new secrecy offence applying to non-Commonwealth officers at section 122.4A rather than the secrecy offences at sections 122.1, 122.2, 122.3 and 122.4. This appropriately recognises that members of the ABC and SBS, while being public employees, are engaged primarily in journalism and communications activities.

1256. The term Commonwealth contract is defined in the Dictionary to the Criminal Code to mean a contract, to which a Commonwealth entity is a party, under which services are to be, or were to be, provided to a Commonwealth entity.

1257. Contracted service provider for a Commonwealth contract is defined in the Dictionary to the Criminal Code to mean:

•

a person who is a party to the Commonwealth contract and who is responsible for the provision of services to a Commonwealth entity under the Commonwealth contract, or

•

a subcontractor for a Commonwealth contract.

1258. The limitation, in paragraph (g), that the individual must provide services for the purposes (whether direct or indirect) of the Commonwealth contract ensures that a person who is an officer or employee of a contracted service provider in a role entirely unrelated to the Commonwealth contract is not a Commonwealth officer.

Definition of deal

1259. This item inserts a new definition of deal for the purposes of Part 5.6 of the Criminal Code. The term deal, in Part 5.6, has the same meaning as in subsections 90.1(1) and (2) in Part 5.2 of the Criminal Code.

1260. Under subsection 90.1(1), 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

•

collects it

•

possesses it

•

makes a record of it

•

copies it

•

alters it

•

conceals it

•

communicates it

•

publishes it, or

•

makes it available.

1261. Subsection 90.1(1) also provides that make available information or an article includes:

•

placing it somewhere it can be accessed by another person

•

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

•

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).

1262. Subsection 90.1(2) provides that dealing with information for an article includes:

•

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

•

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

Definition of domestic intelligence agency

1263. This item inserts a new definition of domestic intelligence agency for the purposes of Part 5.6 of the Criminal Code.

1264. The term is defined as meaning the six agencies that are members of the Australian Intelligence Community, being the Australian Secret Intelligence Service, Australian Security Intelligence Organisation, Australian Geospatial-Intelligence Organisation, Defence Intelligence Organisation, Australian Signals Directorate, and the Office of National Assessments.

Definition of foreign military organisation

1265. This item inserts a new definition of foreign military organisation for the purposes of Part 5.6 of the Criminal Code.

1266. Foreign military organisation will be defined to mean:

•

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

•

the civilian component of:

o

the Department of State of a foreign country, or

o

a government agency in a foreign country

that is responsible for the defence of the country.

1267. The new definition is used in subsection 122.5(7), which sets out a range of exclusions to the defence for persons engaged in reporting news contained in subsection 122.5(6). Subsection 122.5(7) provides that a person may not reasonably believe that dealing with or holding information is in the public interest if this is done for the purpose of directly or indirectly assisting a foreign intelligence agency or a foreign military organisation.

1268. The definition of a foreign military organisation will include the armed forces of a foreign country as well as the civilian components of its military organisation. For example, in the Australian context this would include the Australian Defence Force, the civilian element of the Department of Defence, Reserves and any civilians who are accompanying the ADF overseas.

1269. Foreign country is intended to cover countries other than Australia and is defined in the Dictionary to the Criminal Code as including:

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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.

Definition of information

1270. This item inserts a new definition of information for the purposes of Part 5.6 of the Criminal Code. The term has the same meaning given by section 90.1 of the Criminal Code, being means 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.

1271. At present, the general secrecy offence in section 70 of the Crimes Act applies only in relation to facts or documents. The inclusion of definition of information will ensure that the new general secrecy offences in Division 122 apply in relation to opinion and advice that are not in documentary form. It will also ensure that the offences apply in relation to information that, while factually mistaken, is nevertheless inherently harmful information, or the disclosure of which would cause harm to Australia's interests.

1272. An example of the latter category of information would be an assessment produced by an Australian agency about a weapon system that may pose a threat to Australian forces that is factually mistaken about the capabilities of that system-the disclosure of that assessment would be inherently harmful, as it would, or would be reasonably expected to, allow the operator of the weapon system to exploit the Australian Defence Force's misunderstanding of the weapon system's capabilities.

1273. The alignment of the definition of information between Part 5.2 (Offences relating to espionage and similar activities) and Part 5.6 of the Criminal Code will also ensure that the espionage and secrecy offences apply to information consistently.

Definition of inherently harmful information

1274. This item inserts a new definition of inherently harmful information for the purposes of Part 5.6 of the Criminal Code. The definition exhaustively lists categories of information that are inherently harmful, in the sense that:

•

communicating such information;

•

otherwise dealing in such information;

•

removing such information from, or holding such information outside, a proper place of custody for the information; or

•

failing to comply with a lawful direction regarding the retention, use or disposal of such information,

will, or would reasonably be expected to, cause harm to essential public interests of the Commonwealth.

1275. Section 122.1 establishes a suite of new general secrecy offences, in respect of certain conduct relating to inherently harmful information communicated or otherwise dealt with by a Commonwealth officer or person otherwise engaged to perform work for a Commonwealth entity. The offences in section 122.1 do not contain a harm element, as they relate to information that is inherently harmful.

1276. Paragraph (a) of the definition of provides that security classified information is a category of inherently harmful information. Security classified information is separately defined in section 121.1 as information that has a security classification. Security classification is defined in section 121.1 as having the meaning given by section 90.5 of the Criminal Code. 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.

1277. The Commonwealth has well-established processes for determining whether particular information has been properly security classified, or remains appropriately security classified. These processes involve the review of the information by one or more persons who are familiar with the underlying reasons for the security classification, and well-placed to determine whether its classification remains appropriate. These processes should be followed in all cases where a person believes that security classified information should no longer have a security classification. Accordingly, the communication etc. of information that is security classified-either following a review that has determined that the information remains security classified, or where the classification has not been reviewed by a person who is familiar with the underlying reasons for its classification-will, or would reasonably be expected, to cause harm to the Commonwealth or an individual, and warrants criminal liability.

1278. Paragraph (c) of the definition provides that information that was obtained by, or made by or on behalf of, a domestic intelligence agency or a foreign intelligence agency in connection with the agency's functions, is a category of inherently harmful information.

1279. The compromise of information made or obtained by the intelligence services could reasonably be expected to cause serious damage to Australia's national security. Even small amounts of such information could, when taken together with other information, compromise national security, regardless of the apparent sensitivity of the particular information-this is referred to as the 'mosaic approach' to intelligence collection.

1280. For example, even seemingly innocuous pieces of information, such as the amount of leave available to staff members or their salary, can yield significant counterintelligence dividends to a foreign intelligence service.

1281. Paragraph (e) of the definition provides that information relating to the operations, capabilities and technologies of, and methods and sources used by, a domestic or foreign law enforcement agency is a category of inherently harmful information. A person will not be subject for criminal liability for communicating etc. such information in circumstances covered by the defences in section 122.5. These circumstances include where the information has already been communicated or made available to the public with the authority of the Commonwealth. A person would not be subject to liability for communicating information about a law enforcement operation that has been made available to the public with the authority of the Commonwealth, for example, because the operation was conducted in public. The concept of making information available to the public includes making information available to a relevant segment of the public, and can include making information available to a single person, for example where an operation is conducted in public but witnessed only by a single person.

1282. A defence is also available where a person communicated the information in the person's capacity as a person engaged in the business of reporting news and reasonably believed that engaging in the conduct was in the public interest.

1283. Paragraph (e) of the definition provides that information relating to the operations, capabilities or technologies of, or methods or sources used by, a domestic or foreign law enforcement agency is a category of inherently harmful information. The unauthorised disclosure of law enforcement information has the potential to prejudice investigations and operations, and, as is the case in the disclosure of information concerning human sources or officers operating under assumed identities, compromise people's safety.

1284. The scope of information covered by paragraph (e) in relation to law enforcement agencies is substantially narrower than the scope of information covered by paragraph (c), in relation to intelligence agencies. Paragraph (e) will only cover information relating to the operations, capabilities and technologies of, and methods and sources used by, a law enforcement agency. It is not intended that paragraph (e) will generally cover include information such as the identity of law enforcement officers (other than officers operating under assumed identities), their salaries, or locations of their facilities.

1285. A person will not be subject for criminal liability for communicating or otherwise dealing with information covered by paragraph (e) in circumstances covered by the defences in section 122.5. In particular, subsection 122.5(2) provides that it is a defence to a prosecution for an offence relating to the communication or dealing with inherently harmful information that the information has already been communicated or made public with the authority of the Commonwealth. It is intended that a person would not be subject to criminal liability for communicating information about a law enforcement operation that has been made available to the public with the authority of the Commonwealth, for example, because the operation was conducted in public. The concept of making information available to the public includes making information available to a relevant segment of the public, and can include making information available to a single person, for example where an operation is conducted in public but witnessed only by a single person. As a result, the inclusion of law enforcement operations within the definition of inherently harmful information is not intended to have the effect of extending criminal liability to persons who communicate information about public law enforcement operations.

1286. Subsection 122.5(4A) also provides that it is a defence to a prosecution for an offence relating to the communication or dealing with inherently harmful information if it is for the primary purpose of reporting a criminal offence or maladministration in relation to a Commonwealth criminal process or the performance of AFP functions. It is intended that a person would not be subject to criminal liability for communicating information about maladministration or unlawful conduct relating to a Commonwealth criminal proceeding.

Definition of international relations

1287. This item inserts a new definition of international relations for the purposes of Part 5.6 of the Criminal Code. The term is used as part of the definition of causes harm to Australia's interests, a subset of which is to harm or prejudice Australia's international relations.

1288. Consistent with Recommendation 5-2 of the ALRC's report, the term 'international relations' is defined as having the meaning given in section 10 of the National Security Information (Criminal and Civil Proceedings) Act 2004. The NSI Act defines international relations to mean 'political, military and economic relations with foreign governments and international organisations'.

1289. The offence provisions in section 122.2 will, therefore, apply where the information falls within this definition and a person is aware of a substantial risk that their conduct will or is likely to harm or prejudice Australia's political, military or economic relations with foreign governments and international organisations, and having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

Definition of proper place of custody

1290. This item inserts a new definition of proper place of custody for the purposes of Part 5.6 of the Criminal Code. The term is used as part of the offence provisions in Division 122, which provide that it is an offence in certain circumstances for a person to intentionally remove information from a proper place of custody, or to hold information outside a proper place of custody.

1291. The term proper place of custody has the meaning given in section 121.2 (Definition of proper place of custody).

Definition of Regulatory Powers Act

1292. This item inserts a new definition of Regulatory Powers Act for the purposes of Part 5.6 of the Criminal Code. The term is used in section 123.1 (Injunctions).

1293. The term means the Regulatory Powers (Standard Provisions) Act 2014.

Definition of security classification

1294. This item inserts a new definition of security classification for the purposes of Part 5.6 of the Criminal Code. Security classified information is a category of inherently harmful information.

1295. The term is defined as having the meaning given by section 90.5. 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.

1296. 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).

Definition of security classified information

1297. This item inserts a new definition of security classified information for the purposes of Part 5.6 of the Criminal Code. Security classified information is a category of inherently harmful information.

1298. The term is defined as meaning information that has a security classification. A definition of security classification is also inserted by this item (see above).

Definition of security or defence of Australia

1299. This item inserts a new definition of security or defence of Australia for the purposes of Part 5.6 of the Criminal Code.

1300. Information the communication of which would, or could reasonably be expected to, damage the security or defence of Australia is a category of inherently harmful information. The term should take its ordinary and natural meaning, as including security or military defence of Australia. The term is defined as including the operations, capabilities and technologies of, and methods and sources used by, domestic intelligence agencies or foreign intelligence agencies.

1301. Subsection 121.1(2) provides that, to avoid doubt, the term 'communicates' includes 'publish and make available'.

1302. Subsection 121.1(3) clarifies that for the purpose of any references to security classified information in Part 5.6 (Secrecy of information), 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).

1303. Section 121.1 includes a definition of security classified information as meaning information that has a security classification. Security classification is defined as having the meaning given by section 90.5. Subsection 121.1(3) substantively replicates subsection 90.5(1A) to avoid any doubt about whether that subsection is picked up in the definition of security classified information.

1304. The effect of applying strict liability is that no fault element needs to be proved in relation to those parts of the definition.

1305. The prosecution will still be required to prove that the information had a classification of TOP SECRET or SECRET or an equivalent classification and that the person was reckless as to this. 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.

1306. For paragraph 121.1(3)(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.

1307. For paragraph 121.1(3)(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.

1308. The effect of subsection 121.1(3) 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.

1309. 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.

1310. For paragraph 121.1(3)(b), 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 121.1(3)(b) 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.

1311. 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.

1312. 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.

Section 121.2-Definition of proper place of custody

1313. This item inserts a new section 121.2 which provides the definition of the term proper place of custody.

1314. Subsection 121.2 provides that the definition of proper place of custody has the meaning prescribed in the regulations. The term is used as part of the offence provisions in subsections 122.1(3) and 122.2(3), which provide that it is an offence in certain circumstances for a person to intentionally remove information from a proper place of custody, or to hold information outside a proper place of custody.

1315. Part 2.3.4 of the Guide to Framing Commonwealth Offences provides that the content of an offence should only be delegated to another instrument where there is a demonstrated need to do so.

1316. It is necessary to prescribe the meaning of the term proper place of custody in the regulations for the following reasons.

•

The definition will involve a level of detail that is not appropriate for inclusion in the Criminal Code. The definition may prescribe proper places of custody for different categories and subcategories of information, such as for information having different security classifications, and for different circumstances, such as where security classified information is being held in a Commonwealth facility, is being transferred between facilities, is being held away from a Commonwealth facility (such as where a person has been approved to work from home, or for event security purposes);

•

Prescription in regulations is necessary because of the changing nature of the subject matter. It will be necessary for the definition to keep up to date with changes to Commonwealth protective security policy, to ensure that there is no inconsistency between that which the policy requires or authorises, and that which is subject to the offence provisions;

•

The relevant material involves material of such a technical nature that it is not appropriate to deal with it in the Criminal Code. The concept of a proper place of custody for security classified information or information made or obtained by an intelligence agency, for example, may involve technical specifications relating to, for example, the physical, information and personnel security arrangements for that place of custody, and for the accreditation of that place of custody; and

•

Elements of the offence may be determined by reference to treaties in order to comply with Australia's international obligations. Australia concludes treaties and international agreements for the handling of certain information, such as classified information received from or given to foreign governments, which may be relevant to the definition of a proper place of custody in relation to such information.

1317. The concept of a proper place of custody should be interpreted broadly for the purposes of determining the matters that may be prescribed in regulations. The proper place of custody for specified information may include, for example:

•

a building or part of a building

•

a safe, compactus or other place of storage

•

a briefcase, bag or other container allowing for the custody of information or documents in transit, or

•

an electronic system, computer network, computer or device allowing for the custody of information in electronic form.

1318. The regulations may prescribe that a proper place of custody must meet certain requirements. For example, the regulations may prescribe that a building is only be a proper place of custody for specified information if, and while, it is:

•

constructed to meet certain requirements;

•

fitted with security systems and measures that meet certain requirements, which are in operation;

•

staffed by appropriate security personnel; and

•

accredited by an appropriate authority as meeting certain requirements.

1319. A proper place of custody may also include a combination of one or more of the abovementioned places, such as an electronic system that meets certain requirements and that is located in a building or part of a building that meets certain requirements.

1320. Subsection 121.2(2) provides that, despite subsection 14(2) of the Legislation Act 2003, regulations made for the purposes of subsection (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. The incorporation of the content of the definition by reference to another instrument or document is necessary to enable the definition to incorporate documents setting out Commonwealth protective security policy documents, to ensure alignment between the Commonwealth's protective security police as in force from time-to-time and the scope of the offences.

1321. The requirement for the instrument or other writing to be publicly available will mean that documents will only be incorporated into regulations if it is made publicly available. This will ensure that every person interested in or affected by the secrecy offences at subsections 122.1(3) and 122.2(3), which rely on the definition of proper place of custody, will be able to readily and freely access its terms.

Division 122-Secrecy of information

1322. This item inserts a new Division 122 to the Criminal Code, which contains new general secrecy offences. These offences replace the general secrecy offences contained in Parts VI and VII of the Crimes Act 1914 with a modernised and more targeted set of offences, directed at protecting the essential public interests of the Commonwealth.

1323. The new general secrecy offences will criminalise the communication of information, dealing with information, the movement of information outside the proper place of custody, or the failure to comply with a direction regarding information, where:

•

the information is inherently harmful information, or

•

the conduct causes harm to Australia's interests, or

•

the conduct will or is likely to cause harm to Australia's interests.

1324. Division 122 also contains an aggravated offence, applying where a person commits an underlying general secrecy offence and one or more aggravating circumstances exist.

1325. Division 122 further contains a set of defences, which operate to ensure that persons are not criminally liable for the communication of information, dealing with information, movement of information outside a proper place of custody, or the failure to comply with a direction regarding information, where:

•

the person was exercising a power, or performing a function or duty, in the person's capacity as a public official or a person who is otherwise engaged to perform work for a Commonwealth entity

•

the information has already been communicated or made available to the public with the authority of the Commonwealth

•

it was for the purpose of communicating to a Commonwealth oversight or integrity body, or was for the purpose of such a body exercising a power, or performing a function or duty

•

it was in accordance with the Public Interest Disclosure Act 2013 or the Freedom of Information Act 1982

•

it was for the primary purpose of reporting a criminal offence or maladministration relating to a Commonwealth criminal process or performance of an AFP function

•

it was for the purpose of communicating information to a court or tribunal

•

it was for the primary purpose of obtaining or providing legal advice

•

it was in the person's capacity as a person engaged in reporting of news, and the person reasonably believed their conduct was in the public interest

•

the information has previously been communicated, or made available, to the public (a prior publication) and the person was not involved in the prior publication, or

•

the information relates to the person, is communicated with the consent of the person to whom it relates, or is communicated to the person to whom it relates.

1326. The offences in Division 122 must be read in conjunction with the offence-specific defences, which operate to limit the circumstances in which a person may be criminally liable.

Section 122.1-Communication and other dealings with inherently harmful information by current and former Commonwealth officers etc.

1327. This item inserts a new section 122.1 to the Criminal Code, which contains a set of four general secrecy offences which apply to current and former Commonwealth officers relating to:

•

the communication of inherently harmful information

•

dealing with inherently harmful information

•

the movement of inherently harmful information outside the proper place of custody, or

•

the failure to comply with a direction regarding inherently harmful information.

1328. Inherently harmful information is defined in section 121.1, and is comprised of three categories of information the unauthorised disclosure of which would, or would be reasonably likely to, harm essential public interests. Accordingly the offences in section 122.1 do not contain harm elements, requiring the prosecution to prove beyond reasonable doubt that the conduct the subject of the alleged offence caused, or was reasonably likely to cause, harm.

Communicating inherently harmful information

1329. Subsection 122.1(1) creates an offence where a current or former Commonwealth officer or a person otherwise engaged to perform work for a Commonwealth entity communicates inherently harmful information that was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

1330. The offence will carry a maximum penalty of seven years imprisonment.

1331. Examples of the offence are as follows:

•

Example 1: Person A is an employee of a Commonwealth department. Person A accesses a classified document from the department's information management system and publishes the document on a publicly available website.

•

Example 2: Person B is employed by a domestic intelligence agency. Person B makes a copy of a document produced by a foreign intelligence agency from Country F and provided to the domestic intelligence agency through properly authorised information sharing agreements. Person B discloses the copy of the document to a friend who is an academic undertaking research on Country F.

1332. To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

•

the person intentionally communicated information

•

the information was inherently harmful information and the person was reckless as to this element

•

the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and the person was reckless as to this element.

1333. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 122.1(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.

1334. Recklessness is the fault element for paragraphs 122.1(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.

1335. Strict liability will apply to elements of the definition of security classification for paragraph 122.1(1)(b) to the extent that the information is security classified information.

1336. For paragraph 122.1(1)(a), the prosecution will have to prove beyond a reasonable doubt that the person intentionally communicated information.

1337. The term 'communicates' is taken to include references to 'publishes' and 'makes available', consistent with subsection 121.1(2). It is intended to include imparting or transmitting information by any means. It is not intended to require, as a rule, proof that the information was received by another person, or proof that another person read, heard or viewed the information. A person would communicate information where, for example, a person sends an email containing information, even if the email is not read by another person.

1338. For paragraph 122.1(1)(b), the prosecution will have to prove that the information was inherently harmful information, and that the defendant was reckless as to the fact that the information was inherently harmful information. Therefore, the defendant will have to be aware of a substantial risk that the information is inherently harmful and, having regard to the circumstance known to him or her, it is unjustifiable to take the risk.

1339. For paragraph 122.1(1)(b), if that information is security classified information, the prosecution will need to prove that the information was security classified, and the defendant was 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.

1340. 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.

1341. Under new subsection 121.1(3), strict liability will apply to some aspects of the definition of security classification. Subsection 121.1(3) 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).

1342. 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.

1343. 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.

1344. 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).

1345. For paragraph 122.1(1)(c), the prosecution will have to prove that the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

1346. The fault element of recklessness applies to this element. Therefore, the prosecution will be required to prove beyond reasonable doubt that the person was aware of a substantial risk that he or she made or obtained the information by reason of being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

1347. Commonwealth officer is defined in section 121.1. Commonwealth entity is defined in the Dictionary to the Criminal Code, as being the Commonwealth or a Commonwealth authority. A Commonwealth authority is a body established by or under a law of the Commonwealth, subject to certain exceptions including for a body established under the Corporations Act 2001.

1348. The requirement that the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity is intended to limit the scope of the offence to apply only to inherently harmful information that has been made or obtained, in essence, by the Commonwealth in an official capacity.

1349. Note 1 to subsection 122.1(1) clarifies that exceptions to the offence are set out at section 122.5.

1350. Note 2 to subsection 122.1(1) clarifies that the fault elements for this offence are intention for paragraph (1)(a) and recklessness for paragraphs (1)(b) and (c). This Note has no practical effect, as section 5.6 of the Criminal Code already applies intention as the automatic fault element for the conduct element in paragraph 122.1(1)(a) and recklessness as the automatic fault element applying to the circumstance elements in paragraphs 122.1(1)(b) and (c). The inclusion of this Note carries no implication that section 5.6 of the Criminal Code is ineffective in applying the relevant fault elements. It is intended only to provide clarity to the reader.

1351. The maximum penalty for the offence in subsection 122.1(1) is seven years' imprisonment. The commission of this offence would have serious consequences for the security and defence of Australia, or for the flow of information to the Commonwealth in connection with essential public functions. The maximum penalty needs to be adequate to deter and punish a worst case offence, including intentional or corrupt disclosures of inherently harmful information, and disclosures that may irreparably damage the defence or security of Australia for decades. This penalty aligns with the maximum penalties for the secrecy offences in the Intelligence Services Act 2001. It is also consistent with Recommendation 7-4 of the Australian Law Reform Commission Report 112 'Secrecy Laws and Open Government in Australia' that the general secrecy offence should stipulate a maximum penalty of seven years' imprisonment, a pecuniary penalty not exceeding 420 penalty units, or both.

Other dealings with inherently harmful information

1352. Subsection 122.1(2) creates an offence where a person deals with inherently harmful information (other than by communicating it) and the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

1353. The offence will carry a maximum penalty of three years imprisonment.

1354. Examples of the offence are as follows:

•

Example 1: Person A is an employee of a Commonwealth department. Person A copies a classified document and conceals it in their bag to take it home. Person A locks the document in a safe inside their house.

•

Example 2: Person B is employed by a Commonwealth authority. Person B has access to sensitive information obtained through the exercise of coercive powers by the Commonwealth authority. Person B downloads a large quantity of sensitive information onto a portable device and takes the device home.

1355. To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

•

the person intentionally deals with information (other than by communicating it)

•

the information was inherently harmful information and the person was reckless as to this element, and

•

the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and the person was reckless as to this element.

1356. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 122.1(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.

1357. Recklessness is the fault element for paragraphs 122.1(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.

1358. Strict liability will apply to elements of the definition of security classification for paragraph 122.1(2)(b) to the extent that the information is security classified information.

1359. For paragraph 122.1(1)(a), the prosecution will have to prove beyond a reasonable doubt that the person intentionally dealt with information, other than by communicating it. Consistent with subsection 121.1(2), 'communicating' includes 'publishing' and 'making available'.

1360. The term deal is defined for the purposes of Part 5.6 in section 121.1 as having the meaning given by subsection 90.1(1) of the Criminal Code. The definition is intended to ensure that the offence operates to deter the disclosure of inherently harmful information, which would, or would be reasonably likely to, cause harm to the essential public interests of the Commonwealth. For example, the element will be satisfied where:

•

a person intentionally obtains or collects information-each of which would be steps towards the disclosure of the information; or

•

a person intentionally copies or conceals the information-such conduct would, or would be likely to, facilitate the disclosure of the information (for example, by preventing its discovery or recovery by authorities and thereby enabling its later disclosure).

1361. However, the element will not be satisfied by a person reading, analysing or using the information. The nature of inherently harmful information is that the harm to the essential public interests of the Commonwealth would have, or could be likely to have, crystallised when the information was disclosed. The object of the offence framework, therefore, is to strongly deter the disclosure of inherently harmful information in the first instance. For example, in the circumstance that information about a sensitive ASIO source of information (being information falling within either or both paragraphs (a) and (c) of the definition of inherently harmful information) were disclosed, ASIO would likely need to assume that the nature of this source was compromised and take appropriate action to protect the source and its operation, crystallising the harm to Australia's essential public interests.

1362. For paragraph 122.1(2)(b), the prosecution will have to prove that the information was inherently harmful information, and that the defendant was reckless as to the fact that the information was inherently harmful information. Therefore, the defendant will have to be aware of a substantial risk that the information is inherently harmful and, having regard to the circumstance known to him or her, it is unjustifiable to take the risk.

1363. For paragraph 122.1(2)(b), if that information is security classified information, the prosecution will need to prove that the information was security classified, and the defendant was 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.

1364. 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.

1365. Under new subsection 121.1(3), strict liability will apply to some aspects of the definition of security classification. Subsection 121.1(3) 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).

1366. 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.

1367. 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.

1368. 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).

1369. For paragraph 122.1(2)(c), the prosecution will have to prove that the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

1370. The fault element of recklessness applies to this element. Therefore, the prosecution will be required to prove beyond reasonable doubt that the person was aware of a substantial risk that he or she made or obtained the information by reason of being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

1371. Commonwealth officer is defined in section 121.1. Commonwealth entity is defined in the Dictionary to the Criminal Code, as being the Commonwealth or a Commonwealth authority. A Commonwealth authority is a body established by or under a law of the Commonwealth, subject to certain exceptions including for a body established under the Corporations Act 2001.

1372. The requirement that the information was made or obtained by that or any other person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity is intended to limit the scope of the offence to apply only to inherently harmful information that has been made or obtained, in essence, by the Commonwealth in an official capacity.

1373. The Note under subsection 121.1(2) clarifies that the fault elements for this offence are intention for paragraph (2)(a) and recklessness for paragraphs (2)(b) and (c).

1374. This Note has no practical effect, as section 5.6 of the Criminal Code already applies intention as the automatic fault element for the conduct element in paragraph 122.1(2)(a) and recklessness as the automatic fault element applying to the circumstance elements in paragraphs 122.1(2)(b) and (c). The inclusion of this Note carries no implication that section 5.6 of the Criminal Code is ineffective in applying the relevant fault elements. It is intended only to provide clarity to the reader.

1375. The maximum penalty for the offence in subsection 122.1(2) is three years' imprisonment. This is less than the maximum penalty for the offence in subsection 122.1(1), involving the communication of inherently harmful information. The offence in subsection 122.1(2) is intended to capture behaviour prior to the communication of information that will cause harm to Australia's interests, as well as behaviour that creates an unacceptable risk that such will be improperly communicated or obtained. A maximum penalty of three years' imprisonment is appropriate to recognise the serious harm to the defence and security of Australia, and to the ability for the Australian Government to perform essential public functions, that can arise from the improper dealing in inherently harmful information.

Removing inherently harming information from, or holding inherently harmful information outside, a proper place of custody

1376. Subsection 122.1(3) creates an offence where a person removes inherently harmful information from, or holds such information outside, its proper place of custody, where that information was made or obtained by that or any other person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

1377. The offence will carry a maximum penalty of three years' imprisonment.

1378. Examples of the offence are as follows:

•

Example 1: Person A is an employee of a Commonwealth department. Person A removes a document given to the department by a foreign government in confidence from its proper place of custody at the department and takes it home. Person A is not approved to hold the document at their home. Person A is aware that the foreign government provided the document to the Commonwealth on the condition it be held in confidence, and breaching this provision could negatively impact the Commonwealth's relationship with the foreign government.

•

Example 2: Person B is a former employee of a Commonwealth department. While employed by the Commonwealth department, Person B was approved to hold classified documents, including some reports prepared by intelligence agencies, at home. Following the cessation of Person B's employment by the Commonwealth department, Person B does not return the documents in his or her possession to the department and continues to hold them in their home.

•

Example 3: Person C is an employee of a company engaged to design a new, weapon system for the Australian Defence Force. Person C discovers that they have accidentally taken a document containing highly sensitive information concerning the design of the weapon system home from work. Instead of immediately returning the document to its proper place of custody in the office, Person C places the document in their garbage bin at home.

1379. To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

•

the person either:

o

intentionally removed information from a proper place of custody for the information, or

o

intentionally held information outside a proper place of custody for the information

•

the information was inherently harmful information and the person was reckless as to this, and

•

the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and the person was reckless as to this.

1380. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 122.1(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.

1381. Recklessness is the fault element for paragraphs 122.1(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.

1382. Strict liability will apply to elements of the definition of security classification for paragraph 122.1(3)(b) to the extent that the information is security classified information.

1383. For paragraph 122.1(3)(a), the prosecution will have to prove beyond a reasonable doubt that the person intentionally removed information from a proper place of custody for that information, or that the person intentionally held information outside a proper place of custody for that information.

1384. The term proper place of custody will have the meaning prescribed by the regulations, in accordance with sections 121.1 and 121.2. The concept of a proper place of custody may be defined by reference to different kinds of information. For example, the proper place of custody for information that has a security classification of TOP SECRET may be more stringently defined than the proper place of custody for information that has a security classification of PROTECTED.

1385. The concept of removing information is intended to include the removal of information by any means, and in any form. This includes, for example, removing a document containing information from a secure location within a premises (being a proper place of custody for that information) and taking it to a non-secure location within that same (being a place that is not a proper place of custody for the information). It is also intended to include the removal of information in electronic form, such as uploading an electronic file containing information from a computer on a secure computer network (being a proper place of custody for that information) to a non-secure cloud storage service (being a place that is not a proper place of custody for the information).

1386. For paragraph 122.1(3)(b), the prosecution will have to prove that the information was inherently harmful information, and that the defendant was reckless as to the fact that the information was inherently harmful information. Therefore, the defendant will have to be aware of a substantial risk that the information is inherently harmful and, having regard to the circumstance known to him or her, it is unjustifiable to take the risk.

1387. For paragraph 122.1(3)(b), if that information is security classified information, the prosecution will need to prove that the information was security classified, and the defendant was 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.

1388. 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.

1389. Under new subsection 121.1(3), strict liability will apply to some aspects of the definition of security classification. Subsection 121.1(3) 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).

1390. 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.

1391. 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.

1392. 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).

1393. For paragraph 122.1(3)(c), the prosecution will have to prove that the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

1394. The fault element of recklessness applies to this element. Therefore, the prosecution will be required to prove beyond reasonable doubt that the person was aware of a substantial risk that he or she made or obtained the information by reason of being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

1395. Commonwealth officer is exhaustively defined in section 121.1. Commonwealth entity is defined in the Dictionary to the Criminal Code, as being the Commonwealth or a Commonwealth authority. A Commonwealth authority is a body established by or under a law of the Commonwealth, subject to certain exceptions including for a body established under the Corporations Act 2001. The exclusion of bodies established under this Act is intended to ensure, among other things, parity between Commonwealth Government-owned companies and their private sector competitors.

1396. The requirement that the information was made or obtained by that or any other person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity is intended to limit the scope of the offence to apply only to inherently harmful information that has been made or obtained, in essence, by the Commonwealth in an official capacity.

1397. The Note under subsection 122.1(3) clarifies that the fault elements for this offence are intention for paragraph (3)(a) and recklessness for paragraphs (3)(b) and (c).

1398. This Note has no practical effect, as section 5.6 of the Criminal Code already applies intention as the automatic fault element for the conduct element in paragraph 122.1(3)(a) and recklessness as the automatic fault element applying to the circumstance elements in paragraphs 122.1(3)(b) and (c). The inclusion of this Note carries no implication that section 5.6 of the Criminal Code is ineffective in applying the relevant fault elements. It is intended only to provide clarity to the reader.

1399. The maximum penalty for the offence in subsection 122.1(3) is three years' imprisonment. This is less than the maximum penalty for the offence in subsection 122.1(1), involving the communication of inherently harmful information. The offence in subsection 122.1(3) is intended to capture behaviour prior to the communication of inherently harmful information, as well as behaviour that creates an unacceptable risk that inherently harmful information will be improperly communicated or obtained.

1400. A maximum penalty of three years' imprisonment is appropriate to recognise the serious harm to the defence and security of Australia, and to the ability for the Commonwealth Government to perform essential public functions, that can arise from removing inherently harmful information from, or holding such information outside, its proper place of custody.

Failure to comply with direction regarding inherently harmful information

1401. Subsection 122.1(4) creates an offence where a person is given a lawful direction regarding the retention, use or disposal of inherently harmful information that was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for the Commonwealth, and the person fails to comply with the direction and this results in a risk to the security of the information.

1402. The offence will carry a maximum penalty of three years' imprisonment.

1403. An example of the offence is as follows. Person A is employed under the Members of Parliament (Staff) Act 1984. Person A is given a document containing an update on an ongoing criminal intelligence investigation by Person B, a senior official of the Australian Criminal Intelligence Commission. The document contains information obtained using the ACIC's coercive examination powers, and from a source. Person B directs Person A to store the document in a safe that only Person A has access to. Person A stores the document in a safe that is accessible by all staff in the office.

1404. To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

•

the person was given a direction and the person was reckless as to this element

•

the direction was a lawful direction regarding the retention, use or disposal of information and the person was reckless as to this element

•

the person intentionally failed to comply with the direction

•

the failure to comply with the direction results in a risk to the security of the information and the person was reckless as to this element

•

the information was inherently harmful information and the person was reckless as to this element, and

•

the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and the person was reckless as to this element.

1405. Recklessness is the fault element applying to paragraphs 122.1(4)(a), (b), (ca) and (e). Strict liability will apply to elements of the definition of security classification for paragraph 122.1(4)(b) to the extent that the information is security classified information.

1406. 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.

1407. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 122.1(4)(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.

1408. For paragraph 122.1(4)(a), the prosecution will have to prove beyond reasonable doubt that the person was given a direction. A direction can be written or oral. Recklessness is the fault element for this element. Therefore, the person will have to be aware of a substantial risk that he or she was given a direction and, having regard to the circumstances known to him or her, it was unjustifiable to take the risk.

1409. For paragraph 122.1(4)(b), the prosecution will have to prove beyond reasonable doubt that the direction was a lawful direction regarding the retention, use or disposal of information. It is intended that the concept of a lawful direction include a direction that is lawful, from a person with the authority to give that direction. It is not intended that there must exist a formal relationship of command or control between the person who gives the direction and the person to whom the direction is given. Examples of a lawful direction would include:

•

Example 1: Person A is an APS employee. Person B is an APS employee of the same agency. Person B gives Person A a direction, and has the authority to give that direction.

•

Example 2: Person C is subject to an arrangement or agreement with the Commonwealth, or a Commonwealth entity. Person D gives Person C a direction, and has the authority to give that direction in connection with the arrangement or agreement.

•

Example 3: Person E gives Person F information. In the course of giving the information to Person F, Person E gives Person F a direction.

1410. For paragraph 122.1(4)(c), the prosecution will have to prove beyond a reasonable doubt that the person failed to comply with the direction. The fault element of intention applies to this element. Therefore, the prosecution will have to prove that the person meant to fail to comply with the direction.

1411. For paragraph 122.14(ca), the prosecution will have to prove beyond a reasonable doubt that the failure to comply with that direction results in a risk to the security of the information, and the person is reckless as to this. Therefore, the defendant must have been aware of a substantial risk that the failure to comply with the direction would result in a risk to the security of the information and, having regard to the circumstances known to him or her it was unjustifiable to take that risk.

1412. This will ensure that criminal liability is limited to circumstances where the security of the information is placed at risk, and does not cover circumstances where a person has failed to comply with a direction but without any risk to security. This element will not be satisfied if a lawful direction is issued for the purpose of convenience, not to protect the security of the information. For example, if a person is lawfully directed to place documents in an appropriately secure filing cabinet next to the directing person's office to allow convenient access, however the person instead places the documents in a different (but still appropriately secure) filing cabinet, this will not fall within the scope of the offence as it related to the directing person's desire to have easy access to the document rather than to protect the security of the information.

1413. Conversely, if a person is lawfully directed to place a classified document in a filing cabinet in a secure room but the person instead leaves it in their desk drawer, this would place the security of the information at risk and would fall within new paragraph 122.1(4).

1414. For paragraph 122.1(4)(d), the prosecution will have to prove beyond reasonable doubt that the information was inherently harmful information, and the defendant was reckless as to this. If that information is security classified information, the prosecution will need to prove that the information was security classified, and the defendant was 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.

1415. 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.

1416. Under new subsection 121.1(3), strict liability will apply to some aspects of the definition of security classification. Subsection 121.1(3) 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).

1417. 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.

1418. 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.

1419. 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).

1420. For paragraph 122.1(4)(e), the prosecution will have to prove that the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

1421. The fault element of recklessness applies to this element. Therefore, the prosecution will be required to prove beyond reasonable doubt that the person was aware of a substantial risk that he or she made or obtained the information by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

1422. Commonwealth officer is defined in section 121.1. Commonwealth entity is defined in the Dictionary to the Criminal Code, as being the Commonwealth or a Commonwealth authority. A Commonwealth authority is a body established by or under a law of the Commonwealth, subject to certain exceptions including for a body established under the Corporations Act 2001.

1423. The requirement that the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity is intended to limit the scope of the offence to apply only to inherently harmful information that has been made or obtained, in essence, by the Commonwealth in an official capacity.

1424. Note 1 to subsection 122.1(1) clarifies that exceptions to the offence are set out at section 122.5.

1425. The Note to subsection 122.1(4) clarifies that the fault elements for this offence are intention for paragraph (4)(c) and recklessness for paragraphs (4)(a), (b), (ca), (d) and (e). This Note has no practical effect, as section 5.6 of the Criminal Code already applies intention as the automatic fault element for the conduct element in paragraph 122.1(4)(c) and recklessness as the automatic fault element applying to the circumstance elements in paragraphs 122.1(4)(a), (b), (ca), (d) and (e). The inclusion of this Note carries no implication that section 5.6 of the Criminal Code is ineffective in applying the relevant fault elements. It is intended only to provide clarity to the reader.

1426. The maximum penalty for the offence in subsection 122.1(4) is three years' imprisonment. This is less than the maximum penalty for the offence in subsection 122.1(1), involving the communication of inherently harmful information. The offence in subsection 122.1(4) is intended to capture behaviour prior to the communication of inherently harmful information, as well as behaviour that creates an unacceptable risk that inherently harmful information will be improperly communicated or obtained.

1427. A maximum penalty of three years' imprisonment is appropriate to recognise the serious harm to the defence and security of Australia, and to the ability for the Commonwealth Government to perform essential public functions, that can arise from a person intentionally failing to comply with a lawful direction regarding the retention, use or disposal of inherently harmful information.

Section 122.2-Conduct by current and former Commonwealth officers etc. causing harm to Australia's interests

1428. This item inserts a new section 122.2 to the Criminal Code, which contains a set of four general secrecy offences, applying to current and former Commonwealth officers or a person otherwise engaged to perform work for a Commonwealth entity, relating to:

•

the communication of official information that causes, will cause, or that is likely to cause harm to Australia's interests;

•

dealing with official information that causes, will cause, or that is likely to cause harm to Australia's interests;

•

the movement of official information that causes, will cause, or that is likely to cause harm to Australia's interests; or

•

the failure to comply with a direction regarding official information that causes, will cause, or that is likely to cause harm to Australia's interests.

1429. Cause harm to Australia's interests is defined in section 121.1. The definition contains an exhaustive list of matters which represent essential national interests. The use of official information to cause harm to these interests is a serious matter which, in certain circumstances set out in section 122.2, should attract criminal liability.

Communication causing harm to Australia's interests

1430. Subsection 122.2(1) creates an offence where a person communicates information, the communication either causes harm to Australia's interests, or will or is likely to cause harm to Australia's interests, and the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

1431. The offence will carry a maximum penalty of seven years imprisonment.

1432. Examples of the offence are as follows:

•

Example 1: Person A is an employee of the Australian Federal Police. Person A accesses a document relating to an ongoing investigation into organised criminal activity from the Australian Federal Police's information management system, and provides the document to a member of the organised crime group that is the subject of the investigation. As a result of the disclosure, the organised crime group destroys a range of evidential material, prejudicing the investigation of its criminal activities.

•

Example 2: Person C is a lawyer who has been engaged to perform work for a Commonwealth department in connection with the negotiation of a multilateral treaty. Person D is an official of a Country E involved in the negotiation of the same treaty. Person D gives Person C a document containing details of the Country E's negotiating strategy, and requests that Person C keep that document confidential to the Commonwealth Government negotiating team. Person C provides that document to Person F, who is an official of a Country G involved in the negotiation of the same treaty. As a result of the disclosure, Country E limits the amount of information it provides to the Commonwealth Government in connection with the negotiation of the treaty.

1433. To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

•

the person intentionally communicated information

•

either:

o

the communication causes harm to Australia's interests and the person was reckless as to this, or

o

the communication will or is likely to cause harm to Australia's interests and the person was reckless as to this

•

the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and the person was reckless as to this element.

1434. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 122.2(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.

1435. Recklessness is the fault element for paragraphs 122.2(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.

1436. For paragraph 122.2(1)(a), the prosecution will have to prove beyond a reasonable doubt that the person intentionally communicated information.

1437. The term 'communicates' is taken to include references to 'publishes' and 'makes available', consistent with subsection 121.1(2). It is intended to include imparting or transmitting information by any means. It is not intended to require, as a rule, proof that the information was received by another person, or proof that another person read, heard or viewed the information. A person would communicate information where, for example, a person sends an email containing information, even if the email is not read by another person.

1438. For paragraph 122.2(1)(b), the prosecution will have to prove beyond reasonable doubt that either:

•

the communication causes harm to Australia's interests, or

•

the communication will or is likely to cause harm to Australia's interests.

1439. The fault element of recklessness applies to this physical element. Therefore, the prosecution will be required to prove beyond reasonable doubt that:

•

the person was aware of a substantial risk that the communication had, would or was likely to cause harm to Australia's interests, and

•

having regard to the circumstances known to the person, it was unjustifiable to take the risk.

1440. In Example 1 above, Person A would be aware of a substantial risk that revealing sensitive information about a law enforcement operation to the subject of the investigation would prejudice the investigation of a criminal offence (which falls within paragraph (a) of the definition of causes harm to Australia's interests in section 121.1) and that it is unjustifiable to take the risk.

1441. For paragraph 122.2(1)(c), the prosecution will have to prove that the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

1442. The fault element of recklessness applies to this element. Therefore, the prosecution will be required to prove beyond reasonable doubt that the person was aware of a substantial risk that he or she made or obtained the information by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

1443. Commonwealth officer is defined in section 121.1. Commonwealth entity is defined in the Dictionary to the Criminal Code, as being the Commonwealth or a Commonwealth authority. A Commonwealth authority is a body established by or under a law of the Commonwealth, subject to certain exceptions including for a body established under the Corporations Act 2001.

1444. The requirement that the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity is intended to limit the scope of the offence to apply only to information that has been made or obtained, in essence, by the Commonwealth in an official capacity.

1445. Note 1 to subsection 122.2(1) clarifies that the definition of causes harm to Australia's interests is contained in section 121.1.

1446. Note 2 to subsection 122.2(1) clarifies that exceptions to the offence are set out at section 122.5.

1447. The maximum penalty for the offence in subsection 122.2(1) is seven years' imprisonment. The commission of this offence would have serious consequences for the essential public interests of Commonwealth. The maximum penalty needs to be adequate to deter and punish a worst case offence, including the communication of official information with the intent of compromising a major law enforcement or national security investigation, or that results in the death of, or serious injury to, a large number of people. This penalty aligns with the maximum penalties for the secrecy offences in the Intelligence Services Act 2001. It is also consistent with Recommendation 7-4 of the Australian Law Reform Commission Report 112 'Secrecy Laws and Open Government in Australia' that the general secrecy offence should stipulate a maximum penalty of seven years' imprisonment, a pecuniary penalty not exceeding 420 penalty units, or both.

Other conduct causing harm to Australia's interests

1448. Subsection 122.2(2) creates an offence where a person deals with information (other than by communicating it), the dealing causes harm to Australia's interests, or will or is likely to cause harm to Australia's interests, and the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

1449. The offence will carry a maximum penalty of three years imprisonment.

1450. Examples of the offence are as follows:

•

Example 1: Person A is an employee of the Department of Foreign Affairs and Trade. Person A copies a document given to the department by a foreign government in confidence, conceals it in their bag and takes it to a caf é . Person A is observed reading the document in the caf é . The foreign government becomes aware that the document has been copied and removed from the department, and limits the volume of information it shares with the Australian Government in confidence.

•

Example 2: Person B is a member of an organised criminal group. Person B convinces Person C, a member of the Australian Federal Police, to disclose information to Person B concerning the planned execution of search warrants over premises relating to Person B's organised criminal activities. Person B then obtains or collects the information from Person C.

1451. To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

•

the person intentionally deals with information (other than by communicating it)

•

either:

o

the dealing causes harm to Australia's interests and the person was reckless as to this, or

o

the dealing will or is likely to cause harm to Australia's interests and the person was reckless as to this

•

the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and the person was reckless as to this element.

1452. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 122.2(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.

1453. Recklessness is the fault element for paragraphs 122.2(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.

1454. For paragraph 122.2(1)(a), the prosecution will have to prove beyond a reasonable doubt that the person intentionally dealt with information, other than by communicating it. Consistent with subsection 121.1(2), 'communicating' includes 'publishing' and 'making available'

1455. The term deal is defined for the purposes of Part 5.6 in section 121.1 as having the meaning given by subsection 90.1(1) of the Criminal Code. The definition is intended to ensure that the offence operates to deter the disclosure of information, which would, or would be reasonably likely to, cause harm to the essential public interests of the Commonwealth. For example, the element will be satisfied where:

•

a person intentionally obtains or collects information-each of which may either be steps towards the disclosure of the information, or the result of the disclosure of the information, or

•

a person intentionally copies or conceals the information-such conduct would, or would be likely to, facilitate the disclosure of the information (for example, by preventing its discovery or recovery by authorities).

1456. However, the element will not be satisfied by a person reading, analysing or using the information. The nature of information that will or is likely to harm Australia's interests is that the harm to those interests would have, or could be likely to have, crystallised when the information was disclosed. The object of the offence framework, therefore, is to strongly deter the disclosure of such information in the first instance.

1457. For paragraph 122.2(2)(b), the prosecution will have to prove beyond reasonable doubt that either:

•

the dealing caused harm to Australia's interests, or

•

the dealing was or was likely to cause harm to Australia's interests.

1458. The fault element of recklessness applies to this physical element. Therefore, the prosecution will be required to prove beyond reasonable doubt that:

•

the person was aware of a substantial risk that the dealing would or was likely to cause harm to Australia's interests, and

•

having regard to the circumstances known to the person, it was unjustifiable to take the risk.

1459. In Example 1 above, Person A would be aware of a substantial risk that copying a document provided by the government of a foreign country and reading it in a public location was likely to harm or prejudice Australia's international relations with the foreign country (which falls within subparagraph (c)(i) of the definition of causes harm to Australia's interests in section 121.1).

1460. For paragraph 122.2(2)(c), the prosecution will have to prove that the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

1461. The fault element of recklessness applies to this element. Therefore, the prosecution will be required to prove beyond reasonable doubt that the person was aware of a substantial risk that the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

1462. Commonwealth officer is defined in section 121.1. Commonwealth entity is defined in the Dictionary to the Criminal Code, as being the Commonwealth or a Commonwealth authority. A Commonwealth authority is a body established by or under a law of the Commonwealth, subject to certain exceptions including for a body established under the Corporations Act 2001.

1463. The requirement that the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity is intended to limit the scope of the offence to apply only to information that has been made or obtained, in essence, by the Commonwealth in an official capacity.

1464. The maximum penalty for the offence in subsection 122.2(2) is three years' imprisonment. This is less than the maximum penalty for the offence in subsection 122.2(1), relating to the communication of information. The offence in subsection 122.2(2) is intended to capture behaviour prior to the communication of information that will cause harm to Australia's interests, as well as behaviour that creates an unacceptable risk that such information will be improperly communicated or obtained.

1465. A maximum penalty of three years' imprisonment is appropriate to recognise the serious harm to essential public interests, including the compromise of major law enforcement or national security investigations, or the death of, or serious injury to, a large number of people that can arise from a person improperly dealing with such information.

Removing information from, or holding information outside, a proper place of custody

1466. Subsection 122.2(3) creates an offence where a person removes information from, or holds such information outside, its proper place of custody, and that removal or holding causes, or will or is likely to cause, harm to Australia's interests where that information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

1467. The offence will carry a maximum penalty of five years' imprisonment.

1468. An example of the offence is as follows: Person A is an employee of a Commonwealth department. Person A removes a document given to the department by a foreign government in confidence from its proper place of custody at the department and takes it home. Person A is not approved to hold the document at their home. The foreign government becomes aware that the document has been improperly removed from the department, and limits the volume of information it shares with the Commonwealth Government in confidence.

1469. To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

•

the person either:

o

intentionally removed information from a proper place of custody for the information, or

o

intentionally held information outside a proper place of custody for the information

•

either:

o

the removal or holding caused harm to Australia's interests and the person was reckless as to this, or

o

the removal or holding would or was likely to cause harm to Australia's interests and the person was reckless as to this

•

the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and the person was reckless as to this element.

1470. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 122.2(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.

1471. Recklessness is the fault element for paragraphs 122.2(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.

1472. For paragraph 122.2(3)(a), the prosecution will have to prove beyond a reasonable doubt that the person intentionally removed information from a proper place of custody for that information, or that the person intentionally held information outside a proper place of custody for that information..

1473. The term proper place of custody will have the meaning prescribed by the regulations, in accordance with sections 121.1 and 121.2. The concept of a proper place of custody may be defined by reference to different kinds of information. For example, the proper place of custody for information that has a security classification of TOP SECRET may be more stringently defined than the proper place of custody for information that has a security classification of PROTECTED. It is intended that not all kinds of information may have a proper place of custody. If the regulations do not prescribe a proper place of custody for a particular kind of information, then a person cannot commit the offence in respect of that kind of information.

1474. The concept of removing information is intended to include the removal of information by any means, and in any form. This includes, for example, removing a document containing information from a secure location within a premises (being a proper place of custody for that information) and taking it to a non-secure location within that same premises (being a place that is not a proper place of custody for the information). It is also intended to include the removal of information in electronic form, such as uploading an electronic file containing information from a computer on a secure computer network (being a proper place of custody for that information) to a non-secure cloud storage service (being a place that is not a proper place of custody for the information).

1475. The concept of holding information, when used as part of the concept of holding information outside a proper place of custody for that information, is broader than the concept of merely retaining information. Holding information is intended to include conduct by which a person keeps information in his or her possession or control. Holding information is also intended to include conduct by which a person prevents or keeps information from being returned to a proper place of custody for that information.

1476. For paragraph 122.2(3)(b), the prosecution will have to prove beyond reasonable doubt that either:

•

the removal or holding caused harm to Australia's interests, or

•

the removal or holding would or was likely to cause harm to Australia's interests.

1477. The fault element of recklessness applies to this physical element. Therefore, the prosecution will be required to prove beyond reasonable doubt that:

•

the person was aware of a substantial risk that the removal or holding would or was likely to cause harm to Australia's interests ; and

•

having regard to the circumstances known to the person, it was unjustifiable to take the risk.

1478. In the example, Person A would be aware of a substantial risk that holding a document provided by the government of a foreign country in confidence at home was likely to harm or prejudice Australia's international relations with the foreign country (which falls within subparagraph (c)(i) of the definition of causes harm to Australia's interests in section 121.1).

1479. For paragraph 122.2(3)(c), the prosecution will have to prove that the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

1480. The fault element of recklessness applies to this element. Therefore, the prosecution will be required to prove beyond reasonable doubt that the person was aware of a substantial risk that he or she made or obtained the information by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

1481. Commonwealth officer is defined in section 121.1. Commonwealth entity is defined in the Dictionary to the Criminal Code, as being the Commonwealth or a Commonwealth authority. A Commonwealth authority is a body established by or under a law of the Commonwealth, subject to certain exceptions including for a body established under the Corporations Act 2001.

1482. The requirement that the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity is intended to limit the scope of the offence to apply only to information that has been made or obtained, in essence, by the Commonwealth in an official capacity.

1483. The maximum penalty for the offence in subsection 122.2(3) is three years' imprisonment. This is less than the maximum penalty for the offence in subsection 122.2(1), relating to the communication of information. The offence in subsection 122.2(3) is intended to capture behaviour prior to the communication of information that will cause harm to Australia's interests, as well as behaviour that creates an unacceptable risk that such information will be improperly communicated or obtained.

1484. A maximum penalty of three years' imprisonment is appropriate to recognise the serious harm to essential public interests, including the compromise of major law enforcement or national security investigations, or the death of, or serious injury to, a large number of people that can arise from a person removing such information from, or holding such information outside, its proper place of custody.

Failure to comply with direction regarding information

1485. Subsection 122.2(4) creates an offence where a person is given a lawful direction regarding the retention, use or disposal of information that was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for the Commonwealth, the person fails to comply with the direction, and the failure to comply causes, or will or is likely to cause, harm to Australia's interests.

1486. The offence will carry a maximum penalty of three years' imprisonment.

1487. An examples of the offence is as follows:

•

Example: Person C is an information technology contractor engaged by a Commonwealth department to develop a new case management system for domestic violence orders. Person D is employed by the Commonwealth department and is responsible for the project. Person D gives Person C a sample of real case files to validate the operation of the system and directs Person C to put in place information security measures to ensure the case files are securely retained. Person D fails to comply with the direction, resulting in information about persons subject to domestic violence order, including their home address and contact details, becoming available on the internet.

1488. To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

•

the person was given a direction and the person was reckless as to this element

•

the direction was a lawful direction regarding the retention, use or disposal of information and the person was reckless as to this element

•

the person intentionally failed to comply with the direction

•

either:

o

the failure to comply caused harm to Australia's interests and the person was reckless as to this, or

o

the failure to comply would or was likely to cause harm to Australia's interests and the person was reckless as to this

•

the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and the person was reckless as to this element.

1489. Recklessness is the fault element for paragraphs 122.2(4)(a), (b), (d) and (e). 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.

1490. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 122.1(4)(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.

1491. For paragraph 122.2(4)(a), the prosecution will have to prove beyond reasonable doubt that the person was given a direction. A direction can be written or oral. Recklessness is the fault element for this element. Therefore, the person will have to be aware of a substantial risk that he or she was given a direction and, having regard to the circumstances known to him or her, it was unjustifiable to take the risk.

1492. For paragraph 122.2(4)(b), the prosecution will have to prove beyond reasonable doubt that the direction was a lawful direction regarding the retention, use or disposal of information. It is intended that the concept of a lawful direction include a direction that is lawful, from a person with the authority to give that direction. It is not intended that there must exist a formal relationship of command or control between the person who gives the direction and the person to whom the direction is given. Examples of a lawful direction would include:

•

Example 1: Person A is an APS employee. Person B is an APS employee of the same agency. Person B gives Person A a direction, and has the authority to give that direction.

•

Example 2: Person C is subject to an arrangement or agreement with the Commonwealth, or a Commonwealth entity. Person D gives Person C a direction, and has the authority to give that direction in connection with the arrangement or agreement.

•

Example 3: Person E gives Person F information. In the course of giving the information to Person F, Person E gives Person F a direction.

1493. For paragraph 122.2(4)(c), the prosecution will have to prove beyond a reasonable doubt that the person failed to comply with the direction. The fault element of intention applies to this element. Therefore, the prosecution will have to prove that the person meant to fail to comply with the direction.

1494. For paragraph 122.2(4)(d), the prosecution will have to prove beyond reasonable doubt that either:

•

the failure to comply caused harm to Australia's interests, or

•

the failure to comply would or was likely to cause harm to Australia's interests.

1495. The fault element of recklessness applies to this physical element. Therefore, the prosecution will be required to prove beyond reasonable doubt that:

•

the person was aware of a substantial risk that failing to comply would or was likely to cause harm to Australia's interests ; and

•

having regard to the circumstances known to the person, it was unjustifiable to take the risk.

1496. In the example, above, Person C would be aware of a substantial risk that failure to comply with the direction could result in harm to the safety of a section of the Australian public, being persons subject to domestic violence orders, which falls within paragraph (f) of the definition of cause harm to Australia's interests at section 121.1.

1497. For paragraph 122.2(4)(e), the prosecution will have to prove that the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

1498. The fault element of recklessness applies to this element. Therefore, the prosecution will be required to prove beyond reasonable doubt that the person was aware of a substantial risk that he or she made or obtained the information by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

1499. Commonwealth officer is defined in section 121.1. Commonwealth entity is defined in the Dictionary to the Criminal Code, as being the Commonwealth or a Commonwealth authority. A Commonwealth authority is a body established by or under a law of the Commonwealth, subject to certain exceptions including for a body established under the Corporations Act 2001.

1500. The requirement that the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity is intended to limit the scope of the offence to apply only to information that has been made or obtained, in essence, by the Commonwealth in an official capacity.

1501. The maximum penalty for the offence in subsection 122.2(4) is three years' imprisonment. This is less than the maximum penalty for the offence in subsection 122.2(1), relating to the communication of information. The offence in subsection 122.2(4) is intended to capture behaviour prior to the communication of information that will cause harm to Australia's interests, as well as behaviour that creates an unacceptable risk that such information will be improperly communicated or obtained.

1502. A maximum penalty of three years' imprisonment is appropriate to recognise the serious harm to essential public interests, including the compromise of major law enforcement or national security investigations, or the death of, or serious injury to, a large number of people that can arise from a person failing to comply with a lawful direction regarding the retention, use or disposal of such information

Section 122.3-Aggravated offence

1503. Section 122.3 creates an aggravated offence where a person commits an underlying offence against section 122.1 or 122.2 and one of the following circumstances exist in relation to the commission of the underlying offence:

•

if the commission of the underlying offence involves a record containing the relevant information-the record is marked with a code word, 'for Australian eyes only' or as prescribed by the regulations

•

the commission of the underlying offence involves five or more records each of which has a security classification

•

the commission of the underlying offence involves the person altering a record to remove or conceal its security classification, or

•

at the time the person committed the underlying offence, the person held an Australian Government security clearance allowing the person to access information that has a security classification of at least secret.

1504. The aggravated offence will be punishable by a maximum penalty of:

•

10 years' imprisonment, if the maximum penalty for the underlying offence is seven years' imprisonment, or

•

five years' imprisonment if the maximum penalty for the underlying offence is three years' imprisonment.

1505. 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 agency's internal holdings to a personal hard drive. Over 100 of the documents copied have a security classification of SECRET, including 20 that also bear one or more code words, and one document classified as TOP SECRET. Person A publishes all 1000 documents on the internet.

1506. To establish the aggravated offence the prosecution will first need to prove beyond reasonable doubt that a person commits an underlying offence against section 122.1 (Inherently harmful information) or section 122.2 (Conduct causing harm to Australia's interests).

1507. 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 122.1 and section 122.2 are described above.

1508. Subsection 122.3(2) provides that there is no fault element for the physical element described in paragraph 122.3(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 122.3(2) makes clear that for the purposes of the offence in section 122.3, the prosecution does not need to prove any fault elements in addition to those fault elements already applying to the underlying offences.

1509. 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 beyond reasonable doubt that:

•

if the commission of the underlying offence involved a record-the record was marked with a code word, 'for Australian eyes only' or as prescribed by the regulations (subparagraph 122.3(1)(b)(ii))

•

the commission of the underlying offence involved five or more records each of which has a security classification (subparagraph 122.3(1)(b)(iii))

•

the commission of the underlying offence involved the person altering a record to remove or conceal its security classification (subparagraph 122.3(1)(b)(iv)), or

•

that at the time the person committed the underlying offence, the person held an Australian Government security clearance allowing the person to access information that has a security classification of at least secret (subparagraph 122.3(1)(b)(v)).

1510. Section 5.6 of the Criminal Code will apply the automatic fault element of recklessness to the circumstances in subparagraphs 122.3(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.

1511. Strict liability will apply to elements of the definition of security classification for subparagraph 122.3(1)(b)(iii).

1512. For subparagraph 122.3(1)(b)(ii), the prosecution will have to prove beyond reasonable doubt that the commission of the underlying offence involved a record containing information that is marked with a code word, the phrase "for Australian eyes only", or as prescribed by the regulations for the purposes of this subparagraph.

1513. The inclusion of a protective marking on a record denotes that the record contains information that requires special protection or handling, beyond that which would ordinarily be required based on the record's security classification. The unauthorised disclosure of, or improper dealing with, such information is a particularly serious matter justifying a higher maximum penalty, because:

•

of the particular harms that are likely to arise, if the information is improperly disclosed or handled, and

•

a person who holds a record containing such a marking is on-notice as to the need for special protection for the information contained therein, either because:

o

if the person is familiar with the marking, the nature of the information it protects, and the requirements that apply to it-the person has actual knowledge of those matters; or

o

if the person is unfamiliar with the marking-the person is, or ought reasonably to be, on notice as to the fact that the information contains information of some particular sensitivity, and more importantly, that the person likely cannot accurately predict the harm that would arise should it be improperly disclosed or handled.

1514. A code word is a word or phrase indicating that the information contained in the record is in a special need to know compartment. It is often necessary to take precautions beyond those normally indicated by the security classification to protect particular information. These precautions will be specified by the organisation that owns the information-for instance, those with a need to access information covered by a code word will typically be given a special briefing about the nature of the information covered by the code word, the reasons for its sensitivity, and the special measures that must be taken to protect it, and required to sign a non-disclosure agreement.

1515. The phrase 'for Australian eyes only' indicates that the information may only be passed to appropriately security cleared Australian citizens (including dual citizens), on a need-to-know basis. Foreign nationals cannot be allowed access to such information, even if they hold an appropriate Australian security clearance.

1516. Part 2.3.4 of the Guide to Framing Commonwealth Offences provides that the content of an offence should only be delegated to another instrument where there is a demonstrated need to do so. It is necessary to including a regulation-making power to prescribe additional record markings for the purpose of subparagraph 122.3(1)(b)(ii) because:

•

the definition will involve a level of detail that is not appropriate for inclusion in the Criminal Code-there are a variety of record markings, in varying permutations and combinations, that might appropriately be prescribed. For example:

o

the marking 'AUSTEO' is the standard and commonly used abbreviation of 'for Australian eyes only', and might appropriately be specified in regulations as an alternative marking, and

o

the marking 'AGAO' (for Australian Government Access Only) is used by the Department of Defence and ASIO to denote that those agencies may pass the marked information to appropriately cleared representatives of foreign governments on exchange or long-term posting or attachment to the Australian Government, but that other agencies are to handle the information as though it were AUSTEO.

•

prescription in regulations is necessary because of the changing nature of the subject matter-it will be necessary for the definition to keep up to date with changes to Commonwealth protective security policy, to ensure that there is no inconsistency between that which the policy requires or authorises, and that which is subject to the offence provisions; and

•

the relevant material involves material of such a technical nature that it is not appropriate to deal with it in the Act-as noted above, there are a variety of protective markings used by the Australian Government, that would appropriately be listed in regulations given their technical nature.

1517. In the example above, Person A copied, removed from its proper place of custody, and published 20 records marked with one or more code words, which would fall within subparagraph 122.3(1)(b)(ii).

1518. The prosecution will have to prove that the defendant was reckless as to whether the record was marked with a code word, 'for Australian eyes only' or as prescribed by the regulations. Therefore, the defendant must have been aware of a substantial risk that the record was marked with a code word, 'for Australian eyes only' or as prescribed by the regulations and, having regard to the circumstances known to him or her, it was unjustifiable to take that risk.

1519. For subparagraph 122.3(1)(b)(iii), the prosecution will need to prove beyond reasonable doubt that the defendant dealt with five or more records or articles, each of which has a security classification, in relation to the commission of the underlying offence.

1520. 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.

1521. Under new subsection 121.1(3), strict liability will apply to some aspects of the definition of security classification. Subsection 121.1(3) 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).

1522. 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.

1523. 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.

1524. 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).

1525. In the example above, Person A copied, removed from its proper place of custody, and published 100 records which had a security classification of SECRET, which would fall within subparagraph 122.3(1)(b)(iii).

1526. For subparagraph 122.3(1)(b)(iv), the prosecution will need to prove beyond reasonable doubt that the defendant altered a record or article to remove or conceal its security classification. Security classification is defined in section 90.5, to be inserted by Item 16 of Schedule 1.

1527. 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.

1528. 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 by passing the record off as being unclassified or suitable for removal. A person who takes such active steps to facilitate and conceal the commission of the underlying offence demonstrates a particularly high level of culpability, justifying a higher maximum penalty.

1529. Subparagraph 122.3(1)(b)(iv) provides that an aggravating circumstance is where, at the time the person committed the underlying offence, the person held an Australian Government security clearance. Recklessness applies to this element, therefore 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 allowing the person to access information that has a security classification of at least secret, and, having regard to the circumstances known to him or her it was unjustifiable to take that risk.

1530. Australian Government security clearance will be defined in the Dictionary to the Criminal Code 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.

1531. Subparagraph 91.6(1)(b)(v)is an aggravating factor because people who hold a 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.

1532. The maximum penalty for the aggravated offence depends on the maximum penalty for the underlying offence. If the penalty of the underlying offence is imprisonment for seven years, which applies to the offences for the communication of inherently harmful information or information causing harm to Australia' interests, the penalty for the aggravated offence is imprisonment for ten years.

1533. If the penalty for the underlying offence is imprisonment for three years, which is the case for the remaining offences involving other kinds of dealing, moving information from its proper place of custody, or failing to comply with a lawful direction, the penalty for the aggravated offence is imprisonment for five years.

1534. The higher maximum penalty reflects the higher level of culpability associated with proof of the circumstances set out in paragraph 122.3(1)(b) and the extreme risk posed to Australia's national security in such cases. The penalties for the aggravated offence are consistent with the established principle 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.

1535. Subsection 122.3(4) provides that, to avoid doubt, a person does not commit an underlying offence for the purpose of the first physical element, if the person has a defence to the underlying offence. The subsection also provides that a person may be convicted of the aggravated offence, even if they person has not been convicted of the underlying offence. In such a case, it would be necessary for the prosecution to prove the commission of the underlying offence.

Section 122.4-Unauthorised disclosure of information by current and former Commonwealth officers etc.

1536. Subsection 122.4 creates an offence where a person communicates information, the person made or obtained the information by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity, the person is under a duty not to disclose the information, and the duty arises under a law of the Commonwealth.

1537. The offence will carry a maximum penalty of two years' imprisonment.

1538. The offence is a modernised form of the general secrecy offence from section 70 of the Crimes Act, applying to current and former Commonwealth officers who communicate information in breach of a legal duty of non-disclosure arising under a law of the Commonwealth.

1539. At present, many Acts and Regulations impose duties of non-disclosure on Commonwealth officers that enliven the offence in section 70 of the Crimes Act. If section 70 were repealed without replacement, those duties would lose their criminal enforceability, potentially undermining the protection of information that should appropriately be protected.

1540. The offence in section 122.4 is intended to preserve the operation of those specific secrecy frameworks, until such time as each duty can be reviewed to determine whether it should be converted into a stand-alone specific secrecy offence, or whether criminal liability should be removed. Given the number and diversity of such duties, this review will be conducted as each duty is next considered, rather than within a specific period of time. Accordingly, this offence is not subject to a sunset provision.

1541. Examples of the offence are as follows:

•

Example 1: Person A is an APS employee and obtains information in connection with his or her employment as an APS employee that was communicated in confidence within the government. Subregulation 2.1(4) of the Public Service Regulations 1999 provides that the APS employee must not disclose such information. Person A communicates the information otherwise than in accordance with subregulation 2.1(5), which sets out the circumstances in which an APS employee may disclose such information.

•

Example 2: Person B is a member of the Australian Federal Police, which is an interception agency within the meaning of the Telecommunications (Interception and Access) Act 1979. Person B receives an interception capability plan, containing the details of a Carrier X's strategies for compliance with its legal obligation to provide interception capabilities in relation to its telecommunications services. Section 202 of the Act provides that Person B, as an employee of an interception agency, must treat the plan as confidential, and ensure that is not disclosed to any person or body who is not listed in section 202 without the written permission of the carrier. Person B communicates the plan to his or her friend, who owns a carrier that is a competitor of Carrier X.

1542. To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

•

the person intentionally communicated information

•

the person made or obtained the information by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and the person was reckless as to this element

•

the person was under a duty to not disclose the information and the person is reckless as to this element, and

•

the duty arose under a law of the Commonwealth.

1543. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 122.4(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.

1544. Recklessness is the fault element applying to paragraphs 122.4(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 the risk.

1545. Absolute liability applies in relation to paragraph 122.4(1)(d), consistent with subsection 122.4(2).

1546. For paragraph 122.4(1)(a), the prosecution will have to prove beyond a reasonable doubt that the person intentionally communicated the information.

1547. The term 'communicates' is taken to include references to 'publishes' and 'makes available', consistent with subsection 121.1(2). It is intended to include imparting or transmitting information by any means. It is not intended to require, as a rule, proof that the information was received by another person, or proof that another person read, heard or viewed the information. A person would communicate information where, for example, a person sends an email containing information, even if the email is not read by another person.

1548. For paragraph 122.4(1)(b), the prosecution will have to prove beyond reasonable doubt that the person made or obtained the information by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

1549. The fault element of recklessness applies to this element. As a result, the prosecution will have to prove that the defendant was reckless as to the fact that the person made or obtained the information by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity. Therefore, the defendant will have to be aware of a substantial risk that he or she made or obtained the information by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and, having regard to the circumstance known to him or her, it was unjustifiable to take the risk.

1550. Commonwealth officer is defined in section 121.1. Commonwealth entity is defined in the Dictionary to the Criminal Code, as being the Commonwealth or a Commonwealth authority. A Commonwealth authority is a body established by or under a law of the Commonwealth, subject to certain exceptions including for a body established under the Corporations Act 2001.

1551. For paragraph 122.4(1)(c), the prosecution will have to prove beyond reasonable doubt that the person was under a duty to not disclose the information.

1552. The fault element of recklessness applies to this element. As a result, the prosecution will have to prove that the defendant was reckless as to the fact that he or she was under a duty to not disclose the information. Therefore, the defendant will have to be aware of a substantial risk that he or she was under a duty to not disclose the information and, having regard to the circumstance known to him or her, it was unjustifiable to take the risk.

1553. For paragraph 122.4(1)(d), the prosecution will have to prove beyond reasonable doubt that the duty referred to in paragraph 122.4(1)(c) arose under a law of the Commonwealth.

1554. Absolute liability applies to this element consistent with subsection 122.4(2). As a result, there is no fault element for this element, and the defence of mistake of fact under section 9.2 is unavailable in relation to this physical element.

1555. It is appropriate to apply absolute liability to these matters because requiring proof of fault of the particular element to which strict or absolute liability applies would undermine deterrence, and there are legitimate grounds for penalising persons lacking 'fault' in respect of this element. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences.

1556. A person can only be criminally liable for the offence against section 122.4 if they are reckless as to whether they are subject to a duty to not disclose the information in question. The question of whether that duty arises under the law of the Commonwealth is, effectively, a question of law. The general position, set out in sections 9.3 and 9.4 of the Criminal Code, is that a person can be criminally responsible for an offence even if, at the time of the conduct constituting the offence, he or she is mistaken about, or ignorant of, the existence or content of an Act or subordinate legislation. Consistent with those general principles of the criminal law, a person should not be excused from criminal liability where they are reckless as to whether they are subject to a duty of non-disclosure, merely because they are mistaken or ignorant about whether that duty arises under a law of the Commonwealth, or under some other source.

1557. The maximum penalty for the offence in subsection 122.4 is two years' imprisonment. This penalty is consistent with the maximum penalty for the offence currently contained in section 70 of the Crimes Act 1914.

1558. Subsection 122.4(3) is a sunset clause, which provides that section 122.4 does not apply in relation to any communication of information that occurs after the end of five years after the section commences.

1559. The offence in section 122.4 largely replicates the existing offence at section 70 of the Crimes Act. This offence has been preserved until such time as each duty, likely to give rise to criminal liability under section 70, can be reviewed to determine whether it should be converted into a stand-alone specific secrecy offence, or whether criminal liability should be removed. The sunset provision will provide for section 122.4 to cease its operation five years after commencement of that sunset provision. This will allow for review of the duties to determine whether there is an ongoing need to enforce them with specific criminal sanctions.

1560. Because there will be other references to section 122.4 on the statute book that would also need to be repealed, section 122.4 will not be repealed by this provision but rather cease its operation.

Section 122.4A-Communicating and dealing with information by non-Commonwealth officers etc.

1561. This provision creates new, separate secrecy offences applying to persons who are not, and have not previously been, Commonwealth officers (as defined in section 121.1). The offences in section 122.4 apply to narrower subsets of information and conduct, and attract lower maximum penalties than the secrecy offences applying to current and former Commonwealth officers at sections 122.1 and 122.2.

1562. This recognises that secrecy offences should apply differently to Commonwealth and non-Commonwealth officers given the former have a higher duty to protect such information, should be well trained in security requirements procedures and, in many cases, have security clearances.

Communicating information

1563. Subsection 122.4A(1) creates an offence where a person, who did not make or obtain the information by reason of being or having been a Commonwealth officer, communicates information that was made or obtained by another person who is, or was, a Commonwealth officer and any one or more of the following applies:

•

the information has a security classification of secret or top secret

•

the communication of the information damages the security or defence of Australia

•

the communication of the information interferes with or prejudices the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth, or

•

the communication of the information harms or prejudices the health or safety of the Australian public or a section of the Australian public.

1564. This offence will carry a maximum penalty of five years' imprisonment

1565. To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

•

the person intentionally communicates information

•

the information was not made or obtained by the person by reason of the person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and the person was reckless as to this element

•

the information was made or obtained by another person by reason of that other person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and the person was reckless as to this element, and

•

any one or more of the following applies

o

the information has a security classification of secret or top secret and the person is reckless as to this element (noting that some aspects of the definition carry strict liability, which is explained below)

o

the communication of the information damages the security or defence of Australia and the person is reckless as to this element

o

the communication of the information interferes with or prejudices the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth and the person is reckless as to this element, or

o

the communication of the information harms or prejudices the health or safety of the Australian public or a section of the Australian public and the person is reckless as to this element.

1566. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 122.4A(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. Recklessness is the fault element for paragraphs 122.4A(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.

1567. For paragraph 122.1(1)(a), the prosecution will have to prove beyond a reasonable doubt that the person intentionally communicated information.

1568. The term 'communicates' is taken to include references to 'publishes' and 'makes available', consistent with subsection 121.1(2). It is intended to include imparting or transmitting information by any means. It is not intended to require, as a rule, proof that the information was received by another person, or proof that another person read, heard or viewed the information. A person would communicate information where, for example, a person sends an email containing information, even if the email is not read by another person.

1569. For paragraph 122.4A(1)(b), the prosecution will have to prove that the information was not made or obtained by the person by reason of the person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

1570. The fault element of recklessness applies to this element. Therefore, the prosecution will be required to prove beyond reasonable doubt that the person was aware of a substantial risk that the information was not made or obtained by the person by reason of the person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

1571. For paragraph 122.4A(1)(c), the prosecution will have to prove that the information was made or obtained by that or any other person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

1572. The fault element of recklessness applies to this element. Therefore, the prosecution will be required to prove beyond reasonable doubt that the person was aware of a substantial risk that the information was made or obtained by that or any other person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

1573. For subparagraph 122.4A(1)(d)(i), the prosecution will have to prove that the information had a security classification of secret or top secret.

1574. 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.

1575. The reference to information carrying a security classification of secret or top secret ensures that this offence will only apply where paragraph 90.5(1)(a) applies. It will not apply to equivalent classifications prescribed under paragraph 90.5(1)(b).

1576. The prosecution will be required to prove that the information had a classification of TOP SECRET or SECRET or an equivalent classification and that the person was reckless as to this.

1577. Consistent with new subsection 121.1(3), strict liability will apply to some aspects of the definition of security classification. Paragraph 121.1(3)(a) 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).

1578. 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.

1579. 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.

1580. For subparagraph 122.4A(1)(d)(ii), the prosecution will have to prove that the communication of the information damages the security or defence of Australia. Unlike the offences that apply to current and former Commonwealth officers, the harm to the security or defence of Australia will need to actually occur for the offence to be committed.

1581. The fault element of recklessness applies to this element. Therefore, the prosecution will need to prove beyond a reasonable doubt that the person was aware of a substantial risk that the communication of the information damaged the security or defence of Australia and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

1582. For subparagraph 122.4A(1)(d)(iii), the prosecution will have to prove that the communication of the information interferes with or prejudices the prevention, detection, investigation, prosecution of punishment of a criminal offence against a law of the Commonwealth. Unlike the offences that apply to current and former Commonwealth officers, the interference or prejudice will need to actually occur for the offence to be committed.

1583. The fault element of recklessness applies to this element. Therefore, the prosecution will need to prove beyond a reasonable doubt that the person was aware of a substantial risk that the communication of the information interferes with or prejudices the prevention, detection, investigation, prosecution of punishment of a criminal offence against a law of the Commonwealth and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

1584. For subparagraph 122.4A(1)(d)(iv), the prosecution will have to prove that the communication of the information harms or prejudices the health or safety of the Australian public or a section of the Australian public. Unlike the offences that apply to current and former Commonwealth officers, the harm or prejudice will need to actually occur for the offence to be committed.

1585. The fault element of recklessness applies to this element. Therefore, the prosecution will need to prove beyond a reasonable doubt that the person was aware of a substantial risk that the communication of the information harms or prejudices the health or safety of the Australian public or a section of the Australian public and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

1586. Note 1 to subsection 122.1(1) clarifies that exceptions to the offence are set out at section 122.5.

1587. Note 2 under subsection 122.4A(1) clarifies that the fault elements for this offence are intention for paragraph (1)(a) and recklessness for paragraphs (1)(b) to (d).

1588. This Note has no practical effect, as section 5.6 of the Criminal Code already applies these as the automatic fault elements. The inclusion of this Note carries no implication that section 5.6 of the Criminal Code is ineffective in applying the relevant fault elements. It is intended only to provide clarity to the reader.

1589. This offence will carry a maximum penalty of five years' imprisonment. This is less than the penalty applying to the equivalent offences applying to current and former Commonwealth officers, and reflects the serious consequences of the communication of the information covered by the offence, given the fact that it will damage the security or defence of Australia, interfere with criminal justice processes or prejudice the health or safety of the Australian public.

Other dealings with information

1590. Subsection 122.4A(2) creates an offence where a person, who did not make or obtain the information by reason of being or having been a Commonwealth officer, deals with information (other than by communicating it) where the information was made or obtained by another person who is, or was, Commonwealth officer and any one or more of the following applies:

•

the information has a security classification of secret or top secret

•

the communication of the information damages the security or defence of Australia

•

the communication of the information interferes with or prejudices the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth, or

•

the communication of the information harms or prejudices the health or safety of the Australian public or a section of the Australian public.

1591. This offence will carry a maximum penalty of two years' imprisonment.

1592. To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

•

the person intentionally deals with information (other than by communicating it)

•

the information was not made or obtained by the person by reason of the person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and the person was reckless as to this element

•

the information was made or obtained by another person by reason of that other person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and the person was reckless as to this element, and

•

any one or more of the following applies:

o

the information has a security classification of secret or top secret and the person is reckless as to this element (noting that some aspects of the definition carry strict liability, which is explained below)

o

the communication of the information damages the security or defence of Australia and the person is reckless as to this element

o

the communication of the information interferes with or prejudices the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth and the person is reckless as to this element, or

o

the communication of the information harms or prejudices the health or safety of the Australian public or a section of the Australian public and the person is reckless as to this element.

1593. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 122.4A(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. Recklessness is the fault element for paragraphs 122.4A(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.

1594. For paragraph 122.1(1)(a), the prosecution will have to prove beyond a reasonable doubt that the person intentionally dealt with the information, other than by communicating it. The term deal is defined for the purposes of Part 5.6 in section 121.1 as having the meaning given by Part 5.2 of the Criminal Code. The definition is intended to ensure that the offence operates to deter the disclosure information covered by paragraph 122.4A(2)(d). For example, the element will be satisfied where:

•

a person intentionally obtains or collects information-each of which may either be steps towards the disclosure of the information, or the result of the disclosure of the information, or

•

a person intentionally copies or conceals the information-such conduct would, or would be likely to, facilitate the disclosure of the information (for example, by preventing its discovery or recovery by authorities).

1595. However, the element will not be satisfied by a person reading, analysing or using the information. The nature of information that will or is likely to harm Australia's interests is that the harm to those interests would have, or could be likely to have, crystallised when the information was disclosed. The object of the offence framework, therefore, is to strongly deter the disclosure of such information in the first instance.

1596. For paragraph 122.4A(2)(b), the prosecution will have to prove that the information was not made or obtained by the person by reason of the person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

1597. The fault element of recklessness applies to this element. Therefore, the prosecution will be required to prove beyond reasonable doubt that the person was aware of a substantial risk that the information was not made or obtained by the person by reason of the person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

1598. For paragraph 122.4A(2)(c), the prosecution will have to prove that the information was made or obtained by that or any other person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

1599. The fault element of recklessness applies to this element. Therefore, the prosecution will be required to prove beyond reasonable doubt that the person was aware of a substantial risk that the information was made or obtained by that or any other person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

1600. For subparagraph 122.4A(2)(d)(i), the prosecution will have to prove that the information had a security classification.

1601. 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.

1602. The reference to information having a security classification of secret or top secret ensures that this offence will only apply where paragraph 90.5(1)(a) applies. It will not apply to equivalent classifications prescribed under paragraph 90.5(1)(b).

1603. The prosecution will be required to prove that the information had a classification of TOP SECRET or SECRET or an equivalent classification and that the person was reckless as to this.

1604. Consistent with new subsection 121.1(3), strict liability will apply to some aspects of the definition of security classification. Paragraph 121.1(3)(a) 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).

1605. 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.

1606. 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.

1607. For subparagraph 122.4A(2)(d)(ii), the prosecution will have to prove that the communication of the information damages the security or defence of Australia. Unlike the offences apply to current and former Commonwealth officers, the harm to the security or defence of Australia will need to actually occur for the offence to be committed.

1608. The fault element of recklessness applies to this element. Therefore, the prosecution will need to prove beyond a reasonable doubt that the person was aware of a substantial risk that the communication of the information damaged the security or defence of Australia and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

1609. For subparagraph 122.4A(2)(d)(iii), the prosecution will have to prove that the communication of the information interferes with or prejudices the prevention, detection, investigation, prosecution of punishment of a criminal offence against a law of the Commonwealth. Unlike the offences that apply to current and former Commonwealth officers, the interference or prejudice will need to actually occur for the offence to be committed.

1610. The fault element of recklessness applies to this element. Therefore, the prosecution will need to prove beyond a reasonable doubt that the person was aware of a substantial risk that the communication of the information interferes with or prejudices the prevention, detection, investigation, prosecution of punishment of a criminal offence against a law of the Commonwealth and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

1611. For subparagraph 122.4A(2)(d)(iv), the prosecution will have to prove that the communication of the information harms or prejudices the health or safety of the Australian public or a section of the Australian public. Unlike the offences that apply to current and former Commonwealth officers, the harm or prejudice will need to actually occur for the offence to be committed.

1612. The fault element of recklessness applies to this element. Therefore, the prosecution will need to prove beyond a reasonable doubt that the person was aware of a substantial risk that the communication of the information harms or prejudices the health or safety of the Australian public or a section of the Australian public and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

1613. The Note under subsection 122.4A(2) clarifies that the fault elements for this offence are intention for paragraph (2)(a) and recklessness for paragraphs (2)(b) to (d).

1614. This Note has no practical effect, as section 5.6 of the Criminal Code already applies these as the automatic fault elements. The inclusion of this Note carries no implication that section 5.6 of the Criminal Code is ineffective in applying the relevant fault elements. It is intended only to provide clarity to the reader.

1615. This offence will carry a maximum penalty of two years' imprisonment. This is less than the penalty applying to the equivalent offences applying to current and former Commonwealth officers, and reflects the serious consequences of dealings with the information covered by the offence, given that it will damage the security or defence of Australia, interfere with criminal justice processes or prejudice the health or safety of the Australian public.

1616. Subsection 122.4A(3) provides that, in proceedings against the offences in subsections 122.4A(1) and (2), it is not necessary for the prosecution to prove the identity of the other person referred to in paragraph (1)(c) or (2)(c). That is, although the prosecution will need to prove that the information was made or obtained by another person by reason of that other person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity (and that the defendant is reckless as to this), it will not be necessary for the identity of the actual Commonwealth officer who made or obtained to be known or identified in order to establish the offence.

Section 122.5-Defences

1617. This item inserts new section 122.5 to the Criminal Code, which contains a suite of offence-specific defences to the offences in sections 122.1, 122.2, 122.4 and 122.4A, and which thereby also operate to limit the circumstances in which a person may be criminally liable for the aggravated offence in section 122.3.

1618. The offences in Division 122 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 Commonwealth officers, persons engaged to perform work on behalf of a Commonwealth entity, and other persons deal with inherently harmful information, or information the communication of which would cause harm to Australia's interests, 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, for Ministers and their staff, for State and Territory law enforcement agencies working on counter-terrorism investigations, and for defence contractors. It is not intended to criminalise these dealings.

1619. These offence-specific defences operate to supplement the circumstances set out in Part 2.3 of the Criminal Code in which there is no criminal responsibility.

1620. Both the AFP and the 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.

Powers, functions and duties in a person's capacity as a public official etc. or under arrangement

1621. Subsection 122.5(1) will provide a defence if:

•

the person was exercising a power, or performing a function or duty, in the person's capacity as a public official or a person who is otherwise engaged to perform work for a Commonwealth entity.; or

•

the person communicated, removed, held or otherwise dealt with the information in accordance with an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information.

1622. 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.

1623. 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.

1624. 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.

1625. The defence at paragraph 122.5(1)(a) is broader than the lawful authority defence available under section 10.5, and will cover a person was exercising a power, or performing a function or duty, in the person's capacity as a public official or a person who is otherwise engaged to perform work for a Commonwealth entity, 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 122.5(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.

1626. It is intended that the defence in paragraph 122.5(1)(a) should allow for the exercise of professional judgment and the taking of appropriate risks, recognise that in certain circumstances it is necessary to risk or cause a lesser harm to avert a greater harm, and recognise that in certain circumstances decisions made in a person's capacity as a Commonwealth officer or a person who is otherwise engaged to perform work for a Commonwealth entity may cause harm to Australia's interests. For example, a member of the AFP should not be criminally liable if they make a reasonable operational judgment to communicate criminal intelligence to a potential witness, which may risk prejudicing an investigation, in an attempt to elicit important evidence from that witness. Similarly, the Minister or senior official should not be criminally liable if they include a statement of government policy concerning a matter of international significance in official remarks, and a foreign government takes umbrage at the Australian Government's policy on that matter resulting to harm to Australia's international relations with that foreign government.

1627. This defence is also intended to apply for example, to the disclosure of information by person exercising a power, or performing a function or duty, in the person's capacity as a Commonwealth officer, where the disclosure is made in accordance with the Privacy Act 1988 including the Notifiable Data Breaches scheme under Part IIIC of that Act.

1628. The defence at paragraph 122.5(1)(b) applies when person communicated, dealt with, removed or held the information in accordance with an agreement or arrangement to which the Commonwealth or a Commonwealth entity is party allowing for the exchange of information. Many departments and agencies share information with State, Territory and international counterparts, private companies, and individuals as part of their normal business dealings. Often this information is highly sensitive and highly classified. This defence provides that the secrecy offences in Division 122 do not apply if a person's conduct was in accordance with an agreement or arrangement to which the Commonwealth or a Commonwealth entity was a party and which allows for the exchange of information.

1629. 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. It is also intended that such terms will include ad hoc agreements or arrangements, including non-disclosure agreements relating to discrete pieces of information.

1630. The Note under the defence at subsection 122.5(1) 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 122.5(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 Commonwealth official or as a person engaged to perform work for a Commonwealth entity, or was 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 arrangement or agreement to which the Commonwealth is a party, 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 their duties or a particular arrangement or agreement to which the Commonwealth is a party; it would not be difficult for them to describe where they thought that authority arose.

1631. 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).

Information that is already public

1632. Subsection 122.5(2) will provide a defence if the information in relation to which the offence is committed is information that has already been communicated or made available to the public with the authority of the Commonwealth.

1633. It is intended that, where the Commonwealth has made inherently harmful information or information that would cause harm to Australia's interests public, that persons should be free to deal in that information.

1634. It is intended that communicating or making available information to 'the public' includes to the public at large, to a segment of the public, or to individual members of the public or a segment of the public on request. Information can be made available to the public, even if no member of the public actually obtains or collects the information. For example, it is intended that:

•

information will be communicated to the public if it is included in a speech or interview given in public or to a professional forum;

•

information will be made available to the public if it is posted on a publicly-accessible website, even if no one visits the website; and

•

information will be made available to the public if members of the public are entitled to request access to the information, even if no members of the category do request access to it.

1635. Comparatively, it is intended that information will not be communicated or made available to the public if the information is communicated or made available to persons subject to a confidentiality or non-disclosure agreement, or on the expectation of confidentiality.

1636. It is intended that information will be made available 'with the authority of the Commonwealth' if it is made available with the authority of a Commonwealth officer or a person otherwise engaged to perform work for the Commonwealth who has the authority to make the information public.

1637. The Note under the defence at subsection 122.5(2) 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 122.5(2) satisfies both of these criteria. . Evidence that the information was publicly available is evidence peculiarly within the knowledge of the defendant. Moreover, the defendant should be readily able to point to evidence to found a suggestion of a reasonable possibility that the information was communicated or made public with the authority of the Commonwealth. It would be difficult and more costly for the prosecution to prove, beyond a reasonable doubt, that the information had not already been communicated or made available to the public with the authority of the Commonwealth. To do this, it would be necessary to negate the fact that the information was in any way communicated or made available to the public with any form of authority of any Commonwealth government agency. Conversely, it would not be difficult for the defendant to point to the particular instance of prior public communication and thus the relevant Commonwealth authority for which the communication of the information was authorised.

1638. 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).

Information communicated etc. to integrity agency

1639. Subsection 122.5(3) will provide a defence to a prosecution relating to the communication of information under Division 122 if the person communicated the information, or removed, held or otherwise dealt with the relevant information for the purpose of communicating:

•

to the Inspector-General of Intelligence and Security, the Commonwealth Ombudsman, the Australian Information Commissioner, or the Law Enforcement Integrity Commissioner, or to their staff; or

•

for the purpose of the Inspector-General, the Ombudsman or the Commissioners exercising a power, or performing a function or duty.

1640. It is intended that the general secrecy offences should in no way impinge on the ability of the Inspector-General, the Ombudsman, the Australian Information Commissioner or the Integrity Commissioner, or their staff, to exercise their powers, or to perform their functions or duties. These officials are typically entitled to access any information in the course of performing their functions and duties, reflecting the paramount importance of effective oversight of the intelligence community, law enforcement agencies and the public service.

1641. It is intended that the defence in subsection 122.5(3) be available for a prosecution for dealing with information, moving information from its proper place of custody, or failing to comply with a direction if the person's conduct 'related to' the communication of information to an oversight body, or for the purposes of an oversight body. For example, it is intended that a person be permitted to copy a document for the purpose of communicating the copy to an oversight body. Similarly, in the course of communicating information to an oversight body, it may be necessary for the person to temporarily remove the information from its proper place of custody or to breach a direction regarding the retention of that information (such as a direction that the information not be removed from a particular place). However, it is not intended that a person should be able to continue dealing in or holding information, if they have no intention of actually communicating it to an oversight body, or have ceased to have that intention.

1642. 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 122.5(3) satisfies both of these criteria.

1643. In relation to 122.5(3)(a) evidence founding a suggestion that there is a reasonable possibility that the defendant's conduct related to the communication of the information to an oversight body is evidence peculiarly within the knowledge of the defendant. It would be difficult and more costly for the prosecution to prove, beyond a reasonable doubt, that the person did not communicate the information to an oversight agency listed in 122.5(3)(a). To do this, it would be necessary to negate the fact that the person communicated the information to the IGIS, the Commonwealth Ombudsman, the Australian Information Commissioner, the Law Enforcement Integrity Commission or any officers, staff other relevant persons engaged by the offices of these agencies. Requiring the prosecution to prove beyond reasonable doubt that a person's conduct was not for such a purpose would often prove an insurmountable barrier to a successful prosecution, undermining the deterrent effect of the new general secrecy offences.

1644. Conversely, it would not be difficult for the defendant to point to the particular instance of communication to the relevant agency. In relation to paragraph 122.5(3)(b) the imposition of the evidential burden on the defendant is appropriate because evidence of a reasonable possibility that the conduct related to providing the information to an oversight agency for the purpose of that agency exercising a power or performing a function or duty is evidence peculiarly within the knowledge of defendant. It would be difficult and more costly for the prosecution to prove, beyond a reasonable doubt, that the person did not communicate the information to an oversight agency for the purpose of that agency exercising a power or performing a function or duty. To do this, it would be necessary to negate the fact that the person communicated the information to an oversight agency for the purpose of that agency exercising any aspect of the agency's power, or performing any aspects of the agency's function of duty. Requiring the prosecution to prove beyond reasonable doubt that a person's conduct was not for such a purpose would often prove an insurmountable barrier to a successful prosecution, undermining the deterrent effect of the new general secrecy offences.

1645. 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).

1646. This Note under subsection 122.5(3) provides that a person mentioned in subsection (3)(a) does not bear an evidential burden in relation to the matters in subsection 122.5(3), and directs the reader to see subsection 122.5(12). New subsection 122.5(12) will provide that integrity agencies and their staff do not bear an evidential burden.

Information communicated etc. in accordance with the Public Interest Disclosure Act 2013 or the Freedom of Information Act 1982

1647. Subsection 122.5(4) will provide a defence to a prosecution for an offence relating to the communication, removing, holding or otherwise dealing with information, if it was for the purpose of communicating the information in accordance with the Public Interest Disclosure Act 2013 or the Freedom of Information Act 1982. The PID Act establishes a legislative scheme to investigate allegations of wrongdoing in the Commonwealth public sector and provide robust protections for current or former public officials who make qualifying public interest disclosures under the scheme. The scheme covers persons in, or with a relevant connection to, the Commonwealth public sector and includes directors and officers of bodies subject to the Commonwealth Authorities and Companies Act 1997 as well as employees of Commonwealth intelligence agencies and law enforcement agencies and, in certain circumstances contractors providing services to the Commonwealth as well as their employees. The FOI Act provides a right of access to documents held by Australian Government ministers and most agencies.

1648. It is intended that the general secrecy offences should in no way impinge on the operation of the PID Act or the FOI Act.

1649. It is intended that the defence in subsection 122.5(4) be available for a prosecution for communicating information, dealing with information, moving information from its proper place of custody, or failing to comply with a direction if the person's conduct 'related to' the communication of information in accordance with the PID Act or FOI Act. For example, it is intended that a person be permitted to copy a document for the purpose of communicating the copy in accordance with the PID Act or FOI Act. Similarly, in the course of communicating information in accordance with the PID Act or FOI Act, it may be necessary for the person to temporarily remove the information from its proper place of custody or to breach a direction regarding the retention of that information (such as a direction that the information not be removed from a particular place), in particular if the person makes an external disclosure in accordance with the PID Act. However, it is not intended that a person should be able to continue dealing in or holding information, if they have no intention of actually communicating it in accordance with the PID Act or FOI Act, or have ceased to have that intention.

1650. The Note under the defence at subsection 122.5(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 122.5(4) satisfies both of these criteria. Evidence of a reasonable possibility that the information was communicated in accordance with the PID Act or FOI Act is evidence peculiarly within the knowledge of the defendant. It would be difficult and more costly for the prosecution to prove, beyond a reasonable doubt, that the person did not communicate the information in accordance with the PID Act or FOI Act. To do this, it would be necessary to negate the fact that the person communicated the information in accordance with any requirement to disclose information arising under the Act. Requiring the prosecution to prove beyond reasonable doubt that a person's conduct was not for such a purpose would often prove an insurmountable barrier to a successful prosecution, undermining the deterrent effect of the new general secrecy offences. Conversely, it would not be difficult for the defendant to identify the particular requirement of the PID Act or FOI Act in accordance with which they communicated the information.

1651. 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).

Information communicated etc. for the purpose of reporting offences and maladministration

1652. Subsection 122.5(4A) will provide a defence where a person communicates, removes, holds or otherwise deals with information for the primary purpose of reporting, to an appropriate agency of the Commonwealth, a state or a territory:

•

a criminal offence, or alleged criminal offence, against a law of the Commonwealth

•

maladministration relating to the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth, or

•

maladministration relating to the performance of functions of the AFP under the Australian Federal Police Act 1979 or the Proceeds of Crime Act 2002.

1653. The PJCIS report noted (at paragraph 5.102) that:

the definition of 'cause harm to Australia's interests' includes to interfere with or prejudice the prevention, detection, investigation, prosecution and punishment of Commonwealth criminal offences, and other AFP functions under the Australian Federal Police Act 1979 and the Proceeds of Crimes Act 2002. As a result, proposed subsection 122.5(8) may not protect a person who wished to report misconduct or maladministration in, for example, the investigation of a Commonwealth criminal offence, as it would be difficult for that person to claim that their reporting of the wrongdoing did not interfere with the investigation.

1654. The defence in subsection 122.5(4A) would explicitly protect a person who communicated, removed, held or otherwise dealt with information for the purpose of reporting a Commonwealth criminal offence or reporting maladministration regarding the administration of Commonwealth criminal law, or relating to the AFP's functions.

1655. This defence will cover the situations identified in paragraph 5.103 of the PJCIS report:

This may include, for example, a member of the public reporting misconduct by a police officer to a more senior officer in the same police force; or reporting to a state oversight body maladministration in the use of information shared by the Commonwealth to a state police force.

1656. Maladministration is not defined, and is intended to take a broad meaning. This could include conduct that is corrupt, an abuse of public trust, based in whole or in part on improper motives or is unreasonable, unjust or oppressive. It would also cover conduct that results in the wastage of Commonwealth property or money or which creates a risk to the health or safety of the Australian public.

1657. The Note under subsection 122.5(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 122.5(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 seeking to report a criminal offence or maladministration in the administration of the criminal law. 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 general secrecy 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.

1658. 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.

Information communicated etc. to a court or tribunal

1659. Subsection 122.5(5) will provide a defence to a prosecution for an offence relating to the communication, removal, holding or otherwise dealing with information, if it was for the purpose of communicated it to a court or tribunal (whether or not as a result of a requirement).

1660. It is intended that the general secrecy offences should in no way impinge on the ability for courts to receive information, reflecting the public interest in the full availability of relevant information in the administration of justice. Similarly, it is intended that the general secrecy offences should in no way impinge on the ability for tribunals to receive information, reflecting the necessity for tribunals reviewing administrative decisions to have access to full information to make the most appropriate decisions.

1661. It is intended that the defence in subsection 122.5(5) be available for a prosecution for communicating information, dealing with information, moving information from its proper place of custody, or failing to comply with a direction if the person's conduct 'related to' the communication of information to a court or tribunal. For example, it is intended that a person be permitted to copy a document for the purpose of communicating the copy to a court or tribunal. Similarly, in the course of communicating information to a court or tribunal, it may be necessary for the person to temporarily remove the information from its proper place of custody or to breach a direction regarding the retention of that information (such as a direction that the information not be removed from a particular place). However, it is not intended that a person should be able to continue dealing in or holding information, if they have no intention of actually communicating it to a court or tribunal, or have ceased to have that intention.

1662. The defence at subsection 122.5(5) is not intended to be used to avoid liability for contraventions of the NSI Act in criminal proceedings in which the NSI Act has been invoked. For example, where the disclosure of certain national security information in a court proceeding has been limited under the NSI Act, and a person discloses information in contravention of that Act, the defence at subsection 122.5(5) is not intended to protect the person from liability.

1663. The Note under the defence at subsection 122.5(5) 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 122.5(5) satisfies both of these criteria. Evidence that the person's conduct related to the communication of the information to a court or tribunal is evidence peculiarly within the knowledge of the defendant. It would be difficult and more costly for the prosecution to prove, beyond a reasonable doubt, that the person's conduct did not relate to the communication of information to a court or tribunal. To do this, it would be necessary to negate the fact that the person communicated the information to any court or tribunal in any proceedings before it. Requiring the prosecution to prove beyond reasonable doubt that a person's conduct was not for such a purpose would often prove an insurmountable barrier to a successful prosecution, undermining the deterrent effect of the new general secrecy offences. Conversely, it would not be difficult for the defendant to identify the particular court or tribunal proceedings to which they communicated the information.

1664. 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).

Information communicated etc. for the purpose of obtaining or providing legal advice

1665. New subsection 122.5(5A) provides a defence where information is communicated, removed, held or otherwise dealt with for the primary purpose of obtaining or providing, in good faith, legal advice. The legal advice must relate to the conduct constituting an offence against Part 5.6 (Secrecy of information) or the application of any right, privilege, immunity or defence in relation to such an offence. The defence does not have to be contained in Part 5.6 (Secrecy of information). For example, it could be the general defence of lawful authority as set out in section 10.5 of the Criminal Code.

1666. The defence applies whether the advice was obtained or provided before or after the person engaged in the conduct constituting the offence. This will ensure that a person can disclose sensitive material to his or her lawyer for the purpose of obtaining legal advice on whether an offence may be committed by the person's proposed conduct in relation to the material or whether an offence has been committed by the person's conduct already carried out. The provision is also intended protect lawyers, who may need to deal with or hold the information in the course of providing legal advice.

1667. The Note under subsection 122.5(5A) 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 122.5(5A) 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 obtaining or providing legal advice. 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 general secrecy 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.

1668. 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.

Information communicated etc. by persons engaged in business of reporting news etc.

1669. Subsection 122.5(6) will provide a defence to a prosecution for an offence relating to communicating, removing, holding or otherwise dealing with information, if:

•

the person:

o

carried out the relevant conduct in their capacity as a person engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media, and

o

at the time, the person reasonably believed that engaging in that conduct was in the public interest; or

•

the person:

o

was, at that time, a member of the administrative staff of an entity that was engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media, and

o

acted under the direction of a journalist, editor or lawyer who was also a member of the staff of the entity, and who reasonably believed that engaged in that conduct was in the public interest.

1670. The defence is intended to cover the range of staff, including legal, editorial and other administrative support staff, engaged in news reporting in media organisations. A person is engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media even if the person only performs administrative functions such as photocopying.

1671. The defence extends to communication, holding, removing or otherwise dealing with information to allow journalists and other staff to undertake a range of activities that are necessary in the course of their work. For example, journalists must obtain or collect information from a source, hold and deal with that information the course of researching and preparing a story, and deal with that information in course of consulting with editors, experts and relevant Australian Government officials to satisfy the journalist as to the appropriate balance between competing public interests. Additionally, the extension for the defence to a person who holds information is intended to enable journalists to perform the important function of 'filtering' stories that are contrary to the public interest. From time-to-time, journalists may obtain or collect information from sources, and determine that it would be contrary to the public interest to publish some or all of that information. For example, in some cases, the public interest may be fully served by publishing a certain amount of information, whereas the publication of further information or particular details may, on balance, be contrary to the public interest. It is intended that journalists should be permitted to deal with information, and then determine to either publish the information, or to hold the information rather than to publish the information.

1672. The defence will contain an additional limb applying to administrative staff of an entity that was engaged in reporting news, presenting current affairs or expressing editorial or other content in news media who acted under the direction of a journalist, editor or lawyer who reasonably believed that dealing with or holding the information was in the public interest. This will ensure that any member of the administrative staff is protected if he or she acted under the direction of another person.

1673. A person will only have the benefit of the defence in their capacity as a person engaged in the business of media reporting if the person reasonably believed that engaging in that conduct was in the public interest. It will ordinarily be a matter for the person to adduce or point to evidence that suggests a reasonable belief that their conduct was in the public interest, by reason of section 13.3 of the Criminal Code. It will ordinarily then be a matter for the prosecution to disprove the defence beyond reasonable doubt. However, subsection 122.5(7) provides that, without limiting paragraph (6)(a), dealing with or holding certain information will not be in the public interest, being:

•

information protected by section 92 of the ASIO Act-which protects the identity of ASIO employees and ASIO affiliates

•

information protected by section 41 of the Intelligence Services Act 2001-which protects the identity of the staff and agents of the Australian Secret Intelligence Service

•

dealing with or holding information that would be an offence under section 22, 22A or 22B of the Witness Protection Act 1994 - which protects the identity of Commonwealth, Territory, State participants or information about the National Witness Protection Program, and

•

conduct engaged in for the purpose of directly or indirectly assisting a foreign intelligence agency (as defined in the Dictionary to the Criminal Code, as amended by item 24 of Schedule 1 of the Bill) or a foreign military organisation (as defined by item 6 of Schedule 1 of the Bill).

1674. The Note under the defence at subsection 122.5(6) 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 122.5(6) satisfies both of these criteria. Evidence that the person was acting in their capacity as a as a person engaged in the business of reporting news is evidence peculiarly within the knowledge of the defendant. The defendant should be readily able to point to evidence founding a suggestion that there is a reasonable belief that their conduct was done in the public interest and in their capacity as a as a person engaged in the business of reporting news. Requiring the prosecution to prove beyond reasonable doubt that a person's conduct was not for such a purpose would often prove an insurmountable barrier to a successful prosecution, undermining the deterrent effect of the new general secrecy offences. Conversely, if the defendant had a particular reason for thinking that they were acting in the public interest and within their capacity as a person engaged in the business of reporting news, it would not be difficult for them to describe how and why this was the case.

1675. 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).

Information that has been previously communicated

1676. Subsection 122.5(8) will provide a defence to a prosecution for an offence relating to the communication, removal, holding or other dealing with information, if there has been a prior publication of that information in certain circumstances. A person will not be criminally liable 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 Commonwealth officer

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 communication, removal, holding or dealing, the person believes that the conduct will not cause harm to Australia's interests or the security or defence of Australia, and

•

having regard to the nature, extent and place of the prior publication, the person has reasonable grounds for that belief.

1677. 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.

1678. It is intended that paragraph 122.5(8)(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 122.5(1). The limitation of the prior publication defence in subsection 122.5(8) 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).

1679. The defence under subsection 122.5(8) seeks to strike a balance between freedom of expression on the one hand, and recognition that further dissemination of harmful information 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 much greater number of people and could result in considerable new or additional harm.

1680. The Note under the defence at subsection 122.5(8) 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 122.5(8) satisfies both of these criteria.

1681. 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 cause harm to Australia's interests or the security or defence of Australia. 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, that the information had already been communicated and that the defendant was not involved in the prior communication. To do this, it would be necessary to negate for example the fact that the information has already been communicated or made available to the public in one way or another. Conversely, if the defendant was aware of the particular instance of public communication, it would not be difficult for them to point to relevant evidence to support this fact. Additionally, requiring the prosecution to prove beyond reasonable doubt that a person's conduct was not based on a belief that their communication would not cause harm would prove an insurmountable barrier to a successful prosecution, undermining the deterrent effect of the new general secrecy offences.

1682. 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).

Information relating to a person etc.

1683. Subsection 122.5(9) will provide a defence to a prosecution for an offence relating to dealing with information 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 Commonwealth officer

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, and

•

at the time of the communication, removal, holding or dealing, the person believes that the making or obtaining of the information by the person was required or authorised by law

•

having regard to the circumstances of the making or obtaining of the information, the person has reasonable grounds for that belief, and

•

any of the following apply:

o

the person communicates the information to the person to whom the information relates

o

the person is the person to whom the information relates

o

the communication, removal, holding or dealing is in accordance with the express or implied consent of the person to whom the information relates.

1684. The offences in Division 122 are not intended to prevent a person from dealing in information that relates to them, or to limit the ability of a person to consent to another person dealing information that relates to them. The following are examples of situations in which it is intended that the defence in subsection 122.5(9) would ensure that a person is not criminally liable for dealing in information:

•

Example 1: Person A give taxation information to the Australian Taxation Office as part of their income tax return, as required by section 161 of the Income Tax Assessment Act 1936. Person A then communicates the same information to their bank, as part of an application for a mortgage.

•

Example 2: Person B is the accountant for Person C. Person B has lodged Person C's income tax return on Person C's behalf. Person B gives Person C a copy of the tax return as lodged.

•

Example 3: Person D has received a notice issued under an Act requiring them to provide a Commonwealth agency with information that relates to Person D. Person D gives the agency the information specified in the notice. The Act does not contain a specific secrecy provision limiting the disclosure of information about the notice. Person D subsequently shows Person E the notice and the information that Person D gave to the agency in accordance with the notice.

1685. Paragraph 122.5(9)(a) limits the application of the defence in relation to persons who have made or obtained the relevant information in an official capacity, or under an agreement or arrangement allowing for the exchange of information. Persons who have made or obtained information in such circumstances are under a higher duty to protect that information. It is intended that such persons should deal with information under other defences contained in section 122.5 and Part 2.3 of the Criminal Code. In particular, persons who have made or obtained information in an official capacity or under an agreement or arrangement should deal with that information pursuant to subsection 122.5(1), in the course of performing their functions or duties in their official capacity, or in accordance with the agreement or arrangement.

•

Example: Person A is an employee of the Australian Federal Police. Person A is investigating Person B, who is reasonably suspected of being involved in various organised criminal activities. Person A communicates information about the status of that investigation to Person B (being the person to whom the information relates). Person A would not be able to rely on the defence at subsection 122.5(9) because the information was obtained due to Person A's role as a Commonwealth official.

1686. Paragraphs 122.5(9)(b) and (c) provide that the defence will only be available where:

•

at the time of the dealing, the person believes that the making or obtaining of the information by the person was required or authorised by law, and

•

having regard to the circumstances of the making or obtaining of the information, the person has reasonable grounds for that belief.

1687. Paragraphs (b) and (c) are intended to ensure that persons who act as intermediaries for the unlawful disclosure of information to persons to whom the information relates (such as information about an investigation into a person) do not benefit from the defence.

•

Example: Person C is an employee of the Australian Federal Police. Person C is investigating Person D, who is reasonably suspected of being involved in various organised criminal activities. Person C meets Person E in a bar, gives Person E a file containing information about the status of the investigation, requests that Person E pass the information to Person D, and warns Person E to take precautions to not be detected or they could both be arrested. Person E communicates the information to Person D (being the person to whom the information relates). Person E would not be able to rely on the defence at subsection 122.5(9) because, in all of the circumstances, Person E could not reasonably believe that the person's obtaining of the information was required or authorised by law.

1688. The Note under the defence at subsection 122.5(9) 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 122.5(9) satisfies both of these criteria. Evidence of the defendant's reasonable belief that the making or obtaining of the information was required by law is evidence peculiarly within the defendant's knowledge. Additionally, requiring the prosecution to prove beyond reasonable doubt that a person's conduct was not based on such a belief would be more costly and prove an insurmountable barrier to a successful prosecution, undermining the deterrent effect of the new general secrecy offences.

1689. 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).

Removing, holding or otherwise dealing with information for the purposes of communicating information

1690. Subsection 122.5(11) provides that for the purpose of the defences in subsections 122.5(3), (4), (5) or (5A), it is not necessary to prove in relation to information that was held, removed, or otherwise dealt with for the purposes of communicating the information that the information was actually communicated. The defendant, in seeking to rely on a defence in subsection 122.5(3), (4), (5) or (5A) is not required to prove the ultimate communication.

Burden of proof for integrity agency officials

1691. Subsection 122.5(12) provides that employees and officials of integrity agencies covered by subsection 122.5(3) (the Inspector-General of Intelligence and Security, the Commonwealth Ombudsman, the Law Enforcement Integrity Commissioner, and the Australian Information Commissioner) do not bear an evidential burden to prove:

•

in relation to the defence at subsection 122.5(1)-that the relevant conduct was an exercise of a power, or the performance of a function or duty, in the integrity official's capacity as a Commonwealth officer or in accordance with a Commonwealth agreement or arrangement.

•

in relation to the defence at subsection 122.5(3)-that the person to whom the information was, or intended to be, communicated was an integrity official or that the relevant conduct was undertaken for the purpose of the integrity agency exercising a power, or performing a function or duty, and

•

in relation to the defence at subsection 122.5(4)-that the relevant conduct was in accordance with the Public Interest Disclosure Act 2013.

1692. This is because each of these integrity agencies are generally prohibited from disclosing to a court any information acquired by reason of holding that office, as outlined in the following legislation:

•

section 34 of the Inspector-General of Intelligence and Security Act 1986

•

section 211 of the Law Enforcement Integrity Commissioner Act 2006, and

•

section 35 of the Ombudsman Act 1976.

1693. A similar limitation can be found in section 29 of the Australian Information Commissioner Act 2010.

Defences do not limit each other

1694. Subsection 122.5(13) provides that no defence in section 122.5 limits the operation of any other defence in that section. Division 123-Miscellaneous

Section 123.1-Injunctions

1695. Subsection 123.1(1) provides that the provisions of Division 122 are enforceable under Part 7 of the Regulatory Powers (Standard Provisions) Act 2014. Part 7 of the Act creates a standard framework for the use of injunctions in the enforcement of provisions.

1696. Injunctions may be used to restrain a person from contravening a provision of Division 122.

1697. Paragraph 123.1(2)(a) provides that the Minister is an authorised person for the purposes of Part 7 of the Regulatory Powers (Standard Provisions) Act 2014, as that part applies to the provisions of Division 122. The effect of paragraph (2)(a) is that the Minister may apply to a relevant court for an injunction to restrain a person from committing an offence against section 122.1, 122.2, 122.3 or 122.4.

1698. Paragraph 123.1(2)(b) provides that the Federal Court of Australia, the Federal Circuit Court of Australia, and a court of a State or Territory that has jurisdiction in relation to matters arising under the Criminal Code Act 1995.

1699. Subsection 123.1(3) provides that Part 7 of the Regulatory Powers Act, as that Part applies to the provisions of Division 122, extends to every external Territory. The offences in Division 122 have Category D extended geographic application and therefore extend inter alia to every external Territory; accordingly, it is appropriate that injunctions under Part 7 also be available in the external Territories to restrain contraventions of Division 122.

Section 123.2-Forfeiture of articles

1700. Section 123.2 provides that a sketch, article, record or document which is made, obtained, recorded, retained, possessed or otherwise dealt with in contravention of Part 5.6 is forfeited to the Commonwealth. Sketch, article and record have the same respective meanings as in Part 5.2.

1701. Section 123.2 substantially replicates section 85D of the Crimes Act and is intended to prevent or minimise the harm to essential public interests arising from the unlawful communication, dealing with, removal or holding of inherently harmful information or information, the communication of which would cause harm to Australia's interests. The forfeiture of a sketch, article, record or document which is made, obtained, recorded, retained, possessed or otherwise dealt with in contravention of Part 5.6 is intended to prevent or minimise the further communication or dealing with information contained in such sketches, articles, records or documents.

1702. It is appropriate that a sketch, article, record or document which is made, obtained, recorded, retained, possessed or otherwise dealt with in contravention of Part 5.6 is automatically forfeited to the Commonwealth by operation of law. The offences in Part 5.6 are intended to protect essential public interests, by criminalising the unlawful communication and dealing with inherently harmful information, or information the communication of which would cause harm to Australia's interests. Any delay in the recovery of such information would produce an unacceptable risk of harm to essential public interests.

1703. The intended operation of section 123.2 can be contrasted to the intended operation of the forfeiture framework in the Proceeds of Crime Act 2002. This section is intended to prevent or minimise harm to essential public interests, whereas the proceeds of crime framework is intended to ensure that criminals are deprived of the benefits of their crime.

Section 123.3-Extended geographical jurisdiction-category D

1704. Section 123.3 applies Section 15.4 (extended geographical jurisdiction-Category D) to each offence against Part 5.6 (Secrecy). 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.

1705. Category D jurisdiction is appropriate because:

•

inherently harmful information, and information the communication of which would cause harm to Australia's interests, may be communicated or dealt with outside of Australia-for example, where an employee of a Commonwealth department removes information from Australia before communicating it;

•

inherently harmful information, and information the communication of which would cause harm to Australia's interests, may itself be held outside Australia-for example, where the Australian Defence Force is deployed overseas;

•

the harms that may result from the disclosure of inherently harmful information, or information the communication of which may cause harm to Australia's interests, may occur outside Australia-for example, where the information relates to the security of Australian Defence Force or diplomatic personnel overseas, or to Australian companies or citizens operating or travelling in foreign countries.

Section 123.4-Effect of this Part on other rights, privileges, immunities or defences

1706. Section 123.4 clarifies that the offences and defences in Part 5.6 (Secrecy of information) do not affect any other right, privilege, immunity or defence in other legislation. This includes the obligations and immunities in the:

•

Freedom of Information Act 1982

•

Privacy Act 1988

•

Ombudsman Act 1976

•

Inspector-General of Intelligence and Security Act 1986, and

•

Public Interest Disclosure Act 2013.

Section 123.5-Requirements before proceedings can be initiated

1707. Section 123.5 provides that proceedings for the commitment of a person for trial for an offence against Part 5.6 (Secrecy of information) must not be instituted without the written consent of the Attorney-General.

1708. 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.

1709. Paragraph 123.5(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 5.6 can be commenced. This 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 5.6, and provides opportunity for consideration of whether the prosecution could be detrimental to Australia's foreign relations and national security.

1710. Consistent with paragraph 123.5(1)(b), proceedings that relate to security classified information (as defined in section 121.1) 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 had a security classification. The Attorney-General will need to receive briefing from the originating agency about the appropriate level of security classification that should be applied to the information. 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.

1711. As long as a classification of either SECRET or TOP SECRET is appropriate, the Attorney-General will be able to give a certification under paragraph 123.5(1)(b). 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.

1712. Subsection 123.5(2) clarifies that the following steps can be taken towards preparing for proceedings, without the written consent of the Attorney-General having been given:

•

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.

1713. Subsection 123.5(3) provides that nothing in subsection 123.5(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 123.5(3) specify that the steps towards commencing proceedings as described at subsection 123.5(2) do not prevent the discharge of the accused if proceedings are not continued within a reasonable time.

1714. Subsection 123.5(4) provides that the Attorney-General must consider whether the conduct constituting an offence against Part 5.6 of the Criminal Code might be authorised in a way mentioned in subsection 122.5.

1715. Subsection 122.5 provides defences to offences against Part 5.6. Therefore, the effect of subsection 123.5(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 7 - Application

1716. This item provides that the amendments made by Part 1 of Schedule 2 of the Bill apply to conduct that occurs on or after the commencement of this item.