Revised Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)PART 1 - AMENDMENTS COMMENCING AT THE SAME TIME AS SCHEDULES 1 AND 3 TO THIS ACT
Item 1
1795. This item inserts new subparagraphs into the definition of 'serious offence' in paragraph 5D(1)(e) of the TIA Act to cover:
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- Division 82 of the Criminal Code (sabotage)
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- Division 83 of the Criminal Code (other threats to security)
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- Division 91 of the Criminal Code (espionage)
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- Division 92 of the Criminal Code (foreign interference), and
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- Division 92A of the Criminal Code (theft of trade secrets involving foreign government principal).
1796. The new subparagraphs will be added after subparagraph 5D(1)(e)(ib).
1797. The new subparagraphs extend the meaning of 'serious offence' for the purposes of the TIA Act to include the offences of sabotage, other threats to security, espionage, foreign inference and theft of trade secrets involving foreign government principal.
1798. Telecommunications interception is an essential tool for investigating offences involving foreign principals or communication of sensitive information.
1799. Under subparagraph 5D(1)(e)(ia) of the TIA Act, treason offences are already listed as serious offences.
1800. Subparagraph 5D(1)(e)(ic) will include Division 82 of the Criminal Code (sabotage) in the definition of 'serious offence' for the purposes of the TIA Act. The sabotage offences in Division 80, like the other offences listed in paragraph (e) of the TIA Act, are offences that jeopardise Australia and its national security interests, and for which prevention and disruption are critical to prevent public harm. The gravity of the threat posed by sabotage is reflected in the serious penalties for the offences, which range from 25 years imprisonment to seven years imprisonment.
1801. Further, some sabotage offences, such as those against section 82.7 (offence of introducing vulnerability with intention as to national security) and 82.8 (offence of introducing vulnerability reckless as to national security) of the Criminal Code, involve criminalised activities that could be conducted exclusively online (for example using the internet to render software vulnerable to exploitation). In these cases, it is necessary for law enforcement to be able to intercept the offending service or telecommunications network to investigate the offence.
1802. Subparagraph 5D(1)(e)(id) will include Division 83 of the Criminal Code (other threats to security) in the definition of 'serious offence' for the purposes of the TIA Act. The offences included in Division 83 of the Criminal Code carry significant penalties of between seven and 20 years imprisonment, recognising the serious harm to Australia's sovereignty, national security and other interests that can result from the conduct constituting the commission of such an offence. The severity of offending conduct is particularly dangerous when it is directed or controlled by, or on behalf of, a foreign principal. In such cases, the offender's communication with a foreign principal may occur exclusively online or through telecommunications technology, making interception powers critical in investigation.
1803. Finally, society's increasing reliance on electronic communication means that an offence under Division 83 can easily be perpetrated using a telecommunications network (for example, interfering with a person's democratic rights by making threats online). In these cases, it is necessary for law enforcement to be able to intercept the offending service to investigate the offence.
1804. Subparagraph 5D(1)(e)(ie) will include Division 91 of the Criminal Code (espionage) in the definition of 'serious offence' for the purposes of the TIA Act. Espionage is one of the most serious offences on the Commonwealth statute book, with commensurately high penalties. Espionage involves serious threats to Australia's defence and security. In some circumstances espionage may only be detected through the use of telecommunications interception powers, such as where a person is dealing with hard copy information. These powers will also be critical in identifying and understanding the link to a foreign principal. In the modern context, electronic means present the most common and convenient method of passing information to a foreign principal, making it necessary for investigators to have the option to intercept such communications to prevent serious harm.
1805. Subparagraph 5D(1)(e)(if) will include Division 92 of the Criminal Code (foreign interference) in the definition of 'serious offence' for the purposes of the TIA Act. Foreign interference is similar in nature to espionage, and the consequences of such behaviour can be equally as harmful. As with espionage, the primary means of communication with the foreign principal that a person is directed or controlled by, or acting on behalf of, may be through electronic means. Therefore, it is necessary that law enforcement have the powers and mechanisms available to properly investigate such criminal activity.
1806. Subparagraph 5D(1)(e)(ig) will include Division 92A of the Criminal Code (theft of trade secrets involving foreign government principals) in the definition of 'serious offence' for the purposes of the TIA Act. Theft of trade secrets amounts to economic espionage and can severely damage Australia's national security and economic interests, warranting a serious penalty of 15 years imprisonment. In the modern context, trade secrets information may be created and stored wholly, or partially, online. It follows that the stealing of such information can also be conducted or facilitated exclusively through electronic means. In such circumstances, it will be critical for law enforcement to be able to use interception powers to investigate this criminal activity.
Item 2
1807. Item 2 inserts new subparagraph (viii) at the end of the definition of serious offence in paragraph 5D(1)(e) in relation to section 137.1A of the Criminal Code (aggravated offence for giving false or misleading information).
1808. Subparagraph 5D(1)(e)(viii) will include section 137.1A of the Criminal Code (aggravated offence for giving false or misleading information) in the definition of 'serious offence for the purposes of the TIA Act. Interception of telecommunications provides a critical mechanism to determine a person's intention in omitting or lying about certain details in the security clearance process. It may also be central in identifying more serious unlawful conduct for example, a person may be lying on a security clearance to cover up more serious criminal activity such as espionage or foreign interference).
1809. An example of this is as follows. A person who holds an Australian Government security clearance may deliberately omit travel details and contact with foreign nationals from high-threat countries from security clearance processes. These false statements result in continuation of the security clearance, which would not have occurred otherwise, undermining the security of the Australian Government agency for which the person works, and partner agencies confidence in the Australian Government.
1810. Telecommunications interception would be critical in understanding the person's intentions, associations, and any other prejudicial or unlawful activity threatening Australia's national security. This may include an admission where the offender confirms his or her effort to mislead or provide false information, or where the offender seeks direction or guidance from others involved (such as a foreign intelligence service). It may also identify the involvement of others in similar conduct, including other clearance holders, which, if undetected, would pose a severe national security risk.
1811. Telecommunications interception would provide a critical mechanism to determine the applicant's intention in omitting these details and the nature and extent of the training itself. It may be that an offender seeks direction or guidance from another party (e.g. an intermediary or handler) after being asked direct questions by vetting authorities about their links to a foreign principal. It is necessary, where appropriate, that law enforcement have the mechanism available to take reasonable steps to detect, investigate and prosecute those suspected of such conduct.