Senate

Revised Explanatory Memorandum

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

GENERAL OUTLINE

1. This Bill amends the Criminal Code Act 1995, Crimes Act 1914, Telecommunications (Interception and Access) Act 1979, Inspector-General of Intelligence and Security Act 1986 and makes consequential amendments to other legislation.

2. Espionage and foreign interference pose significant risks to Australia's security and defence. Foreign adversaries are actively working against Australia's interests through a variety of means, including obtaining classified information or seeking to influence the outcome of Australia's democratic processes.

3. Activities undertaken by foreign adversaries, and those acting on their behalf, can cause severe harm to Australia's national security, compromising Australia's military capabilities and alliance relationships, and can pose a grave threat to Australia's economic stability and well-being. By wielding undue influence on the Australian political landscape, foreign adversaries have the potential to undermine Australia's sovereignty and system of government.

4. The Bill will comprehensively reform key offences dealing with threats to national security, particularly those posed by foreign principals. The Bill:

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strengthens existing espionage offences

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introduces new foreign interference offences targeting covert, deceptive or threatening actions by foreign actors who intend to influence Australia's democratic or government processes or to harm Australia

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reforms Commonwealth's secrecy offences, ensuring they appropriately criminalise leaks of harmful information while also protecting freedom of speech

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introduces comprehensive new sabotage offences that effectively protect critical infrastructure in the modern environment

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modernises and reforms offences against government, including treason, to better protect Australia's defence and democracy

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introduces a new theft of trade secrets offence to protect Australia from economic espionage by foreign government principals,

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introduces a new aggravated offence for providing false and misleading information in the context of security clearance processes, and

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ensures law enforcement agencies have access to telecommunications interception powers to investigate these serious offences.

5. Schedule 1 amends Part 5.1 of the Criminal Code to modernise Australia's treason offences. It will ensure that treason offences appropriately reflect modern terminology related to armed conflict. The amendments to Part 5.1 will also create a new offence of treachery in the Criminal Code (replacing the existing archaic and antiquated treachery offence in section 24AA of the Crimes Act) that applies where a person seeks to use force or violence to overthrow the Constitution or an Australian government.

6. Schedule 1 introduces comprehensive sabotage offences into new Division 82 in Part 5.1 of the Criminal Code, replacing the existing sabotage offence at section 24AB of the Crimes Act, which only protects Defence facilities. The new sabotage offences will criminalise conduct causing damage to a broad range of critical infrastructure where it could prejudice Australia's national security. The offences in new Division 82 will apply higher penalties where sabotage offences are committed on behalf of foreign principals. New Division 82 will also contain offences that apply where a person's conduct does not immediately cause damage, but leaves an item or system vulnerable to future misuse or exploitation.

7. Schedule 1 introduces new Division 83 into Part 5.1 of the Criminal Code. Division 83 will modernise and improve the existing offences against government in Part II of the Crimes Act (which will be repealed). The offences in Division 83 criminalise threats to Australia's security, including advocating mutiny, assisting prisoners of war to escape and military-style training for a foreign government. New Division 83 also criminalises the use of force, violence or intimidation to interfere with Australian democratic or political rights.

8. Schedule 1 amends Part 5.2 of the Criminal Code to introduce comprehensive new espionage offences in Division 91. The new offences criminalise a broad range of dealings with information, including possessing or receiving, and protect a broader range of information, including unclassified material. The current methodology of Australia's adversaries means that dealings with unclassified information, if accompanied by the requisite intention to harm Australia, can be as damaging as the passage of classified information. The new offences will not just target the person who discloses the information, but also the actions of the foreign principal who receives the information. The new offences in Division 91 will also, for the first time, criminalise soliciting or procuring a person to engage in espionage and will introduce a new preparation or planning offence, which will allow law enforcement agencies to intervene at an earlier stage to prevent harmful conduct occurring.

9. Schedule 1 introduces new Division 92 into Part 5.2 of the Criminal Code which will contain new foreign interference offences. These offences complement the espionage offences by criminalising a range of other harmful conduct undertaken by foreign principals who seek to interfere with Australia's political, governmental or democratic processes, to support their own intelligence activities or to otherwise prejudice Australia's national security. The offences will apply where a person's conduct is covert or deceptive, involves threats or menaces or does not disclose the fact that conduct is undertaken on behalf of a foreign principal. New Division 92 also criminalises the provision of support or funding to foreign intelligence agencies.

10. Schedule 1 introduces new Division 92A into Part 5.2 of the Criminal Code which contains a new offence targeting theft of trade secrets on behalf of a foreign government. This amounts to economic espionage and can severely damage Australia's national security and economic interests. The new offence will apply to dishonest dealings with trade secrets on behalf of a foreign government principal

11. .Schedule 2 introduces new Part 5.6 and Division 122 into the Criminal Code. New Part 5.6 contains a suite of new Commonwealth secrecy offences. These new offences replace sections 70 and 79 of the Crimes Act and will apply if the information disclosed is inherently harmful (such as security classified information) or would otherwise cause harm to Australia's interests. There will be separate offences that apply to Commonwealth officers and non-Commonwealth officers. The offences that apply to non-Commonwealth officers will be narrower in scope and attract lower penalties. New Division 122 includes defences to ensure the offences do not apply too broadly, including a defence specifically applying to journalists (as well as editorial and support staff) who reasonably believe that their conduct was in the public interest. The offences ensure harmful information cannot be released, while appropriate defences protect freedom of speech.

12. Schedule 3 amends Division 137 of Part 7.4 of the Criminal Code to introduce a new aggravated offence that applies where a person provides false or misleading information in relation to an Australian Government security clearance process. This reflects the serious consequences that can flow from the provision of misleading information, or the omission of relevant information, during a security clearance process.

13. Schedule 4 amends the Telecommunications (Interception and Access) Act 1979 to ensure the powers under that Act are available to investigate the offences contained in the Bill.

14. Schedule 5 makes amendments relevant to the Foreign Influence Transparency Scheme. Transitional amendments address pre-existing arrangements with foreign principals at the time of commencement of the Foreign Influence Transparency Scheme Act. Other amendments reflect the interaction between the Foreign Influence Transparency Scheme Act 2017 and the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2017.

15. Schedule 6 amends the Inspector-General of Intelligence and Security Act 1986 to confer an immunity from liability to penalty on persons who voluntarily provide or make available information or documents to the Inspector-General of Intelligence and Security (IGIS), for the purpose of the IGIS performing oversight functions under the IGIS Act.

FINANCIAL IMPACT

16. The amendments in this Bill have no financial impact on Government revenue.

ACRONYMS