National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (67 of 2018)

Schedule 1   Treason, espionage, foreign interference and related offences

Part 1   Main amendments

Criminal Code Act 1995

18   Section 93.1 of the Criminal Code

Repeal the section, substitute:

93.1 Consent of Attorney-General required for prosecutions

(1) Proceedings for the commitment of a person for trial for an offence against this Part must not be instituted without:

(a) the written consent of the Attorney-General; and

(b) for proceedings that relate to information or an article that has a security classification - a certification by the Attorney-General that, at the time of the conduct that is alleged to constitute the offence, it was appropriate that the information or article had a security classification.

(2) However, the following steps may be taken (but no further steps in proceedings may be taken) without consent or certification having been obtained:

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

(b) a person may be charged with the offence;

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

(3) Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time.

(4) In deciding whether to consent, the Attorney-General must consider whether the conduct might be authorised:

(a) for an offence against Subdivision A of Division 91 (espionage) - in a way mentioned in section 91.4; and

(b) for an offence against Subdivision B of Division 91 (espionage on behalf of foreign principal) - in a way mentioned in section 91.9; and

(c) for an offence against Subdivision B of Division 92 (foreign interference) - in a way mentioned in section 92.5; and

(d) for an offence against Subdivision C of Division 92 (foreign interference involving foreign intelligence agencies) - in a way mentioned in section 92.11.