Criminal Code Amendment (Espionage and Related Matters) Act 2002

(91 of 2002)

An Act to amend the Crimes Act 1914 and the Criminal Code Act 1995, and for related purposes

[Assented to 31 October 2002]

The Parliament of Australia enacts:

1   Short title

This Act may be cited as the Criminal Code Amendment (Espionage and Related Matters) Act 2002.

2   Commencement

 

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.

Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

      

(2) Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.

      

(3) If either the Suppression of the Financing of Terrorism Act 2002 or the Security Legislation Amendment (Terrorism) Act 2002 receives the Royal Assent before the day on which this Act receives the Royal Assent, the provision covered by item 3 of the table does not commence at all.

      

(4) If item 6 of Schedule 2 to the Security Legislation Amendment (Terrorism) Act 2002 commences before item 1 of Schedule 1 to this Act, then item 1 of Schedule 2 to this Act does not commence at all.

      

(5) If item 6 of Schedule 2 to the Security Legislation Amendment (Terrorism) Act 2002 does not commence before item 1 of Schedule 1 to this Act, then item 2 of Schedule 2 to this Act does not commence at all.

3   Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

4   Transitional - pre-commencement offences

 

(1) Despite the amendment or repeal of a provision by a Schedule to this Act, that provision continues to apply, after the commencement of this section, in relation to:

(a) an offence committed before thecommencement of this section; or

(b) proceedings for an offence alleged to have been committed before the commencement of this section; or

(c) any matter connected with, or arising out of, such proceedings;

as if the amendment or repeal had not been made.

      

(2) Subsection (1) does not limit the operation of section 8 of the Acts Interpretation Act 1901.

Schedule 1   Amendments relating to the integrity and security of the Commonwealth

Crimes Act 1914

1A   Part VII (heading)

Repeal the heading, substitute:

Part VII - Official secrets and unlawful soundings

1   Section 78

Repeal the section.

2   Section 79

Omit “safety or defence” (wherever occurring), substitute “security or defence”.

3   Sections 81, 83A, 83B, 84, 84A, 85A and 85C

Repeal the sections.

Criminal Code Act 1995

4   The Schedule (after Chapter 4 of the Criminal Code )

Insert:

Chapter 5 - The security of the Commonwealth

Note: If either the Suppression of the Financing of Terrorism Act 2002 or the Security Legislation Amendment (Terrorism) Act 2002 receives the Royal Assent before the day on which this Act receives the Royal Assent, this item does not commence at all. See subsection 2(3).

5   The Schedule (Chapter 5 of the Criminal Code )

Insert in the appropriate numerical position:

Part 5.2 - Offences relating to espionage and similar activities

Division 90 - Preliminary

90.1 Definitions

(1) In this Part:

article includes any thing, substance or material.

information means information of any kind, whether true or false and whether in a material form or not, and includes:

(a) an opinion; and

(b) a report of a conversation.

intelligence or security agency has the meaning given by section 85ZL of the Crimes Act 1914.

record , in relation to information, means a record of information in any form, including but not limited to, a document, paper, database, software system or other article or system containing information or from which information can be derived.

security or defence of a country includes the operations, capabilities and technologies of, and methods and sources used by, the country’s intelligence or security agencies.

sketch includes a representation of a place or thing.

the Commonwealth includes the Territories.

(2) In this Part, unless the contrary intention appears:

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

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

(3) For the purposes of this Part, a place that is occupied by, or a thing that is under the control of, the Commonwealth is taken to belong to the Commonwealth.

(4) This Part applies to and in relation to a document or article regardless of who made it and what information it contains.

Division 91 - Offences relating to espionage and similar activities

91.1 Espionage and similar activities

(1) A person commits an offence if:

(a) the person communicates, or makes available:

(i) information concerning the Commonwealth’s security or defence; or

(ii) information concerning the security or defence of another country, being information that the person acquired (whether directly or indirectly) from the Commonwealth; and

(b) the person does so intending to prejudice the Commonwealth’s security or defence; and

(c) the person’s act results in, or is likely to result in, the information being communicated or made available to another country or a foreign organisation, or to a person acting on behalf of such a country or organisation.

Penalty: Imprisonment for 25 years.

(2) A person commits an offence if:

(a) the person communicates, or makes available:

(i) information concerning the Commonwealth’s security or defence; or

(ii) information concerning the security or defence of another country, being information that the person acquired (whether directly or indirectly) from the Commonwealth; and

(b) the person does so:

(i) without lawful authority; and

(ii) intending to give an advantage to another country’s security or defence; and

(c) the person’s act results in, or is likely to result in, the information being communicated or made available to another country or a foreign organisation, or to a person acting on behalf of such a country or organisation.

Penalty: Imprisonment for 25 years.

(3) A person commits an offence if:

(a) the person makes, obtains or copies a record (in any form) of:

(i) information concerning the Commonwealth’s security or defence; or

(ii) information concerning the security or defence of another country, being information that the person acquired (whether directly or indirectly) from the Commonwealth; and

(b) the person does so:

(i) intending that the record will, or may, be delivered to another country or a foreign organisation, or to a person acting on behalf of such a country or organisation; and

(ii) intending to prejudice the Commonwealth’s security or defence.

Penalty: Imprisonment for 25 years.

(4) A person commits an offence if:

(a) the person makes, obtains or copies a record (in any form) of:

(i) information concerning the Commonwealth’s security or defence; or

(ii) information concerning the security or defence of another country, being information that the person acquired (whether directly or indirectly) from the Commonwealth; and

(b) the person does so:

(i) without lawful authority; and

(ii) intending that the record will, or may, be delivered to another country or a foreign organisation, or to a person acting on behalf of such a country or organisation; and

(iii) intending to give an advantage to another country’s security or defence.

Penalty: Imprisonment for 25 years.

(5) For the purposes of subparagraphs (3)(b)(i) and (4)(b)(ii), the person concerned does not need to have a particular country, foreign organisation or person in mind at the time when the person makes, obtains or copies the record.

(6) A person charged with an offence under this section may only be remanded on bail by a judge of the Supreme Court of a State or Territory. This subsection has effect despite anything in section 93.1.

Note: Section 93.1 deals with how a prosecution is instituted.

(7) Section 15.4 of the Criminal Code (extended geographical jurisdiction - category D) applies to offences under this section.

91.2 Defence - information lawfully available

(1) It is a defence to a prosecution of an offence against subsection 91.1(1) or (2) that the information the person communicates or makes available is information that has already been communicated or made available to the public with the authority of the Commonwealth.

(2) It is a defence to a prosecution of an offence against subsection 91.1(3) or (4) that the record of information the person makes, obtains or copies is a record of information that has already been communicated or made available to the public with the authority of the Commonwealth.

Note: A defendant bears an evidential burden in relation to the matters in subsections (1) and (2). See subsection 13.3(3).

Division 93 - Prosecutions and hearings

93.1 Institution of prosecution

(1) A prosecution under this Part may be instituted only by, or with the consent of, the Attorney-General or a person acting under the Attorney-General’s direction.

(2) However:

(a) a person charged with an offence against this Part may be arrested, or a warrant for his or her arrest may be issued and executed; and

(b) such a person may be remanded in custody or on bail;

even if the consent of the Attorney-General or a person acting under his or her direction has not been obtained, but no further proceedings are to be taken until that consent has been obtained.

(3) Nothing in this section prevents the discharging of the accused if proceedings are not continued within a reasonable time.

93.2 Hearing in camera etc.

(1) This section applies to a hearing of an application or other proceedings before a federal court, a court exercising federal jurisdiction or a court of a Territory, whether under this Act or otherwise.

(2) At any time before or during the hearing, the judge or magistrate, or other person presiding or competent to preside over the proceedings, may, if satisfied that it is in the interest of the security or defence of the Commonwealth:

(a) order that some or all of the members of the public be excluded during the whole or a part of the hearing; or

(b) order that no report of the whole or a specified part of, or relating to, the application or proceedings be published; or

(c) make such order and give such directions as he or she thinks necessary for ensuring that no person, without the approval of the court, has access (whether before, during or after the hearing) to any affidavit, exhibit, information or other document used in the application or the proceedings that is on the file in the court or in the records of the court.

(3) A person commits an offence if the person contravenes an order made or direction given under this section.

Penalty: Imprisonment for 5 years.

Division 94 - Forfeiture

94.1 Forfeiture of articles etc.

A sketch, article, record or document which is made, obtained, recorded, retained, forged, possessed or otherwise dealt with in contravention of this Part is forfeited to the Commonwealth.

Schedule 2   Consequential amendments

Part 1   Crimes Act 1914

1   Subsection 4J(7)

Repeal the subsection, substitute:

(7) This section does not apply to an offence against:

(a) section 24, 24AA, 24AB or subsection 79(2) or (5) of this Act; or

(b) section 91.1 of the Criminal Code.

2   Subsection 4J(7)

Repeal the subsection, substitute:

(7) This section does not apply to an offence against:

(a) section 24AA or 24AB or subsection 79(2) or (5) of this Act; or

(b) section 80.1 or 91.1 of the Criminal Code.

3   Paragraph 79(1)(a)

After “Part”, insert “or in contravention of section 91.1 of the Criminal Code”.

4   Subsection 79(5)

Omit “78”, insert “ 91.1 of the Criminal Code”.

Part 2   Australian Protective Service Act 1987

5   Subparagraph 13(2)(a)(i)

Omit “78, 79, 83A”, substitute “79”.

6   At the end of paragraph 13(2)(a)

Add:

(vi) section 91.1 of the Criminal Code; or

7   Subsection 21(3)

Repeal the subsection, substitute:

(3) Subsection (2) has effect subject to sections 37A, 38 and 39 of the Migration Act 1958.