Senate

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Daryl Williams AM QC MP)

General outline and financial impact

General outline

The main effect of the Bill is to establish new espionage offences in Part 5.2 of the Criminal Code Act 1995 .

Australia's espionage laws are currently contained in Part VII of the Crimes Act 1914 . As a result of this Bill, the espionage offences are significantly changed to establish a more effective legal framework that both deters, and punishes, people who intend to betray Australia's security interests. This Bill will strengthen Australia's espionage laws in a number of ways:

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By referring to conduct that may prejudice Australia's security and defence, rather then safety and defence, and explicitly defining this term, consequently affording protection to a range of material that may not be protected under the current laws. The term 'security or defence' will apply to both the espionage offence as well as the existing official secrets offences in section 79 of the Crimes Act;

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By expanding the range of activity that may constitute espionage to capture situations where a person communicated or made available information concerning the Commonwealth's security or defence with the intention of prejudicing the Commonwealth's security or defence or to advantage the security or defence of another country;

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By affording the same protection to foreign sourced information belonging to Australia as Australian-generated information; and

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By increasing the maximum penalty for a person convicted of espionage from seven years imprisonment to 25 years imprisonment.

The Bill also sets out procedural matters in relation to the prosecution of offences under Part 5.2 of the Criminal Code and provides for the forfeiture of articles that have been dealt with in contravention of Part 5.2. Prosecutions under Part 5.2 of the Criminal Code will require the consent of the Attorney-General. This substantially replicates section 85 of the Crimes Act. Under the Bill, the option will remain for all or part of a prosecution or hearing of an offence under Part 5.2 to be heard in closed court. The question of whether a hearing will be held in closed court will continue to be decided by the court.

In addition, some offences in Part VII of the Crimes Act are repealed but are not replaced in the Criminal Code because they are no longer relevant or appropriate. These are:

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Section 81 - Harbouring Spies

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Section 83A - Illegal Use of Uniforms

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Section 83B - Special Powers of Arrest without Warrant

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Section 84 - Arrest of Persons In or About Prohibited Places

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Section 84A - Search of Suspects

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Section 85A - Offences by Directors or Officers of Companies

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Section 85C - Imprints as evidence

Financial Impact

It is not expected that the Bill will have a direct financial impact. In the event that a person commits an offence under the new provisions, any subsequent criminal prosecution would be undertaken in the normal way. The costs associated with any criminal proceedings in respect of the Commonwealth offences created by this Bill would be absorbed within existing budgets.