Senate

Revised Explanatory Memorandum

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

Notes on clauses

Clause 1: Short Title

This clause is a formal provision specifying the short title of the Bill.

Clause 2: Commencement

Subclause 2(1) provides that each provision of the Criminal Code (Espionage and Related Offences) Bill 2002 (the Bill) listed in column 1 of the table commences, or is taken to have commenced, on the day specified in column 2 of the table.

Item 1 of the table provides that sections 1-3 of the Act and any other sections not covered in the table commence on the day on which the Act receives the Royal Assent.

Item 2 of the table provides that items 1A, 1, 2 and 3 of Schedule 1 to the Act commence on the 28th day after the day on which the Act receives the Royal Assent. Items 1 and 3 of Schedule 1 repeal provisions of the Crimes Act. Item 2 amends the official secrets provisions in section 79 of the Crimes Act to replace references to 'safety or defence' with the term 'security or defence'.

Item 3 of the table provides that item 4 of Schedule 1 of the Act commences on the day the Act receives the Royal Assent. Item 4 of Schedule 1 inserts a new Chapter 5 into the Criminal Code to deal with offences relating to the security of the Commonwealth. The commencement of item 4 of Schedule 1 is subject to subclause 2(3). Subclause 2(3) provides that 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 Bill receives the Royal Assent, the provision covered by item 3 of the table does not commence at all. Both the Suppression of the Financing of Terrorism Act 2002 and the Security Legislation Amendment (Terrorism) Act 2002 received Royal Assent on 5 July 2002. Consequently, this item does not commence at all.

Item 4 of the table provides that item 5 of Schedule 1 of the Act commences on the 28th day after the day on which the Act receives the Royal Assent. Item 5 of Schedule 1 inserts a new Part (Part 5.2) in the new Chapter 5 of the Criminal Code. Part 5.2 sets out the offences relating to espionage and similar activities.

Item 5 of the table provides that item 1 of Schedule 2 of the Act commences on the 28th day after the day on which the Act receives the Royal Assent so that it coincides with the commencement of item 1 of Schedule 1 of the Act. The commencement of item 1 of Schedule 2 is subject to subclause 2(4). Subsection 2(4) provides that 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, which repeals subsection 4J(7) of the Crimes Act, does not commence at all. The Security Legislation Amendment (Terrorism) Act 2002 received Royal Assent on 5 July 2002. Consequently, this item does not commence at all.

Item 6 of the table provides that item 2 of Schedule 2 of the Act commences immediately after the commencement of item 1 of Schedule 1 of the Act which repeals section 78 of the Crimes Act. The commencement of item 2 of Schedule 2 is subject to subclause 2(5). Subclause 2(5) provides that 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 2 of Schedule 2, which repeals subsection 4J(7) of the Crimes Act, does not commence at all. The Security Legislation Amendment (Terrorism) Act 2002 received Royal Assent on 5 July 2002. Consequently, this item does not commence at all.

Item 7 of the table provides that items 3, 4, 5, 6 and 7 of Schedule 2 of the Act commences on the 28th day after the day on which the Act receives the Royal Assent.

Subclause 2(2) provides that Column 3 of the table is for additional information that is not part of this Bill. Relevant commencement dates may be entered into Column 3 by users of the Explanatory Memorandum in the future.

Clause 3: Schedule(s)

This clause provides that the Acts specified in each Schedule of the Bill are amended or repealed in accordance with the Schedules. This means that, under Schedule 1, various sections of the Crimes Act are repealed or amended as appropriate

Under Schedule 2 various provisions in the Crimes Act and the Australian Protective Service Act 1987 are amended to remove references to sections of the Crimes Act that are repealed as a result of this Bill. Where appropriate, new references to equivalent provisions in the Criminal Code are inserted.

Clause 4: Transitional - pre-commencement offences

Subclause 4(1) provides that the Bill is not intended to operate retrospectively. Offence provisions in Part VII of the Crimes Actthat are repealed as a result of this Bill will apply to offences that take place before the Bill commences. Those provisions will also continue to apply in relation to proceedings for an offence alleged to have been committed before the commencement of this clause and any matter arising from those proceedings.

Subsection 4(2) provides that subsection 4(1) does not limit the operation of section 8 of the Acts Interpretation Act 1901. Section 8 of the Acts Interpretation Act provides that, where an Act repeals all or part of a former Act, the repeal shall not revive anything not in force or existing at the time at which the repeal takes effect or affect the previous operation of the repealed Act. This includes any rights or liabilities incurred, any punishment or penalty owing, or any investigation or legal proceeding that has arisen as a consequence of the repealed Act.