Senate

Revised Explanatory Memorandum

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

Schedule 1 - amendments relating to the security of the commonwealth

Item 1A

Item 1A repeals the existing heading of Part VII of the Crimes Act and replaces it with a new heading - Part VII - Official Secrets and Unlawful Soundings. The amended heading better reflects the contents of Part VII of the Crimes Act given that, as a result of this Bill, the existing espionage offences in Part VII will be repealed and replaced with new provisions in Part 5.2 of the Criminal Code.

Item 1

Item 1 repeals section 78 of the Crimes Act, which sets out the offence of espionage and similar activities. Offences relating to espionage and similar activities will be set out in Part 5.2 of the Criminal Code.

Item 2

Item 2 replaces references to the term 'safety or defence' in section 79 of the Crimes Act with the term 'security or defence'. Section 79 of the Crimes Act sets out the official secrets offences. The purpose of this change is to establish consistency between the official secrets provisions in the Crimes Act and the espionage provisions in the Criminal Code. The new espionage offences created by this Bill refer to security or defence . The change to the term 'security or defence' in the Bill reflects the modern intelligence environment. The term 'security' is intended to capture information about the operations, capabilities and technologies, methods and sources of Australian intelligence and security agencies. The term 'safety' is unlikely to include such information.

Item 3

Item 3 repeals provisions in the Crimes Act either because those provisions are no longer relevant or appropriate, or because equivalent provisions are inserted in the Criminal Code.

The provisions that have been repealed because they are no longer relevant or appropriate are:

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Section 81 - Harbouring Spies

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Section 83A - Illegal Use of Uniforms, Official Permits, Impersonations etc

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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 to be Evidence

Item 4

Item 4 inserts a new Chapter into the Criminal Code: Chapter 5 - The security of the Commonwealth. It is noted 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, item 4 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 5

Item 5 inserts a new Part 5.2 into Chapter 5 of the Criminal Code. Some of the provisions formerly located in Part VII of the Crimes Act are replicated in Part 5.2 of the Criminal Code, including the new espionage offence provisions.

Part 5.2 of the Criminal Code consists of four divisions, within which there are a number of sections. This is consistent with the Criminal Code structure. In the future, new divisions and sections can be inserted in Part 5.2 as required.

Part 5.2 - Offences relating to espionage and similar activities

Division 90 - Preliminary

Clause 90.1 - Definitions

Clause 90.1 defines certain terms for the purposes of Part 5.2 of the Criminal Code. Other definitions as contained in the Criminal Code Dictionary continue to apply to Part 5.2 except where terms are otherwise defined in section 90.1.

Division 91 - Offences relating to espionage and similar activities

Clause 91.1 - Espionage and similar activities

Subclauses 91.1(1) - (4) sets out four espionage offences. The maximum penalty for each type of espionage offence is 25 years imprisonment.

For the purposes of clause 91.1, 'intention' has the meaning given in section 5.2 of the Criminal Code.

All four offences relate to the unlawful use or disclosure of information concerning the Commonwealth's security or defence or information concerning the security or defence of another country, that the person acquired (whether directly or indirectly) from the Commonwealth. These provisions provide protection to information generated by the Commonwealth as well as information generated by other countries in Australia's possession or control.

Section 78 of the Crimes Act referred to a person communicating information with the intention of prejudicing the safety or defence of the Commonwealth. The new espionage offences refer to security or defence . The change to the term 'security or defence' in the Bill reflects the modern intelligence environment. The term 'security' is intended to capture information about the operations, capabilities and technologies, methods and sources of Australian intelligence and security agencies. The term 'safety' is unlikely to include such information. The term 'security or defence' is broadly defined in section 90.1 of the Bill.

Subclause 91.1(1) provides that a person commits an offence if that person communicates or makes available information concerning the Commonwealth's security or defence or information concerning the security or defence of another country in the possession or control of the Commonwealth, intending to prejudice the Commonwealth's security or defence. An additional element of the offence is that 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.

Subclause 91.1(2) provides that a person commits an offence if the person communicates or makes available information concerning the Commonwealth's security or defence or information concerning the security or defence of another country that is, or has been in the possession or control of the Commonwealth, and the person does so without lawful authority intending to give an advantage to another country's security or defence. An additional element of the offence is that 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. This offence is not intended to capture situations where information is communicated as part of an authorised information exchange arrangement between the Commonwealth and its allies.

Subclause 91.1(3) creates an offence that has the same elements as an offence under subclause 91.1(1) except that it relates to situations where a person makes, obtains or copies a record in any form of information concerning the Commonwealth's security or defence or information concerning the security or defence of another country that the person acquired (whether directly or indirectly) from the Commonwealth.

Subclause 91.1(4) creates an offence that has the same elements as an offence under subclause 91.1(2) except that it relates to situations where a person makes, obtains or copies a record in any form of information concerning the Commonwealth's security or defence or information concerning the security or defence of another country that the person acquired (whether directly or indirectly) from the Commonwealth.

Subclause 91.1(5) provides that a person does not need to have a particular country, foreign organisation or person in mind at the time when he or she makes, obtains or copies the record under the offence provisions in subclauses 91.1(3) and 91.1(4).

A person charged with an espionage offence may apply for bail. Any application for bail will be decided under the appropriate bail legislation of the State or Territory in which the charges are brought except to the extent that subclause 91.1(6) operates. Subclause 91.1(6) specifically provides that a person charged with an espionage offence under clause 91.1 will only be remanded on bail by a judge of the Supreme Court of a State or Territory.

Subclause 91.1(6) has effect despite anything in clause 93.1. Clause 93.1 deals with the institution of proceedings with the consent of the Attorney-General.

Under subclause 91.1(7) an extended geographical jurisdiction will apply to offences under clause 91.1. Section 15.4 of the Criminal Code provides that, where a law of the Commonwealth provides that this section applies to a particular offence, the offence applies whether or not the conduct constituting the alleged offence occurs in Australia and whether or not a result of the conduct constituting the alleged offence occurs in Australia. This means that the espionage offence provisions in this Bill will potentially apply to all possible circumstances, within and outside Australia, in which espionage might threaten Australian interests. The offences will apply to conduct anywhere and by any person that violates the offence provisions in clause 91.1. Consequently, in addition to covering conduct within Australia, clause 91.1 would extend to a foreign national who obtains relevant Australian information in another country, for example by breaking into an Australian mission.

Clause 91.2 inserts a defence that will apply to sections 91.1(1) - (4) where the information has already been communicated or made available to the public with the lawful authority of the Commonwealth.

The defence only applies where the relevant information is in the public domain with the authority of the Commonwealth. It will not be a defence to a charge of espionage if information is communicated or made available to the public for the purpose of establishing a defence to an espionage charge, where the information is initially communicated or made available without the authority of the Commonwealth.

For example, a person who, without authority, places information regarding the security or defence of the Commonwealth on an obscure Internet website and subsequently communicates that information to a foreign organisation for the purposes of giving an advantage to another country's security or defence will not be permitted to rely on this defence.

A person will have acquired information indirectly, irrespective of the number of people through whom the information was passed before it reached the person who subsequently communicated or otherwise made available the information.

Division 93 - Prosecutions and Hearings

Clause 93.1 - Institution of prosecution

Clause 93.1 substantially replicates section 85 of the Crimes Act. Section 85 of the Crimes Act will continue in relation to prosecutions under Part VII of the Crimes Act.

Under subclause 93.1(1), a prosecution of an offence under Part 5.2 of the Criminal Code will only be instituted with the consent of the Attorney-General or a person acting under the Attorney-General's direction. This provision applies to the espionage offences (Division 91) and the contravention of an order made, or direction given, under the hearing in camera provisions (section 93.2).

Prosecutions of offences against Part 5.2 are likely to raise issues regarding matters of national security or sensitive international relations that require government to government contact. The Attorney-General's consent is required with respect to prosecutions of offences under other security and counter-terrorism legislation. The Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (section 20), Crimes (Foreign Incursions and Recruitment) Act 1978 (section 10), Crimes (Internationally Protected Persons) Act 1976 (subsection 12(3)) and the Crimes (Biological Weapons) Act 1976 (subsection 10(3)) all contain consent provisions similar to the consent provision in subclause 93.1(1).

Under subclause 93.1(2) a person charged with an offence against Part 5.2 of the Criminal Code may be arrested and remanded in custody or bail in the normal way even before the consent of the Attorney-General, or a person acting under his or her direction, is obtained. Paragraph 93.1(2)(b) is subject to the condition in subclause 91.1(6) - this clause does not exist with regard to bail for a person charged with an espionage offence under section 91.1 (ie. bail can only be granted by a judge of the Supreme Court of a State or Territory)

Clause 93.2 - Hearing in camera etc

Clause 93.2 provides that members of the public may be excluded from all or part of a hearing of an application or other proceeding before a federal court, a court exercising federal jurisdiction or a court of a Territory (paragraph 93.2(2)(a)). A court may also restrict the publication of, and access to, evidence (paragraphs 93.2(2)(b) - (c)).

This clause substantially replicates section 85B of the Crimes Act except to the extent that subclause 93.2(2) refers to 'security or defence' interests rather then only defence interests. By extending the application of this provision to take account of security interests, clause 93.2 responds to the changing nature of the security and defence environment, which has also influenced other provisions in the Bill.

Under clause 93.2 the presiding judge retains the discretion with regard to the question of whether court proceedings remain open or are closed in the interests of the Commonwealth's security or defence.

Subclause 93.2(3) provides that a person who violates an order made or direction given under this section commits an offence and prescribes a maximum penalty of five years imprisonment.

Division 94 - Forfeiture

Clause 94.1 - Forfeiture of articles

Clause 94.1 substantially replicates section 85D of the Crimes Act and provides, in effect, that the product of any contravention of Part 5.2 is forfeited to the Commonwealth. This includes documents and other forms of information collected for the purposes of committing an offence under Division 91 and reports produced contrary to an order made under section 93.2.

Section 85D will continue to apply in relation to Part VII of the Crimes Act.