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

17 Division 91 of the Criminal Code

Repeal the Division, substitute:

Division 91 - Espionage

Subdivision A - Espionage

91.1 Espionage - dealing with information etc. concerning national security which is or will be communicated or made available to foreign principal

Intention as to national security

(1) A person commits an offence if:

(a) the person deals with information or an article; and

(b) the information or article:

(i) has a security classification; or

(ii) concerns Australia's national security; and

(i) prejudice Australia's national security; or

(ii) advantage the national security of a foreign country; and

(d) the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal.

Note: An alternative verdict may be available for an offence against this subsection (see section 93.5).

Penalty: Imprisonment for life.

Reckless as to national security

(2) A person commits an offence if:

(a) the person deals with information or an article; and

(b) the information or article:

(i) has a security classification; or

(ii) concerns Australia's national security; and

(i) prejudice Australia's national security; or

(ii) advantage the national security of a foreign country; and

(d) the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal.

Penalty: Imprisonment for 25 years.

Other matters

(4) For the purposes of subparagraphs (1)(c)(ii) and (2)(c)(ii), the person:

(a) does not need to have in mind a particular foreign country; and

(b) may have in mind more than one foreign country.

(5) For the purposes of paragraphs (1)(d) and (2)(d), the person:

(a) does not need to have in mind a particular foreign principal; and

(b) may have in mind more than one foreign principal.

91.2 Espionage - dealing with information etc. which is or will be communicated or made available to foreign principal

Intention as to national security

(1) A person commits an offence if:

(a) the person deals with information or an article; and

(b) the person intends that the person's conduct will prejudice Australia's national security; and

(c) the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal.

Note: An alternative verdict may be available for an offence against this subsection (see section 93.5).

Penalty: Imprisonment for 25 years.

Reckless as to national security

(2) A person commits an offence if:

(a) the person deals with information or an article; and

(b) the person is reckless as to whether the person's conduct will prejudice Australia's national security; and

(c) the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal.

Penalty: Imprisonment for 20 years.

Other matters

(3) For the purposes of paragraphs (1)(c) and (2)(c):

(a) the person does not need to have in mind a particular foreign principal; and

(b) the person may have in mind more than one foreign principal.

91.3 Espionage - security classified information etc.

(1) A person commits an offence if:

(a) the person deals with information or an article; and

(aa) the person deals with the information or article for the primary purpose of communicating the information or article, or making it available,to a foreign principal or a person acting on behalf of a foreign principal; and

(b) the person's conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal; and

Penalty: Imprisonment for 20 years.

(2) For the purposes of paragraphs (1)(aa) and (b):

(a) the person does not need to have in mind a particular foreign principal; and

(b) the person may have in mind more than one foreign principal.

(3) Strict liability applies to paragraph (1)(aa).

91.4 Defences

(1) It is a defence to a prosecution for an offence by a person against this Subdivision that the person dealt with the information or article:

(a) in accordance with a law of the Commonwealth; or

(b) in accordance with an arrangement or agreement to which the Commonwealth is party and which allows for the exchange of information or articles; or

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).

(2) It is a defence to a prosecution for an offence by a person against this Subdivision that the information or article the person deals with is information or an article 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 this subsection (see subsection 13.3(3)).

(3) It is a defence to a prosecution for an offence by a person against section 91.1, in which the prosecution relies on subparagraph 91.1(1)(c)(ii) or (2)(c)(ii), or against section 91.3, if:

(a) the person did not make or obtain the information or article by reason of any of the following:

(i) the person being, or having been, a Commonwealth officer (within the meaning of Part 5.6);

(ii) the person being otherwise engaged to perform work for a Commonwealth entity;

(iii) an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information; and

(b) the information or article has already been communicated, or made available, to the public (the prior publication ); and

(d) at the time the person deals with the information or article, the person believes that doing so will not prejudice Australia's national security; and

(e) having regard to the nature, extent and place of the prior publication, the person has reasonable grounds for that belief.

Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).

91.5 Matters affecting sentencing for offence against subsection 91.1(1)

(1) In determining the sentence to be passed in respect of a person for an offence against subsection 91.1(1) (punishable by life imprisonment), the court must take into account any circumstances set out in paragraph 91.6(1)(b) that exist in relation to the commission of the offence.

(2) However, the court need only take the circumstances into account so far as the circumstances are known to the court and relevant.

(3) The circumstances are in addition to any other matters the court must take into account (for example, the matters mentioned in section 16A of the Crimes Act 1914).

91.6 Aggravated espionage offence

(1) A person commits an offence against this section if:

(a) the person commits an offence against section 91.1 (other than subsection 91.1(1)), 91.2 or 91.3 (the underlying offence ); and

(b) any of the following circumstances exist in relation to the commission of the underlying offence:

(ii) the person dealt with information or an article from a foreign intelligence agency;

(iii) the person dealt with 5 or more records or articles each of which has a security classification;

(iv) the person altered a record or article to remove or conceal its security classification;

(v) at the time the person dealt with the information or article, the person held an Australian Government security clearance allowing access to information that has, or articles that have, a security classification of at least secret.

Penalty:

(a) if the penalty for the underlying offence is imprisonment for 25 years - imprisonment for life; or

(b) if the penalty for the underlying offence is imprisonment for 20 years - imprisonment for 25 years.

(2) There is no fault element for the physical element in paragraph (1)(a) other than the fault elements (however described), if any, for the underlying offence.

(4) To avoid doubt, a person does not commit an underlying offence for the purposes of paragraph (1)(a) if the person has a defence to the underlying offence.

(5) To avoid doubt, the person may be convicted of an offence against this section even if the person has not been convicted of the underlying offence.

Note: An alternative verdict may be available for an offence against this section (see section 93.5).

91.7 Geographical jurisdiction

Section 15.4 (extended geographical jurisdiction - category D) applies to an offence against this Subdivision.

Subdivision B - Espionage on behalf of foreign principal

91.8 Espionage on behalf of foreign principal

Intention as to national security

(1) A person commits an offence if:

(a) the person deals with information or an article; and

(b) the person intends that the person's conduct will:

(i) prejudice Australia's national security; or

(ii) advantage the national security of a foreign country; and

(c) the person is reckless as to whether the conduct involves the commission, by the person or any other person, of an offence against Subdivision A (espionage); and

(d) any of the following circumstances exists:

(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;

(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.

Note: An alternative verdict may be available for an offence against this subsection (see section 93.5).

Penalty: Imprisonment for 25 years.

Reckless as to national security

(2) A person commits an offence if:

(a) the person deals with information or an article; and

(b) the person is reckless as to whether the person's conduct will:

(i) prejudice Australia's national security; or

(ii) advantage the national security of a foreign country; and

(c) the person is reckless as to whether the conduct involves the commission, by the person or any other person, of an offence against Subdivision A (espionage); and

(d) any of the following circumstances exists:

(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;

(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.

Penalty: Imprisonment for 20 years.

Conduct on behalf of foreign principal

(3) A person commits an offence if:

(a) the person deals with information or an article; and

(b) the person is reckless as to whether the person's conduct involves the commission, by the person or any other person, of an offence against Subdivision A (espionage); and

(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;

(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.

Penalty: Imprisonment for 15 years.

Other matters

(4) For the purposes of subparagraphs (1)(b)(ii) and (2)(b)(ii), the person:

(a) does not need to have in mind a particular foreign country; and

(b) may have in mind more than one foreign country.

(5) For the purposes of paragraphs (1)(d), (2)(d) and (3)(c), the person:

(a) does not need to have in mind a particular foreign principal; and

(b) may have in mind more than one foreign principal.

91.9 Defences

(1) It is a defence to a prosecution for an offence by a person against this Subdivision that the person dealt with the information or article:

(a) in accordance with a law of the Commonwealth; or

(b) in accordance with an arrangement or agreement to which the Commonwealth is party and which allows for the exchange of information or articles; or

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).

Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).

91.10 Geographical jurisdiction

Section 15.4 (extended geographical jurisdiction - category D) applies to an offence against this Subdivision.

Subdivision C - Espionage-related offences

91.11 Offence of soliciting or procuring an espionage offence or making it easier to do so

(1) A person commits an offence if:

(a) the person engages in conduct in relation to another person (the target ); and

(b) the person engages in the conduct with the intention of soliciting or procuring, or making it easier to solicit or procure, the target to deal with information or an article in a way that would constitute an offence against Subdivision A (espionage) or B (espionage on behalf of foreign principal); and

(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;

(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.

Penalty: Imprisonment for 15 years.

(2) For the purposes of paragraph (1)(c):

(a) the person does not need to have in mind a particular foreign principal; and

(b) the person may have in mind more than one foreign principal.

(3) A person may commit an offence against subsection (1):

(a) even if an offence against Subdivision A or B is not committed; and

(b) even if it is impossible for the target to deal with information or an article in a way that would constitute an offence against Subdivision A or B; and

(c) even if the person does not have in mind particular information or a particular article, or a particular dealing or kind of dealing with information or an article, at the time the person engages in conduct in relation to the target; and

(d) whether it is a single dealing, or multiple dealings, that the person intends to solicit or procure or make it easier to solicit or procure.

(4) Section 11.1 (attempt) does not apply to an offence against subsection (1).

91.12 Offence of preparing for an espionage offence

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person does so with the intention of preparing for, or planning, an offence against Subdivision A (espionage) or B (espionage on behalf of foreign principal).

Penalty: Imprisonment for 15 years.

(2) Section 11.1 (attempt) does not apply to an offence against subsection (1).

(3) Subsection (1) applies:

(a) whether or not an offence against Subdivision A or B is committed; and

(b) whether or not the person engages in the conduct in preparation for, or planning, a specific offence against a provision of Subdivision A or B; and

(c) whether or not the person engages in the conduct in preparation for, or planning, more than one offence against Subdivision A or B.

91.13 Defences

It is a defence to a prosecution for an offence by a person against this Subdivision that the person dealt with the information or article:

(a) in accordance with a law of the Commonwealth; or

(b) in accordance with an arrangement or agreement to which the Commonwealth is party and which allows for the exchange of information or articles; or

Note: A defendant bears an evidential burden in relation to the matters in this section (see subsection 13.3(3)).

91.14 Geographical jurisdiction

Section 15.4 (extended geographical jurisdiction - category D) applies to an offence against this Subdivision.

Division 92 - Foreign interference

Subdivision A - Preliminary

92.1 Definitions

In this Division:

deception means an intentional or reckless deception, whether by words or other conduct, and whether as to fact or as to law, and includes:

(a) a deception as to the intentions of the person using the deception or any other person; and

(b) conduct by a person that causes a computer, a machine or an electronic device to make a response that the person is not authorised to cause it to do.

menaces has the same meaning as in Part 7.5 (see section 138.2).

Subdivision B - Foreign interference

92.2 Offence of intentional foreign interference

Interference generally

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) any of the following circumstances exists:

(i) the person engages in the conduct on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;

(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal; and

(i) influence a political or governmental process of the Commonwealth or a State or Territory; or

(ii) influence the exercise (whether or not in Australia) of an Australian democratic or political right or duty; or

(iii) support intelligence activities of a foreign principal; or

(iv) prejudice Australia's national security; and

(d) any part of the conduct:

(i) is covert or involves deception; or

(ii) involves the person making a threat to cause serious harm, whether to the person to whom the threat is made or any other person; or

(iii) involves the person making a demand with menaces.

Note: An alternative verdict may be available for an offence against this subsection (see section 93.5).

Penalty: Imprisonment for 20 years.

Interference involving targeted person

(2) A person commits an offence if:

(a) the person engages in conduct; and

(b) any of the following circumstances exists:

(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;

(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal; and

(i) in relation to a political or governmental process of the Commonwealth or a State or Territory; or

(ii) in the target's exercise (whether or not in Australia) of any Australian democratic or political right or duty; and

(d) the person conceals from, or fails to disclose to, the target the circumstance mentioned in paragraph (b).

Note: An alternative verdict may be available for an offence against this subsection (see section 93.5).

Penalty: Imprisonment for 20 years.

Other matters

(3) For the purposes of paragraphs (1)(b) and (2)(b):

(a) the person does not need to have in mind a particular foreign principal; and

(b) the person may have in mind more than one foreign principal.

92.3 Offence of reckless foreign interference

Interference generally

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) any of the following circumstances exists:

(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;

(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal; and

(i) influence a political or governmental process of the Commonwealth or a State or Territory; or

(ii) influence the exercise (whether or not in Australia) of an Australian democratic or political right or duty; or

(iii) support intelligence activities of a foreign principal; or

(iv) prejudice Australia's national security; and

(d) any part of the conduct:

(i) is covert or involves deception; or

(ii) involves the person making a threat to cause serious harm, whether to the person to whom the threat is made or any other person; or

(iii) involves the person making a demand with menaces.

Penalty: Imprisonment for 15 years.

Interference involving targeted person

(2) A person commits an offence if:

(a) the person engages in conduct; and

(b) any of the following circumstances exists:

(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;

(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal; and

(i) in relation to a political or governmental process of the Commonwealth or a State or Territory; or

(ii) in the target's exercise (whether or not in Australia) of any Australian democratic or political right or duty; and

(d) the person conceals from, or fails to disclose to, the target the circumstance mentioned in paragraph (b).

Penalty: Imprisonment for 15 years.

Other matters

(3) For the purposes of paragraphs (1)(b) and (2)(b):

(a) the person does not need to have in mind a particular foreign principal; and

(b) the person may have in mind more than one foreign principal.

92.4 Offence of preparing for a foreign interference offence

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person does so with the intention of preparing for, or planning, an offence against another provision of this Subdivision (foreign interference).

Penalty: Imprisonment for 10 years.

(2) Section 11.1 (attempt) does not apply to an offence against subsection (1).

(3) Subsection (1) applies:

(a) whether or not an offence against this Subdivision is committed; and

(b) whether or not the person engages in the conduct in preparation for, or planning, a specific offence against a provision of this Subdivision; and

(c) whether or not the person engages in the conduct in preparation for, or planning, more than one offence against this Subdivision.

92.5 Defence

It is a defence to a prosecution for an offence by a person against this Subdivision that the person engaged in the conduct:

(a) in accordance with a law of the Commonwealth; or

(b) in accordance with an arrangement or agreement to which the Commonwealth is party; or

Note: A defendant bears an evidential burden in relation to the matters in this section (see subsection 13.3(3)).

92.6 Geographical jurisdiction

Section 15.2 (extended geographical jurisdiction - category B) applies to an offence against this Subdivision.

Subdivision C - Foreign interference involving foreign intelligence agencies

92.7 Knowingly supporting foreign intelligence agency

A person commits an offence if:

(a) the person provides resources, or material support, to an organisation or a person acting on behalf of an organisation; and

(b) the person knows that the organisation is a foreign intelligence agency.

Note: An alternative verdict may be available for an offence against this section (see section 93.5).

Penalty: Imprisonment for 15 years.

92.8 Recklessly supporting foreign intelligence agency

A person commits an offence if:

(a) the person provides resources, or material support, to an organisation or a person acting on behalf of an organisation; and

(b) the organisation is a foreign intelligence agency.

Penalty: Imprisonment for 10 years.

92.9 Knowingly funding or being funded by foreign intelligence agency

A person commits an offence if:

(a) the person:

(i) directly or indirectly receives or obtains funds from, or directly or indirectly makes funds available to, an organisation or a person acting on behalf of an organisation; or

(ii) directly or indirectly collects funds for or on behalf of an organisation or a person acting on behalf of an organisation; and

(b) the person knows that the organisation is a foreign intelligence agency.

Note: An alternative verdict may be available for an offence against this section (see section 93.5).

Penalty: Imprisonment for 15 years.

92.10 Recklessly funding or being funded by foreign intelligence agency

A person commits an offence if:

(a) the person:

(i) directly or indirectly receives or obtains funds from, or directly or indirectly makes funds available to, an organisation or a person acting on behalf of an organisation; or

(ii) directly or indirectly collects funds for or on behalf of an organisation or a person acting on behalf of an organisation; and

(b) the organisation is a foreign intelligence agency.

Penalty: Imprisonment for 10 years.

92.11 Defence

It is a defence to a prosecution for an offence by a person against this Subdivision that the person engaged in the conduct:

(a) in accordance with a law of the Commonwealth; or

(b) in accordance with an arrangement or agreement to which the Commonwealth is party; or

Note: A defendant bears an evidential burden in relation to the matters in this section (see subsection 13.3(3)).

Division 92A - Theft of trade secrets involving foreign government principal

92A.1 Theft of trade secrets involving foreign government principal

(1) A person commits an offence if:

(a) the person dishonestly receives, obtains, takes, copies or duplicates, sells, buys or discloses information; and

(b) all of the following circumstances exist:

(i) the information is not generally known in trade or business, or in the particular trade or business concerned;

(ii) the information has a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were communicated;

(iii) the owner of the information has made reasonable efforts in the circumstances to prevent the information becoming generally known; and

(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign government principal or a person acting on behalf of a foreign government principal;

(ii) the conduct is directed, funded or supervised by a foreign government principal or a person acting on behalf of a foreign government principal.

Penalty: Imprisonment for 15 years.

(2) For the purposes of paragraph (1)(a), dishonest means:

(a) dishonest according to the standards of ordinary people; and

(b) known by the defendant to be dishonest according to the standards of ordinary people.

(3) In a prosecution for an offence against this section, the determination of dishonesty is a matter for the trier of fact.

(4) For the purposes of paragraph (1)(c):

(a) the person does not need to have in mind a particular foreign government principal; and

(b) the person may have in mind more than one foreign government principal.

92A.2 Geographical jurisdiction

(1) Section 15.2 (extended geographical jurisdiction - category B) applies to an offence against section 92A.1.

(2) However, subsections 15.2(2) and 15.2(4) (defences for primary and ancillary offences) do not apply.

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