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

8   At the end of Part 5.1 of the Criminal Code

Add:

Division 82 - Sabotage

Subdivision A - Preliminary

82.1 Definitions

In this Division:

advantage : conduct will not advantage the national security of a foreign country if the conduct will advantage Australia's national security to an equivalent extent.

damage to public infrastructure : conduct results in damage to public infrastructure if any of the following paragraphs apply in relation to public infrastructure:

(a) the conduct destroys it or results in its destruction;

(b) the conduct involves interfering with it, or abandoning it, resulting in it being lost or rendered unserviceable;

(c) the conduct results in it suffering a loss of function or becoming unsafe or unfit for its purpose;

(d) the conduct limits or prevents access to it or any part of it by persons who are ordinarily entitled to access it or that part of it;

(e) the conduct results in it or any part of it becoming defective or being contaminated;

(f) the conduct significantly degrades its quality;

(g) if it is an electronic system - the conduct seriously disrupts it.

foreign principal has the meaning given by section 90.2.

national security has the meaning given by section 90.4.

prejudice : embarrassment alone is not sufficient to prejudice Australia's national security.

public infrastructure : see section 82.2.

82.2 Public infrastructure

Public infrastructure

(1) Public infrastructure means any of the following:

(a) any infrastructure, facility, premises, network or electronic system that belongs to the Commonwealth;

(b) defence premises within the meaning of Part VIA of the Defence Act 1903;

(c) service property, and service land, within the meaning of the Defence Force Discipline Act 1982;

(d) any part of the infrastructure of a telecommunications network within the meaning of the Telecommunications Act 1997;

(e) any infrastructure, facility, premises, network or electronic system (including an information, telecommunications or financial system) that:

(i) provides or relates to providing the public with utilities or services (including transport of people or goods) of any kind; and

(ii) is located in Australia; and

(iii) belongs to or is operated by a constitutional corporation or is used to facilitate constitutional trade and commerce.

(2) For the purposes of the application of paragraph (1)(a) or (e) in relation to property within the meaning of Chapter 7, whether the property belongs to the Commonwealth or a constitutional corporation is to be determined in the same way as it would be under Chapter 7 (see section 130.2).

Fault element for offences in relation to public infrastructure

(3) For the purposes of a reference, in an element of an offence, to public infrastructure within the meaning of this Division, absolute liability applies:

(a) in relation to public infrastructure within the meaning of paragraph (1)(a) - to the element that the infrastructure, facility, premises, network or electronic system belongs to the Commonwealth; and

(b) in relation to public infrastructure within the meaning of paragraph (1)(e) - to the element that the infrastructure, facility, premises, network or electronic system belongs to or is operated by a constitutional corporation or is used to facilitate constitutional trade or commerce.

82.2A Expressions also used in the Australian Security Intelligence Organisation Act 1979

The meaning of an expression in this Division does not affect the meaning of that expression in the Australian Security Intelligence Organisation Act 1979, unless that Act expressly provides otherwise.

Subdivision B - Offences

82.3 Offence of sabotage involving foreign principal with intention as to national security

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct results in damage to public infrastructure; and

(c) the person intends that the conduct will:

(i) prejudice Australia's national security; or

(ii) advantage the national security of a foreign country; 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 25 years.

(2) For the purposes of subparagraph (1)(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.

(3) For the purposes of paragraph (1)(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.

Note: An alternative verdict may be available for an offence against this section (see section 82.12).

82.4 Offence of sabotage involving foreign principal reckless as to national security

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct results in damage to public infrastructure; and

(c) the person is reckless as to whether the conduct will:

(i) prejudice Australia's national security; or

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

(2) For the purposes of subparagraph (1)(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.

(3) For the purposes of paragraph (1)(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.

Note: An alternative verdict may be available for an offence against this section (see section 82.12).

82.5 Offence of sabotage with intention as to national security

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct results in damage to public infrastructure; and

(c) the person intends that the conduct will:

(i) prejudice Australia's national security; or

(ii) advantage the national security of a foreign country.

Penalty: Imprisonment for 20 years.

(2) For the purposes of subparagraph (1)(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.

Note: An alternative verdict may be available for an offence against this section (see section 82.12).

82.6 Offence of sabotage reckless as to national security

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct results in damage to public infrastructure; and

(c) the person is reckless as to whether the conduct will:

(i) prejudice Australia's national security; or

(ii) advantage the national security of a foreign country.

Penalty: Imprisonment for 15 years.

(2) For the purposes of paragraph (1)(c), 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.

82.7 Offence of introducing vulnerability with intention as to national security

A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct has the result that an article or thing, or software, becomes vulnerable:

(i) to misuse or impairment; or

(ii) to being accessed or modified by a person not entitled to access or modify it; and

(c) the article or thing, or software, is or is part of public infrastructure; and

(d) the person engages in the conduct with the intention that prejudice to Australia's national security will occur (whether at the time or at a future time).

Note: An alternative verdict may be available for an offence against this section (see section 82.12).

Penalty: Imprisonment for 15 years.

82.8 Offence of introducing vulnerability reckless as to national security

A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct has the result that an article or thing, or software, becomes vulnerable:

(i) to misuse or impairment; or

(ii) to being accessed or modified by a person not entitled to access or modify it; and

(c) the article or thing, or software, is or is part of public infrastructure; and

(d) the person engages in the conduct reckless as to whether prejudice to Australia's national security will occur (whether at the time or at a future time).

Penalty: Imprisonment for 10 years.

82.9 Preparing for or planning sabotage 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 this Division (other than this section).

Penalty: Imprisonment for 7 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 Division 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 Division; and

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

82.10 Defences

(1) It is a defence to a prosecution for an offence by a person against this Division if:

(a) the person is, at the time of the offence, a public official; and

(b) the person engaged in the conduct in good faith in the course of performing duties as a public official; and

(c) the conduct is reasonable in the circumstances for the purpose of performing those duties.

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 Division if:

(a) the person is, at the time of the offence:

(i) an owner or operator of the public infrastructure; or

(ii) acting on behalf of, or with the consent of, an owner or operator of the public infrastructure; and

(b) the person engaged in the conduct in good faith; and

(c) the conduct is within the lawful authority of the owner or operator; and

(d) the conduct is reasonable in the circumstances for the purpose of exercising that lawful authority.

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

82.11 Geographical jurisdiction

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

82.12 Alternative verdicts

(1) If, on a trial of a person for an offence specified in column 1 of an item in the following table, the trier of fact:

(a) is not satisfied that the person is guilty of that offence; and

(b) is satisfied beyond reasonable doubt that the person is guilty of an offence against a provision specified in column 2 of that item;

it may find the person not guilty of the offence specified in column 1 but guilty of an offence specified in column 2.

(2) Subsection (1) only applies if the person has been accorded procedural fairness in relation to the finding of guilt for the offence specified in column 2.

82.13 Consent of Attorney-General required for prosecutions

(1) Proceedings for the commitment of a person for trial for an offence against this Division must not be instituted without the written consent of the Attorney-General.

(2) However, the following steps may be taken (but no further steps in proceedings may be taken) without consent having been given:

(a) a person may be arrested for the offence and a warrant for such an arrest may be issued and executed;

(b) a person may be charged with the offence;

(c) a person so charged may be remanded in custody or on bail.

(3) Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time.

(4) In deciding whether to consent, the Attorney-General must consider whether the conduct might be authorised by section 82.10.

Division 83 - Other threats to security

83.1A Expressions also used in the Australian Security Intelligence Organisation Act 1979

The meaning of an expression in this Division does not affect the meaning of that expression in the Australian Security Intelligence Organisation Act 1979, unless that Act expressly provides otherwise.

83.1 Advocating mutiny

(1) A person (the advocate ) commits an offence if:

(a) the advocate engages in conduct; and

(b) the conduct involves advocating mutiny; and

(c) the advocate engages in the conduct reckless as to whether the result will be that a defence member (within the meaning of the Defence Force Discipline Act 1982) will take part in a mutiny; and

(d) at the time the advocate engages in the conduct:

(i) the advocate knows that the advocate is an Australian citizen or a resident of Australia; or

(ii) the advocate knows that the advocate has voluntarily put himself or herself under the protection of the Commonwealth; or

(iii) the advocate is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Note: The defence in section 80.3 for acts done in good faith applies to this offence.

Penalty: Imprisonment for 7 years.

(1A) For the purposes of this section:

(a) a person advocates mutiny if the person counsels, promotes, encourages or urges mutiny; and

(b) a reference to advocating mutiny includes a reference to:

(i) advocating mutiny even if mutiny does not occur; and

(ii) advocating a specific mutiny; and

(iii) advocating more than one mutiny.

(2) A mutiny is a combination between persons who are, or at least 2 of whom are, members of the Australian Defence Force:

(a) to overthrow lawful authority in the Australian Defence Force or in a force of another country that is acting in cooperation with the Australian Defence Force; or

(b) to resist such lawful authority in such a manner as to substantially prejudice the operational efficiency of the Australian Defence Force or of, or of a part of, a force of another country that is acting in cooperation with the Australian Defence Force.

(3) Strict liability applies to subparagraph (1)(d)(iii).

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

83.2 Assisting prisoners of war to escape

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct assists one or more prisoners of war (within the meaning of Article 4 of the Third Geneva Convention) to escape from custody; and

(c) the custody is controlled wholly or partly by the Commonwealth or the Australian Defence Force; and

(d) the conduct takes place in the context of an international armed conflict.

Penalty: Imprisonment for 15 years.

(2) Absolute liability applies to paragraph (1)(d).

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

83.3 Military-style training involving foreign government principal etc.

Offence in relation to military-style training

(1) A person commits an offence if:

(a) the person provides, receives, or participates in, training; and

(b) the training involves using arms or practising military exercises, movements or evolutions; and

(c) any of the following circumstances exists:

(i) the training is provided on behalf of a foreign government principal within the meaning of Part 5.2 (see section 90.3) or a foreign political organisation within the meaning of that Part (see section 90.1);

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

Penalty: Imprisonment for 20 years.

Defence - authorised by written agreement

(2) Subsection (1) does not apply to a person in relation to conduct engaged in by the person that is authorised by a written agreement to which the Commonwealth is a party.

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

Defence - solely for service with armed force other than terrorist organisation

(3) Subsection (1) does not apply in relation to training a person provides, receives or participates in, if the provision, receipt or participation is solely in the course of, and as part of, the person's service in any capacity in or with:

(a) the armed forces of the government of a foreign country; or

(b) any other armed force, if a declaration under subsection 119.8(1) covers the person and the circumstances of the person's service in or with the force.

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

(4) However, subsection (3) does not apply if:

(a) at the time the person engages in the conduct:

(i) the person is in or with an organisation; or

(ii) the training is funded partly by an organisation; and

(b) the organisation is:

(i) a listed terrorist organisation within the meaning of Part 5.3 (see section 100.1); or

(ii) a prescribed organisation within the meaning of Part 5.5 (see section 117.1).

Defence - humanitarian assistance etc.

(4A) Subsection (1) does not apply to a person in relation to conduct engaged in by the person solely or primarily for one or more of the following purposes:

(a) providing aid of a humanitarian nature;

(b) performing an official duty for:

(i) the United Nations or an agency of the United Nations; or

(ii) the International Committee of the Red Cross.

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

Geographical jurisdiction

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

83.4 Interference with political rights and duties

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct involves the use of force or violence, or intimidation, or the making of threats of any kind; and

(c) the conduct results in interference with the exercise or performance, in Australia by any other person, of an Australian democratic or political right or duty; and

(d) the right or duty arises under the Constitution or a law of the Commonwealth.

Note: The defence in section 80.3 for acts done in good faith applies to this offence.

Penalty: Imprisonment for 3 years.

(2) Absolute liability applies to paragraph (1)(d).

83.5 Consent of Attorney-General required for prosecutions

(1) Proceedings for the commitment of a person for trial for an offence against this Division must not be instituted without the written consent of the Attorney-General.

(2) However, the following steps may be taken (but no further steps in proceedings may be taken) without consent having been given:

(a) a person may be arrested for the offence and a warrant for such an arrest may be issued and executed;

(b) a person may be charged with the offence;

(c) a person so charged may be remanded in custody or on bail.

(3) Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time.

(4) In deciding whether to consent, the Attorney-General must consider whether the conduct might be authorised in a way mentioned in:

(a) for an offence against section 83.3 - subsection 83.3(2), (3) or (4A); and

(b) for an offence against section 83.1 or 83.4 - section 80.3.