S 78 repealed by No 91 of 2002, s 3 and
Sch 1 item 1, effective 28 November 2002. Act No 91 of 2002, s 4 contains
the following transitional provision:
Transitional
-
pre-commencement offences
4(1)
Despite
the amendment or repeal of a provision by a Schedule to this Act, that provision
continues to apply, after the commencement of this section, in relation to:
(a)
an offence committed before the commencement
of this section; or
(b)
proceedings
for an offence alleged to have been committed before the commencement of this
section; or
(c)
any matter
connected with, or arising out of, such proceedings;
as if the amendment or repeal had not been made.
4(2)
Subsection
(1) does not limit the operation of section
8
of
the
Acts Interpretation Act 1901
.
S 78 formerly read:
Espionage and similar activities
(1)
If
a person with the intention of prejudicing the safety or defence of the Commonwealth
or a part of the Queen's dominions:
(a)
makes
a sketch, plan, photograph, model, cipher, note, document or article that
is likely to be, might be or is intended to be directly or indirectly useful
to an enemy or a foreign power;
(b)
obtains, collects, records, uses, has in his possession or communicates
to another person a sketch, plan, photograph, model, cipher, note, document,
article or information that is likely to be, might be or is intended to be
directly or indirectly useful to an enemy or a foreign power; or
(c)
approaches, is in the neighbourhood
of, is in, enters, inspects or passes over a prohibited place;
he shall be guilty of an indictable offence.
Penalty:
Imprisonment for 7 years.
History
S 78(1) amended
by No 24 of 2001, s 3 and Sch 10 item 83, by substituting ``with the intention
of prejudicing'' for ``for a purpose intended to be prejudicial to''. For
application provisions, see note under s 3BA.
(2)
On
a prosecution under this section:
(a)
it is
not necessary to show that the accused person was guilty of a particular act
tending to show an intention to prejudice the safety or defence of the Commonwealth
or a part of the Queen's dominions and, notwithstanding that such an act is
not proved against him, he may be convicted if, from the circumstances of
the case, from his conduct or from his known character as proved, it appears
that his intention was to prejudice the safety or defence of the Commonwealth
or a part of the Queen's dominions; and
(b)
if any sketch, plan, photograph, model, cipher, note, document,
article or information relating to or used in a prohibited place, or anything
in such a place, was made, obtained, collected, recorded, used, possessed
or communicated by any person other than a person acting under lawful authority,
it shall, unless the contrary is proved, be deemed to have been made, obtained,
collected, recorded, used, possessed or communicated with the intention of
prejudicing the safety or defence of the Commonwealth or a part of the Queen's
dominions.
History
S 78(2) amended by
No 24 of 2001, s 3 and Sch 10 items 84 to 86, by substituting ``show an intention
to prejudice'' for ``show a purpose intended to be prejudicial to'', and ``intention
was to prejudice'' for ``purpose was a purpose intended to be prejudicial
to'' in para (a) and ``with the intention of prejudicing'' for ``for a purpose
intended to be prejudicial to'' in para (b). For application provisions, see
note under s 3BA.
(3)
On
a prosecution under this section, evidence is not admissible by virtue of
paragraph (2)(a) if the magistrate exercising jurisdiction with respect to
the examination and commitment for trial of the defendant, or the judge presiding
at the trial, as the case may be, is of the opinion that that evidence, if
admitted:
(a)
would not tend to show that the
defendant intended to prejudice the safety or defence of the Commonwealth
or a part of the Queen's dominions; or
(b)
would, having regard to all the circumstances of the case and
notwithstanding subsection (4), prejudice the fair trial of the defendant.
History
S 78(3)(a) amended by No 24 of 2001, s 3 and
Sch 10 item 87, by substituting ``defendant intended to prejudice'' for ``purpose
of the defendant was a purpose intended to be prejudicial to''. For application
provisions, see note under s 3BA.
(4)
If
evidence referred to in subsection (3) is admitted at the trial, the judge
shall direct the jury that the evidence may be taken into account by the jury
only on the question whether the defendant intended to prejudice the safety
or defence of the Commonwealth or a part of the Queen's dominions and must
be disregarded by the jury in relation to any other question.
S 78(4) amended by No 24 of 2001, s 3 and Sch 10 item 88, by substituting
``defendant intended to prejudice'' for ``purpose of the defendant was a purpose
intended to be prejudicial to''. For application provisions, see note under
s 3BA.
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