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Wednesday, 23 November 1960

In committee: Consideration resumed from 22nd November (vide page 3135).

Clause 49.

The heading to Part VII. of the Principal Act and sections seventy-seven, seventy-eight and seventy-nine of the Principal Act are repealed and the following heading and sections inserted in their stead: - " Part VII. - Espionage and Official Secrets. "77. - (1.) In this Part, unless the contrary intention appears - article ' includes any thing, substance or material; cipher ' includes -

(a)   a code or cryptogram;

(b)   a system, method, device or machine whereby a cipher, code or cryptogram may be created; and

(c)   a code word, password or identification signal; information ' means information of any kind whatsoever, whether true orfalse and whether in a material form or not, and includes -

(a)   an opinion; and

(b)   a report of a conversation; model ' includes design, pattern and specimen; plan' includes a written record of a survey or of a bearing or measurement taken for the purpose of fixingtheposition of a place; sketch ' includes a representation of a place or thing; the Commonwealth ' includestheterritories. " (2.) In this Part, unless the contrary intention appears -

(a)   expressions referring to obtaining, collecting, recording, using, having in possession, communicating, receiving or retaining include obtaining, collecting, recording, using, having in possession, communicating, receiving or retaining in whole or in part, and whether the thing or information itself, or only the substance, effect or description of the thing or information, is obtained, collected, recorded, used, possessed, communicated, received or retained;

(b)   expressions referring to obtaining or retaining any sketch, plan, photograph, model, cipher, note, document, article or information include copying or causing to be copied the whole or a part of the sketch, plan, photograph, model, cipher, note, document, article or information; and

(c)   expressions referring to the communication of any sketch, plan, photograph, model, cipher, note, document, article or information include the transfer or transmission, or the publishing, of the sketch, plan, photograph, model, cipher, note, document, article or information. " (3.) A reference in this Part to a sketch, plan, photograph, model, cipher, note, document or article or to information shall be read as including a reference to a copy of, a part of or a copy of a part of a sketch, plan, photograph, model, cipher, note, document or article or information. " (4.) For the purposes of this Part, a place that is occupied by, or a thing that is under the control of, the Commonwealth shall be deemed to belong to the Commonwealth. " (5.) This Part applies to and in relation to a sketch, plan, photograph, model, cipher, note, document or article by whomsoever it is made and whatsoever information it contains. " 78. - (1.) If a person for a purpose prejudicial, or intended to be prejudicial, to 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 seven years. " (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 a purpose prejudicial, or intended to be prejudicial, to 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 purpose was a purpose prejudicial, or a. purpose intended to be prejudicial, as the case requires, to 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 for a purpose prejudicial, or a purpose intended to be prejudicial, as the case requires, to the safety or defence of the Commonwealth or a part of the Queen's dominions. "79. - (1.) For the purposes of this section, a sketch, plan, photograph, model, cipher, note, document or article is a prescribed sketch, plan, photograph, model, cipher, note, document or article in relation to a person, and information is prescribed information in relation to a person, if the person has it in his possession or control and -

(c)   it relates to a prohibited place or anything in a prohibited place; or

(d)   it is used in a prohibited place. " (2.) If a person for a purpose prejudicial, or intended to be prejudicial, to the safety or defence of the Commonwealth or a part of the Queen's dominions -

(a)   communicates a prescribed sketch, plan, photograph, model, cipher, note, document or article, or prescribed information, to a person, other than -

(i)   a person to whom he is authorized to communicate it; or

(ii)   a person to whom it is, in the interest of the Commonwealth or a part of the Queen's dominions, his duty to communicate it, or permits a person, other than a person referred to in sub-paragraph (i) or (ii) of this paragraph to have access to it;

(b)   retains a prescribed sketch, plan, photograph, model, cipher, note, document or article in his possession or control when he has no right to retain it or when it is contrary to his duty to retain it; or

(c)   fails to comply with a direction given by lawful authority with respect to the retention or disposal of a prescribed sketch, plan, photograph, model, cipher, note, document or article, he shall be guilty of an indictable offence.

Penalty: Imprisonment for seven years. " (5.) If a person receives any sketch, plan, photograph, model, cipher, note, document, article or information, knowing or having reasonable ground to believe, at the time when he receives it, that it is communicated to him in contravention of section seventy-eight of this Act or sub-section (2.) of this section, he shall be guilty of an indictable offence unless he proves that the communication was contrary to his desire.

Penalty: Imprisonment for seven years. " (6.) If a person receives any sketch, plan, photograph, model, cipher, note, document, article or information, knowing, or having reasonable ground to believe, at the time when he receives it, that it is communicated to him in contravention of sub-section (3.) of this section, he shall be guilty of an offence unless he proves that the communication was contrary to his desire.

Penalty: Imprisonment for two years. " (7.) On a prosecution under sub-section (2.) of this section it is not necessary to show that the accused person was guilty of a particular act tending to show a purpose prejudicial, or intended to be prejudicial, to 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 purpose was a purpose prejudicial, or a purpose intended to be prejudicial, as the case requires, to the safety or defence of the Commonwealth or a part of the Queen's dominions.

Upon which Mr. Whitlam had moved by way of amendment -

In proposed section 77, after sub-section (1.), insert the following sub-section: - " ' (1a.) The foregoing definitions shall apply only to matters which are material to the safety or defence of the Commonwealth or a part of the Queen's Dominions.".







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