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Criminal Code Amendment (Espionage and Related Offences) Bill 2001
Schedule 1 Amendments relating to the integrity and security of the Commonwealth

   

Crimes Act 1914

1  Part VII

Repeal the Part.

Criminal Code Act 1995

2  After Chapter 4

Insert:

Chapter 5 The integrity and security of the Commonwealth

Part 5.1 Preliminary

Division 80 Preliminary

80.1   Definitions

             (1)  In this Chapter, unless the contrary intention appears:

article includes any thing, substance or material.

cipher includes:

                     (a)  a code or cryptogram; and

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

                     (c)  a code word, password or identification signal.

information means information of any kind, whether true or false and whether in a material form or not, and includes:

                     (a)  an opinion; and

                     (b)  a report of a conversation.

intelligence or security agency has the meaning given by section 85ZL of the Crimes Act 1914 .

model includes design, pattern and specimen.

official information has the meaning given by section 82.1.

official record of information has the meaning given by section 82.1.

plan includes a written record of a survey or of a bearing or measurement taken for the purpose of fixing the position of a place.

prohibited place has the meaning given by section 84.1.

record , in relation to information, means a record of information in any form, including but not limited to, a document, paper, database, software system or other article or system containing information or from which information can be derived.

security or defence of a country includes the operations, capabilities and technologies of, and methods and sources used by, the country’s intelligence or security agencies.

sketch includes a representation of a place or thing.

the Commonwealth includes the Territories.

             (2)  In this Chapter, 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; and

                     (b)  a reference to a sketch, plan, photograph, model, cipher, note, document or article or to information is to 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.

             (3)  For the purposes of this Chapter, a place that is occupied by, or a thing that is under the control of, the Commonwealth is taken to belong to the Commonwealth.

             (4)  This Chapter applies to and in relation to a sketch, plan, photograph, model, cipher, note, document or article regardless of who made it and what information it contains.

Part 5.2 Offences relating to espionage and similar activities, official secrets and soundings

Division 81 Offences relating to espionage and similar activities

81.1   Espionage and similar activities

             (1)  A person commits an offence if:

                     (a)  the person communicates, or makes available:

                              (i)  information concerning the Commonwealth’s security or defence; or

                             (ii)  information concerning the security or defence of another country, being information that is, or has been, in the possession or control of the Commonwealth; and

                     (b)  the person does so intending to prejudice the Commonwealth’s security or defence; and

                     (c)  the person’s act results in, or is likely to result in, the information being disclosed to another country or a foreign organisation, or to a person acting on behalf of such a country or organisation.

Penalty:  Imprisonment for 25 years.

             (2)  A person commits an offence if:

                     (a)  the person communicates, or makes available:

                              (i)  information concerning the Commonwealth’s security or defence; or

                             (ii)  information concerning the security or defence of another country, being information that is, or has been, in the possession or control of the Commonwealth; and

                     (b)  the person does so:

                              (i)  without lawful authority; and

                             (ii)  intending to give an advantage to another country’s security or defence; and

                     (c)  the person’s act results in, or is likely to result in, the information being disclosed to another country or a foreign organisation, or to a person acting on behalf of such a country or organisation.

Penalty:  Imprisonment for 25 years.

             (3)  A person commits an offence if:

                     (a)  the person makes, obtains or copies a record (in any form) of:

                              (i)  information concerning the Commonwealth’s security or defence; or

                             (ii)  information concerning the security or defence of another country, being information that is, or has been, in the possession or control of the Commonwealth; and

                     (b)  the person does so:

                              (i)  intending that the record will, or may, be delivered to another country or a foreign organisation, or to a person acting on behalf of such a country or organisation; and

                             (ii)  intending to prejudice the Commonwealth’s security or defence.

Penalty:  Imprisonment for 25 years.

             (4)  A person commits an offence if:

                     (a)  the person makes, obtains or copies a record (in any form) of:

                              (i)  information concerning the Commonwealth’s security or defence; or

                             (ii)  information concerning the security or defence of another country, being information that is, or has been, in the possession or control of the Commonwealth; and

                     (b)  the person does so:

                              (i)  without lawful authority; and

                             (ii)  intending that the record will, or may, be delivered to another country or a foreign organisation, or to a person acting on behalf of such a country or organisation; and

                            (iii)  intending to give an advantage to another country’s security or defence.

Penalty:  Imprisonment for 25 years.

             (5)  For the purposes of subparagraphs (3)(b)(i) and (4)(b)(ii), the person concerned does not need to have a particular country, foreign organisation or person in mind at the time when the person makes, obtains or copies the record.

             (6)  A person charged with an offence under this section may only be remanded on bail by a judge of the Supreme Court of a State or Territory. This subsection has effect despite anything in section 85.1.

Note:          Section 85.1 deals with how a prosecution is instituted.

             (7)  Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to offences under this section.

Division 82 Offences relating to official secrets

82.1   Meaning of official record of information and official information

             (1)  For the purposes of this Division, a record (in any form) of information is an official record of information in relation to a person, and information is official information in relation to a person, if the person has it in his or her possession or control and:

                     (a)  it has been made, obtained or copied (whether or not by the person) in contravention of this Chapter; or

                     (b)  a Commonwealth public official has entrusted it to the person and the person is under a duty to keep it secret; or

                     (c)  the person has made, obtained or copied it because of his or her position as:

                              (i)  a Commonwealth public official; or

                             (ii)  a person who is, or has been, employed by a person mentioned in subparagraph (i);

                            and the person is under a duty to keep it secret; or

                     (d)  the person has made, obtained or copied it with the permission of a Minister and the person is under a duty to keep it secret; or

                     (e)  it relates to a prohibited place, and:

                              (i)  the person knows that it should not be communicated, or made available, to a person not authorised to receive it; or

                             (ii)  the person is reckless as to the fact that it should not be communicated, or made available, to a person not authorised to receive it.

             (2)  For the purposes of subsection (1), the reasons why a person is under a duty to keep something secret may relate to, but are not limited to, the following:

                     (a)  its nature; or

                     (b)  the circumstances under which it was entrusted to the person; or

                     (c)  the circumstances under which the person made, obtained or copied it.

             (3)  A reference in this Division to a person doing a thing with an official record of information, or with official information, is taken to be a reference to the person doing the thing with an official record of information in relation to the person, or with official information in relation to the person, as the case requires, within the meaning of subsection (1).

82.2   Offence—Communicating or retaining certain information to prejudice the Commonwealth’s security or defence

             (1)  A person commits an offence if:

                     (a)  the person communicates, or makes available, an official record of information or official information:

                              (i)  to a person to whom he or she is not authorised to communicate it or make it available; or

                             (ii)  to a person to whom it is, in the interest of the Commonwealth, his or her duty not to communicate it or make it available; and

                     (b)  the person does so intending to prejudice the Commonwealth’s security or defence.

Penalty:  Imprisonment for 7 years.

             (2)  A person commits an offence if:

                     (a)  the person permits a person mentioned in subparagraph (1)(a)(i) or (ii) to have access to an official record of information or official information; and

                     (b)  the person does so intending to prejudice the Commonwealth’s security or defence.

Penalty:  Imprisonment for 7 years.

             (3)  A person commits an offence if:

                     (a)  the person retains an official record of information in his or her possession or control; and

                     (b)  the person has no right to retain it or it is contrary to his or her duty to retain it; and

                     (c)  the person does so intending to prejudice the Commonwealth’s security or defence.

Penalty:  Imprisonment for 7 years.

             (4)  A person commits an offence if:

                     (a)  the person fails to comply with a direction with respect to the retention or disposal of an official record of information; and

                     (b)  the person does so:

                              (i)  without lawful authority; and

                             (ii)  intending to prejudice the Commonwealth’s security or defence.

Penalty:  Imprisonment for 7 years.

82.3   Offence—communicating or retaining certain information

             (1)  A person commits an offence if the person communicates, or makes available, an official record of information, or official information:

                     (a)  to a person to whom he or she is not authorised to communicate it or make it available; or

                     (b)  to a person to whom it is, in the interest of the Commonwealth, his or her duty not to communicate it or make it available.

Penalty:  Imprisonment for 2 years.

             (2)  A person commits an offence if the person permits a person mentioned in paragraph (1)(a) or (b) to have access to an official record of information or official information.

Penalty:  Imprisonment for 2 years.

             (3)  A person commits an offence if:

                     (a)  the person retains an official record of information in his or her possession or control; and

                     (b)  the person has no right to retain it or it is contrary to his or her duty to retain it.

Penalty:  Imprisonment for 6 months.

             (4)  A person commits an offence if:

                     (a)  the person fails to comply with a direction with respect to the retention or disposal of an official record of information; and

                     (b)  the person does so without lawful authority.

Penalty:  Imprisonment for 6 months.

             (5)  A person commits an offence if:

                     (a)  the person fails to take reasonable care of an official record of information; or

                     (b)  the person fails to ensure that an official record of information is not communicated or made available to a person not authorised to receive it; or

                     (c)  the person so conducts himself or herself as to endanger the safety of an official record of information.

Penalty:  Imprisonment for 6 months.

82.4   Offence—receiving certain information

             (1)  A person commits an offence if:

                     (a)  the person receives any record of information, or information; and

                     (b)  the record of information, or information, is communicated or made available in contravention of section 81.1 or 82.2.

Penalty:  Imprisonment for 7 years.

             (2)  Subsection (1) does not apply if the defendant proves that the record of information, or information, was communicated or made available contrary to his or her wishes.

Note:          The defendant bears a legal burden in relation to the matter in subsection (2) (see section 13.4).

             (3)  A person commits an offence if:

                     (a)  the person receives any record of information, or information; and

                     (b)  the record of information, or information, is communicated, or made available, in contravention of subsection 82.3(1) or (2).

Penalty:  Imprisonment for 2 years.

             (4)  Subsection (3) does not apply if the defendant proves that the record of information, or information, was communicated or made available contrary to his or her wishes.

Note:          The defendant bears a legal burden in relation to the matter in subsection (4) (see section 13.4).

Division 83 Offence relating to soundings

83.1   Offence relating to soundings

             (1)  A person commits an offence if the person, in the Commonwealth:

                     (a)  takes any soundings; or

                     (b)  makes any record of any soundings; or

                     (c)  has in his or her possession any record of soundings; or

                     (d)  communicates to any person outside the Commonwealth any record of, or information concerning, soundings; or

                     (e)  communicates to any other person any record of or information concerning soundings, intending that the record or information be communicated to any person outside the Commonwealth.

Penalty:  Imprisonment for 2 years.

             (2)  It is a defence to a prosecution of a person for an offence under subsection (1) if the person proves that the soundings concerned:

                     (a)  were made under the authority of the Commonwealth Government, a State Government or the Government of a Territory; or

                     (b)  were reasonably necessary for the navigation of the vessel from which they were taken or for any purpose in which the vessel from which they were taken was lawfully engaged.

Note:          The defendant bears a legal burden in relation to the matter in subsection (2) (see section 13.4).

             (3)  Any figure or word or sign representing a figure (other than the printed figures appearing on any official or recognised map or chart) appearing on any map or sketch of any portion of the coast or territorial waters of the Commonwealth is taken, in the absence of satisfactory proof to the contrary, to be a record of a sounding. However, this subsection does not affect proof of soundings in any other manner.

             (4)  All records of soundings, including all maps or charts containing any record of soundings, are forfeited to the Commonwealth.

             (5)  A reference in this section to soundings includes a reference to a hydrographic survey and a reference to the taking of soundings includes a reference to the making of a hydrographic survey.

             (6)  In this section:

sounding means a sounding taken in the territorial waters of the Commonwealth.

Part 5.3 Prohibited places

Division 84 Prohibited places

84.1   Prohibited places

                   The following places are prohibited places:

                     (a)  any of the following:

                              (i)  any work of defence, arsenal, factory, dockyard, aerodrome, camp, vessel, aircraft, telecommunications or signal station, or office, belonging to the Commonwealth;

                             (ii)  any other place belonging to the Commonwealth used for the purpose of building, repairing, making, obtaining or storing any vessel, aircraft, armaments, or materials or instruments for use in time of war, or any related plans or documents;

                     (b)  any camp, barracks or place where prisoners of war, internees or members of the Defence Force are detained;

                     (c)  any place not belonging to the Commonwealth where any vessel, aircraft, armaments, or materials or instruments of use in time of war, or any related plans or documents, are being made, repaired, obtained, tested or stored under contract with, or with any person on behalf of, the Commonwealth;

                     (d)  any place belonging to the Commonwealth which is for the time being declared by the Governor-General to be a prohibited place for the purposes of this Chapter on the ground that information with respect to it, or damage to it, would be useful to another country or a foreign organisation;

                     (e)           any of the following:

                              (i)  a network, railway, road, way, channel or other means of communication by land or water (including any related works or structures);

                             (ii)  a place used for gas, water, electricity works or other works for purposes of a public character;

                            (iii)  a place where any vessel, aircraft, armaments, or materials or instruments of use in time of war, or any related plans or documents, are being made, repaired, obtained, tested or stored otherwise than on behalf of the Commonwealth;

                            that is for the time being declared by the Governor-General by proclamation to be a prohibited place for the purposes of this Chapter, on the ground that information with respect to it, its destruction or obstruction, or interference with it, would be useful to another country or a foreign organisation.

Part 5.4 Miscellaneous

Division 85 Prosecutions and hearings

85.1   Institution of prosecution

             (1)  A prosecution under this Chapter may be instituted only by, or with the consent of, the Attorney-General or a person acting under the Attorney-General’s direction.

             (2)  However:

                     (a)  a person charged with an offence against this Chapter may be arrested, or a warrant for his or her arrest may be issued and executed; and

                     (b)  such a person may be remanded in custody or on bail;

even if the consent of the Attorney-General or a person acting under his or her direction has not been obtained, but no further proceedings are to be taken until that consent has been obtained.

             (3)  Nothing in this section prevents the discharging of the accused if proceedings are not continued within a reasonable time.

85.2   Hearing in camera etc.

             (1)  This section applies to a hearing of an application or other proceedings before a federal court, a court exercising federal jurisdiction or a court of a Territory, whether under this Act or otherwise.

             (2)  At any time before or during the hearing, the judge or magistrate, or other person presiding or competent to preside over the proceedings, may, if satisfied that it is in the interest of the security or defence of the Commonwealth:

                     (a)  order that some or all of the members of the public be excluded during the whole or a part of the hearing; or

                     (b)  order that no report of the whole or a specified part of, or relating to, the application or proceedings be published; or

                     (c)  make such order and give such directions as he or she thinks necessary for ensuring that no person, without the approval of the court, has access (whether before, during or after the hearing) to any affidavit, exhibit, information or other document used in the application or the proceedings that is on the file in the court or in the records of the court.

             (3)  A person commits an offence if the person contravenes an order made or direction given under this section.

Penalty:  Imprisonment for 5 years.

Division 86 Forfeiture

86.1   Forfeiture of articles etc.

                   A photograph, sketch, plan, model, article, cipher, note, record, document, die, key, device, seal, stamp or paper which is made, obtained, collected, recorded, retained, forged, possessed or otherwise dealt with in contravention of this Chapter is forfeited to the Commonwealth.

3  Saving provision

(1)        A declaration that was in force under paragraph 80(c) of the Crimes Act 1914 immediately before the commencement of this item has effect, after that commencement, as if it were a declaration under paragraph 84.1(d) of the Criminal Code .

(2)        A proclamation that was in force under paragraph 80(d) of the Crimes Act 1914 immediately before the commencement of this item has effect, after that commencement, as if it were a declaration under paragraph 84.1(e) of the Criminal Code .