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National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018

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2016 - 2017 - 2018

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

NATIONAL SECURITY LEGISLATION AMENDMENT (ESPIONAGE AND FOREIGN INTERFERENCE) BILL 2017

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

Amendments to be Moved on Behalf of the Government

 

 

(Circulated by authority of the

Attorney-General, the Honourable Christian Porter MP)         



AMENDMENTS TO THE NATIONAL SECURITY LEGISLATION (ESPIONAGE AND FOREIGN INTERFERENCE) BILL 2017

(Government)

 

GENERAL OUTLINE

1.                    The National Security Legislation (Espionage and Foreign Interference) Bill 2017 (‘the Bill’) was introduced into the House of Representatives on 7 December 2017 and referred to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) for inquiry. The PJCIS tabled its report on the Bill on 7 June 2018 and recommended that, following implementation of the recommendations in its report, the Bill be passed. The Government has accepted all of the recommendations made by the PJCIS and is moving a number of amendments to the Bill to implement them. A table of the recommendations and the Government’s approach to implementation is at Attachment A .

Amendments to secrecy offences

2.                   The amendments to the secrecy offences in Schedule 2 of the Bill will:

·          narrow the definitions of inherently harmful information and causes harm to Australia’s interests

·          narrow the definition of security classification to mean a classification of TOP SECRET or SECRET that is applied in accordance with the policy framework developed by the Commonwealth, or any other equivalent classification or marking prescribed by regulations

·          remove the application of strict liability to the physical element that information has a security classification but apply it to other aspects of the definition of security classification, which are technical matters and not relevant to the defendant’s culpability

·          create separate offences that apply to non-Commonwealth officers that are narrower in scope and attract lower penalties than those applying to Commonwealth officers and only apply to the most serious and dangerous conduct

·          reduce the maximum penalties for secrecy offences

·          strengthen the defence for journalists at subsection 122.5(6) by:

o      removing any requirement for journalists to demonstrate that their reporting was ‘fair and accurate’

o      ensuring the defence is available where a journalist reasonably believes that their conduct was in the public interest

o      clarifying that the defence is available for editorial and support staff (including editors, lawyers and administrative staff) as well as journalists themselves

o      ensuring the defence is available where administrative support staff are working at the direction of a journalist, editor or lawyer who reasonably believes that conduct was in the public interest

·          broaden defences to cover holding, removing, or otherwise dealing with information (not just communication of information)

·          provide a defence for a person who reports a crime or reports maladministration in relation to a Commonwealth criminal process or the exercise of a Australian Federal Police function

·          provide a defence for communication of, or dealings with, information for the purpose of legal advice

·          ensure that integrity agency staff do not bear an evidential burden for defences, given the statutory limitations on their ability to give evidence

·          narrow the offences of failing to comply with a direction regarding sensitive information (at subsections 122.1(4) and 122.2(4)) so that they only apply where the failure to comply with a direction results in a risk to security   

·          require that prior to proceedings being initiated for a secrecy offence:

o      the Attorney-General must consent to a prosecution, including consideration of whether the conduct is covered by a defence

o      if the prosecution relies on the fact that information is security classified—the Attorney-General has certified that it was appropriate for the information to have a security classification

·          limit the aggravating factor at subparagraph 122.3(1)(b)(v) to persons holding a security clearance allowing access to information classified as SECRET or above

·          apply a sunset period of five years to the offence at subsection 122.4 (unauthorised disclosure of information by current and former Commonwealth officers), and

·          require that any material incorporated into regulations to prescribe the meaning of ‘proper place of custody’ is publicly available.

Amendments to espionage offences

3.                   The amendments to the espionage offences in Schedule 1 of the Bill will:

·          narrow the scope of the espionage offence at section 91.3 to where the person’s primary purpose in dealing with the information was to communicate or make it available to a foreign principal

·          remove the application of strict liability to the physical element that information has a security classification but apply it to other aspects of the definition of security classification, which are technical matters and not relevant to the defendant’s culpability

·          create a new defence to some espionage offences that applies where information has previously been published and the person reasonably believed that further publication of the information would not prejudice Australia’s national security

·          limit the aggravating factor at subparagraph 91.6(1)(b)(v) to persons holding a security clearance allowing access to information classified as SECRET or above

·          if the prosecution relies on the fact that information is security classified, require the Attorney-General to certify, prior to proceedings being initiated, that it was appropriate for the information to have a security classification, and

·          require that any material incorporated into regulations to prescribe the meaning of ‘security classification’ is publicly available.

Amendments to foreign interference and sabotage offences

4.                   The amendments to the foreign interference and sabotage offences in Schedule 1 of the Bill will:

·          clarify that the offence of supporting a foreign intelligence agency is limited to material support

·          narrow the sabotage offences of introducing a vulnerability to public infrastructure at sections 82.7 and 82.8 to where a person intends or is reckless as to prejudicing national security (but not other types of harm), and

·          create a new defence to sabotage offences for private owners or operators of public infrastructure

Amendments to treason, treachery and other threats to security

5.                   The amendments to the treason, treachery and other related offence in Schedule 1 of the Bill will :

·          ensure the good faith defence (at section 80.3 of the Criminal Code) is available for the offence of advocating mutiny at section 83.1

·          require the Attorney-General to consider whether conduct might fall within the good faith defence in deciding whether to consent to a prosecution of the offence of advocating mutiny

·          provide a defence to the offence of military-style training (at section 83.3) for staff of the United Nations or International Committee of the Red Cross who are engaged in humanitarian activities, and

·          reduce the penalty for the offence of interference with political rights and duties (at section 83.4) from 10 years to three years.

Other amendments 

6.                   The amendments will also:

·          require the Independent National Security Legislation Monitor to review the new secrecy, espionage, foreign interference and related provisions three years after commencement of those provisions

·          carve out the secrecy offences in Division 122 and the offence at section 83.4 (interference with political rights and duties) from the definition of ‘national security offence’ at section 3 of the Australian Citizenship Act 2007 so that a person cannot be denied Australian citizenship on the basis that they have committed such an offence

·          carve out the offence at section 82.9 (preparing for sabotage offences) from the scope of section 35A of the Australian Citizenship Act 2007 so that the Minister cannot revoke a person’s citizenship for being convicted of that offence

·          include the Division 92 (foreign interference) offences within the scope of section 35A of the Australian Citizenship Act 2007 so that the Minister can revoke a person’s citizenship for being convicted of a foreign interference offence, if other relevant criteria is met

·          limit the presumption against bail in section 15AA of the Crimes Act to foreign interference offences where there is death or a substantial risk of death, and

·          apply a minimum non-parole period to only the most serious espionage offences (at subsections 91.1(1) and 91.2(1)) rather than all espionage offences.

FINANCIAL IMPACT

7.                   The amendments to the Bill have no financial impact on Government revenue.



ACRONYMS

ABC

Australian Broadcasting Corporation

ADF

Australian Defence Force

AFP

Australian Federal Police

ASIO Act

Australian Security Intelligence Organisation Act 1979

Australian Citizenship Act

Australian Citizenship Act 2007

CDPP

Commonwealth Director of Public Prosecutions

Criminal Code

Criminal Code Act 1995

Guide to Framing Commonwealth Offences

Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers

CRC

Convention on the Rights of the Child

Freedom of Information Act

Freedom of Information Act 1982

ICCPR

International Covenant on Civil and Political Rights

IRCM

International Red Cross Red Crescent Movement

IGIS

Inspector-General Intelligence and Security

IGIS Act

Inspector-General of Intelligence and Security Act 1986

Migration Act

Migration Act 1958

OAIC

Office of the Australian Information Commissioner

PID

Public interest disclosures

PID Act

Public Interest Disclosure Act 2013

PJCIS

Parliamentary Joint Committee on Intelligence and Security

PJCIS Report

Advisory Report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 , Parliamentary Joint Committee on Intelligence and Security, June 2018

SBS

Special Broadcasting Service Corporation

Statelessness Convention

1961 Convention on the Reduction of Statelessness

UN

United Nations

 



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017

8.                   The amendments to the Bill are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

9.                   The proposed amendments to the National Security Legislation (Espionage and Foreign Interference) Bill 2017 (the Bill) implement the recommendations of the Parliamentary Joint Committee on Intelligence and Security (PJCIS) report on the Bill.

Amendments to secrecy offences

10.               The amendments to the secrecy offences in Schedule 2 of the Bill will:

·          narrow the definitions of inherently harmful information and causes harm to Australia’s interests

·          narrow the definition of security classification to mean a classification of TOP SECRET or SECRET that is applied in accordance with the policy framework developed by the Commonwealth, or any other equivalent classification or marking prescribed by regulations

·          remove the application of strict liability to the physical element that information has a security classification but apply it to other aspects of the definition of security classification, which are technical matters and not relevant to the defendant’s culpability

·          create separate offences that apply to non-Commonwealth officers that are narrower in scope and attract lower penalties than those applying to Commonwealth officers and only apply to the most serious and dangerous conduct

·          reduce the maximum penalties for secrecy offences

·          strengthen the defence for journalists at subsection 122.5(6) by:

o      removing any requirement for journalists to demonstrate that their reporting was ‘fair and accurate’

o      ensuring the defence is available where a journalist reasonably believes that their conduct was in the public interest

o      clarifying that the defence is available for editorial and support staff (including editors, lawyers and administrative staff) as well as journalists themselves

o      ensuring the defence is available where administrative support staff are working at the direction of a journalist, editor or lawyer who reasonably believes that conduct was in the public interest

·          broaden defences to cover holding, removing, or otherwise dealing with information (not just communication of information)

·          provide a defence for a person who reports a crime or reports maladministration in relation to a Commonwealth criminal process or the exercise of a Australian Federal Police function

·          provide a defence for communication of, or dealings with, information for the purpose of legal advice

·          ensure that integrity agency staff do not bear an evidential burden for defences, given the statutory limitations on their ability to give evidence

·          narrow the offences of failing to comply with a direction regarding sensitive information (at subsections 122.1(4) and 122.2(4)) so that they only apply where the failure to comply with a direction results in a risk to security   

·          require that prior to proceedings being initiated for a secrecy offence:

o      the Attorney-General must consent to a prosecution, including consideration of whether the conduct is covered by a defence

o      if the prosecution relies on the fact that information is security classified—the Attorney-General has certified that it was appropriate for the information to have a security classification

·          limit the aggravating factor at subparagraph 122.3(1)(b)(v) to persons holding a security clearance allowing access to information classified as SECRET or above

·          apply a sunset period of five years to the offence at subsection 122.4 (unauthorised disclosure of information by current and former Commonwealth officers), and

·          require that any material incorporated into regulations to prescribe the meaning of ‘proper place of custody’ is publicly available.

Amendments to espionage offences

11.               The amendments to the espionage offences in Schedule 1 of the Bill will:

·          narrow the scope of the espionage offence at section 91.3 to where the person’s primary purpose in dealing with the information was to communicate or make it available to a foreign principal

·          remove the application of strict liability to the physical element that information has a security classification but apply it to other aspects of the definition of security classification, which are technical matters and not relevant to the defendant’s culpability

·          create a new defence to some espionage offences that applies where information has previously been published and the person reasonably believed that further publication of the information would not prejudice Australia’s national security

·          limit the aggravating factor at subparagraph 91.6(1)(b)(v) to persons holding a security clearance allowing access to information classified as SECRET or above

·          if the prosecution relies on the fact that information is security classified, require the Attorney-General to certify, prior to proceedings being initiated, that it was appropriate for the information to have a security classification, and

·          require that any material incorporated into regulations to prescribe the meaning of ‘security classification’ is publicly available.

Amendments to foreign interference and sabotage offences

12.               The amendments to the foreign interference and sabotage offences in Schedule 1 of the Bill will:

·          clarify that the offence of supporting a foreign intelligence agency is limited to material support

·          narrow the sabotage offences of introducing a vulnerability to public infrastructure at sections 82.7 and 82.8 to where a person intends or is reckless as to prejudicing national security (but not other types of harm), and

·          create a new defence to sabotage offences for private owners or operators of public infrastructure

Amendments to treason, treachery and other threats to security

13.               The amendments to the treason, treachery and other related offence in Schedule 1 of the Bill will :

·          ensure the good faith defence (at section 80.3 of the Criminal Code) is available for the offence of advocating mutiny at section 83.1

·          require the Attorney-General to consider whether conduct might fall within the good faith defence in deciding whether to consent to a prosecution of the offence of advocating mutiny

·          provide a defence to the offence of military-style training (at section 83.3) for staff of the United Nations or International Committee of the Red Cross who are engaged in humanitarian activities, and

·          reduce the penalty for the offence of interference with political rights and duties (at section 83.4) from 10 years to three years.

Other amendments 

14.               The amendments will also:

·          require the Independent National Security Legislation Monitor to review the new secrecy, espionage, foreign interference and related provisions three years after commencement of those provisions

·          carve out the secrecy offences in Division 122 and the offence at section 83.4 (interference with political rights and duties) from the definition of ‘national security offence’ at section 3 of the Australian Citizenship Act 2007 so that a person cannot be denied Australian citizenship on the basis that they have committed such an offence

·          carve out the offence at section 82.9 (preparing for sabotage offences) from the scope of section 35A of the Australian Citizenship Act 2007 so that the Minister cannot revoke a person’s citizenship for being convicted of that offence

·          include the Division 92 (foreign interference) offences within the scope of section 35A of the Australian Citizenship Act 2007 so that the Minister can revoke a person’s citizenship for being convicted of a foreign interference offence, if other relevant criteria is met

·          limit the presumption against bail in section 15AA of the Crimes Act to foreign interference offences where there is death or a substantial risk of death, and

·          apply a minimum non-parole period to only the most serious espionage offences (at subsections 91.1(1) and 91.2(1)) rather than all espionage offences.

Human rights implications

15.               The amendments are consistent with Australia’s human rights obligations and engage the following human rights, which were identified in the Statement of Compatibility in the Explanatory Memorandum to the Bill, as introduced and read for a second time in the House of Representatives on 7 December 2017:

·          the prohibition of torture, or cruel, inhuman and degrading treatment or punishment in Article 7 of the International Covenant on Civil and Political Rights (ICCPR)

·          the right to liberty of person and freedom from arbitrary detention in Article 9(1) of the ICCPR

·          the right to trial within a reasonable period or to release in Article 9(3) of the ICCPR

·          the right to be tried without undue delay in Article 14(3)(c) of the ICCPR

·          the right to be presumed innocent in Article 14(2) of the ICCPR, and

·          the right to opinion and freedom of expression in Article 19 of the ICCPR.

16.               The amendments to include foreign interference offences within the scope of 35A of the Australian Citizenship Act 2007 also engage the following additional human rights:

·          the right to freedom of movement and choice of residence in Article 12(1) of the ICCPR

·          the right to leave a country and enter one’s own country in Article 12(2) and (4) of the ICCPR

·          rights in relation to the expulsion of aliens in Article 13 of the ICCPR

·          the right to equality before the courts and tribunals in Article 14 of the ICCPR

·          the right to equality before the law in Article 26 of the ICCPR

·          the best interests of the child in Article 3 of the Convention on the Rights of the Child (CRC), and

·          the right of children to nationality, identity and family in Article 24 of the ICCPR and Article 7 of the CRC, and

·          the right to the protection of the family in Article 23 of the ICCPR.

17.               The way in which the proposed Government amendments to the Bill impact upon the above human rights is outlined below.

Human rights impacted by the Government amendments

Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment

18.               Article 7 of the ICCPR states that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. The text of the Article 7 allows no limitation.

19.               The Bill engages the prohibition on torture, cruel, inhuman or degrading treatment by providing for penalties of imprisonment, which may amount to cruel, inhuman or degrading treatment where their application is disproportionate to the offence committed. The amendments will significantly reduce the penalties for secrecy offences and the offence of interference with political rights and duties.

20.               In this regard, the amendments will improve the proportionality of the penalties to the objective of deterring and punishing a worst case scenario, including repeat offences.   

Right to liberty and freedom from arbitrary detention

21.               Article 9(1) of the ICCPR states that everyone has the right to liberty and security of person and that no one shall be subjected to arbitrary arrest or detention. Under Article 9(3) the right to liberty extends to the right to be tried within a reasonable period or to be released. Limitations on the right to liberty are permitted to the extent that they are ‘in accordance with such procedures as are established by law’, provided that the law and the enforcement of it is not arbitrary, and where they are reasonable, necessary and proportionate to achieve a legitimate objective.

Penalties of imprisonment

22.               The Bill limits the right to liberty by imposing penalties of imprisonment for the offences contained in Schedules 1 and 2. The amendments will significantly reduce the penalties for secrecy offences and the offence of interference with political rights and duties.

23.               In this regard, the amendments will improve the proportionality of the penalties to the objective of deterring and punishing a worst case scenario, including repeat offences.   

Defences

24.               The amendments will also improve the ability of persons at risk of deprivation of liberty to justify their actions and defend the criminal charge against them by:

·          broadening the defences for secrecy offences at subsections 122.5(2), (3), (4), (5), (6), (8), and (9) to cover holding, removing, or otherwise dealing with information (not just communication of information)

·          strengthening the defence for journalists at subsection 122.5(6)

·          creating additional specific defences applying to the secrecy offences for:

o    information dealt with, or communicated to, to the Australian Information Commissioner for the purpose of the Commissioner exercising a power or performing a function or duty

o    dealing with information, or communicating information, in accordance with the Freedom of Information Act 1982

o    reporting a crime or reporting maladministration in relation to Commonwealth criminal process or the exercise of AFP functions

o    obtaining or providing legal advice

·          creating a new defence to sabotage offences that is available to private owners or operators of public infrastructure

·          creating a new defence to some espionage offences that applies where information has previously been published and the person reasonably believed that further publication of the information would not prejudice Australia’s national security

·          ensuring the good faith defence at section 80.3 of the Criminal Code is available for the offence of advocating mutiny (at section 83.1), and

·          creating a defence to the offence of military-style training (at section 83.3) for staff of the United Nations or International Committee of the Red Cross engaged in humanitarian work.

Presumption against bail

25.               The Bill limits the right to liberty by imposing a presumption against bail for offences including treachery, espionage and foreign interference. The amendments will limit the circumstances in which the presumption against bail applies in foreign interference offences to where there is the death of a person or substantial risk of death (consistent with the approach for treachery and espionage offences).  In this respect, the amendments will improve the ability of accused persons to be granted temporary release pending criminal proceedings.

Attorney-General’s consent prior to trial

26.               Under the Bill, the consent of the Attorney-General is required for the prosecution of an offence of espionage, foreign interference, sabotage, theft of trade secrets, or other threats to security. The amendments will extend the requirement for the Attorney-General’s consent to also apply to all secrecy offences in Division 122.

27.               The requirement for the Attorney-General to provide consent prior to proceedings being commenced for the commitment of a person for trial for an offence does not preclude the arrest, charge, remanding or releasing on bail of a person in relation to the offences. The arrest, charge and remand in custody of a person in such circumstances may limit the right to liberty and freedom from arbitrary arrest and detention, since the person arrested and detained would have no case to answer should the Attorney-General decline to consent to a prosecution. The remand in custody of a person awaiting consent of the Attorney-General may also limit the right to be tried within a reasonable period or to be released.

28.               The remand in custody of an accused may be necessary in the circumstances to prevent the communication of information already within the knowledge or possession of the accused which has the potential to damage Australian interests or otherwise threaten Australia’s national security. It may also be necessary to prevent interference with evidence or flight of the accused. The granting or refusal of bail is not arbitrary, as it is determined by a court in accordance with the relevant rules and principles of criminal procedure. Further, the amendments ensure that nothing in the relevant provisions authorising arrest, charge, remand or release prior to the Attorney-General’s consent will prevent the discharging of the accused if proceedings are not continued within a reasonable time. As such, if there is a significant delay between a person’s arrest, charge, remand or release, and the decision of the Attorney-General, a person may be discharged and released from detention.

29.               On this basis, the limitation imposed on the right to liberty and freedom from arbitrary detention is reasonable, necessary and proportionate to ensure the protection of Australia’s national security.

Right to be tried without undue delay

30.               Article 14(3)(c) of the ICCPR states that in the determination of any criminal charge, everyone has the right to be tried without undue delay. This right reflects the common law principle that ‘justice delayed is justice denied’. The right to be tried without undue delay may be limited where the delay is not ‘undue’ and where it is reasonable, necessary and proportionate to achieve a legitimate objective.

31.               The Bill engages the right to be tried without undue delay by requiring consent of the Attorney-General for the prosecution of certain offences. The amendments will extend the requirement for the Attorney-General’s consent to secrecy offences. The amendments limit the right to be tried without undue delay to the extent that a person may be charged, arrested and remanded in custody or on bail prior to and pending the Attorney-General’s consent to prosecution for a secrecy offence. The arrest, charge and remand in custody or on bail of an accused may be necessary in the circumstances to prevent the communication of information already within the knowledge or possession of the accused which has the potential to damage Australian interests or otherwise threaten Australia’s national security.

32.               Further, the amendments ensure that nothing in the relevant provisions authorising arrest, charge, remand or release prior to the Attorney-General’s consent will prevent the discharging of the accused if proceedings are not continued within a reasonable time. As such, if there is a significant delay between a person’s arrest, charge, remand or release, and the decision of the Attorney-General, a person may be discharged.

33.               On this basis, the limitation imposed on the right to be tried without undue delay is reasonable, necessary and proportionate to ensure the protection of Australia’s national security.

Presumption of innocence

34.               Article 14(2) of the ICCPR provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. In General Comment No. 32 (CCPR/C/GC/32) the Human Rights Committee stated that the presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. The presumption of innocence may be limited provided the limitation ‘is reasonable in the circumstances’ and necessary and proportionate to achieve a legitimate objective.

Strict liability

35.               The Bill limits the presumption of innocence by:

·          imposing strict liability and absolute liability for certain offence elements

·          creating defences which, by operation of the general principles of criminal responsibility in Chapter 2 of the Criminal Code, place an evidential burden on the defendant, and

·          providing for evidentiary certificates which are prime facie evidence  as to the existence of certain facts.

36.               The amendments reduce certain limitations on the presumption of innocence by:

·          amending the application of strict liability for certain offence elements, and

·          removing the evidentiary certificate regime which provided prime facie evidence as to the existence of certain facts.

37.               The amendments do not entirely remove strict liability from the elements of the offences.  The amendments continue to limit the presumption of innocence by imposing strict liability to elements of the new definition of ‘security classification’, which applies to espionage and secrecy offences .

38.               For paragraph 90.5(1)(a) of the definition of ‘security classification’, the prosecution will also be required to prove that the security classification was applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying information:

·          for a classification of SECRET - that, if disclosed in an unauthorised manner, could be expected to cause serious damage to the national interest, organisations or individuals

·          for a classification of TOP SECRET - that, if disclosed in an unauthorised manner, could be expected to cause exceptionally grave damage to the national interest.

39.               The effect of subsection 90.5(1A) is that the prosecution will not need to prove that the person who dealt with the information knew or was reckless as to this fact.

40.               Strict liability is appropriate for this element of the definition because the person’s state of mind about the fact that the classification was applied under an appropriate Commonwealth policy framework for the purpose of identifying such information is not relevant to their culpability.  It is sufficient for the prosecution to prove that the person was reckless as to the fact that the information was classified as SECRET or TOP SECRET.  It is not reasonable to expect that a person would be familiar with the methods for applying classifications to information, nor the exact meaning of the classifications.  There is unlikely to be sufficient evidence to allow the prosecution to prove that a person was reckless about this level of detail about the policy framework sitting behind the application of a classification of SECRET or TOP SECRET.

41.               For paragraph 90.5(1)(b), the prosecution will need to prove that the person was reckless as to the fact that the information had a classification equivalent to SECRET or TOP SECRET. However, the effect of subsection 90.5(1A) is that the prosecution will not need to prove that the person who dealt with the information knew or was reckless as to the fact that this was prescribed by regulations. Strict liability is appropriate for this element because the person’s state of mind about the fact that the classification was prescribed by regulations is not relevant to their culpability. It is sufficient for the prosecution to prove that the person was reckless as to the fact that the information had a classification equivalent to SECRET or TOP SECRET.  It is not reasonable to expect a person to be intimately familiar with the method for prescribing equivalent classifications. There is unlikely to be sufficient evidence to allow the prosecution to prove that a person was reckless about this level of detail about the process for prescribing an equivalent classification.

42.               The strict liability measure is proportionate in that it only applies to part of the definition and not to the entire element of the offence, or the offences as a whole. In this respect, the prosecution will still be required to prove, beyond a reasonable doubt, all other elements of the offence including the fault elements of intention or recklessness.

Reversal of burden of proof

43.               The amendments create a number of new specific defences applying to the offences in the Bill. Consistent with section 13.3 of the Criminal Code, the defendant bears an evidential burden in relation to a defence, which requires the defendant to adduce or point to evidence that suggests a reasonable possibility that a particularly matter exists or does not exist. Reversing the burden of proof limits Article 14(2) in that a defendant’s failure to discharge the burden may permit their conviction despite reasonable doubt as to their guilt.

44.               It is reasonable and necessary for the burden of proof to be placed on the defendant where the facts in relation to the defence are peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.

45.               For example, for the defence at subsection 122.5(4A), a defendant should be readily able to point to evidence that they communicated or dealt with the information to report maladministration or unlawful conduct in relation to a Commonwealth criminal process or the exercise of an AFP function. For the defence at subsection 122.5(5A), a defendant should be readily able to point to evidence that they communicated or dealt with the information to obtain legal advice on whether an offence may be committed by the person’s proposed conduct in relation to the material. For the defence at subsection 83.3(4A), the defendant is best placed to provide evidence that he or she was engaged in humanitarian work and it was necessary for this purpose to engage in military-style training.

46.               Similarly, for a defence at section 80.3 the defendant is best placed to explain their motivations when engaging in the relevant conduct as it is peculiarly within their knowledge as to how and why they should be considered to be acting in good faith. It would also be unnecessary and significantly costly if the prosecution was required to disprove these factors for every prosecution of a general secrecy offence. It is appropriate to include these factors as a defence and allow the defendant to raise the matter if the facts and circumstances are appropriate.

47.               Defences, which place an evidential burden on the defendant due to section 13.3 of the Criminal Code, are proportionate because the prosecution will still be required to prove each element of the offence beyond reasonable doubt. Further, if the defendant discharges an evidential burden, the prosecution will be required to disprove those matters beyond reasonable doubt, consistent with section 13.1 of the Criminal Code.

Freedom of expression

48.               Article 19(2) of the ICCPR states that everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. Any limitation on the right to freedom of expression must be reasonable, necessary, and proportionate for the pursuit of a legitimate objective and for the respect of the rights or reputations of others or for the protection of national security, public order, or public health or morals.

49.               The Bill amends the existing espionage offences in the Criminal Code and creates new secrecy offences which criminalise dealings with information and ideas in certain circumstances, thereby limiting the right to freedom of expression. The amendments will reduce this limitation by narrowing the scope of espionage and secrecy offences, and creating a separate secrecy offence that applies to non-Commonwealth officers that is narrower in scope to ensure this limitation only applies to the most serious and dangerous conduct. The amendments will also strengthen existing defences, in particular the defence for media organisations, and provide additional defences to allow freedom of expression in respect of important matters such as freedom of press, whistle-blowers, and access to the law.

Rights relating to cessation of citizenship

50.               The amendments will insert the offences against proposed Division 92 of the Criminal Code (foreign interference) within the scope of section 35A of the Australian Citizenship Act 2007 . This means that the Minister may determine in writing that a person ceases to be an Australia citizen where the person has been convicted of an offence against Division 92 (foreign interference) if other relevant statutory criteria are satisfied. These criteria include that the person has been sentenced to at least six years’ imprisonment or to periods of imprisonment that total at least six years, and is a national or citizen of a country other than Australia, and the Minister is satisfied that it is not in the public interest for the person to remain an Australian citizen.

51.               The objective of section 35A of the Australian Citizenship Act 2007 is to protect the Australian community and the values it upholds. Australian citizenship is a common bond, involving reciprocal rights and obligations. Citizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed that bond and repudiated their allegiance to Australia. The purpose of section 35A is to deal with the threat caused by those who have acted in a manner contrary to their allegiance to Australia by removing them from formal membership of the Australian community.  Removing a person’s formal membership of the Australian community is appropriate to reduce the possibility of a person engaging in acts or further acts that harm Australians or Australian interests.

52.               The offences currently specified in section 35A are those that prima facie indicate that a person has acted contrary to his or her allegiance to Australia. For example, offences involving terrorism and or other serious threats to Australia and Australia’s interests (including espionage and treason).

53.               The foreign interference offences in Division 92 criminalise covert, deceptive or undisclosed conduct undertaken on behalf of a foreign principal that is intended to interfere with Australian democratic systems and processes, support the intelligence activities of a foreign government or harm Australia’s national security. By doing so, these offences seek to protect Australia’s national security and the rights and freedoms of the Australian community at large. Penalties range from 10 to 20 years’ imprisonment. The foreign interference offences, therefore, have a comparable character and seriousness to the existing offences covered by section 35A. On this basis, their inclusion within the scope of section 35A is rationally connected to the objective of the Bill and section 35A in protecting Australians and Australia’s national security, and will not significantly alter the proportionality of section 35A in achieving this objective.

54.               The requirement that the Minister be satisfied that it is not in the public interest for the person to remain an Australian citizen acts as a safeguards against any unnecessary or disproportionate application of section 35A. In determining whether it is not in the public interest for the person to remain an Australian citizen the Minister is to have regard to the following factors:

·          the severity of the conduct that was the basis of the conviction or convictions and the sentence or sentences

·          the degree of threat posed by the person to the Australian community;

·          the age of the person

·          if the person is aged under 18—the best interests of the child as a primary consideration

·          the person’s connection to the other country of which the person is a national or citizen and the availability of the rights of citizenship of that country to the person

·          Australia’s international relations, and

·          any other matters of public interest.

55.               Moreover, a person may seek judicial review of a determination made under subsection 35A(1) in the High Court of Australia under section 75 of the Constitution, or in the Federal Court of Australia under section 39B of the Judiciary Act 1903. The availability of judicial review of a determination made under section 35A further safeguards against unreasonable or unnecessary cessations of citizenship.

56.               An analysis of the impact of section 35A on specific rights and freedoms is outlined in the statement of compatibility with human rights in the explanatory memorandum to the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015. Section 35A has been assessed as being compatible with human rights because to the extent that it may limit some human rights, those limitations are reasonable, necessary and proportionate in light of the provision’s objective and purpose. In accordance with this analysis, information in relation to each of the specific rights engaged by the inclusion of foreign interference offences in section 35A is outlined below.

Freedom of movement and choice of residence

57.               Article 12(1) of the ICCPR states that everyone lawfully within the territory of a country shall have the right to liberty of movement and freedom to choose his residence. Article 12(3) states that this right may be limited on bases that are provided by law, and necessary to protect national security, public order, or the rights and freedoms of others.

58.               The exercise of the power to cease a person’s citizenship while that person is in Australia will not of its own force alter a person’s liberty of movement and freedom to choose their residence. However, cessation may lead to circumstances in which a person could be held in immigration detention, which would impact their freedom of movement and residence.

59.               Section 35 of the Migration Act 1958 provides for the automatic grant of an ex-citizen visa to a person who is in the migration zone when his or her citizenship ceases. The ex-citizen visa is a permanent visa allowing the holder to remain in, but not re-enter, Australia. However, in the circumstances in which a person’s citizenship is revoked due to a relevant criminal conviction, the Minister may consider immediately cancelling this visa on character or national interest grounds, assuming the relevant criteria were met.

60.               As such, a move to cease a person’s citizenship cannot be absolutely separated from the visa cancellation, and liability for removal from Australia, which cessation would make possible.  Cessation should, therefore, be viewed as a measure which may lead to the removal of the ability to remain lawfully within Australia.

61.               In circumstances where a person has been convicted and sentenced to imprisonment for a foreign interference offence such that their continued citizenship is, in the Minister’s view, not in the public interest, such measures will be necessary to protect national security, and the rights and freedoms of the Australian community at large. On this basis, the limitation on the right to freedom of movement and choice of residence is proportionate to ensure protection of Australia’s national security.

Right to leave a country

62.               Article 12(2) of the ICCPR provides that everyone shall be free to leave any country, including his own.

63.               The ability to leave Australia will not be directly affected by the cessation provisions, but there are several ways in which the right may be indirectly affected. Clearly this is relevant only to people whose citizenship ceases while they are in Australia. In some cases the cessation may lead to visa cancellation and removal; in these circumstances Article 12(2) would not be relevant.

64.               If the person is allowed to remain in Australia it may be the case that their ability to leave the country is restricted under other legislation. The most obvious current example is preventing travel where the person is likely to join an extremist movement overseas. The UN Human Rights Committee has noted that ‘since international travel usually requires appropriate documents, in particular a passport, the right to leave a country must include the right to obtain the necessary travel documents.’ The inability to hold an Australian passport as a result of cessation of citizenship could potentially prevent travel outside Australia, but if necessary in the circumstances either a travel document from the person’s other country of nationality, a temporary document issued by Australia, or some other facility could potentially be used.

Right to enter one’s own country

65.               Article 12(4) of the ICCPR provides that no one shall be arbitrarily deprived of the right to enter his own country.

66.               While a person whose citizenship has ceased would no longer be a citizen under Australian law, under international law Australia may still be considered their ‘own country’ for the purposes of Article 12(4). The phrase ‘his own country’ has been interpreted broadly by the UN Human Rights Committee, and the drafting history of the provision supports the interpretation that ‘own country’ goes beyond mere nationality. However, it is the Government’s view that, where a person has objectively demonstrated through their conduct that they have repudiated their allegiance to Australia, which under the cessation provisions will necessarily be in circumstances where they hold another citizenship, any ties they may have to Australia for the purposes of Article 12(4) have been voluntarily severed. Regardless of prior connections, the person should not be entitled to gain any advantage from a relationship they are responsible for breaking.

67.               Should circumstances arise where a person whose citizenship has ceased and who properly considers Australia to be ‘his [or her] own country’, and where the person is outside Australia when the Minister determines that they cease to be an Australian citizen, depriving that person of the right to enter Australia would not be arbitrary. This is because the deprivation of the right to enter Australian would be based on a genuine threat to Australia’s security posed by a person who has objectively demonstrated repudiation of their allegiance to Australia. The very serious consequence of ceasing citizenship (thereby preventing return to Australia) is, in the Government’s view, proportionate to the legitimate goal of ensuring the security of the Australian community. 

68.               A person whose citizenship ceases while they are outside Australia may apply for a visa for entry to Australia, though as noted above, in the circumstances it is likely they would fail the character test.

Expulsion of aliens

69.               Article 13 of the ICCPR provides that:

An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

70.               While technically the power to cease a person’s citizenship would not result directly in the expulsion of a person from Australia, as outlined above, expulsion (most likely removal from Australia under section 198 of the Migration Act) is the most likely outcome of the process which begins with cessation where a person is in Australia at the time.

71.               Any removal would come only after the person’s lawful status in Australia (i.e. any visa they held after the cessation of their citizenship) was cancelled. In that sense they would not be able to claim the benefit of Article 13 (as they would not be lawfully in Australia’s territory), but that is a distinction which avoids the reality that these are two steps in a closely linked process.

72.               However, decisions leading to removal from Australia following cessation of citizenship would all be conducted in line with the relevant provisions in the Migration Act, so removal itself would be in pursuance of a decision reached in accordance with law. Further, those decisions would most likely be subject to review by a tribunal or court.

Equality before the courts and tribunals

73.               Article 14(1) of the ICCPR provides that:

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

74.               The right to a fair trial and fair hearing are not limited by section 35A. In a judicial review action, the court would consider whether or not the power given by the Australian Citizenship Act has been exercised according to law. A person also has a right to seek declaratory relief as to whether the conditions giving rise to the cessation have been met.

75.               It is also the case that, as reflected in the note to section 35A(1), an affected person may seek judicial review of a determination made under subsection 35A(1). Further, a person’s citizenship is taken never to have ceased if the Minister revokes a determination made where the conviction that led to the determination is overturned or quashed.

Equality before the law

76.               Article 26 of the ICCPR states that:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

77.               This a stand-alone right which will be breached if a person does not enjoy equality before the law or equal protection of the law with others, on the basis of discrimination on a prohibited ground.

78.               The proposed application of cessation provisions to the foreign interference offences provided for Division 92 does not discriminate on a prohibited ground but rather operates on the basis of certain conduct or a conviction or convictions of a particular kind i.e. a conviction for a foreign interference offence. To the extent that the cessation powers in the Australian Citizenship Act differentiate on the basis that they apply only to those people who hold foreign citizenship or nationality in addition to their Australian citizenship, this is considered reasonable and proportionate and consistent with Australia’s obligations under the statelessness conventions. 

79.               As observed by the Human Rights Committee in General Comment no. 18, not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the ICCPR.

80.               Differentiation on the basis of dual nationality is the consequence of international obligations relating to statelessness, and as such represents a measure of extra protection for those without dual nationality, rather than a means of positively selecting those who may be subject to the new cessation power.

81.               The differentiation at the heart of the cessation provisions relevant to the amendment is that the person has been convicted of a crime of a particular character, which demonstrates repudiation of allegiance to Australia. These provisions operate only in the most serious of circumstances, and the consequence of their operation - the cessation of a person’s citizenship - is proportionate to the seriousness of the conduct.

The best interests of the child

82.               Article 3 of the CRC provides that:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

83.               This right would be engaged by the cessation power in section 35A of the Australian Citizenship Act, which applies to all persons regardless of age.

84.               The cessation power would only be enlivened in relation to a child directly when the child meets the crime or conduct thresholds. Given the type of conduct captured by the foreign interference offences, it is unlikely that a child would commit such an offence.

85.               The cessation power in section 35A is discretionary and allows the Minister to take into account all the circumstances of each individual case. The Minister must expressly have regard to the best interests of the child as a primary consideration when reaching satisfaction on whether it is in the public interest for the child to remain an Australian citizen. The Minister also has the power to revoke a determination made under section 35A if a conviction (in relation to a child or otherwise) is later overturned or quashed.

86.               This right is also engaged where a parent’s citizenship ceases. In circumstances where the parent is in Australia at the time of cessation, decisions which might flow from that cessation would all be lawfully based in the Migration Act. The best interests of the child would be a primary consideration in all of those decisions, though may be outweighed by countervailing considerations such as the integrity of the citizenship programme and national security risks.

Rights of children to nationality, identity, family etc.

87.               Article 23(1) of the ICCPR provides that ‘the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.’ Article 24 of the ICCPR further provides that every child shall have the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State and the right to acquire a nationality. Article 7 of the CRC also provides that the child shall have the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.

88.               The cessation power would only be enlivened in relation to a child directly when the child meets the crime or conduct thresholds. Given the type of conduct captured by the foreign interference offences, it is unlikely that a child would commit such an offence.

89.               The right in Articles 7 and 24 to acquire a nationality is not the same as a right to retain a nationality. Cessation of a child’s citizenship must of necessity occur after a child has acquired citizenship, however section 35A does not operate if a person would be rendered stateless by the cessation. That is, the Minister may only make a determination under section 35A if the person is also a citizen of a country other than Australia at the time of the determination.  Consequently the right to acquire a nationality is not limited by section 35A.

90.               The power in section 35A is also discretionary such that it allows the Minister to take into account all the circumstances of each individual case. In considering the possible cessation of citizenship in respect of a child, the Minister is required to consider the child’s best interests as a primary consideration.

91.               These rights are also engaged where a parent’s citizenship ceases, which may affect the family unit. In circumstances where the parent is in Australia at the time of cessation, decisions which might flow from that cessation would all be lawfully based in the Migration Act. The best interests of the child would be a primary consideration in all of those decisions, though may be outweighed by countervailing considerations such as the integrity of the citizenship programme and national security risks.

Conclusion

92.               The amendments are compatible with human rights because they reduce the limitations imposed by the Bill on a number of human rights including the right to freedom of expression, right to be presumed innocent and right to liberty. To the extent that the amendments may limit human rights, those limitations are reasonable, necessary and proportionate to the legitimate objective of the Bill, that is primarily to ensure the protection of Australia’s national security.



NOTES ON AMENDMENTS

Criminal Code Act 1995

Amendment 1: Clause 2, page 3 (at the end of the table)

93.               This amendment will insert a new commencement provision for Schedule 6 of the Bill (which will be inserted by Amendment 154) to commence the day after the Act receives Royal Assent.

94.               Schedule 6 amends the Inspector-General of Intelligence and Security Act 1986 by introducing new immunities for persons who voluntarily provides information or documents to the IGIS for the disclose information to the IGIS for the purpose of:

  • making a complaint under Division 2 of Part II of the IGIS Act
  • an inspection conducted under section 9A of the IGIS Act
  • the IGIS conducting a preliminary inquiry into a complaint under section 14 of the IGIS Act, or
  • the IGIS conducting an inquiry under Division 3 of Part II.

Amendment 2: Schedule 1, page 4 (after line 13)

95.               This amendment will insert a new section 80.1AAA in Subdivision A of Division 80 of the Criminal Code to clarify that nothing in Division 80 affects the interpretation of key terms in the Australian Security Intelligence Organisation Act 1979 unless the ASIO Act expressly provides otherwise.  Division 80, as amended by Schedule 1 of the Bill, contains offences relating to treason, urging violence, advocating terrorism and advocating genocide.

96.               This amendment implements Recommendation 5 of the PJCIS report.

Amendment 3: Schedule 1, item 5, page 6 (line 15)

97.               This amendment will amend subsection 80.3(1) of the Criminal Code to insert a reference to new section 83.1 (advocating mutiny) and section 83.4 (interference with political rights and liberties’.

98.               The effect of this amendment will be to apply the existing defence for acts done in good faith (in section 80.3 of the Criminal Code) to the new offences of advocating mutiny in section 83.1 and interference with political rights and duties in section 83.4.

99.               This amendment strikes a balance between freedom of expression and unwanted encouragement of mutiny and interference with political rights and duties.  This amendment implements Recommendation 47 of the PJCIS report.

Amendment 4: Schedule 1, item 8, page 6 (after line 28)

100.           This amendment will insert a new heading to create Subdivision A—Preliminary in Division 82 (and Amendment 7 will insert a new heading to create Subdivision B—Offences ).

101.           This is a technical matter, to ensure the sabotage offences contained in Division 82 are appropriately structured within the Criminal Code.

102.           Subdivision A will contain preliminary provisions, namely definitions and a provision to clarify that nothing in Division 82 affects the interpretation of key terms in the Australian Security Intelligence Organisation Act 1979 , unless that Act expressly provides otherwise. Subdivision B will contain the sabotage offence provisions.

Amendment 5: Schedule 1, item 8, page 7 (before line 1)

103.           This amendment will insert a definition of advantage in section 82.1 for the purpose of the sabotage offences in Division 82.  The definition will clarify that conduct will not advantage the national security of a foreign country if the conduct will advantage Australia’s national security to an equivalent extent.

104.           The PJCIS report concluded (at paragraphs 3.74) that ‘further legislative clarity is required to reduce the likelihood of non-malicious conduct falling under the term ‘advantage the national security of a foreign country’ for the purposes of the proposed sabotage and espionage offences.’  The PJCIS report also stated (at paragraph 3.75) that ‘it would be inappropriate to criminalise activity that is undertaken for the mutual benefit of both Australia and a foreign country.’

105.           The new definition of advantage is intended to ensure that a person cannot commit a sabotage offence on the basis of advantaging a foreign country’s national security if that person intended that, or was reckless as to whether, his or her conduct would also equally advantage Australia’s national security.

106.           The qualification that the advantage be to an equivalent extent is intended to ensure that a person cannot evade liability because they intended for their conduct to have some advantage to Australia’s national security when they also intended for their conduct to provide a greater degree of advantage to the foreign country’s national security.

107.           The requirement for the mutual advantage to be of an equivalent extent will allow the prosecution to argue, in appropriate circumstances, that despite there being some intention to advantage Australia’s national security, the intention to advantage the foreign country’s national security was to a greater extent.      

108.           This amendment implements Recommendation 3 of the PJCIS report.

Amendment 6: Schedule 1, item 8, page 7 (after line 17)

109.           This amendment will insert a definition of prejudice in section 82.1 (for the purpose of the sabotage offences in Division 82) to clarify that embarrassment alone is not sufficient to prejudice Australia’s national security.

110.           The PJCIS report stated (at paragraph 3.72) that:

The Committee recognises that, in some circumstances, embarrassment to the Australian Government could result in harm to Australia’s political, military or economic relationships. However, the Committee considers that greater clarity is required to ensure that prejudice cannot consist of embarrassment to the Australian Government or other Australian entity alone, but must also include a degree of damage or harm.

111.           This definition will ensure that a person cannot be prosecuted for a sabotage offence in Division 82 if that person intended that, or was reckless as to whether, his or her conduct would cause embarrassment alone.

112.           This definition reflects case law regarding the meaning of ‘prejudice to national security’, including Commonwealth v Fairfax (1980) 147 CLR 39 at 52, in which a single judge of the High Court (Mason J) indicated that mere embarrassment was not sufficient to constitute prejudice to national security.

113.           This amendment implements Recommendation 2 of the PJCIS report.

Amendment 7: Schedule 1, item 8, page 8 (after line 25)

114.           This amendment will insert a new section 82.2A to clarify that nothing in Division 82 (Sabotage) affects the interpretation of key terms in the Australian Security Intelligence Organisation Act 1979 , unless that Act expressly provides otherwise.  This amendment implements Recommendation 4 of the PJCIS report.

115.           This amendment will also insert a new heading to create Subdivision B—Offences in Division 82 (Amendment 4 will insert a new heading to create Subdivision A—Preliminary ). This is a technical matter, to ensure the sabotage offences are appropriately structured within the Criminal Code.

Amendment 8: Schedule 1, item 8, page 11 (lines 17 to 24)

116.           This amendment will amend section 82.7 (offence of introducing vulnerability with intention as to national security) to narrow the scope of the offence.

117.           Prior to this amendment, paragraph 82.7(d) applied where a person intended to harm or prejudice Australia’s economic interests, disrupt the functions of Government, or damage public infrastructure . This amendment removes paragraph 82.7(d) and replaces it with a new paragraph that applies where 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).

118.           The reference to ‘at the time or at a future time’ reflects that the offence at section 82.7 applies where a person engages in conduct that introduces a vulnerability into public infrastructure.  The person who introduces the vulnerability may not intend for it to immediately be used to prejudice Australia’s national security, but may intend that the vulnerability will be exploited at a later time to prejudice Australia’s national security.  The person engaging in the conduct with the intention that prejudice Australia’s national security will occur at a future time would be sufficient for the purpose of new paragraph 82.7(d). 

119.           Intention is the fault element for new paragraph 82.7(d).  Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

120.           This amendment implements Recommendation 44 of the PJCIS report.

Amendment 9: Schedule 1, item 8, page 12 (lines 6 to 13)

121.           This amendment will amend section 82.8 (offence of introducing vulnerability reckless as to national security) to narrow the scope of the offence.

122.           Prior to this amendment, paragraph 82.8(d) applied where a person engaged in the conduct reckless as to whether it would harm or prejudice Australia’s economic interests, disrupt the functions of Government, or damage public infrastructure. This amendment removes paragraph 82.8(d) and replaces it with a new paragraph that applies only where 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).

123.           The reference to ‘at the time or at a future time’ reflects that the offence at section 82.8 applies where a person engages in conduct that introduces a vulnerability into public infrastructure.  The person who introduces the vulnerability may not be reckless as to whether it is immediately used to prejudice Australia’s national security, but may be reckless as to whether the vulnerability will be able to be exploited at a later time to prejudice Australia’s national security.  The person engaging in the conduct reckless as to whether prejudice to Australia’s national security will occur at a future time would be sufficient for the purpose of new paragraph 82.7(d). 

124.           Recklessness is the fault element for new paragraph 82.8(d). Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

125.           This amendment implements Recommendation 44 of the PJCIS report.

Amendment 10: Schedule 1, item 8, page 13 (lines 1 to 9)

126.           This amendment will replace the defence at section 82.10 with a broader defence applying to both public officials and a person who is the owner or operator of public infrastructure.

127.           Current section 82.10 creates a defence for a person accessing or using a computer or other electronic system in his or her capacity as a public official. This amendment will extend the defence beyond this conduct to cover a broader range of activities that public officials may engage in regarding public infrastructure. The defence will also be amended to extend to a person acting on behalf of, or with the consent of, an owner or operator of the public infrastructure to capture persons contracted by the private owner or operator to perform functions.  

128.           The defence at subsection 82.10(1) will apply where:

·          the person is, at the time of the offence, a public official (as defined in the Dictionary to the Criminal Code)

·          the person engaged in the conduct in good faith in the course of performing duties as a public official, and

·          the conduct is reasonable in the circumstances for the purpose of performing those duties

129.           For example, staff of a Commonwealth department may be tasked with conducting a penetration test of the department’s electronic systems for vulnerabilities.

130.           This amendment will also insert a Note under subsection 82.10(1) to clarify that the defendant will bear an evidentiary burden in relation to this defence. The Guide to Framing Commonwealth Offences provides (at paragraph 4.3.1) that it is appropriate for a matter to be included in an offence-specific defence where it is peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.  The defence at subsection 82.10(1) satisfies both of these criteria.  A defendant is likely to be in the best position to easily point to evidence that he or she was a public official engaging in conduct in good faith in the course of their duties.  In addition, this is expected to be a rare situation and is unlikely to be a feature of every case that is investigated and referred for prosecution.  It would be unnecessary and significantly costly if the prosecution was required to disprove this for every prosecution of a sabotage offence. It is appropriate to include it as a defence and allow the defendant to raise the matter if the facts and circumstances are appropriate.

131.           Consistent with section 13.3 of the Criminal Code, the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. If the defendant discharges an evidential burden, the prosecution must disprove those matters beyond reasonable doubt, consistent with section 13.1 of the Criminal Code.

132.           The defence at subsection 82.10(2) will apply where:

·          the person is, at the time of the offence:

o    an owner or operator of the public infrastructure, or

o    acting on behalf of, or with the consent of, an owner or operator of the public infrastructure

·          the person engaged in the conduct in good faith

·          the conduct is within the lawful authority of the owner or operator, and

·          the conduct is reasonable in the circumstances for the purpose of performing those duties

133.           For example, the operator of an essential telecommunications network that is relied upon by intelligence agencies may shut down the network and this might prejudice national security because it interferes with the activities of the intelligence agency. Unless it was reasonable in the circumstances to shut down the network, for example in order to conduct essential maintenance, it should not be covered by the defence.  

134.           This amendment will also insert a Note under subsection 82.10(2) to clarify that the defendant will bear an evidentiary burden in relation to this defence. The Guide to Framing Commonwealth Offences provides (at paragraph 4.3.1) that it is appropriate for a matter to be included in an offence-specific defence where it is peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.  The defence at subsection 82.10(2) satisfies both of these criteria.  A defendant is likely to be in the best position to easily point to evidence that he or she was an owner or operator (or acting on behalf of an owner or operator) engaging in conduct within their lawful authority in good faith.  In addition, this is expected to be a rare situation and is unlikely to be a feature of every case that is investigated and referred for prosecution.  It would be unnecessary and significantly costly if the prosecution was required to disprove this for every prosecution of a sabotage offence. It is appropriate to include it as a defence and allow the defendant to raise the matter if the facts and circumstances are appropriate.

135.           Consistent with section 13.3 of the Criminal Code, the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist . If the defendant discharges an evidential burden, the prosecution must disprove those matters beyond reasonable doubt, consistent with section 13.1 of the Criminal Code.

136.           This amendment implements Recommendation 45 of the PJCIS report.

Amendment 11: Schedule 1, item 8, page 15 (before line 2)

137.           This amendment will insert a new section 83.1A to clarify that nothing in Division 83 (Other threats to security) affects the interpretation of key terms in the Australian Security Intelligence Organisation Act 1979 , unless that Act expressly provides otherwise.

138.           This amendment implements Recommendation 4 of the PJCIS report.

Amendment 12: Schedule 1, item 8, page 15 (before line 19)

139.           This amendment will insert a Note under subsection 83.1(1) to clarify that the existing defence in section 80.3 of the Criminal Code for acts done in good faith is also available in relation to the advocating mutiny offence at section 83.1.  This provides clarity for the reader.

140.           Amendment 3 amends section 80.3 so that it also applies to the advocating mutiny offence at section 83.1.

Amendment 13: Schedule 1, item 8, page 15 (after line 19)

141.           This amendment will insert new subsection 83.1(1A) to define advocates for the purpose of the advocating mutiny offence in subsection 83.1(1).

142.           Paragraph 83.1(1A)(a) will provide that a person advocates mutiny if the person counsels, promotes, encourages or urges mutiny.  This definition is consistent with the existing definitions of advocates for the purpose of the advocating terrorism offence in subsection 80.2C(3) and the advocating genocide offence in subsection 80.2D(3) of the Criminal Code. 

143.           Paragraph  83.1(1A)(b) will clarify that a reference to advocating mutiny includes advocating mutiny even if the mutiny does not occur, advocating a single mutiny and advocating multiple acts of mutiny. This amendment is consistent with subsections 80.2C(4) and 80.2D(4) of the Criminal Code, which relate to the offences of advocating terrorism and advocating genocide, respectively.

144.           This amendment implements Recommendation 46 of the PJCIS report

Amendment 14: Schedule 1, item 8, page 16 (line 15)

145.           This amendment will insert ‘etc.’ at the end of the heading to section 83.3 ‘Military-style training involving foreign government principal’. This amendment is consequential to Amendment 15, which will amend section 83.3 to refer to military-style training involving a foreign government principal or a foreign political organisation

Amendments 15 and 16: Schedule 1, item 8, page 16 (lines 24, 26 and 27)

146.           These amendments will amend section 83.3 ‘Military-style training involving foreign government principal’ to add a reference to foreign political organisation into paragraph 83.3(1)(c). 

147.           This amendment is being made because Amendment 30 will remove foreign political organisation from the definition of foreign government principal . Therefore, paragraph 83.3(1)(c) is being amended to insert a reference to foreign political organisation

148.           Foreign political organisation is defined in section 90.1 of the Criminal Code, as amended by Item 10 of Schedule 1 of the Bill and Amendment 24 of these amendments, to mean a foreign political party, an organisation that exists primarily to pursue political objectives, and a foreign organisation that exists to pursue militant, extremist or revolutionary objectives.

149.           Following this amendments, paragraph 83.3(1)(c) will require the prosecution to prove that either of the following circumstances exist:

·          the training is provided on behalf of a foreign government principal or foreign political organisation, or

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

150.           Recklessness is the fault element for paragraph 83.3(1)(c).  Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

151.           It is intended that the offence at section 83.3 continue to apply where the training is provided on behalf of, or directed, funded or supervised by, a foreign political organisation.  

Amendment 17: Schedule 1, item 8, page 17 (after line 27)

152.           This amendment will insert a new defence (at subsection 83.3(4A)) for an offence against subsection 83.3(1) (‘Military-style training involving foreign principal etc’) where the relevant conduct is solely or primarily for the purpose of one of the following:

·          providing aid of a humanitarian nature

·           performing an official duty for the United Nations (UN) or one of its agencies or the International Red Cross Red Crescent Movement (IRCM).

153.           It is appropriate that individuals undertaking official duties for the UN or the IRCM have confidence that, in fulfilling their official mandate, they are not contravening the military-style training offence.  

154.           The offence at section 83.3 requires proof that the training involved using arms or practising military exercises, movements or evolutions and that the person was reckless as to this.  The UN and IRCM may participate in training that involves military exercises by providing advice or training about international humanitarian law..  This would be considered to fall within the defence.  Where the training being delivered is training in the actual use of arms, this would not be ‘aid of a humanitarian nature’, and would not be covered by paragraph 83.3(4A)(a) of the defence.

155.           This amendment will also insert a Note under subsection 83.3(4A) to clarify that the defendant will bear an evidentiary burden in relation to this defence. The Guide to Framing Commonwealth Offences provides (at paragraph 4.3.1) that it is appropriate for a matter to be included in an offence-specific defence where it is peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.  The defence at subsection 83.3(4A) satisfies both of these criteria.  A defendant is likely to be in the best position to easily point to evidence that he or she was providing aid of a humanitarian nature or performing an official duty for the UN or IRCM.  In addition, this is expected to be a rare situation and is unlikely to be a feature of every case that is investigated and referred for prosecution.  It would be unnecessary and significantly costly if the prosecution was required to disprove this for every prosecution of a military-style training offence. It is appropriate to include it as a defence and allow the defendant to raise the matter if the facts and circumstances are appropriate.

156.           Consistent with section 13.3 of the Criminal Code, the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. If the defendant discharges an evidential burden, the prosecution must disprove those matters beyond reasonable doubt, consistent with section 13.1 of the Criminal Code.

157.           This amendment implements Recommendation 49 of the PJCIS report.

Amendment 18: Schedule 1, item 8, page 18 (line 5)

158.           This amendment is a minor technical amendment to address a typographical error in paragraph 83.4(1)(c), which refers to ‘any another person’. This amendment will change this reference to ‘any other person’. 

159.           This amendment implements Recommendation 60 of the PJCIS report to make minor changes that ensure clarity.

Amendment 19: Schedule 1, item 8, page 18 (line 11)

160.           This amendment will change the maximum penalty for the offence of ‘interference with political rights and duties’ at section 83.4 from 10 years imprisonment to three years imprisonment. Section 83.4 replaces the existing offence of ‘interference with political liberty’ at section 28 of the Crimes Act, which attracted a maximum penalty of three years imprisonment. This penalty will be retained for the updated version of this offence at section 83.4.

161.           This amendment implements Recommendation 50 of the PJCIS report.

Amendment 20: Schedule 1, item 8, page 18 (lines 28 and 29)

162.           This amendment will insert a reference to subsection 83.3(4A) in paragraph 83.5(4)(a). The effect of this amendment will be to require the Attorney-General, in deciding whether to consent to prosecution for an offence against section 83.3 (military-style training involving foreign government principal etc.), to consider whether the conduct is covered by the defence in subsection 83.3(4A).

163.           Subsection 83.3(4A) provides a defence where the relevant conduct is solely or primarily for the purpose of providing humanitarian aid and/or performing an official duty for the United Nations or one of its agencies or the International Committee of the Red Cross.    

Amendment 21: Schedule 1, item 8, page 18 (line 30)

164.           This amendment will update new section 83.5 to require the Attorney-General to consider whether the relevant conduct might be authorised by the good faith defence in section 80.3 of the Criminal Code before providing his or her consent to the institution of proceedings for an advocating mutiny offence. This amendment is consequential to Amendment 3, which makes the existing defence in section 80.3 of the Criminal Code for acts done in good faith available in relation to the advocating mutiny offence at section 83.1.

165.           This amendment implements Recommendation 48 of the PJCIS report.

Amendment 22: Schedule 1, item 10, page 19 (before line 4)

166.           This amendment will insert definitions of advantage and concerns in subsection 90.1(1) for the purposes of Part 5.2—Espionage and related offences.

167.           This amendment will insert a definition of advantage in subsection 90.1(1) for the purpose of the espionage offences in Part 5.2.  The definition will clarify that conduct will not advantage the national security of a foreign country if the conduct will advantage Australia’s national security to an equivalent extent.

168.           The PJCIS report concluded (at paragraphs 3.74) that ‘further legislative clarity is required to reduce the likelihood of non-malicious conduct falling under the term ‘advantage the national security of a foreign country’ for the purposes of the proposed sabotage and espionage offences.’  The PJCIS report also stated (at paragraph 3.75) that ‘it would be inappropriate to criminalise activity that is undertaken for the mutual benefit of both Australia and a foreign country.’

169.           The new definition of advantage is intended to ensure that a person cannot commit a espionage offence on the basis of advantaging a foreign country’s national security if that person intended that, or was reckless as to whether, his or her conduct would also equally advantage Australia’s national security.

170.           The qualification that the advantage be to an equivalent extent is intended to ensure that a person cannot evade liability because they intended for their conduct to have some advantage to Australia’s national security when they also intended for their conduct to provide a greater degree of advantage to the foreign country’s national security. This may be the case where a person acts as a double agent and provides information to an Australian security agency but also provides information to a foreign intelligence agency with the intention of advantaging the foreign country’s national security to a greater extent than Australia. Another example is where a person is persuaded to provide information to a foreign intelligence agency on the assurances that they are also benefitting Australia’s national security.

171.           The requirement for the mutual advantage to be of an equivalent extent will allow the prosecution to argue, in appropriate circumstances, that despite there being some intention to advantage Australia’s national security, the intention to advantage the foreign country’s national security was to a greater extent.      

172.           The definition of concerns provides that information or an article concerns Australia’s national security if the information or article relates to, or is connected with, or is of interest or importance to, or affects, Australia’s national security.  This is consistent with the definition of the term in the Macquarie Dictionary

173.           This amendment implements Recommendation 3 of the PJCIS report (in relation to defining advantage ) and Recommendation 35 (regarding defining concerns ).

Amendment 23: Schedule 1, item 10, page 19 (line 16)

174.           This amendment will update the Note under the definition of deal in subsection 90.1(1) to direct the reader to the new definition of make available in subsection 90.1(1) (to be inserted by Amendment 25). The existing wording of the Note only directs the reader to subsection 90.1(2).

Amendment 24: Schedule 1, item 10, page 19 (lines 19 and 20)

175.           This amendment will amend the definition of foreign political organisation to include:

·          a foreign political party

·          a foreign organisation that exists primarily to pursue political objectives, and

·          a foreign organisation that exists to pursue militant, extremist or revolutionary objectives.

176.           This replaces the existing definition of foreign political organisation , which was defined as meaning a foreign political party or a foreign political organisation. The new definition is more comprehensive but it is not intended to be exhaustive.

177.           The term is intended to capture organisations that have a political focus but are not ‘political parties’ per se, including (but not limited to) militant, extremist and revolutionary groups.

178.           Espionage, foreign interference and sabotage can be conducted by foreign political entities that are not parties or governments, and the precise nature and format of these entities may change over time. It is therefore necessary to maintain a broad formulation of ‘foreign political organisation’ that allows for such activities to be categorised as espionage, foreign interference or sabotage where necessary.

179.           A narrow definition of foreign political organisation would prevent these activities from being rightly considered as espionage or related activity.

180.           This amendment implements Recommendation 6 of the PJCIS report.

Amendment 25: Schedule 1, item 12, page 19 (before line 27)

181.           This amendment will insert a definition of make available in subsection 90.1(1) (which applies to Part 5.2—Espionage and related offences).

182.           The definition provides that make available information or an article includes:

·          placing it somewhere it can be accessed by another person

·          giving it to an intermediary to give to the intended recipient, and

·          describing how to obtain access, or methods that are likely to facilitate access, to it (for example, setting out the name of a website, an IP address, a URL, a password, or the name of a newsgroup).

183.           A person can make available information using the internet or an online vector.

184.           The definition is intended to cover the passing on of information or articles other than by disclosing or publishing them. This is intended to cover situations where arrangements are made between two individuals to pass information using a pre-arranged location, without the individuals needing to meet. For example, Person A may leave a classified document in a particular letterbox and Person B (who is acting on behalf of a foreign principal) will later come and collect it. Another example would be where Person A gives a document to Person C, who will then pass it on to Person B (who is acting on behalf of a foreign principal). Although it is arguable that Person A has ‘communicated’ the document in these situations, it is intended that the term ‘make available’ will provide clarity in situations where intermediaries are used.

185.           This amendment implements Recommendation 36 of the PJCIS report.

Amendment 26: Schedule 1, item 12, page 19 (after line 27)

186.           This amendment will insert a definition of prejudice in section 90.1 (for the purpose of the espionage and foreign interference offences in Part 5.2) to clarify that embarrassment alone is not sufficient to prejudice Australia’s national security.

187.           The PJCIS report stated (at paragraph 3.72) that:

The Committee recognises that, in some circumstances, embarrassment to the Australian Government could result in harm to Australia’s political, military or economic relationships. However, the Committee considers that greater clarity is required to ensure that prejudice cannot consist of embarrassment to the Australian Government or other Australian entity alone, but must also include a degree of damage or harm.

188.           This definition will ensure that a person cannot be prosecuted for an espionage or foreign interference offence in Part 5.2 if that person intended that, or was reckless as to whether, his or her conduct would cause embarrassment alone.

189.           This definition reflects case law regarding the meaning of ‘prejudice to national security’, including Commonwealth v Fairfax (1980) 147 CLR 39 at 52, in which a single judge of the High  Court (Mason J) indicated that mere embarrassment was not sufficient to constitute prejudice to national security.

190.           This amendment implements Recommendation 2 of the PJCIS report.

Amendment 27: Schedule 1, item 16, page 20 (after line 17)

191.           This amendment will amend the definition of foreign principal to include a reference to foreign political organisation in new paragraph 90.2(aa). This is necessary because because foreign political organisation will be removed from the definition of foreign government principal (Amendment 30), consistent with paragraph 3.87 of the PJCIS report, which stated:

The Committee considers that it would be inappropriate for organisations that have no connection to a foreign government or foreign political party to be included as part of the definition of ‘foreign government principal’.

192.           Foreign political organisation is defined in section 90.1 of the Criminal Code, as amended by Item 10 of Schedule 1 of the Bill and Amendment 24 of these amendments, to mean a foreign political party, an organisation that exists primarily to pursue political objectives, and a foreign organisation that exists to pursue militant, extremist or revolutionary objectives.

Amendment 28: Schedule 1, item 16, page 20 (line 23)

193.           This amendment will insert a reference to paragraph 90.2(aa) (inserted by Amendment 27) in paragraph 90.2(d).

194.           Paragraph 90.2(d) applies where an entity or organisation is owned, directed or controlled by another foreign principal that is a public international organisation or terrorist organisation.  If this paragraph applies, that entity or organisation will itself be a foreign principal

195.           The effect of this amendment to paragraph 90.2(d) will be to ensure that an entity or organisation owned, directed or controlled by a foreign political organisation (as defined in paragraph 90.2(aa)) falls within the definition of foreign principal

Amendment 29: Schedule 1, item 16, page 20 (line 26)

196.           This amendment will insert a reference to paragraph 90.2(aa) (inserted by Amendment 27) in paragraph 90.2(e).

197.           Paragraph 90.2(e) applies where an entity or organisation is owned, directed or controlled by two or more foreign principals that are a foreign government principal, a public international organisation or terrorist organisation.  If this paragraph applies, that entity or organisation will itself be a foreign principal

198.           The effect of this amendment to paragraph 90.2(e) will be to ensure that an entity or organisation owned, directed or controlled by two or more foreign principals within the meaning of paragraphs (aa), (a), (b) or (c) falls within the meaning of foreign principal

Amendment 30: Schedule 1, item 16, page 21 (line 11)

199.           This amendment will remove paragraph 90.3(g) of the definition of foreign government principal , which refers to ‘a foreign political organisation’. This is consistent with paragraph 3.87 of the PJCIS report, which stated:

The Committee considers that it would be inappropriate for organisations that have no connection to a foreign government or foreign political party to be included as part of the definition of ‘foreign government principal’.

200.           Amendment 27 will insert a reference to a foreign political organisation into the definition of foreign principal in section 90.2.

201.           Deleting paragraph 90.3(g) and removing ‘a foreign political organisation’ from the definition of foreign government principal to foreign principal will have an impact on the operation of the following provisions:

  • section 83.3 (military-style training involving a foreign government principal), and
  • section 92A.1 (theft of trade secrets involving a foreign government principal).

202.           Sections 83.3 and 92A.1 criminalise certain conduct in relation to a foreign government principal . Removing ‘a foreign political organisation’ from this definition will have the effect that the offences in sections 83.3 and 92A.1 will no longer apply where the foreign principal is a foreign political organisation.

203.           Amendments 15 and 16 will amend section 83.3 so that it continues to apply where the foreign principal is a foreign political organisation. It is intended that section 83.3 cover military-style training involving foreign political organisations, the definition of which includes extremist groups.

204.           Section 92A.1 will not be amended to apply where the person is engaging in the conduct on behalf of a foreign political organisation.

Amendment 31: Schedule 1, Item 16, page 22 (lines 9 and 10)

205.           This amendment will insert a new definition of security classification at section 90.5.  Security classification will be defined in subsection 90.5(1) to mean:

·            a classification of secret or top secret that is applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying information that, if disclosed in an unauthorised manner, could be expected to:

o      for a classification of secret—cause serious damage to the national interest, organisations or individuals, or

o      for a classification of top secret—cause exceptionally grave damage to the national interest; or

·            any equivalent classification or marking prescribed by the regulation s.

206.           This amendment partially implements Recommendation 8 of the PJCIS Report, to the extent that it recommends that the Bill be amended to define each ‘security classification’ to which criminal liability attaches and each definition should include harm-based statutory criteria for determining the proper classification to apply to that information.  This amendment also implements Recommendation 9 of the PJCIS report, to the extent that it recommends narrowing the definition of ‘security classification’ to a classification of SECRET or TOP SECRET or equivalent.

207.           The definition implements the PJCIS’s recommendation that the definition should be based on harm-based criteria, as the classification provides clarity about the fact that the policy framework must have been developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying information:

·            for a classification of SECRET - that, if disclosed in an unauthorised manner, could be expected to cause serious damage to the national interest, organisations or individuals

·            for a classification of TOP SECRET - that, if disclosed in an unauthorised manner, could be expected to cause exceptionally grave damage to the national interest.

208.           These definitions align with the definitions of SECRET and TOP SECRET in the Australian Government’s Protective Security Policy Framework (available at www.protectivesecurity.gov.au ).

209.           Paragraph 90.5(1)(b) provides the ability for any other equivalent classification or marking to be prescribed in regulations.  This provides flexibility to ensure the definition can be kept up to date if new protective markings of equivalent seriousness are introduced, or to ensure information bearing former protective markings of equivalent seriousness can continue to be protected. 

210.           The reference to an ‘equivalent’ classification means that lower levels of classification are not able to be prescribed.  For example, the classification level of PROTECTED could not be prescribed in the regulations as the unauthorised release of the information would not cause damage that is equivalent to the level of harm that is required for information at the SECRET level (which requires that unauthorised release of the information could cause serious damage to the national interest) or TOP SECRET level (which requires that unauthorised release of the information could cause exceptionally grave damage to the national interest).

211.           Subsection 90.5(1A) provides that for the purpose of an element of an offence that information has a security classification, strict liability applies to the element that:

·          a classification is applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying the information mentioned in subparagraph 90.5(1)(a)(i) or (ii), or

·          a classification or marking was prescribed by regulations as mentioned in paragraph 90.5(1)(b).

212.           The effect of applying strict liability is that no fault element needs to be proved in relation to those parts of the definition.

213.           The prosecution will still be required to prove that the information had a classification of TOP SECRET or SECRET or an equivalent classification and that the person was reckless as to this.  Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

214.           For paragraph 90.5(1)(a), the prosecution will also be required to prove that the security classification was applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying information:

·          for a classification of SECRET - that, if disclosed in an unauthorised manner, could be expected to cause serious damage to the national interest, organisations or individuals

·          for a classification of TOP SECRET - that, if disclosed in an unauthorised manner, could be expected to cause exceptionally grave damage to the national interest.

215.           For paragraph 90.5(1)(a), the prosecution will not be required to prove any actual or likely damage to the national interest in relation to the information that is the subject of the security classification.

216.           The effect of subsection 90.5(1A) in applying strict liability to this element of the definition of security classification is that the prosecution will not need to prove that the person who dealt with the information knew or was reckless as to whether the security classification was applied in accordance with the policy framework developed by the Commonwealth.

217.           Strict liability is appropriate for this element because the person’s state of mind about the fact that the classification was applied under an appropriate Commonwealth policy framework for the purpose of identifying such information is not relevant to their culpability.  It is sufficient for the prosecution to prove that the person was reckless as to the fact that the information was classified as SECRET or TOP SECRET.  It is not reasonable to expect that a person would be familiar with the methods for applying classifications to information, nor the exact meaning of the classifications.  There is unlikely to be sufficient evidence to allow the prosecution to prove that a person was reckless about this level of detail about the policy framework sitting behind the application of a classification of SECRET or TOP SECRET.

218.           For paragraph 90.5(1)(b), the prosecution will need to prove that the person was reckless as to the fact that the information had a classification equivalent to SECRET or TOP SECRET. However, the effect of subsection 90.5(1A) is that the prosecution will not need to prove that the person who dealt with the information knew or was reckless as to the fact that this was prescribed by regulations. Strict liability is appropriate for this element because the person’s state of mind about the fact that the classification was prescribed by regulations is not relevant to their culpability. It is sufficient for the prosecution to prove that the person was reckless as to the fact that the information had a classification equivalent to SECRET or TOP SECRET.  It is not reasonable to expect a person to be familiar with the method for prescribing equivalent classifications. There is unlikely to be sufficient evidence to allow the prosecution to prove that a person was reckless about this level of detail about the process for prescribing an equivalent classification.

219.           Strict liability is set out in section 6.1 of the Criminal Code.  The effect of applying strict liability to an element of an offence means that no fault element needs to be proved and the defence of mistake of fact is available.

220.           The defence of mistake of fact is set out in section 9.2 of the Criminal Code.  The defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

·          at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

·          had those facts existed, the conduct would not have constituted an offence.

Amendment 32: Schedule 1, item 16, page 22 (lines 13 and 14)

221.           This amendment will substitute the reference to ‘policies of the Government of the Commonwealth in relation to protective security’ with ‘policy framework mentioned in paragraph (1)(a)’ in subsection 90.5(2). This amendment is a consequence of Amendment 31, which amends subsection 90.5(1) to include a reference to the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) identifying information:

·          for a classification of SECRET - that, if disclosed in an unauthorised manner, could be expected to cause serious damage to the national interest, organisations or individuals

·          for a classification of TOP SECRET - that, if disclosed in an unauthorised manner, could be expected to cause exceptionally grave damage to the national interest.

222.           It is therefore not necessary for subsection 90.5(2) to refer to ‘the policies of the Government of the Commonwealth in relation to protective security’ as it is appropriate for the Governor-General’s power to make regulations to be limited by reference to the policy framework for the classification of information within the meaning of paragraph 90.5(1)(a). 

Amendment 33: Schedule 1, item 16, page 22 (line 19)

223.           This amendment will amend subsection 90.5(3) to ensure that, if regulations are made to prescribe an equivalent classification for the purposes of paragraph 90.5(1)(b) of the definition of security classification , those regulations may not apply, adopt or incorporate any matter contained in any instrument or other writing unless it is publicly available. This will ensure that every person interested in or affected by the espionage and secrecy offences (which use the terminology ‘security classification’) will be able to readily and freely access its terms. 

224.           This amendment implements Recommendation 8 of the PJCIS Report, to the extent that it recommends that material incorporated by reference into the regulations should be required to be publicly available.

Amendment 34: Schedule 1, item 16, page 22 (after line 19)

225.           This amendment will insert a new section 90.6 to clarify that nothing in Part 5.2 (Espionage and related offences) affects the interpretation of key terms in the Australian Security Intelligence Organisation Act 1979 , unless that Act expressly provides otherwise.  This amendment implements Recommendation 5 of the PJCIS report.

Amendment 35: Schedule 1, item 17, page 22 (line 25)

226.           This amendment updates the heading of the offence at section 91.1 to add the words ‘ communicated or ’.

227.           This amendment is a consequence of Amendment 25, which inserts a definition of make available .  Following the introduction of this specific definition, it is necessary to clarify that these offences will be committed if a person’s conduct results in the information or article being ‘communicated to’ or made available to a foreign principal.

Amendment 36: Schedule 1, item 17, page 23 (line 7)

228.           This amendment updates paragraph 91.1(1)(d) to clarify that the offence will be committed if a person’s conduct results in the information or article being ‘communicated to’ or made available to a foreign principal.

229.           It was always intended that the espionage offences would be committed where the defendant actually communicated the information to the foreign principal.  However, without this amendment, the inclusion of the specific definition of make available (as inserted by Amendment 25), which does not specifically cover communication, could raise doubt as to whether this conduct is covered.

Amendment 37: Schedule 1, item 17, page 23 (line 22)

230.           This amendment updates paragraph 91.1(2)(d) to clarify that the offence will be committed if a person’s conduct results in the information or article being ‘communicated to’ or made available to a foreign principal.

231.           It was always intended that the espionage offences would be committed where the defendant actually communicated the information to the foreign principal.  However, the inclusion of the specific definition of make available (as inserted by Amendment 25), which does not specifically cover communication, could raise doubt as to whether this conduct is covered.

Amendment 38: Schedule 1, Item 17, page 23 (lines 25 and 26)

232.           This amendment will remove subsection 91.1(3) that applies strict liability to the physical element that the information or article has a security classification in new section 91.1 (which makes it offence to deal with information which has a security classification in certain circumstances).  This amendment responds to Recommendation 9 of the PJCIS report, which recommends removing strict liability from espionage and secrecy offences.

233.           For subparagraphs 91.1(1)(b)(i) and 91.1(2)(b)(i), the prosecution will have to prove that the information had a security classification.  Security classification is defined in section 90.5, as amended by Amendments 31, 32 and 33.

234.           Consistent with new subsection 90.5(1A), strict liability will apply to some aspects of the definition of security classification Subsection 90.5(1A) provides that strict liability applies to the element that:

·          a classification is applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying the information mentioned in subparagraph 90.5(1)(a)(i) or (ii), or

·          a classification or marking was prescribed by regulations as mentioned in paragraph 90.5(1)(b).

235.           The effect of applying strict liability is that no fault element needs to be proved in relation to those parts of the definition.

236.           The prosecution will still be required to prove that the information had a classification of TOP SECRET or SECRET or an equivalent classification and that the person was reckless as to this.  Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

237.           Strict liability is set out in section 6.1 of the Criminal Code.  The effect of applying strict liability to an element of an offence means that no fault element needs to be proved and the defence of mistake of fact is available.

238.           The defence of mistake of fact is set out in section 9.2 of the Criminal Code.  The defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

·          at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

·          had those facts existed, the conduct would not have constituted an offence.

Amendment 39: Schedule 1, item 17, page 24 (line 5)

239.           This amendment updates the heading of the offence at section 91.2 to add the words ‘ communicated or ’.

240.           This amendment is a consequence of Amendment 25, which inserts a definition of make available .  Following the introduction of this specific definition, it is necessary to clarify that these offences will be committed if a person’s conduct results in the information or article being ‘communicated to’ or made available to a foreign principal.

Amendment 40: Schedule 1, item 17, page 24, (line 13)

241.           This amendment will update paragraph 91.1(1)(c) to clarify that the offence will be committed if a person’s conduct results in the information or article being ‘communicated or’ made available to a foreign principal.

242.           It was always intended that the espionage offences would be committed where the defendant actually communicated the information to the foreign principal.  However, without this amendment, the inclusion of the specific definition of make available (as inserted by Amendment 25), which does not specifically cover communication, could raise doubt as to whether this conduct is covered.

Amendment 41: Schedule 1, item 17, page 24 (line 24)

243.           This amendment updates paragraph 91.2(2)(c) to clarify that the offence will be committed if a person’s conduct results in the information or article being ‘communicated to’ or made available to a foreign principal.

244.           It was always intended that the espionage offences would be committed where the defendant actually communicated the information to the foreign principal.  However, without this amendment, the inclusion of the specific definition of make available (as inserted by Amendment 25), which does not specifically cover communication, could raise doubt as to whether this conduct is covered.

Amendment 42: Schedule 1, item 17, page 25 (after line 3)

245.           This amendment will insert a new element into the offence at section 91.3. The new element will narrow the scope of the offence in section 91.3 to apply only where the person’s primary purpose in dealing with the information or article was to communicate or make it available to a foreign principal or a person acting on behalf of a foreign principal. This amendment implements Recommendation 38 of the PJCIS report to the extent that it recommends requiring that the person dealt with the information for the ‘primary purpose’ of making it available to a foreign principal.

246.           This amendment will insert new paragraph 91.3(1)(aa) into the offence, which will require the prosecution to prove that the person deals with the information or article for the primary purpose of communicating or making the information or article available to a foreign principal or a person acting on behalf of a foreign principal. 

247.           This amendment ensures that conduct that results in information carrying a security classification being communicated or made available to a foreign principal (as defined in section 90.2) is punishable as an espionage offence only where the person’s primary purpose in dealing with the information was to communicate the information to, or make the information available to, a foreign principal.

248.           The inclusion of this additional element ensures that the offence will not inappropriately cover the publication of information by a journalist whose conduct does indirectly make the information available to a foreign principal, but whose primary purpose is to report news or current affairs to the public.

249.           Amendment 46 will insert new subsection 91.3(3), which will apply strict liability to paragraph 91.3(1)(aa) so that the prosecution will not need to prove that the person was reckless as to whether he or she dealt with information or article for the primary purpose of making the information or article available to a foreign principal or person acting on behalf of a foreign principal. Strict liability is appropriate for this element because it already contains a quasi-fault element of ‘primary purpose’. Given the prosecution is required to prove that the person’s primary purpose was to make the information or article available to a foreign principal, it is unnecessary to additionally require the prosecution to prove any other fault element.

250.           Strict liability is set out in section 6.1 of the Criminal Code.  The effect of applying strict liability to an element of an offence means that no fault element needs to be proved and the defence of mistake of fact is available.

251.           The defence of mistake of fact is set out in section 9.2 of the Criminal Code.  The defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

·          at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

·          had those facts existed, the conduct would not have constituted an offence.

Amendment 43: Schedule 1, item 17, page 25 (line 5)

252.           This amendment updates paragraph 91.3(1)(b) to clarify that the offence will be committed if a person’s conduct results in the information or article being ‘communicated or’ made available to a foreign principal.

253.           It was always intended that the espionage offences would be committed where the defendant actually communicated the information to the foreign principal.  However, without this amendment, the inclusion of the specific definition of make available (as inserted by Amendment 25), which does not specifically cover communication, could raise doubt as to whether this conduct is covered.

Amendment 44: Schedule 1, item 17, page 25 (lines 7 to 9)

254.           This amendment removes information or articles that concern Australia’s national security from the scope of the espionage offence in section 91.3. This amendment, together with Amendments 31 and 46) implements Recommendation 38 of the PJCIS report.

255.           This amendment omits current paragraph 91.3(1)(c), which refers to information that concerns national security and information that has a security classification and replaces it with a new paragraph 91.3(1)(c) which only refers to information that has a security classification. 

256.           For new paragraph 91.3(1)(c), the prosecution will have to prove that the information had a security classification.  Security classification is defined in section 90.5, as amended by Amendment 31.

257.           The prosecution will be required to prove that the information had a classification of TOP SECRET or SECRET or an equivalent classification and that the person was reckless as to this.  Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

258.           Consistent with new subsection 90.5(1A), strict liability will apply to some aspects of the definition of security classification Subsection 90.5(1A) provides that strict liability applies to the element that:

·          a classification is applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying the information mentioned in subparagraph 90.5(1)(a)(i) or (ii), or

·          a classification or marking was prescribed by regulations as mentioned in paragraph 90.5(1)(b).

259.           Strict liability is set out in section 6.1 of the Criminal Code.  The effect of applying strict liability to an element of an offence means that no fault element needs to be proved and the defence of mistake of fact is available.

260.           The defence of mistake of fact is set out in section 9.2 of the Criminal Code.  The defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

·          at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

·          had those facts existed, the conduct would not have constituted an offence.

Amendment 45: Schedule 1, item 17, page 25 (line 11)

261.           This amendment is consequential to Amendment 42, which narrows the scope of the new espionage offence in section 91.3 to apply only where the person’s primary purpose in dealing with the information was to communicate the information or make it available to a foreign principal or a person acting on their behalf.

262.           This amendment will amend subsection 91.3(2) to add a reference to new paragraph 91.3(1)(aa) so that, for the purpose of proving that the person dealt with the information for the primary purpose of making it available to a foreign principal, the person need not have in mind a particular foreign principal and the person may have in mind more than one foreign principal.

263.           For example , a person may assist an individual who has identified themselves to the defendant as a foreign official, but has not specified which foreign country they represent or a person may provide assistance in the knowledge this assistance will or could assist multiple foreign principals at the same time.

Amendment 46: Schedule 1, item 17, page 25 (line 15)

264.           This amendment will amend subsection 91.3(3) so that strict liability will no longer apply to the physical element that the information has a security classification in subparagraph 91.3(1)(c)(i). Subsection 91.3(3) will instead apply strict liability to paragraph 91.3(1)(aa) (inserted by Amendment 42).

265.           The effect of applying strict liability to paragraph 91.3(1)(aa) is that the prosecution will not need to prove that the person was reckless as to whether he or she dealt with information or article for the primary purpose of making the information or article available to a foreign principal or person acting on behalf of a foreign principal (new element in paragraph 91.3(1)(aa)). Strict liability is appropriate for this element because it already contains a quasi-fault element of ‘primary purpose’. If the prosecution can prove that the person’s primary purpose was to make the information or article available to a foreign principal or person acting on behalf of a foreign principal, then it would be unnecessary to additionally prove any other fault element.

266.           Strict liability is set out in section 6.1 of the Criminal Code.  The effect of applying strict liability to an element of an offence means that no fault element needs to be proved and the defence of mistake of fact is available.

267.           The defence of mistake of fact is set out in section 9.2 of the Criminal Code.  The defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

·          at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

·          had those facts existed, the conduct would not have constituted an offence.

Amendment 47: Schedule 1, item 17, page 25 (line 17)

268.           This amendment will insert ‘by a person’ after the words ‘for an offence’ in subsection 91.4(1). This is a minor technical amendment to ensure consistency in the wording of the defence provision at subsection 91.4 for Subdivision A (espionage) offences with the wording of the defence provision for secrecy offences (at section 122.5).

269.           This amendment will also make it clear that ‘the person’ subsequently referred to in subsection 91.4(1) is the defendant.

270.           This amendment implements Recommendation 60 of the PJCIS report to make minor changes that ensure clarity.

Amendment 48: Schedule 1, item 17, page 25 (line 26)

271.           This amendment will substitute ‘of an offence’ with ‘for an offence by a person’ in subsection 91.4(2). This is a minor technical amendment to ensure consistency in the wording of the defence provision at subsection 91.4 for Subdivision A (espionage) offences with the wording of the defence provision for secrecy offences (at section 122.5).

272.           This amendment will also make it clear that ‘the person’ subsequently referred to in subsection 91.4(2) is the defendant.

273.           This amendment implements Recommendation 60 of the PJCIS report to make minor changes that ensure clarity.

Amendment 49: Schedule 1, item 17, page 25 (after line 32)

274.           This amendment will insert a new defence (at subsection 91.4(3)) t o a prosecution for an offence 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. The new defence will provide a defence to a prosecution for the espionage offences specified if there has been a prior publication of that information in certain circumstances.

275.           The defence will apply if:

·          the person did not make or obtain the information by reason of any of the following:

o     his or her being, or having been, a public official

o     his or her being otherwise engaged to perform work for a Commonwealth entity

o     an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information

·          the information has already been communicated, or made available, to the public (the prior publication)

·          the person was not involved in the prior publication (whether directly or indirectly)

·          at the time of the person deals with the information or article, the person believes doing so will not prejudice Australia’s national security, and

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

276.           The defence is limited to the offences against subparagraph 91.1(1)(c)(ii) or (2)(c)(ii), or against section 91.3 as these offences do not have an element of intention to prejudice Australia’s national security. It would not be coherent for this defence to apply to offences which have intention to prejudice Australia’s national security as an element of the offence, given the defence requires that the person believe they will not prejudice Australia’s national security. In respect of offences that require intention to prejudice Australia’s national security, the prosecution will already be required to disprove the defence in order to make out the elements of the offence.   

277.           The defence is in similar terms to the defence at new subsection 122.5(8) for secrecy offences. The defence is drafted in similar terms to the prior publication defence contained in subsection 35P(3A) of the ASIO Act. Subsection 35P(3A) was inserted following the recommendation of the then-Independent National Security Legislation Monitor, the Hon Roger Gyles AO QC, in his Report on the impact on journalists of the operation of section 35P of the ASIO Act , which was tabled in the Parliament on 2 February 2016.

278.           It is intended that paragraph 91.4(3)(a) will limit the availability of the defence to individuals who did not receive the relevant information in an official capacity. Persons who have received information in their official capacity will not be criminally liable for communicating or dealing with the information in their official capacity, by reason of the defence in subsection 91.4(1). The limitation of the prior publication defence in subsection 91.4(3) to persons who did not receive the relevant information in an official capacity is consistent with the Monitor’s recommendation, and the drafting of subsection 35P(3A).

279.           The defence under subsection 91.4(3) seeks to strike a balance between freedom of expression on the one hand, and recognition that further dissemination of information to a foreign principal could cause additional harm on the other hand. Before disclosing information that has already been published, a person must believe on reasonable grounds that the subsequent disclosure will not cause harm. This is because in some cases, even where information is considered to have been published and in the public domain, subsequent disclosure will still result in harm. For example, this would be the case where information is brought into the public domain inadvertently, such as where a security classified document or information provided to the Australian Government in accordance with a legal obligation is revealed as a result of a technical or administrative error. Where steps are quickly taken to reverse the disclosure, subsequent publication of that information is likely to bring that information to the attention of a foreign principal and could result in considerable new or additional harm.

280.           The Note under the defence at subsection 91.4(3) clarifies that the defendant will bear an evidential burden in relation to this defence. Section 13.3 of the Criminal Code provides that in the case of a standard ‘evidential burden’ defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).

281.           The Guide to Framing Commonwealth Offences provides (at paragraph 4.3.1) that it is appropriate for a matter to be included in an offence-specific defence where it is peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. 

282.           The imposition of the evidential burden on the defendant is appropriate because the defendant should be readily able to point to evidence founding a suggestion that there is a reasonable possibility that they did not receive the information in an official capacity, the information has already been communicated, or made available, to the public, that the person was not involved in the prior publication, and that they believed on reasonable grounds that their communication would not prejudice Australia’s national security.  In addition, this is expected to be a rare situation and is unlikely to be a feature of every case that is investigated and referred for prosecution.  It would be unnecessary and significantly costly if the prosecution was required to disprove this for every prosecution of offence against subparagraph 91.1(c)(ii), subparagraph 91.1(2)(c)(ii) or section 91.3. It is appropriate to include it as a defence and allow the defendant to raise the matter if the facts and circumstances are appropriate.

283.           This amendment implements Recommendation 37 of the PJCIS report.

Amendment 50: Schedule 1, item 17, page 26 (line 15)

284.           This amendment will amend subsection 91.6(1), which provides for an aggravated espionage offence, to clarify that it does not apply to the offence at subsection 91.1(1).

285.           The offence at subsection 91.1(1) attracts the highest possible maximum penalty of life imprisonment and the penalty is therefore unable to be increased as part of the aggravated offence.  Section 91.5 deals with how the penalty for an offence against subsection 91.1(1) should be dealt with if any of the aggravating circumstances in paragraph 91.6(1)(b) exist.

286.           This is a technical change to ensure clarity and does not change the operation of section 91.6.

287.           This amendment implements Recommendation 60 of the PJCIS report to make minor changes that ensure clarity.

Amendment 51: Schedule 1, item 17, page 26 (lines 19 and 20)

288.           This amendment , which omits subparagraph 91.6(1)(b)(i)) is consequential to the change to the definition of security classification in section 90.5 (at Amendment 31), which is now limited only to information classified as SECRET or TOP SECRET.  The aggravated espionage offence at section 91.6 currently provides, at subparagraph 91.6(1)(b)(i), that it is an aggravating factor if a person deals with information or an article that has a security classification of secret or above.

289.           The amendments to the definition of security classification has the effect of limiting the scope of the offences at 91.1 and 91.3, in relation to dealing with security classified material, so that they only apply to information or articles classified as SECRET or TOP SECRET. Therefore, the aggravating circumstance of dealing with information or an article classified secret or above is no longer appropriate as Amendment 31 has the effect of making this an element of the underlying offence.  

Amendment 52: Schedule 1, item 17, page 26 (line 29)

290.           This amendment will amend subparagraph 91.6(1)(b)(v) to add the words ‘allowing the person to access information that has a security classification of at least secret’.

291.           This amendment limits the aggravating circumstance so that it only applies where a person holds an Australian Government security clearance to persons holding such a clearance allowing access to information classified at the level of SECRET or above. In accordance with current Commonwealth protective security policies, this means that the aggravating factor at subparagraph 91.6(1)(b)(v) would apply to persons holding security clearances at the Negative Vetting 1, Negative Vetting 2 and Positive Vetting levels.

292.           Security clearances allowing access to SECRET and TOP SECRET information imports a high level of trust to maintain the security of information, and is commensurate with the higher culpability and penalty imposed by an aggravating offence. 

293.           Australian Government security clearance will be defined in the Dictionary to the Criminal Code to mean a security clearance given by the Australian Government Security Vetting Agency or by another Commonwealth, State or Territory agency that is authorised or approved by the Commonwealth to issue security clearances.  Amendment 69 will insert this definition into the Dictionary.

294.           Recklessness will continue to be the fault element applying to the aggravating circumstance at subparagraph 91.6(1)(b)(v).  Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

295.           This amendment implements Recommendation 40 of the PJCIS Report.

Amendment 53: Schedule 1, item 17, page 27 (line 4)

296.           This amendment will remove subsection 91.6(3).  The effect of this amendment is that strict liability will no longer apply to the element that the person dealt with five or more records or articles, each of which had a security classification. This amendment implements Recommendation 9 of the PJCIS report, which recommends removing strict liability from espionage and secrecy offences.

297.           The effect of this amendment is that the prosecution will need to prove that the defendant is reckless as to the element of the offence at subparagraph 91.6(1)(b)(iii) that the person dealt with five or more records or articles, each of which had a security classification. Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

298.           For subparagraph, the prosecution will have to prove that the each of the records had a security classification.  Security classification is defined in section 90.5, as amended by Amendments 31, 32, and 33.

299.           The prosecution will be required to prove that the records had a classification of TOP SECRET or SECRET or an equivalent classification and that the person was reckless as to this. 

300.           Consistent with new subsection 90.5(1A), strict liability will apply to some aspects of the definition of security classification Subsection 90.5(1A) provides that strict liability applies to the element that:

·          a classification is applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying the information mentioned in subparagraph 90.5(1)(a)(i) or (ii), or

·          a classification or marking was prescribed by regulations as mentioned in paragraph 90.5(1)(b).

301.           Strict liability is set out in section 6.1 of the Criminal Code.  The effect of applying strict liability to an element of an offence means that no fault element needs to be proved and the defence of mistake of fact is available.

302.           The defence of mistake of fact is set out in section 9.2 of the Criminal Code.  The defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

·          at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

·          had those facts existed, the conduct would not have constituted an offence.

Amendment 54: Schedule 1, item 17, page 29 (line 16)

303.           This amendment will insert ‘by a person’ after ‘for an offence’ in subsection 91.9(1). This is a minor technical amendment to ensure consistency in the wording of the defence provision at subsection 91.9 for Subdivision B (espionage on behalf of foreign principal) offences with the wording of the defences for secrecy offences at section 122.5.

304.           This amendment will also make it clear that ‘the person’ subsequently referred to in subsection 91.9(1) is the defendant.

305.           This amendment implements Recommendation 60 of the PJCIS report to make minor changes that ensure clarity.

Amendment 55: Schedule 1, item 17, page 29 (line 25)

306.           This amendment will substitute ‘of an offence’ with ‘for an offence by a person’ in subsection 91.9(2). This is a minor technical amendment to ensure consistency in the wording of the defence provision at subsection 91.9 for Subdivision B (espionage on behalf of foreign principal) offences with the wording of the defence provision for secrecy offences (at subsection 122.5).

307.           This amendment will also make it clear that ‘the person’ subsequently referred to in subsection 91.9(2) is the defendant.

308.           This amendment implements Recommendation 60 of the PJCIS report to make minor changes that ensure clarity.

Amendment 56: Schedule 1, item 17, page 31 (line 29)

309.           This amendment will insert ‘by a person’ after ‘for an offence’ in subsection 91.13. This is a minor technical amendment to ensure consistency in the wording of the defence provision at section 91.13 for Subdivision C (espionage-related offences) with the wording of the defences for secrecy offences at section 122.5.

310.           This amendment will also make it clear that ‘the person’ subsequently referred to in section 91.13 is the defendant.

311.           This amendment implements Recommendation 60 of the PJCIS report to make minor changes that ensure clarity.

Amendment 57: Schedule 1, item 17, page 35 (line 1)

312.           This amendment will substitute the reference to ‘deceptive’ with ‘involves deception’ in proposed subparagraph 92.3(2)(d)(i) to ensure consistent use of terminology. The term ‘involves deception’ is used in subparagraph 92.2(1)(d)(i). 

313.           The amendment ensures that subparagraph 92.3(2)(d)(i) appropriately picks up the definition of deception in section 92.1 of the Criminal Code.  The term ‘deceptive’ is not used and the incorrect reference in subparagraph 92.3(2)(d)(i) could lead to confusion in interpreting the offence in future.

314.           This amendment implements Recommendation 60 of the PJCIS report to make minor changes that ensure clarity.

Amendment 58: Schedule 1, item 17, page 36 (line 18)

315.           This amendment will insert ‘by a person’ after ‘for an offence’ in subsection 92.5. This is a minor technical amendment to ensure consistency in the wording of the defence provision at subsection 92.5 for Subdivision B (foreign interference) offences with the wording of the defence provision for secrecy offences (at section 122.5).

316.           This amendment will also make it clear that ‘the person’ subsequently referred to in section 92.5 is the defendant.

317.           This amendment implements Recommendation 60 of the PJCIS report to make minor changes that ensure clarity.

Amendment 59: Schedule 1, item 17, page 37 (line 5)

318.           This amendment will amend paragraph 92.7(a) to replace a reference to ‘support’ with a reference to ‘material support’.

319.           This will make it clear on the face of the legislation that the term ‘support’ covers the provision of a benefit or other practical goods or aid and does not extend to non-material support, for example a journalist reporting positively, or neutrally about a foreign intelligence agency. News reporting, editorial or opinion writing and humanitarian assistance will not constitute ‘material support’.

320.           This amendment implements Recommendation 42 of the PJCIS report.

Amendment 60: Schedule 1, item 17, page 37 (line 14)

321.           This amendment will amend paragraph 92.8(a) to replace a reference to ‘support’ with a reference to ‘material support’.

322.           This will make it clear on the face of the legislation that the term ‘support’ covers the provision of a benefit or other practical goods or aid and does not extend to non-material support, for example a journalist reporting positively, or neutrally about a foreign intelligence agency.  News reporting, editorial or opinion writing and humanitarian assistance will not constitute ‘material support’.

Amendment 61: Schedule 1, item 17, page 38 (line 18)

323.           This amendment will insert ‘by a person’ after ‘for an offence’ in section 92.11. This is a minor technical amendment to ensure consistency in the wording of the defence provision at section 92.11 for Subdivision C (foreign interference involving foreign intelligence agencies) offences with the wording of the defence provision for secrecy offences (at section 122.5).

324.           This amendment will also make it clear that ‘the person’ subsequently referred to in section 92.11 is the defendant.

325.           This amendment implements Recommendation 60 of the PJCIS report to make minor changes that ensure clarity.

Amendment 62: Schedule 1, item 18, page 40 (lines 6 to 8)

326.           This amendment will amend new section 93.1, which provides that the consent of the Attorney-General is required for prosecution of a person of an offence in Part 5.2—Espionage and related offences.

327.           The Attorney-General’s consent is commonly required to commence proceedings that could affect Australia’s international relations or national security. These are considerations that the CDPP is not able to take into account under the Prosecution Policy of the Commonwealth .

328.           Paragraph 93.1(1)(a) requires the Attorney-General to provide written consent before proceedings for the commitment of a person for trial for an offence against Part 5.2 can be commenced.  This provides the Attorney-General with the opportunity to receive advice from relevant agencies and other Ministers on sensitivities that might arise if proceedings are commenced for offences under Part 5.2, and provides opportunity for consideration of whether the prosecution could be detrimental to Australia’s foreign relations and national security.

329.           Consistent with paragraph 93.1(1)(b), proceedings that relate information or an article that has a security classification (as defined in section 90.5) must also not be initiated unless the Attorney-General has certified that, at the time of the conduct that is alleged to constitute the offence, it was appropriate that the information or article had a security classification. This will ensure that a person is safeguarded from prosecution for an offence relating to information classified secret or top secret if the classification was not appropriate at the time the person committed the offence. For example, a document may have been created many years ago, when it appropriately carried a classification of TOP SECRET but given the passage of time the document may now not be sensitive and may be unclassified. In these circumstances, certification could not be given. 

330.           As long as a classification of either SECRET or TOP SECRET is appropriate, the Attorney-General will be able to give a certification under subsection 93.1(1).  For example, if a document was classified as TOP SECRET two years ago, but now appropriately carries a classification of SECRET, the Attorney-General will be able to give the certification. 

331.           This amendment implements Recommendation 10 of the PJCIS report.  Although the PJCIS recommended that the head of the originating agency given the relevant certification, it is not considered appropriate to require the CDPP to see certification from an agency head as well as consent to prosecute from the Attorney-General.  It is more administratively efficient to combine the two processes.  The Attorney-General will need to receive briefing from the originating agency about the appropriate level of security classification that should be applied to the information.

Amendment 63: Schedule 1, item 18, page 40 (line 10)

332.           This amendment will replace the reference to ‘consent having been given’ with ‘the consent or certification having been given’ in subsection 93.1(2) as a consequence of Amendment 62 (which includes a new provision requiring the Attorney-General’s certification in relation to information or articles that have a security classification).

Amendment 64: Schedule 1, item 18, page 40 (line 20)

333.           This amendment will replace the reference to ‘91.4(1)’ with ’91.4’ in subsection 93.1(4) as a consequence of Amendment 49, which inserts an additional defence in additional subsection 91.4(3). This will ensure that in deciding whether to consent to a prosecution of an offence against Part 5.2—espionage and related offences, the Attorney-General will be required to consider all of the defences in section 91.4.

334.           This implements Recommendation 37 of the PJCIS report, to the extent that it recommends that, prior to instituting proceedings to commit a person to trial for an espionage offence, the Attorney-General must consider whether the conduct might be authorised in any of the defences outlined in Division 91.

Amendment 65: Schedule 1, item 18, page 40 (line 23)

335.           This amendment will replace the reference to ‘91.9(1)’ with ‘91.9’ in subsection 93.1(4). This is because there is an additional defence in subsection 91.9(2). This will ensure that in deciding whether to consent to a prosecution of an offence against Part 5.2—espionage and related offences, the Attorney-General will be required to consider all of the defences in section 91.9.

Amendment 66: Schedule 1, item 20, page 41 (lines 3 to 17)

336.           This amendment will remove proposed section 93.3, which provides that the Attorney-General may sign an evidentiary certificate stating any of the following matters in relation to information or an article identified in the certificate:

·          the information or article has, or had at a specified time, a security classification

·          the information or article has, or had at a specified time, a specified level of security classification

·          the information or article concerns Australia’s national security

·          the information or article concerns a particular specified aspect of Australia’s national security.

337.           This evidentiary certificate regime will be replaced by a requirement that the Attorney-General, when consenting to a prosecution consistent with new subsection 93.1(1) inserted by Amendment 62, will be required to certify that it was appropriate that the information or article had a security classification (as defined in section 90.5).  The Attorney-General’s certification will have no evidentiary effect.

338.           This amendment partially implements Recommendation 11 (to the extent that it recommends removing the evidentiary certificate regime in section 93.3) and Recommendation 12 of the PJCIS Report.

Amendment 67: Schedule 1, item 21, page 42 (line 13)

339.           This amendment will make a minor amendment to remove the duplicate reference to ‘article’ in amending section 94.1 of the Criminal Code. The existing amendment (see item 21 of Schedule 1 of the Bill) would have resulted in section 94.1 reading: ‘A sketch, article, record, document or other article dealt with in contravention of this Part is forfeited to the Commonwealth’.

340.           This amendment will remove the duplicate reference to ‘or other article’. 

341.           This amendment implements Recommendation 60 of the PJCIS report to make minor changes that ensure clarity.

Amendment 68: Schedule 1, item 22, page 43 (lines 6 and 7)

342.           This amendment will remove new subsection 132.8A(3) which provides that section 15.4 (extended geographical jurisdiction—category D) applies to an offence against section 132.8A (Damaging Commonwealth property).  This is unnecessary because the new offence will be located in Division 132 of the Criminal Code and existing section 132.9 of the Criminal Code applies section 15.4 (extended geographical jurisdiction—category D) to all offences in Division 132.

343.           Proposed subsection 132.8A is therefore unnecessary as it entirely duplicates section 132.9.

Amendment 69: Schedule 1, item 24, page 43 (before line 13)

344.           This amendment will insert a definition of Australian Government security clearance into the Dictionary to the Criminal Code.

345.           The definition will provide that Australian Government security clearance means a security clearance given by the Australian Government Security Vetting Agency or by another Commonwealth, State or Territory agency that is authorised or approved by the Commonwealth to issue security clearances.

346.           This amendment implements Recommendation 7 of the PJCIS report.

Amendment 70: Schedule 1, item 28, page 45 (line 15)

347.           This amendment will have the effect of carving out the offence at section 83.4 of the Criminal Code (interference with political rights and duties) from the definition of national security offence in section 3 of the Australian Citizenship Act 2007 .

348.           Including the offence at section 83.4 in the definition would require the Minister for Home Affairs to refuse a citizenship application in certain circumstances if the person has been convicted of the offences. This amendment carves out the offence at section 83.4 to minimise inconsistency with Australia’s obligations under the 1961 Convention on the Reduction of Statelessness , which provides that member states shall grant nationality to a person who would otherwise be stateless if, among other conditions, the person has not been convicted of an offence against national security. There is a risk that the offence of ‘interference with political rights and duties’ may be regarded as not being sufficiently connected to national security in every case.

349.           The remaining offences in Part 5.1 of the Criminal Code are sufficiently connected to national security and will continue to fall within the definition of national security offence in section 3 of the Australian Citizenship Act.

350.           This implements Recommendation 54 of the PJCIS report.

Amendment 71: Schedule 1, item 29, page 45 (line 25)

351.           This amendment will carve out the offence at section 82.9 of the Criminal Code (preparing for or planning a sabotage offence) from section 35A of the Australian Citizenship Act.  Section 35A empowers the Minister to determine in writing that a person ceases to be an Australian citizen if, amongst other things, they are convicted of one or more of the offences set out in the section. 

352.           Item 29 of the Bill provides the offences in Division 82 of the Criminal Code (sabotage) as offences in relation to which section 35A of the Australian Citizenship Act applies. This amendment carves out the offence at section 82.9 (preparing for or planning a sabotage offence) so that a conviction in relation to that offence is not a conviction that could empower the Minister to determine that the convicted person ceased to be an Australian citizen under section 35A. The offences which fall within the scope of section 35A are those that evince a serious threat to Australia and Australia’s interests. The offence at section 82.9 is a preparatory offence and is not sufficiently connected to national security to fall within the scope of section 35A.

353.           This implements Recommendation 53 of the PJCIS report.

Amendment 72: Schedule 1, item 29, page 45 (after line 27)

354.           This amendment will have the effect of inserting a reference to Division 92 of the Criminal Code (foreign interference) offences in paragraph 35A(1)(a) of the Australian Citizenship Act 2007 . This will mean that Division 92 (foreign interference) offences will fall within the scope of section 35A.

355.           Section 35A of the Australian Citizenship Act provides that the Minister may determine in writing that a person ceases to be an Australian citizen where the person has a conviction or convictions against the specified list of offences and has been sentenced to a period of imprisonment of at least six years, or periods of imprisonment that total at least six years, and the person is a national or citizen of a country other than Australia at the time when the Minister makes the determination, and the Minister is satisfied that:

·          the conduct of the person to which the conviction or convictions relate demonstrates  that the person has repudiated their allegiance to Australia, and

·          it is not in the public interest for the person to remain an Australian citizen.

356.           In determining whether it is not in the public interest for the person to remain an Australian citizen the Minister is to have regard to the following factors:

·          the severity of the conduct that was the basis of the conviction or convictions and the sentence or sentences

·          the degree of threat posed by the person to the Australian community

·          the age of the person

·          if the person is aged under 18—the best interests of the child as a primary consideration

·          the person’s connection to the other country of which the person is a national or citizen and the availability of the rights of citizenship of that country to the person

·          Australia’s international relations, and

·          any other matters of public interest.

357.           The offences specified in section 35A are those that prima facie indicate that a person has acted contrary to his or her allegiance to Australia for example, offences involving terrorism and/or other serious threats to Australia and Australia’s interests. The foreign interference offences in Division 92 are also of this nature and the PJCIS has recommended that they fall within the scope of 35A.

358.           This implements Recommendation 53 of the PJCIS report.        

Amendment 73: Schedule 1, item 39, page 47 (lines 16 to 19)

359.           This amendment will amend section 15AA of the Crimes Act so that a presumption against bail applies for an offence against subsections 92.2(1) or 92.3(1) (intentional or reckless offence of foreign interference) if:

·          the death of a person is alleged to have been caused by conduct that is a physical element of the offence, or

·          conduct that is a physical element of the offence carried a substantial risk of causing the death of a person.

360.           The existing wording of the amendment had the effect of applying the presumption against bail if the conduct of the defendant involved making a threat to cause serious harm or a demand with menaces.

361.           This amendment will ensure that the presumption against bail is only applied in the most serious circumstances. This is also consistent with the approach of limiting the presumption against bail in treachery and espionage offences to cases where the conduct causes the death of a person or a substantial risk of death.

362.           This amendment implements Recommendation 56 of the PJCIS report.

Amendment 74: Schedule 1, page 48 (after line 29)

363.           This amendment will remove the reference to Division 91 (espionage) from paragraph 19AG(1)(c) of the Crimes Act, which deals with minimum non-parole periods, and insert a new paragraph 19AG(1)(d) which applies the minimum non-parole period to an offence against new subsections 91.1(1) or 91.2(1) of the Criminal Code.

364.           The PJCIS report states (at paragraphs 10.123 and 10.124):

The Committee acknowledges the important role the Court plays in determining an appropriate sentence for each offender, taking into account a range of circumstances including the nature of the offence and the offender’s personal circumstances. Section 19AG of the Crimes Act limits this judicial discretion. The Committee notes that while the Bill does not propose to amend section 19AG directly, the Bill will extend its operation by expanding the scope of the espionage and treachery offences that are subject to it (see Chapters 6 and 9).

It would be appropriate for the operation of section 19AG to be limited to the most serious espionage offences in the Bill. Accordingly, the Committee considers that the operation of section 19AG should be limited to:

·          proposed section 91.1(1)—‘dealing with information etc. concerning national security which is or will be made available to a foreign principal’, with intention as to national security, and

·          proposed section 91.2(1)— ‘dealing with information etc. which is or will be made available to a foreign principal’, with intention as to national security.

365.           This amendment implements Recommendation 58 of the PJCIS report.

Amendment 75: Schedule 1, page 47 (after line 31)

366.           This amendment will amend paragraphs 5(2)(d) and (e) of the Criminal Code to replace the reference to ‘Part 5.1 (treason, urging violence and advocating terrorism or  genocide)’ with ‘Part 5.1 (treason and related offences)’ and the reference to ‘Part 5.2 (offences relating to espionage and similar activities)’ with ‘Part 5.2 (espionage and related offences)’.

367.           Subsection 5(2) of the Criminal Code provides that the Minister with portfolio responsibility for the Australian Federal Police Act 1979 is the rule-maker for regulations made for the purposes of specified provisions of the Criminal Code, including Part 5.1 and Part 5.2.

368.           As the heading of Part 5.1 will be renamed ‘treason and related offences’ (see Item 1, Schedule 1 of the Bill) and the heading of Part 5.2 will be renamed ‘espionage and related offences’ (see Item 9 of Schedule 1 of the Bill), the references to the headings of Parts 5.1 and 5.2 in paragraph 5(2)(d) and (e) of the Criminal Code Act 1995 will be updated, accordingly.

Amendment 76: Schedule 1, page 48 (after line 19)

369.           This amendment will have the effect of replacing the reference to subparagraphs 203(1)(c)(i) or (ia) in paragraph 203(1)(iia) of the Migration Act 1958 with a reference to subparagraphs 203(1)(c)(ia) or (ib).

370.           This amendment is consequential to Items 46 and 48 of the Bill which will repeal subparagraph 203(1)(c)(i) and insert new subparagraph 203(1)(c)(ib), respectively.

Amendment 77: Schedule 1, page 48 (after line 26)

371.           This amendment will repeal subsection 6(1B) and substitute it with a new subsection 6(1B) in the Independent National Security Legislation Monitor Act 2010 . Existing subsection 6(1B) requires the Independent National Security Legislation Monitor (the Monitor) to complete a review of certain legislation by 7 September 2017.  This review has been completed and existing subsection 6(1B) is therefore no longer required.  Subsection 6(1B) will be replaced a new requirement for the Monitor to review the operation, effectiveness and implications of Division 82 (sabotage), Part 5.2 (espionage and related offences), and Part 5.6 (secrecy of information) in Chapter 5 of the Criminal Code.

372.           The Monitor must begin the review as soon as practicable after three years of the National Security Legislation Amendment (Espionage and Foreign Interference) Act receiving Royal Assent.

373.           The review must be conducted under paragraph 6(1)(a), which means that the outcomes should be reported by the Monitor in an annual report, pursuant to section 29 of the Independent National Security Legislation Monitor Act 2010

374.           This review mechanism will facilitate examination of the extent to which the reforms have achieved the intended goal of strengthening espionage, foreign interference, secrecy and related laws while maintaining appropriate human rights safeguards. It is appropriate for the Monitor to undertake this review and its role is to independently review the operation, effectiveness and implications of national security and counter-terrorism laws; and consider whether the laws contain appropriate protections for individual rights, remain proportionate to terrorism or national security threats, and remain necessary. In conducting the review the Monitor has access to all relevant material, regardless of national security classification, can compel answers to questions, and can hold public and private hearings.

375.           This amendment implements Recommendation 59 of the PJCIS report.

Amendment 78: Schedule 2, item 6, page 50 (lines 1 to 6)

376.           This amendment will omit paragraph (a)(ii) from the definition of cause harm to Australia’s interests in section 121.1.  The effect of this amendment is to remove references to interference with, or prejudice to, the prevention, detection, investigation, prosecution or punishment of a provision of the Commonwealth law that is subject to a civil penalty.

377.           Following this amendment, paragraph (a) of the definition of cause harm to Australia’s interests will only cover interference with, or prejudice to, the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth.

378.           This partially implements Recommendation 17 of the PJCIS report, to the extent that it recommends removing paragraph (a)(i) of the definition of cause harm to Australia’s interests .

Amendment 79: Schedule 2, item 6, page 50 (lines 22 to 25)

379.           This amendment will remove paragraphs (d) and (e) from the definition of cause harm to Australia’s interests in section 121.1.  Paragraph (d) refers to harm or prejudice Australia’s international relations in any way other than that covered by paragraph (c), and paragraph (e) refers to harm or prejudice relations between the Commonwealth and a State or Territory.

380.           This implements Recommendation 17 of the PJCIS report, to the extent that it recommends removing paragraphs (d) and (e) of the definition of cause harm to Australia’s interests .

Amendments 80 and 81: Schedule 2, item 6, page 50 (line 26); Schedule 2, item 6, page 50 (line 27)

381.           These amendments will amend paragraph (f) of the definition of cause harm to Australia’s interests in section 121.1 to limit it only to covering harm or prejudice to the health or safety of the Australian public or a section of the Australian public.

382.           The existing definition refers more generally to ‘the public’ or ‘a section of the public’. These amendments will ensure that this offence is limited to conduct which harms the health or safety of the Australian public.

383.           This implements Recommendation 17 of the PJCIS report, to the extent that it recommends clarifying that paragraph (f) applies only to the health or safety of the Australian public, or a section of the Australian public

Amendment 82: Schedule 2, item 6, page 50 (after line 27)

384.           This amendment will insert a new paragraph (g) into the definition of cause harm to Australia’s interests in section 121.1.  New paragraph (g) will cover harm or prejudice the security or defence of Australia.  This is currently covered by paragraph (b) of the definition of inherently harmful information but, given it effectively includes a harm-based test, it will be more coherent for it to be moved from the definition of inherently harmful information Amendment 87 removes paragraph (b) from the definition of inherently harmful information .

385.           This amendment implements Recommendation 16 of the PJCIS report.

Amendment 83: Schedule 2, item 6, page 51 (line 4)

386.           This amendment explicitly excludes officers or employees of, or persons engaged by, the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation, from the definition of Commonwealth officer in section 121.1.

387.           This amendment is required to put it beyond doubt that persons employed by the ABC or SBS are not considered to be Commonwealth officers for the purposes of the general secrecy offences in Schedule 2.  The effect of this amendment is that persons employed by the ABC and SBS will be covered by the new secrecy offence applying to non-Commonwealth officers at section 122.4A (to be inserted by Amendment 127) rather than the secrecy offences at sections 122.1, 122.2, 122.3 and 122.4.

388.           This appropriately recognises that members of the ABC and SBS, while being public employees, are engaged primarily in journalism and communications activities.

Amendments 84 and 85: Schedule 2, item 6, page 51 (line 5 and after line 5)

389.           These amendments will ensure that the definition of deal in section 121.1 has the same meaning as that provided for in Part 5.2 of the Criminal Code, as proposed in Schedule 1 of the Bill, rather than only the meaning set out in subsection 90.1(1) of the Criminal Code. 

390.           The definition of deal is primarily covered by subsection 90.1(1).  However, subsection 90.1(2) clarifies that dealing with information or an article includes dealing with all or part of the information or article and dealing only with the substance, effect or description of the information or article. In addition, Amendment 25 inserts a definition of make available , which forms part of the definition of deal as it further defines a term used in subsection 90.1(1).

391.           The purpose of Amendment 84 is to ensure all aspects of the definition of deal , wherever they are located in Part 5.2, will be part of the definition of deal for the purpose of the offences in Division 122. 

392.           Amendment 85 will add a note at the end of this definition, directing the reader to the definitions of deals in subsections 90.1(1) and (2).  This is intended to provide clarity and assist the reader to locate the relevant parts of the definition in Part 5.2.

Amendment 86: Schedule 2, item 6, page 51 (after line 12)

393.           This amendment inserts a definition of foreign military organisation into subsection 121.1(1).  Foreign military organisation will be defined to mean:

·          the armed forces of the government of a foreign country

·          the civilian component of:

o       the Department of S tate of a foreign country or

o      a government agency in a foreign country

that is responsible for the defence of the country.

394.           The new definition is used in subsection 122.5(7) (as amended by Amendment 142), which sets out a range of exclusions to the defence for persons engaged in reporting news contained in subsection 122.5(6).  Amendment 142 amends subsection 122.5(7) to provide that a person may not reasonably believe that dealing with or holding information is in the public interest if this is done for the purpose of directly or indirectly assisting a foreign intelligence agency or a foreign military organisation. 

395.           The definition of a foreign military organisation will include the armed forces of a foreign country as well as the civilian components of its military organisation.  For example, in the Australian context this would include the Australian Defence Force, the civilian element of the Department of Defence, Reserves and any civilians who are accompanying the ADF overseas.

396.           Foreign country is intended to cover countries other than Australia and is defined in the Dictionary to the Criminal Code as including:

·          a colony or overseas territory

·          a territory outside Australia, where a foreign country is to any extent responsible for the international relations of the territory, and

·          a territory outside Australia that is, to some extent self-governing, but that is not recognised  as an independent sovereign state by Australia.

397.           This amendment implements Recommendation 27 of the PJCIS Report, to the extent that it recommends adopting the amendments to subsection 122.5(7) proposed by the Attorney-General in his submission to the PJCIS inquiry (submissions 40 and 40.1).

Amendment 87: Schedule 2, item 6, page 51 (lines 17 to 19)

398.           This amendment will remove paragraph (b) from the definition of inherently harmful information in section 121.1.  Paragraph (b) refers to information the communication of which would, or could reasonably be expected to, damage the security or defence of Australia.

399.           Amendment 82 inserts reference to information the communication of which would, or could reasonably be expected to, damage the security or defence of Australia into new paragraph (g) of the definition of cause harm to Australia’s interests .

400.           This amendment implements Recommendation 16 of the PJCIS report.

Amendment 88: Schedule 2, item 6, page 51 (lines 23 to 26)

401.           This amendment will remove paragraph (d) from the definition of inherently harmful information in subsection 121.1.  Paragraph (d) refers to information that was provided by a person to the Commonwealth or an authority of the Commonwealth in order to comply with an obligation under a law or otherwise by compulsion of law.

402.           This category of information covers a broad range of information, the disclosure of some of which should not appropriately attract criminal liability. Accordingly, this amendment narrows the scope of the definition to exclude this category of information.

403.           This amendment implements Recommendation 15 of the PJCIS Report, to the extent that it recommends removing paragraph (d) from the definition of inherently harmful information .

Amendments 89: Schedule 2, item 6, page 52 (after line 2)

404.           This amendment inserts a new definition of security classification into section 121.1.  The definition provides that the term security classification has the meaning given by section 90.5.  This ensures that this term has a consistent meaning across espionage offences (in Schedule 1) and secrecy offences (in Schedule 2).

405.           Section 90.5 (as amended by these amendments) will define security classification to mean:

·            a classification of secret or top secret that is applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying information:

o      for a classification of SECRET - that, if disclosed in an unauthorised manner, could be expected to cause serious damage to the national interest, organisations or individuals

o      for a classification of TOP SECRET - that, if disclosed in an unauthorised manner, could be expected to cause exceptionally grave damage to the national interest.

·            any equivalent classification or marking prescribed by the regulations.

406.           Subsection 90.5(1A) provides that strict liability applies to the element that:

·          a classification is applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying the information mentioned in subparagraph 90.5(1)(a)(i) or (ii), or

·          a classification or marking was prescribed by regulations as mentioned in paragraph 90.5(1)(b).

407.           This amendment implements Recommendation 8 of the PJCIS Report, to the extent that it recommended that the Bill be amended to define each ‘security classification’ to which criminal liability attaches and each definition should include harm-based statutory criteria for determining the proper classification to apply to that information.  This amendment also implements Recommendation 9 of the PJCIS report, to the extent that it recommended narrowing the definition of ‘security classification’ to a classification of SECRET or TOP SECRET or equivalent.

Amendments 90: Schedule 2, item 6, page 52 (line 4)

408.           This amendment omits the words ‘within the meaning of section 90.4’ from the definition of security classified information in section 121.1. 

409.           Amendment 89 inserts a new definition of security classification into Division 122 which will be used to interpret the meaning of security classified information .  This amendment also has the effect of correcting an incorrect reference ( security classification is defined in section 90.5, not section 90.4).

Amendment 91: Schedule 2, item 6, page 52 (after line 9)

410.           This amendment will insert a new subsection 121.1(3) to clarify that for the purpose of any references to security classified information in Part 5.6 (Secrecy of information), strict liability applies to the element that:

·          a classification is applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying the information mentioned in subparagraph 90.5(1)(a)(i) or (ii), or

·          a classification or marking was prescribed by regulations as mentioned in paragraph 90.5(1)(b).

411.           Section 121.1 will include a definition of security classified information as meaning information that has a security classification. Security classification will be defined as having the meaning given by section 90.5. Subsection 121.1(3) substantively replicates subsection 90.5(1A) to avoid any doubt about whether that subsection is picked up in the definition of security classified information .

412.           The effect of applying strict liability is that no fault element needs to be proved in relation to those parts of the definition. 

413.           The prosecution will still be required to prove that the information had a classification of TOP SECRET or SECRET or an equivalent classification and that the person was reckless as to this.  Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

414.           For paragraph 121.1(3)(a), the prosecution will also be required to prove that the security classification was applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying information:

·          for a classification of SECRET - that, if disclosed in an unauthorised manner, could be expected to cause serious damage to the national interest, organisations or individuals

·          for a classification of TOP SECRET - that, if disclosed in an unauthorised manner, could be expected to cause exceptionally grave damage to the national interest.

415.           For paragraph 121.1(3)(a), the prosecution will not be required to prove any actual or likely damage to the national interest in relation to the information that is the subject of the security classification.

416.           The effect of subsection 121.1(3) in applying strict liability to this element of the definition of security classification is that the prosecution will not need to prove that the person who dealt with the information knew or was reckless as to whether the security classification was applied in accordance with the policy framework developed by the Commonwealth.

417.           Strict liability is appropriate for this element because the person’s state of mind about the fact that the classification was applied under an appropriate Commonwealth policy framework for the purpose of identifying such information is not relevant to their culpability.  It is sufficient for the prosecution to prove that the person was reckless as to the fact that the information was classified as SECRET or TOP SECRET.  It is not reasonable to expect that a person would be familiar with the methods for applying classifications to information, nor the exact meaning of the classifications.  There is unlikely to be sufficient evidence to allow the prosecution to prove that a person was reckless about this level of detail about the policy framework sitting behind the application of a classification of SECRET or TOP SECRET.

418.           For paragraph 121.1(3)(b), the prosecution will need to prove that the person was reckless as to the fact that the information had a classification equivalent to SECRET or TOP SECRET. However, the effect of subsection 121.1(3) is that the prosecution will not need to prove that the person who dealt with the information knew or was reckless as to the fact that this was prescribed by regulations. Strict liability is appropriate for this element because the person’s state of mind about the fact that the classification was prescribed by regulations is not relevant to their culpability. It is sufficient for the prosecution to prove that the person was reckless as to the fact that the information had a classification equivalent to SECRET or TOP SECRET.  It is not reasonable to expect a person to be intimately familiar with the method for prescribing equivalent classifications. There is unlikely to be sufficient evidence to allow the prosecution to prove that a person was reckless about this level of detail about the process for prescribing an equivalent classification.

419.           Strict liability is set out in section 6.1 of the Criminal Code.  The effect of applying strict liability to an element of an offence means that no fault element needs to be proved and the defence of mistake of fact is available.

420.           The defence of mistake of fact is set out in section 9.2 of the Criminal Code.  The defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

·          at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

·          had those facts existed, the conduct would not have constituted an offence.

Amendment 92: Schedule 2, item 6, page 52 (line 17)

421.           This amendment will amend subsection 121.2(2) to ensure that if regulations are made to prescribe the meaning of proper place of custody , those regulations may not apply, adopt or incorporate any matter contained in any instrument or other writing unless it is publicly available.

422.           This will ensure that every person interested in or affected by the secrecy offences at subsections 122.1(3) and 122.2(3), which rely on the definition of proper place of custody , will be able to readily and freely access its terms. 

423.           This amendment implements Recommendation 18 of the PJCIS report.

Amendment 93: Schedule 2, item 6, page 52 (lines 18 to 28)

424.           This amendment will remove proposed section 121.3, which provides that the Attorney-General may sign an evidentiary certificate stating that the information or thing has, or had at a specified time, a security classification and at a specified level.

425.           This evidentiary certificate regime will be replaced by a requirement that the Attorney-General, when consenting to a prosecution consistent with new section 123.5 inserted by Amendment 151), will be required to certify that the information or article carried a security classification (as defined in section 90.5).  The Attorney-General’s certification will have no evidentiary effect.

426.           This amendment implements Recommendation 11 of the PJCIS Report, to the extent that it recommends removing the evidentiary certificate regime in section 121.3.

Amendment 94: Schedule 2, item 6, page 53 (line 2)

427.           This amendment will omit the current heading of section 122.1 and replace it with a new heading - Communication and other dealings with inherently harmful information by current and former Commonwealth officers .  This reflects that the offences in section 122.1 are being amended, consistent with Recommendation 15 of the PJCIS Report, to only apply to current and former Commonwealth officers.

Amendment 95: Schedule 2, item 6, page 53 (line 7)

428.           This amendment will limit the scope of the offence at subsection 122.1(1) to communications by a current or former Commonwealth officers or persons otherwise engaged to perform work for a Commonwealth entity by removing the words ‘or any other’ from paragraph 122.1(1)(c). Without this amendment, the offence would apply to any person who communicated inherently harmful information which was made or obtained by a Commonwealth officer or person otherwise engaged to perform work for a Commonwealth entity.

429.           The effect of this amendment is to limit the application of the offences only a person who communicates information that was made or obtained by that person by reason of that person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.  This has the effect of limiting the offence only to persons who are current or former Commonwealth officers.

430.           Following this amendment, paragraph 122.1(1)(c) will require the prosecution to prove that the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.  The prosecution will also need to prove that the person was reckless as to this element. 

431.           Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

432.           This amendment implements Recommendation 15 of the PJCIS Report, by limiting the offence in subsection 122.1(1) only to current and former Commonwealth officers.

Amendments 96 and 97: Schedule 2, item 6, page 53 (line 11 and after line 11)

433.           These amendments will insert an additional Note 2 under subsection 122.1(1) clarifying that the fault elements for this offence are intention for paragraph (1)(a) and recklessness for paragraphs (1)(b) and (c).

434.           Amendment 96 inserts ‘Note 1’ in front of the current Note under subsection 122.1(1) to reflect that a section note is being inserted.

435.           Amendment 97 will insert new Note 2 under subsection 122.1(1) to clarify that the fault elements for this offence are intention for paragraph (1)(a) and recklessness for paragraphs (1)(b) and (c).

436.           This Note is being included to implement Recommendation 14 of the PJCIS Report.  It has no practical effect , as section 5.6 of the Criminal Code already applies intention as the automatic fault element for the conduct element in paragraph 122.1(1)(a) and recklessness as the automatic fault element applying to the circumstance elements in paragraphs 122.1(1)(b) and (c). 

437.           The inclusion of this Note carries no implication that section 5.6 of the Criminal Code is ineffective in applying the relevant fault elements.  It is intended only to provide clarity to the reader.

Amendment 98: Schedule 2, item 6, page 53 (line 12)

438.           This amendment lowers the maximum penalty for the offence at subsection 122.1(1) from 15 years’ imprisonment to seven years’ imprisonment. This implements Recommendation  34 of the PJCIS Report.

439.           The justification for the lower penalty is that it will align with the maximum penalties for the secrecy offences in the Intelligence Services Act 2001 . It will also be consistent with Recommendation 7-4 of the Australian Law Reform Commission Report 112 ‘Secrecy Laws and Open Government in Australia’ that the general secrecy offence should stipulate a maximum penalty of seven years’ imprisonment, a pecuniary penalty not exceeding 420 penalty units, or both.

Amendment 99: Schedule 2, item 6, page 53 (line 18)

440.           This amendment will limit the scope of the offence at subsection 122.1(2) to dealings by a current or former Commonwealth officers or persons otherwise engaged to perform work for a Commonwealth entity by removing the words ‘or any other’ from paragraph 122.1(2)(c). Without this amendment, the offence would apply to any person who dealt with inherently harmful information (other than by communicating it) where the information was made or obtained by a Commonwealth officer or person otherwise engaged to perform work for a Commonwealth entity.

441.           The effect of this amendment is to limit the application of the offences only a person who deals with information that was made or obtained by that person by reason of that person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.  This has the effect of limiting the offence only to persons who are current or former Commonwealth officers.

442.           Following this amendments, paragraph 122.1(2)(c) will require the prosecution to prove that the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.  The prosecution will also need to prove that the person was reckless as to this element. 

443.           Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

444.           This amendment implements Recommendation 15 of the PJCIS Report, by limiting the offence in subsection 122.2(2) only to current and former Commonwealth officers.

Amendment 100: Schedule 2, item 6, page 53 (before line 21)

445.           This amendment will insert a new Note under subsection 121.1(2) to clarify that the fault elements for this offence are intention for paragraph (2)(a) and recklessness for paragraphs (2)(b) and (c).

446.           This Note is being included to implement Recommendation 14 of the PJCIS Report.  It has no practical effect , as section 5.6 of the Criminal Code already applies intention as the automatic fault element for the conduct element in paragraph 122.1(2)(a) and recklessness as the automatic fault element applying to the circumstance elements in paragraphs 122.1(2)(b) and (c). 

447.           The inclusion of this Note carries no implication that section 5.6 of the Criminal Code is ineffective in applying the relevant fault elements.  It is intended only to provide clarity to the reader.

Amendment 101: Schedule 2, item 6, page 53 (line 22)

448.           This amendment lowers the maximum penalty for the offence at subsection 122.1(2) from five years’ imprisonment to three years’ imprisonment. This implements Recommendation 34 of the PJCIS Report.

449.           As the maximum penalty for the more serious offence of communicating inherently harmful information in subsection 122.1(1) has been reduced to seven years, the PJCIS concluded (at paragraph 5.143) that:

As a result, the penalties for the dealing offences should also be reduced to three years’ imprisonment, to maintain the current structure of the secrecy offences.

Amendment 102: Schedule 2, item 6, page 54 (line 1)

450.           This amendment will limit the scope of the offence at subsection 122.1(3) to dealings by a current or former Commonwealth officers or persons otherwise engaged to perform work for a Commonwealth entity by removing the words ‘or any other’ from paragraph 122.1(3)(c). Without this amendment, the offence would apply to any person who removed information from , or held information outside, a proper place of custody, where the inherently harmful information was made or obtained by a Commonwealth officer or person otherwise engaged to perform work for a Commonwealth entity.

451.           The effect of this amendment is to limit the application of the offences only a person who deals with information that was made or obtained by that person by reason of that person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.  This has the effect of limiting the offence only to persons who are current or former Commonwealth officers.

452.           Following this amendment, paragraph 122.1(3)(c) will require the prosecution to prove that the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.  The prosecution will also need to prove that the person was reckless as to this element. 

453.           Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

454.           This amendment implements Recommendation 15 of the PJCIS Report, by limiting the offence in subsection 122.1(3) only to current and former Commonwealth officers.

Amendment 103: Schedule 2, item 6, page 54 (before line 5)

455.           This amendment will insert a new Note under subsection 122.1(3) to clarify that the fault elements for this offence are intention for paragraph (3)(a) and recklessness for paragraphs (3)(b) and (c).

456.           This Note is being included to implement Recommendation 14 of the PJCIS Report.  It has no practical effect, as section 5.6 of the Criminal Code already applies intention as the automatic fault element for the conduct element in paragraph 122.1(3)(a) and recklessness as the automatic fault element applying to the circumstance elements in paragraphs 122.1(3)(b) and (c). 

457.           The inclusion of this Note carries no implication that section 5.6 of the Criminal Code is ineffective in applying the relevant fault elements.  It is intended only to provide clarity to the reader.

Amendment 104: Schedule 2, item 6, page 54 (line 5)

458.           This amendment lowers the maximum penalty for the offence at subsection 122.1(3) from five years’ imprisonment to three years’ imprisonment. This implements Recommendation 34 of the PJCIS Report.

459.           As the maximum penalty for the more serious offence of communicating inherently harmful information in subsection 122.1(1) has been reduced to seven years, the PJCIS concluded (at paragraph 5.143) that:

As a result, the penalties for the dealing offences should also be reduced to three years’ imprisonment, to maintain the current structure of the secrecy offences.

Amendment 105: Schedule 2, item 6, page 54 (after line 11)

460.           This amendment will insert an additional element into subsection 122.1(4), which creates an offence of failing to comply with a lawful direction regarding the retention, use, or disposal of inherently harmful information.

461.           The additional element at paragraph 122.1(4)(ca) will provide that the failure to comply with that direction results in a risk to the security of the information. This will ensure that criminal liability is limited to circumstances where the security of the information is placed at risk, and does not cover circumstances where a person has failed to comply with a direction but without any risk to security.  This element will not be satisfied if a lawful direction is issued for the purpose of convenience, not to protect the security of the information.  For example, if a person is lawfully directed to place documents in an appropriately secure filing cabinet next to the directing person’s office to allow convenient access, however the person instead places the documents in a different (but still appropriately secure) filing cabinet, this will not fall within the scope of the offence as it related to the directing person’s desire to have easy access to the document rather than to protect the security of the information.

462.           Conversely, if a person is lawfully directed to place a classified document in a filing cabinet in a secure room but the person instead leaves it in their desk drawer, this would place the security of the information at risk and would fall within new paragraph 122.1(4).

463.           The fault element of recklessness will apply to the physical element in paragraph 122.4(1)(ca).  Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

464.           This amendment implements Recommendation 19 of the PJCIS report.

Amendment 106: Schedule 2, item 6, page 54 (line 13)

465.           This amendment will limit the scope of the offence at subsection 122.1(4) to dealings by a current or former Commonwealth officers or persons otherwise engaged to perform work for a Commonwealth entity by removing the words ‘or any other’ from paragraph 122.1(4)(e). Without this amendment, the offence would apply to any person who failed to comply with a lawful direction about inherently harmful information that was made or obtained by a Commonwealth officer or person otherwise engaged to perform work for a Commonwealth entity.

466.           The effect of this amendment is to limit the application of the offences only a person who deals with information that was made or obtained by that person by reason of that person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.  This has the effect of limiting the offence only to persons who are current or former Commonwealth officers.

467.           Following this amendment, paragraph 122.1(4)(e) will require the prosecution to prove that the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.  The prosecution will also need to prove that the person was reckless as to this element. 

468.           Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

469.           This amendment implements Recommendation 15 of the PJCIS Report, by limiting the offence in subsection 122.1(4) only to current and former Commonwealth officers.

Amendment 107: Schedule 2, item 6, page 54 (before line 17)

470.           This amendment will insert a new Note under subsection 122.1(4) to clarify that the fault elements for this offence are intention for paragraphs (4)(a) and (c) and recklessness for paragraphs (4)(b), (ca), (d) and (e).

471.           This Note is being included to implement Recommendation 14 of the PJCIS Report.  It has no practical effect, as section 5.6 of the Criminal Code already applies intention as the automatic fault element for the conduct element in paragraphs 122.1(4)(a) and (c), recklessness as the automatic fault element applying to the circumstance elements in paragraphs 122.1(4)(b), (d) and (e) and recklessness as the automatic fault element applying to the result element in paragraph 122.1(4)(ca). 

472.           The inclusion of this Note carries no implication that section 5.6 of the Criminal Code is ineffective in applying the relevant fault elements.  It is intended only to provide clarity to the reader.

Amendment 108: Schedule 2, item 6, page 54 (line 17)

473.           This amendment lowers the maximum penalty for the offence at subsection 122.1(4) from five years’ imprisonment to three years’ imprisonment. This implements Recommendation 34 of the PJCIS Report.

474.           As the maximum penalty for the more serious offence of communicating inherently harmful information in subsection 122.1(1) has been reduced to seven years, the PJCIS concluded (at paragraph 5.143) that:

As a result, the penalties for the dealing offences should also be reduced to three years’ imprisonment, to maintain the current structure of the secrecy offences.

Amendment 109: Schedule 2, item 6, page 54 (lines 18 and 19)

475.           This amendment will remove subsection 122.1(5).  The effect of this amendment is that strict liability will no longer apply to the elements of the offences in section 122.1 that information is security classified information.  This amendment responds to Recommendation 9 of the PJCIS report, which recommends removing strict liability from espionage and secrecy offences.

476.           For paragraphs 122.1(1)(b), 122.2(1)(b), 122.2(3)(b) and 122.1(4)(d), the prosecution will have to prove that the information had a security classification.  Security classification is defined in subsection 121.1(1) and section 90.5, as amended by Amendments 31, 32 and 33.

477.           The effect of this amendment is that the prosecution will need to prove that the defendant is reckless as to the element of the offence at paragraphs 122.1(1)(b), 122.2(1)(b), 122.2(3)(b) and 122.1(4)(d).

478.           Consistent with new subsection 121.1(3), strict liability will apply to some aspects of the definition of security classification Subsection 121.1(3) provides that strict liability applies to the element that:

·          a classification is applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying the information mentioned in subparagraph 90.5(1)(a)(i) or (ii), or

·          a classification or marking was prescribed by regulations as mentioned in paragraph 90.5(1)(b).

479.           The effect of applying strict liability is that no fault element needs to be proved in relation to those parts of the definition.

480.           The prosecution will still be required to prove that the information had a classification of TOP SECRET or SECRET or an equivalent classification and that the person was reckless as to this.  Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

481.           Strict liability is set out in section 6.1 of the Criminal Code.  The effect of applying strict liability to an element of an offence means that no fault element needs to be proved and the defence of mistake of fact is available.

482.           The defence of mistake of fact is set out in section 9.2 of the Criminal Code.  The defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

·          at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

·          had those facts existed, the conduct would not have constituted an offence.

Amendment 110: Schedule 2, item 6, page 54 (line 20)

483.           This amendment will omit the current heading of section 122.2 and replace it with a new heading - Conduct by current and former Commonwealth officers etc. causing harm to Australia’s interests .  This reflects that the offences in section 122.2 are being amended, consistent with Recommendation 17 of the PJCIS Report, to only apply to current and former Commonwealth officers.

Amendment 111: Schedule 2, item 6, page 54 (line 29)

484.           This amendment will limit the scope of the offence at subsection 122.2(1) to communications by a current or former Commonwealth officers or persons otherwise engaged to perform work for a Commonwealth entity by removing the words ‘or any other’ from paragraph 122.2(1)(c). Without this amendment, the offence would apply to any person who communicated information where the communication does, will or is likely to cause harm to Australia’s interests and the information was made or obtained by a Commonwealth officer or person otherwise engaged to perform work for a Commonwealth entity.

485.           The effect of this amendment is to limit the application of the offences only a person who deals with information that was made or obtained by that person by reason of that person being , or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.  This has the effect of limiting the offence only to persons who are current or former Commonwealth officers.

486.           Following this amendment, paragraph 122.2(1)(c) will require the prosecution to prove that the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.  The prosecution will also need to prove that the person was reckless as to this element. 

487.           Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

488.           This amendment implements Recommendation 15 of the PJCIS Report, by limiting the offence in subsection 122.2(1) only to current and former Commonwealth officers.

Amendment 112: Schedule 2, item 6, page 55 (line 4)

489.           This amendment lowers the maximum penalty for the offence at subsection 122.2(1) from 15 years’ imprisonment to seven years’ imprisonment. This implements Recommendation 34 of the PJCIS Report.

490.           The justification for the lower penalty is that it will align with the maximum penalties for the secrecy offences in the Intelligence Services Act 2001 . It will also be consistent with Recommendation 7-4 of the Australian Law Reform Commission Report 112 ‘Secrecy Laws and Open Government in Australia’ that the general secrecy offence should stipulate a maximum penalty of seven years’ imprisonment, a pecuniary penalty not exceeding 420 penalty units, or both.

Amendment 113: Schedule 2, item 6, page 55 (line 13)

491.           This amendment will limit the scope of the offence at subsection 122.2(2) to dealings by a current or former Commonwealth officers or persons otherwise engaged to perform work for a Commonwealth entity by removing the words ‘or any other’ from paragraph 122.2(2)(c). Without this amendment, the offence would apply to any person who deals with information (other than by communicating it) where the dealing does, will or is likely to cause harm to Australia’s interests and the information was made or obtained by a Commonwealth officer or person otherwise engaged to perform work for a Commonwealth entity.

492.           The effect of this amendment is to limit the application of the offences only a person who deals with information that was made or obtained by that person by reason of that person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.  This has the effect of limiting the offence only to persons who are current or former Commonwealth officers.

493.           Following this amendment, paragraph 122.2(2)(c) will require the prosecution to prove that the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.  The prosecution will also need to prove that the person was reckless as to this element. 

494.           Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

495.           This amendment implements Recommendation 15 of the PJCIS Report, by limiting the offence in subsection 122.1(2) only to current and former Commonwealth officers.

Amendment 114: Schedule 2, item 6, page 55 (line 17)

496.           This amendment lowers the maximum penalty for the offence at subsection 122.2(2) from five years’ imprisonment to three years’ imprisonment. This implements Recommendation  34 of the PJCIS Report.

497.           As the maximum penalty for the more serious offence of communicating information where the communication does, will or could reasonably be expected to cause harm to Australia’s interests in subsection 122.2(1) has been reduced to seven years, the PJCIS concluded (at paragraph 5.143) that:

As a result, the penalties for the dealing offences should also be reduced to three years’ imprisonment, to maintain the current structure of the secrecy offences.

Amendment 115: Schedule 2, item 6, page 55 (line 31)

498.           This amendment will limit the scope of the offence at subsection 122.2(3) to removal or holding of information outside a proper place of custody by current or former Commonwealth officers or persons otherwise engaged to perform work for a Commonwealth entity. Without this amendment, the offence would apply to any person who removes information from, or holds information outside, a proper place of custody where that conduct does, will or is likely to cause harm to Australia’s interests and the information was made or obtained by a Commonwealth officer or person otherwise engaged to perform work for a Commonwealth entity.

499.           The effect of this amendment is to limit the application of the offences only a person who deals with information that was made or obtained by that person by reason of that person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.  This has the effect of limiting the offence only to persons who are current or former Commonwealth officers.

500.           Following this amendment, paragraph 122.2(3)(c) will require the prosecution to prove that the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.  The prosecution will also need to prove that the person was reckless as to this element. 

501.           Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

502.           This amendment implements Recommendation 15 of the PJCIS Report, by limiting the offence in subsection 122.2(3) only to current and former Commonwealth officers.

Amendment 116: Schedule 2, item 6, page 56 (line 1)

503.           This amendment lowers the maximum penalty for the offence at subsection 122.2(3) from five years’ imprisonment to three years’ imprisonment. This implements Recommendation 34 of the PJCIS Report.

504.           As the maximum penalty for the more serious offence of communicating information where the communication does, will or could reasonably be expected to cause harm to Australia’s interests in subsection 122.2(1) has been reduced to seven years, the PJCIS concluded (at paragraph 5.143) that:

As a result, the penalties for the dealing offences should also be reduced to three years’ imprisonment, to maintain the current structure of the secrecy offences.

Amendment 117: Schedule 2, item 6, page 56 (line 13)

505.           This amendment will limit the scope of the offence at subsection 122.2(4) to dealings by a current or former Commonwealth officers or persons otherwise engaged to perform work for a Commonwealth entity by removing the words ‘or any other’ from paragraph 122.2(4)(e). Without this amendment, the offence would apply to any person who failed to comply with a lawful direction about information that was made or obtained by a Commonwealth officer or person otherwise engaged to perform work for a Commonwealth entity where the failure to comply with the direction does, will or could reasonably be expected to cause harm to Australia’s interests.

506.           The effect of this amendment is to limit the application of the offences only a person who deals with information that was made or obtained by that person by reason of that person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.  This has the effect of limiting the offence only to persons who are current or former Commonwealth officers.

507.           Following this amendment, paragraph 122.2(4)(e) will require the prosecution to prove that the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.  The prosecution will also need to prove that the person was reckless as to this element. 

508.           Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

509.           This amendment implements Recommendation 15 of the PJCIS Report, by limiting the offence in subsection 122.2(4) only to current and former Commonwealth officers.

Amendment 118: Schedule 2, item 6, page 56 (line 17)

510.           This amendment lowers the maximum penalty for the offence at subsection 122.2(4) from five years’ imprisonment to three years’ imprisonment. This implements Recommendation  34 of the PJCIS Report.

511.           As the maximum penalty for the more serious offence of communicating information where the communication does, will or could reasonably be expected to cause harm to Australia’s interests in subsection 122.2(1) has been reduced to seven years imprisonment, the PJCIS concluded (at paragraph 5.143) that:

As a result, the penalties for the dealing offences should also be reduced to three years’ imprisonment, to maintain the current structure of the secrecy offences.

Amendment 119: Schedule 2, item 6, page 56 (lines 24 to 26)

512.           This amendment, which omits subparagraph 122.3(b)(i), is consequential to the change to the definition of security classification in section 90.5 (at Amendment 31), which is now limited only to information classified as SECRET or TOP SECRET.  The aggravated secrecy offence at section 122.3 currently provides, at subparagraph 122.3(1)(b)(i), that it is an aggravating factor if a person deals with information or an article that has a security classification of secret or above.

513.           The amendments to the definition of security classification has the effect of limiting the scope of the offences at 122.1 and 122.2, in relation to dealing with security classified material, so that they only apply to information or articles classified as SECRET or TOP SECRET. Therefore, the aggravating circumstance of dealing with information or an article classified secret or above is no longer appropriate as Amendment 31 has the effect of making this an element of the underlying offence.  

Amendment 120: Schedule 2, item 6, page 56 (line 28)

514.           This amendment will make a minor technical amendment to remove the words ‘containing the relevant information’ from subparagraph 122.3(1)(b)(ii). The phrase ‘the relevant information’ is a tag used in subparagraph 122.3(1)(b)(i), which will be removed by Amendment 119.  The removal of these words will have no practical impact on the operation of the aggravating factor in subparagraph 122.3(1)(b)(ii).

Amendment 121: Schedule 2, item 6, page 57 (line 6)

515.           This amendment will amend subparagraph 122.3(1)(b)(v) to add the words ‘allowing the person to access information that has a security classification of at least secret’.

516.           This amendment limits the aggravating circumstance so that it only applies where a person holds an Australian Government security clearance to persons holding such a clearance allowing access to information classified at the level of SECRET or above. In accordance with current Commonwealth protective security policies, this means that the aggravating factor at subparagraph 122.3(1)(b)(v) would apply to persons holding security clearances at the Negative Vetting 1, Negative Vetting 2 and Positive Vetting levels.

517.           Security clearances allowing access to SECRET and TOP SECRET information imports a high level of trust to maintain the security of information, and is commensurate with the higher culpability and penalty imposed by an aggravating offence. 

518.           Australian Government security clearance will be defined in the Dictionary to the Criminal Code to mean a security clearance given by the Australian Government Security Vetting Agency or by another Commonwealth, State or Territory agency that is authorised or approved by the Commonwealth to issue security clearances.  Amendment 69 will insert this definition into the Dictionary.

519.           Recklessness will continue to be the fault element applying to the aggravating circumstance at subparagraph 122.3(1)(b)(v).  Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

520.           This amendment implements Recommendation 20 of the PJCIS Report.

Amendments 122 and 123: Schedule 2, item 6, page 57 (line 9 and line 11)

521.           These amendments lower the maximum penalties for the aggravated offence at subsection 122.3.  The maximum penalties will now be:

·          10 years imprisonment - if  the penalty for the underlying offence is imprisonment for seven years

·          five years imprisonment - if the penalty for the underlying offence is imprisonment for three years

522.           This is consequential to the lowering of the penalties for the underlying offences in sections 122.1 and 122.2.  This implements Recommendation 34 of the PJCIS Report.

Amendment 124: Schedule 2, item 6, page 57 (line 15)

523.           This amendment will remove subsection 122.3(3).  The effect of this amendment is that strict liability will no longer apply to the element that the person dealt with five or more records or articles, each of which had a security classification. This amendment implements Recommendation 9 of the PJCIS report, which recommends removing strict liability from espionage and secrecy offences.

524.           The effect of this amendment is that the prosecution will need to prove that the defendant is reckless as to the element of the offence at subparagraph 122.3(1)(b)(iii) that the person dealt with five or more records or articles, each of which had a security classification. Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

525.           For subparagraph, the prosecution will have to prove that the each of the records had a security classification.  Security classification is defined in section 90.5, as amended by Amendments 31, 32, and 33.

526.           The prosecution will be required to prove that the records had a classification of TOP SECRET or SECRET or an equivalent classification and that the person was reckless as to this. 

527.           Consistent with new subsection 121.1(3), strict liability will apply to some aspects of the definition of security classification Subsection 121.1(3) provides that strict liability applies to the element that:

·          a classification is applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying the information mentioned in subparagraph 90.5(1)(a)(i) or (ii), or

·          a classification or marking was prescribed by regulations as mentioned in paragraph 90.5(1)(b).

528.           Strict liability is set out in section 6.1 of the Criminal Code.  The effect of applying strict liability to an element of an offence means that no fault element needs to be proved and the defence of mistake of fact is available.

529.           The defence of mistake of fact is set out in section 9.2 of the Criminal Code.  The defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

·          at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

·          had those facts existed, the conduct would not have constituted an offence.

Amendment 125: Schedule 2, item 6, page 57 (lines 23 and 24)

530.           This amendment will omit the heading of new section 122.4 and replace it with a new heading - Unauthorised disclosure of information by current and former Commonwealth officers etc.   This simplifies the wording of this heading.

Amendment 126: Schedule 2, item 6, page 58 (after line 1)

531.           This amendment will insert new subsection 122.4(3) which provides that the section does not apply in relation to any communication of information that occurs after the end of five years after the section commences. 

532.           The offence in section 122.4 largely replicates the existing offence at section 70 of the Crimes Act.  This offence has been preserved until such time as each duty, likely to give rise to criminal liability under section 70, can be reviewed to determine whether it should be converted into a stand-alone specific secrecy offence, or whether criminal liability should be removed. The sunset provision will provide for section 122.4 to cease its operation five years after commencement of that sunset provision. This will allow for review of the duties to determine whether there is an ongoing need to enforce them with specific criminal sanctions.

533.           Because there will be other references to section 122.4 on the statute book that would also need to be repealed, section 122.4 will not be repealed by this provision but rather cease its operation. 

534.           This amendment implements Recommendation 23 of the PJCIS Report.

Amendment 127: Schedule 2, item 6, page 58 (after line 1)

535.           This amendment will insert a new section 122.4A titled Communicating and dealing with information by non-Commonwealth officers etc.

536.           This provision creates new, separate secrecy offences applying to persons who are not, and have not previously been, Commonwealth officers (as defined in section 121.1).  The offences in section 122.4 apply to narrower subsets of information and conduct, and attract lower maximum penalties than the secrecy offences applying to current and former Commonwealth officers at sections 122.1 and 122.2.

537.           This recognises that secrecy offences should apply differently to Commonwealth and non-Commonwealth officers given the former have a higher duty to protect such information, should be well trained in security requirements procedures and, in many cases, have security clearances.

538.           This amendment implements Recommendation 21 of the PJCIS report.

 

Communicating information

539.           Subsection 122.4A(1) creates an offence where a person, who did not make or obtain the information by reason of being or having been a Commonwealth officer, communicates information that was made or obtained by another person who is, or was, a Commonwealth officer and any one or more of the following applies:

·          the information has a security classification of secret or top secret

·          the communication of the information damages the security or defence of Australia 

·          the communication of the information interferes with or prejudices the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth, or

·          the communication of the information harms or prejudices the health or safety of the Australian public or a section of the Australian public.

540.           This offence will carry a maximum penalty of five years’ imprisonment

541.           To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

·          the person intentionally communicates information

·          the information was not made or obtained by the person by reason of the person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and the person was reckless as to this element

·          the information was made or obtained by another person by reason of that other person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and the person was reckless as to this element, and

·          any one or more of the following applies

o    the information has a security classification of secret or top secret and the person is reckless as to this element (noting that some aspects of the definition carry strict liability, which is explained below)

o    the communication of the information damages the security or defence of Australia and the person is reckless as to this element

o    the communication of the information interferes with or prejudices the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth and the person is reckless as to this element, or

o    the communication of the information harms or prejudices the health or safety of the Australian public or a section of the Australian public and the person is reckless as to this element.

542.           Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 122.4A(1)(a). Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.  Recklessness is the fault element for paragraphs 122.4A(1)(b), (c) and (d). Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

543.           For paragraph 122.1(1)(a), the prosecution will have to prove beyond a reasonable doubt that the person intentionally communicated information.

544.           The term ‘communicates’ is taken to include references to ‘publishes’ and ‘makes available’, consistent with subsection 121.1(2).  It is intended to include imparting or transmitting information by any means. It is not intended to require, as a rule, proof that the information was received by another person, or proof that another person read, heard or viewed the information. A person would communicate information where, for example, a person sends an email containing information, even if the email is not read by another person.

545.           For paragraph 122.4A(1)(b), the prosecution will have to prove that the information was not made or obtained by the person by reason of the person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

546.           The fault element of recklessness applies to this element.  Therefore, the prosecution will be required to prove beyond reasonable doubt that the person was aware of a substantial risk that the information was not made or obtained by the person by reason of the person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

547.           For paragraph 122.4A(1)(c), the prosecution will have to prove that the information was made or obtained by that or any other person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

548.           The fault element of recklessness applies to this element.  Therefore, the prosecution will be required to prove beyond reasonable doubt that the person was aware of a substantial risk that the information was made or obtained by that or any other person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

549.           For subparagraph 122.4A(1)(d)(i), the prosecution will have to prove that the information had a security classification of secret or top secret.  Security classification is defined in section 90.5, as amended by Amendments 31, 32 and 33.  The reference to information carrying a security classification of secret or top secret ensures that this offence will only apply where paragraph 90.5(1)(a) applies.  It will not apply to equivalent classifications prescribed under paragraph 90.5(1)(b).

550.           The prosecution will be required to prove that the information had a classification of TOP SECRET or SECRET or an equivalent classification and that the person was reckless as to this. 

551.           Consistent with new subsection 121.1(3), strict liability will apply to some aspects of the definition of security classification Paragraph 121.1(3)(a) provides that strict liability applies to the element that a classification is applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying the information mentioned in subparagraph 90.5(1)(a)(i) or (ii).

552.           Strict liability is set out in section 6.1 of the Criminal Code.  The effect of applying strict liability to an element of an offence means that no fault element needs to be proved and the defence of mistake of fact is available.

553.           The defence of mistake of fact is set out in section 9.2 of the Criminal Code.  The defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

·          at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

·          had those facts existed, the conduct would not have constituted an offence.

554.           For subparagraph 122.4A(1)(d)(ii), the prosecution will have to prove that the communication of the information damages the security or defence of Australia.  Unlike the offences that apply to current and former Commonwealth officers, the harm to the security or defence of Australia will need to actually occur for the offence to be committed. 

555.           The fault element of recklessness applies to this element.  Therefore, the prosecution will need to prove beyond a reasonable doubt that the person was aware of a substantial risk that the communication of the information damaged the security or defence of Australia and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

556.           For subparagraph 122.4A(1)(d)(iii), the prosecution will have to prove that the communication of the information interferes with or prejudices the prevention, detection, investigation, prosecution of punishment of a criminal offence against a law of the Commonwealth.  Unlike the offences that apply to current and former Commonwealth officers, the interference or prejudice will need to actually occur for the offence to be committed. 

557.           The fault element of recklessness applies to this element.  Therefore, the prosecution will need to prove beyond a reasonable doubt that the person was aware of a substantial risk that the communication of the information interferes with or prejudices the prevention, detection, investigation, prosecution of punishment of a criminal offence against a law of the Commonwealth and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

558.           For subparagraph 122.4A(1)(d)(iv), the prosecution will have to prove that the communication of the information harms or prejudices the health or safety of the Australian public or a section of the Australian public.  Unlike the offences that apply to current and former Commonwealth officers, the harm or prejudice will need to actually occur for the offence to be committed. 

559.           The fault element of recklessness applies to this element.  Therefore, the prosecution will need to pr o ve beyond a reasonable doubt that the person was aware of a substantial risk that the communication of the information harms or prejudices the health or safety of the Australian public or a section of the Australian public and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

560.           Note 1 to subsection 122.1(1) clarifies that exceptions to the offence are set out at section 122.5.

561.           Note 2 under subsection 122.4A(1) clarifies that the fault elements for this offence are intention for paragraph (1)(a) and recklessness for paragraphs (1)(b) to (d).

562.           This Note is being included to implement Recommendation 14 of the PJCIS Report.  It has no practical effect, as section 5.6 of the Criminal Code already applies these as the automatic fault elements.  The inclusion of this Note carries no implication that section 5.6 of the Criminal Code is ineffective in applying the relevant fault elements.  It is intended only to provide clarity to the reader.

563.           This offence will carry a maximum penalty of five years’ imprisonment.  This is less than the penalty applying to the equivalent offences applying to current and former Commonwealth officers, and reflects the serious consequences of the communication of the information covered by the offence, given the fact that it will damage the security or defence of Australia, interfere with criminal justice processes or prejudice the health or safety of the Australian public.

Other dealings with information

564.           Subsection 122.4A(2) creates an offence where a person, who did not make or obtain the information by reason of being or having been a Commonwealth officer, deals with information (other than by communicating it) where the information was made or obtained by another person who is, or was, Commonwealth officer and any one or more of the following applies:

·          the information has a security classification of secret or top secret

·          the communication of the information damages the security or defence of Australia 

·          the communication of the information interferes with or prejudices the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth, or

·          the communication of the information harms or prejudices the health or safety of the Australian public or a section of the Australian public.

565.           This offence will carry a maximum penalty of two years’ imprisonment. 

566.           To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

·          the person intentionally deals with information (other than by communicating it)

·          the information was not made or obtained by the person by reason of the person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and the person was reckless as to this element

·          the information was made or obtained by another person by reason of that other person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and the person was reckless as to this element, and

·          any one or more of the following applies

o    the information has a security classification of secret or top secret and the person is reckless as to this element (noting that some aspects of the definition carry strict liability, which is explained below)

o    the communication of the information damages the security or defence of Australia and the person is reckless as to this element

o    the communication of the information interferes with or prejudices the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth and the person is reckless as to this element, or

o    the communication of the information harms or prejudices the health or safety of the Australian public or a section of the Australian public and the person is reckless as to this element.

567.           Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 122.4A(2)(a). Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.  Recklessness is the fault element for paragraphs 122.4A(2)(b), (c) and (d). Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

568.           For paragraph 122.1(1)(a), the prosecution will have to prove beyond a reasonable doubt that the person intentionally dealt with the information, other than by communicating it. The term deal is defined for the purposes of Part 5.6 (as amended by Amendment 84) in section 121.1 as having the meaning given by Part 5.2 of the Criminal Code The definition is intended to ensure that the offence operates to deter the disclosure information covered by paragraph 122.4A(2)(d). For example, the element will be satisfied where:

·          a person intentionally obtains or collects information—each of which may either be steps towards the disclosure of the information, or the result of the disclosure of the information, or

·          a person intentionally copies or conceals the information—such conduct would, or would be likely to, facilitate the disclosure of the information (for example, by preventing its discovery or recovery by authorities).

569.           However, the element will not be satisfied by a person reading, analysing or using the information. The nature of information that will or is likely to harm Australia’s interests is that the harm to those interests would have, or could be likely to have, crystallised when the information was disclosed. The object of the offence framework, therefore, is to strongly deter the disclosure of such information in the first instance.

570.           For paragraph 122.4A(2)(b), the prosecution will have to prove that the information was not made or obtained by the person by reason of the person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

571.           The fault element of recklessness applies to this element.  Therefore, the prosecution will be required to prove beyond reasonable doubt that the person was aware of a substantial risk that the information was not made or obtained by the person by reason of the person being, or having been , a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

572.           For paragraph 122.4A(2)(c), the prosecution will have to prove that the information was made or obtained by that or any other person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

573.           The fault element of recklessness applies to this element.  Therefore, the prosecution will be required to prove beyond reasonable doubt that the person was aware of a substantial risk that the information was made or obtained by that or any other person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

574.           For subparagraph 122.4A(2)(d)(i), the prosecution will have to prove that the information had a security classification.  Security classification is defined in section 90.5, as amended by Amendments 31, 32, and 33.  The reference to information having a security classification of secret or top secret ensures that this offence will only apply where paragraph 90.5(1)(a) applies.  It will not apply to equivalent classifications prescribed under paragraph 90.5(1)(b).

575.           The prosecution will be required to prove that the information had a classification of TOP SECRET or SECRET or an equivalent classification and that the person was reckless as to this. 

576.           Consistent with new subsection 121.1(3), strict liability will apply to some aspects of the definition of security classification .  Paragraph 121.1(3)(a) provides that strict liability applies to the element that a classification is applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying the information mentioned in subparagraph 90.5(1)(a)(i) or (ii).

577.           Strict liability is set out in section 6.1 of the Criminal Code.  The effect of applying strict liability to an element of an offence means that no fault element needs to be proved and the defence of mistake of fact is available.

578.           The defence of mistake of fact is set out in section 9.2 of the Criminal Code.  The defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

·          at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

·          had those facts existed, the conduct would not have constituted an offence.

579.           For subparagraph 122.4A(2)(d)(ii), the prosecution will have to prove that the communication of the information damages the security or defence of Australia.  Unlike the offences apply to current and former Commonwealth officers, the harm to the security or defence of Australia will need to actually occur for the offence to be committed. 

580.           The fault element of recklessness applies to this element.  Therefore, the prosecution will need to prove beyond a reasonable doubt that the person was aware of a substantial risk that the communication of the information damaged the security or defence of Australia and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

581.           For subparagraph 122.4A(2)(d)(iii), the prosecution will have to prove that the communication of the information interferes with or prejudices the prevention, detection, investigation, prosecution of punishment of a criminal offence against a law of the Commonwealth.  Unlike the offences that apply to current and former Commonwealth officers, the interference or prejudice will need to actually occur for the offence to be committed. 

582.           The fault element of recklessness applies to this element.  Therefore, the prosecution will need to prove beyond a reasonable doubt that the person was aware of a substantial risk that the communication of the information interferes with or prejudices the prevention, detection, investigation , prosecution of punishment of a criminal offence against a law of the Commonwealth and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

583.           For subparagraph 122.4A(2)(d)(iv), the prosecution will have to prove that the communication of the information harms or prejudices the health or safety of the Australian public or a section of the Australian public.  Unlike the offences that apply to current and former Commonwealth officers, the harm or prejudice will need to actually occur for the offence to be committed. 

584.           The fault element of recklessness applies to this element.  Therefore, the prosecution will need to prove beyond a reasonable doubt that the person was aware of a substantial risk that the communication of the information harms or prejudices the health or safety of the Australian public or a section of the Australian public and having regard to the circumstances known to the person, it was unjustifiable to take the risk.

585.           The Note under subsection 122.4A(2) clarifies that the fault elements for this offence are intention for paragraph (2)(a) and recklessness for paragraphs (2)(b) to (d).

586.           This Note is being included to implement Recommendation 14 of the PJCIS Report.  It has no practical effect, as section 5.6 of the Criminal Code already applies these as the automatic fault elements.  The inclusion of this Note carries no implication that section 5.6 of the Criminal Code is ineffective in applying the relevant fault elements.  It is intended only to provide clarity to the reader.

587.           This offence will carry a maximum penalty of two years’ imprisonment.  This is less than the penalty applying to the equivalent offences applying to current and former Commonwealth officers, and reflects the serious consequences of dealings with the information covered by the offence, given that it will damage the security or defence of Australia, interfere with criminal justice processes or prejudice the health or safety of the Australian public.

588.           Subsection 122.4A(3) provides that, in proceedings against the offences in subsections 122.4A(1) and (2), it is not necessary for the prosecution to prove the identity of the other person referred to in paragraph (1)(c) or (2)(c).  That is, although the prosecution will need to prove that the i nformation was made or obtained by another person by reason of that other person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity (and that the defendant is reckless as to this), it will not be necessary for the identity of the actual Commonwealth officer who made or obtained to be known or identified in order to establish the offence.

Amendments 128 and 129: Schedule 2, item 6, page 58 (lines 4 and 8)

589.           Amendment 128 replaces the references to ‘Commonwealth officer’ with a reference to ‘public official’ in the heading of the defence at subsection 122.5(1).

590.           The existing wording of new subsection 122.5(1) provides a defence to a prosecution for an offence against Division 122 (secrecy offences) where the person was acting in his or her capacity as a Commonwealth officer , which is exhaustively defined in section 121.1 to mean:

·          an APS employee

·          an individual appointed or employed by the Commonwealth other than under the Public Service Act 1999

·          a member of the Australian Defence Force

·          a member or special member of the Australian Federal Police

·          an officer or employee of a Commonwealth authority

·          an individual who is a contracted service provider for a Commonwealth contract, or

·          an individual who is an officer or employee of a contracted service provider for a Commonwealth contract and who provides services for the purposes (whether direct or indirect) of the Commonwealth contract.

591.           This narrow definition is appropriate as regards the use of the term in the relevant elements of the secrecy offences.  However, it is inappropriately narrow in relation to the defence at subsection 122.5(1) which should be available to all public officials who interact with information covered by the new secrecy offences in Division 122 in their capacity as public officials. 

592.           Amendment 129 will repeal the reference to Commonwealth officer from the defence in section 122.5(1) and replace it with a reference to public official , which is defined in the Dictionary to the Criminal Code, and covers a broader range of officials, including members of either House of the Parliament and state or territory officers.

Amendment 130: Schedule 2, item 6, page 58 (line 11)

593.           This amendment will amend the defence at paragraph 122.5(1)(b) so that it explicitly applies where the person communicated, removed, held or otherwise dealt with information in accordance with an arrangement or agreement to which the Commonwealth or Commonwealth entity is party which allows for the exchange of information.

594.           The existing wording of the defence limited it to dealing with, removing or holding information.  Although ‘communicating information’ forms part of the definition of deals in section 90.1 of the Criminal Code, a reference to communicating information has been included in this defence to ensure absolute clarity about which conduct falls within the defence.

595.           This amendment implements Recommendation 26 of the PJCIS report.

Amendment 131: Schedule 2, item 6, page 58 (lines 15 and 16)

596.           This amendment will amend the Note under subsection 122.5(1), which provides that the defendant may bear an evidentiary burden in relation to elements of this defence (see subsection 13.3). The amendment will direct the reader to see subsection 122.5(12) in addition to subsection 13.3.

597.           New subsection 122.5(12) (which will be inserted by Amendment 150) will provide for circumstances relating to integrity agencies in which certain persons do not bear an evidential burden. 

Amendment 132: Schedule 2, item 6, page 58 (lines 19 and 20)

598.           This amendment will simplify the wording of the defence in subsection 122.5(2) by replacing the reference to ‘the information in relation to which the offence is committed is information that’ with ‘the relevant information’.

Amendment 133: Schedule 2, item 6, page 58 (lines 25 to 27)

599.           This amendment will change the existing heading of subsection 122.5(3) to Information communicated etc. to integrity agency to reflect that, following the amendment made by Amendment 135 (which includes the office of the Australian Information Commissioner as an additional agency to which the defence in subsection 122.5(3) applies), it will not be accurate for the defence to have a heading that refers only to the IGIS, Commonwealth Ombudsman and Law Enforcement Integrity Commissioner.     

Amendment 134: Schedule 2, item 6, page 58 (lines 29 and 30)

600.           This amendment will amend the defence at paragraph 122.5(1)(b) so that it explicitly applies where the person communicated, removed, held or otherwise dealt with information in accordance with an arrangement or agreement to which the Commonwealth or Commonwealth entity is party which allows for the exchange of information.

601.           The existing wording of subsection 122.5(3) is limited to information communicated to an integrity agency. This amendment will ensure that the defence applies to all possible conduct ( communicating , holding, removing or dealing) that could constitute a secrecy offence in Division 122.

602.           This amendment implements Recommendation 26 of the PJCIS report.

Amendment 135: Schedule 2, item 6, page 59 (after line 6)

603.           This amendment amends the defence at subsection 122.5(3) to add a reference to the Australian Information Commissioner, or a staff member of, or consultant engaged by, the Office of the Australian Information Commissioner. The defence at subsection 122.5(3) is currently limited to situations where a person communicates information to the IGIS, the Commonwealth Ombudsman or the Law Enforcement Integrity Commissioner for the purpose of one of those officers exercising a power or performing a function or duty.

604.           This will ensure that the general secrecy offences do not impinge on the ability of the Australian Information Commissioner, or OAIC staff, to exercise their powers, or to perform their functions or duties. These officials are typically entitled to access any information in the course of performing their functions and duties, reflecting the paramount importance of effective oversight of the intelligence community, law enforcement agencies and the public service.

605.           This amendment was suggested by the Australian Information Commissioner in Submission 16.1 to the PJCIS inquiry into the Bill, which stated:

To avoid uncertainty about the intended interaction between the proposed secrecy framework and the oversight functions of my Office, I suggest that the proposed defences in section 122.5 of the Bill should include an express reference to the Information Commissioner.

Amendment 136: Schedule 2, item 6, page 59 (line 11)

606.           This amendment is consequential to Amendment 135 and will include an additional reference to the Australian Information Commissioner in paragraph 122.5(3)(b) to ensure the defence in subsection 122.5(3) applies to the Australian Information Commissioner.

Amendment 137: Schedule 2, item 6, page 59 (lines 15 and 16)

607.           This amendment will amend the Note under subsection 122.5(3), which provides that the defendant may bear an evidentiary burden in relation to elements of this defence (see subsection 13.3). The amendment will direct the reader to see subsection 122.5(12) in addition to subsection 13.3. New subsection 122.5(12) (which will be inserted by Amendment 150 ) will provide for circumstances relating to integrity agencies in which certain persons do not bear an evidential burden. 

Amendment 138: Schedule 2, item 6, page 59 (lines 17 to 24)

608.           This amendment will amend subsection 122.5(4) to extend the defence to situations where a person communicated , removed, held or otherwise dealt with the relevant information for the purpose of communicating it in accordance with Freedom of Information Act 1982 and the Public Interest Disclosure Act 2013 .

609.           Subsection 122.5(4) currently only applies in relation to the PID Act and is limited to situations where a person ‘communicates’ information.

610.           The PJCIS noted (in paragraphs 4.181 and 4.182) that due to the existing defences at subsections 122.5(1) and (2), the Bill would not appear to impede the proper operation of the Freedom of Information Act process. In addition, section 92 of the Freedom of Information Act provides that neither a Minister nor a person giving access to a document or involved in providing access for consultation purposes under the Act is guilty of a criminal offence by reason only of that action. However, the PJCIS recommended that the Bill be amended to make clear the effect of the defences in relation to the Freedom of Information Act.

611.           To ensure absolute clarity, the Freedom of Information Act has been included with the PID Act in subsection 122.5(4).  This puts beyond doubt that requesting, disclosing or receiving information under Freedom of Information Act processes is subject to a defence from the secrecy offences in Division 122. This implements Recommendation 22 of the PJCIS Report.

612.           Expanding the defence at subsection 122.5(4) to cover all dealings with information, rather than just communication of information, implements Recommendation 26 of the PJCIS Report. 

613.           This amendment will also insert a Note under subsection 122.5(4) to clarify that the defendant will bear an evidentiary burden in relation to this defence. The Guide to Framing Commonwealth Offences provides (at paragraph 4.3.1) that it is appropriate for a matter to be included in an offence -specific defence where it is peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.  The defence at subsection 122.5(4) satisfies both of these criteria.  A defendant is likely to be in the best position to easily point to evidence that he or she was requesting information under the Freedom of Information Act or making a PID.  In addition, this is expected to be a rare situation and is unlikely to be a feature of every case that is investigated and referred for prosecution.  It would be unnecessary and significantly costly if the prosecution was required to disprove this for every prosecution of a general secrecy offence.  It is appropriate to include it as a defence and allow the defendant to raise the matter if the facts and circumstances are appropriate.

614.           Consistent with section 13.3 of the Criminal Code, the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. If the defendant discharges an evidential burden, the prosecution must disprove those matters beyond reasonable doubt, consistent with section 13.1 of the Criminal Code.

615.           This amendment will also insert new subsection 122.5(4A) to provide a defence where a person communicates, removes, holds or otherwise deals with information for the primary purpose of reporting, to an appropriate agency of the Commonwealth, a state or a territory:

·          a criminal offence, or alleged criminal offence, against a law of the Commonwealth

·          maladministration relating to the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth, or

·          maladministration relating to the performance of functions of the AFP under the Australian Federal Police Act 1979 or the Proceeds of Crime Act 2002 .

616.           The PJCIS noted (at paragraph 5.102) that:

the definition of ‘cause harm to Australia’s interests’ includes to interfere with or prejudice the prevention, detection, investigation, prosecution and punishment of Commonwealth criminal offences, and other AFP functions under the Australian Federal Police Act 1979 and the Proceeds of Crimes Act 2002 . As a result, proposed subsection 122.5(8) may not protect a person who wished to report misconduct or maladministration in, for example, the investigation of a Commonwealth criminal offence, as it would be difficult for that person to claim that their reporting of the wrongdoing did not interfere with the investigation.

617.           The defence proposed in new subsection 122.4A would explicitly protect a person who communicated, removed, held or otherwise dealt with information for the purpose of reporting a Commonwealth criminal offence or reporting maladministration regarding the administration of Commonwealth criminal law, or relating to the AFP’s functions.

618.           This defence will cover the situations identified in paragraph 5.103 of the PJCIS report:

This may include, for example, a member of the public reporting misconduct by a police officer to a more senior officer in the same police force; or reporting to a state oversight body maladministration in the use of information shared by the Commonwealth to a state police force.

619.           Maladministration is not defined, and is intended to take a broad meaning.  This could include conduct that is corrupt, an abuse of public trust, based in whole or in part on improper motives or is unreasonable, unjust or oppressive.  It would also cover conduct that results in the wastage of Commonwealth property or money or which creates a risk to the health or safety of the Australian public.

620.           This amendment will also insert a Note under subsection 122.5(4A) to clarify that the defendant will bear an evidentiary burden in relation to this defence. The Guide to Framing Commonwealth Offences provides (at paragraph 4.3.1) that it is appropriate for a matter to be included in an offence-specific defence where it is peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.  The defence at subsection 122.5(4A) satisfies both of these criteria.  A defendant is likely to be in the best position to easily point to evidence that he or she was seeking to report a criminal offence or maladministration in the administration of the criminal law.  In addition, this is expected to be a rare situation and is unlikely to be a feature of every case that is investigated and referred for prosecution.  It would be unnecessary and significantly costly if the prosecution was required to disprove this for every prosecution of a general secrecy offence.  It is appropriate to include it as a defence and allow the defendant to raise the matter if the facts and circumstances are appropriate.

621.           Consistent with section 13.3 of the Criminal Code, the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. If the defendant discharges an evidential burden, the prosecution must disprove those matters beyond reasonable doubt, consistent with section 13.1 of the Criminal Code.

622.           This defence implements Recommendation 29 of the PJCIS Report. 

Amendment 139: Schedule 2, item 6, page 59 (line 25)

623.           This amendment changes the heading of subsection 122.5(5) to Information communicated etc. to a court or tribunal to accurately reflect the content of the provision, as amended by Amendment 140, which broadens the defence in subsection 122.5(5) to also apply to information removed, held or otherwise dealt with for the purposes of communicating to a court or tribunal. 

Amendment 140: Schedule 2, item 6, page 59 (lines 27 and 28)

624.           This amendment will broaden the scope of the defence at subsection 122.5(5) to apply where a person communicates, holds, removes, or otherwise deals with information for the purpose of communicating it to a court or tribunal. The existing wording of subsection 122.5(5) is limited to information communicated to a court or tribunal. This amendment will ensure that the defence applies to all possible conduct (communicating, holding, removing or dealing) that could constitute a secrecy offence in Division 122.

625.           This implements Recommendation 26 of the PJCIS report.

Amendment 141: Schedule 2, item 6, page 59 (after line 31)

626.           This amendment will insert new subsection 122.5(5A), which provides a defence to a prosecution for an offence against Division 122 (secrecy offences) where information is communicated, removed, held or otherwise dealt with for the primary purpose of obtaining or providing, in good faith, legal advice. The legal advice must relate to the conduct constituting an offence against Part 5.6 (Secrecy of information) or the application of any right, privilege, immunity or defence in relation to such an offence. The defence does not have to be contained in Part 5.6 (Secrecy of information). For example, it could be the general defence lawful authority as set out in section 10.5 of the Criminal Code.

627.           The defence applies whether the advice was obtained or provided before or after the person engaged in the conduct constituting the offence.  This will ensure that a person can disclose sensitive material to his or her lawyer for the purpose of obtaining legal advice on whether an offence may be committed by the person’s proposed conduct in relation to the material or whether an offence has been committed by the person’s conduct already carried out. The provision is also intended protect lawyers, who may need to deal with or hold the information in the course of providing legal advice.

628.           This amendment will also insert a Note under subsection 122.5(5A) to clarify that the defendant will bear an evidentiary burden in relation to this defence. The Guide to Framing Commonwealth Offences provides (at paragraph 4.3.1) that it is appropriate for a matter to be included in an offence-specific defence where it is peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.  The defence at subsection 122.5(5A) satisfies both of these criteria.  A defendant is likely to be in the best position to easily point to evidence that he or she was obtaining or providing legal advice.  In addition, this is expected to be a rare situation and is unlikely to be a feature of every case that is investigated and referred for prosecution.  It would be unnecessary and significantly costly if the prosecution was required to disprove this for every prosecution of a general secrecy offence. It is appropriate to include it as a defence and allow the defendant to raise the matter if the facts and circumstances are appropriate.

629.           Consistent with section 13.3 of the Criminal Code, the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. If the defendant discharges an evidential burden, the prosecution must disprove those matters beyond reasonable doubt.

630.           This amendment implements Recommendation 30 of the PJCIS report.

Amendment 142: Schedule 2, item 6, page 60 (lines 1 to 27)

631.           This amendment will strengthen the defence at subsection 122.5(6) for persons engaged in reporting news.

632.           The scope of the defence at section 122.5(6) will be broadened to apply to a person who communicated, removed, held or dealt with the information in his or her capacity as a person engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media. This replaces the previous reference in the defence to ‘a journalist’ which was not sufficiently broad to cover the range of other staff, including legal, editorial and other administrative support staff, engaged in news reporting in media organisations. A person is engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media even if the person only performs administrative functions such as photocopying. 

633.           This is consistent with the amendments requested by the Joint Media Organisations in Submission 9.2 to the PJCIS inquiry.

634.           The defence will also be amended to remove the reference to ‘fair and accurate reporting’. The defence will be available where the person reasonably believed that dealing with or holding the information was in the public interest. Subsection 122.5(7) places a small number of limitations on the defence at subsection 122.5(6).

635.           The defence will contain an additional limb applying to administrative staff of an entity that was engaged in reporting news, presenting current affairs or expressing editorial or other content in news media who acted under the direction of a journalist, editor or lawyer who reasonably believed that dealing with or holding the information was in the public interest. This will ensure that any member of the administrative staff is protected if he or she acted under the direction of another person.  This is consistent with the amendments requested by the Joint Media Organisations in Submission 9.2 to the PJCIS inquiry.

636.           This amendment will also insert a Note under subsection 122.5(6) to clarify that the defendant will bear an evidentiary burden in relation to this defence. The Guide to Framing Commonwealth Offences provides (at paragraph 4.3.1) that it is appropriate for a matter to be included in an offence-specific defence where it is peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.  The defence at subsection 122.5(6) satisfies both of these criteria.  A defendant is likely to be in the best position to easily point to evidence that he or she was engaged in reporting news and reasonably believed that engaging in the conduct was in the public interest.  In addition, this is expected to be a rare situation and is unlikely to be a feature of every case that is investigated and referred for prosecution.  It would be unnecessary and significantly costly if the prosecution was required to disprove this for every prosecution of a general secrecy offence. It is appropriate to include it as a defence and allow the defendant to raise the matter if the facts and circumstances are appropriate.

637.           Consistent with section 13.3 of the Criminal Code, the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. If the defendant discharges an evidential burden, the prosecution must disprove those matters beyond reasonable doubt, consistent with section 13.1 of the Criminal Code.

638.           This amendment will also amend subsection 122.5(7), which provides for the circumstances in which a person may not reasonably believe that their conduct is in the public interest.  Subsection 122.5(7) provides that, without limiting paragraph (6)(a) or (b), a person may not reasonably believe that communicating, removing, holding or otherwise dealing with information is in the public interest if:

·          engaging in that conduct would be an offence under section 92 of the ASIO Act—which protects the identity of ASIO employees and ASIO affiliates

·          engaging in that conduct would be an offence under section 41 of the Intelligence Services Act 2001 —which protects the identity of the staff and agents of the Australian Secret Intelligence Service

·          engaging in that conduct would be an offence under section 22, 22A or 22B of the Witness Protection Act 1994 - which protects the identity of Commonwealth, Territory, State participants or information about the National Witness Protection Program, or

·          the conduct was engaged in for the purpose of directly or indirectly assisting a foreign intelligence agency (as defined in the Dictionary to the Criminal Code, as amended by item 24 of Schedule 1 of the Bill) or a foreign military organisation (as defined by Amendment 86).

639.           Consistent with Recommendation 28 of the PJCIS Report, subsection 122.5(7) has been amended to remove reference to conduct that will, or is likely to, harm or prejudice the health or safety of the Australian public or a section of the Australian public.

640.           These amendments also implement Recommendation 27 of the PJCIS report.

Amendment 143: Schedule 2, item 6, page 60 (line 30)

641.           This amendment will remove the reference to ‘relating to the communication of information’ in subsection 122.5(8) to accommodate Amendment 145, which, consistent with Recommendation 26 of the PJCIS report, broadens the defence at subsection 122.5(8) to explicitly cover communicating, holding, removing, or dealing with information. 

Amendment 144: Schedule 2, item 6, page 60 (line 31)

642.           This amendment will substitute the reference to ‘the information’ with ‘the relevant information’ as a consequence of Amendment 143, which removes the preceding description of the information. 

Amendment 145: Schedule 2, item 6, page 61 (lines 8 and 9)

643.           This amendment will broaden the scope of the defence at subsection 122.5(8) to apply where the person communicates, or holds, removes, or otherwise deals with information that has previously been communicated to the public. The existing wording of subsection 122.5(8) is limited to the communication of information already communicated to the public. This amendment will ensure that the defence applies to all possible conduct (communicating, holding, removing or dealing) that could constitute a secrecy offence in Division 122.

644.           This implements Recommendation 26 of the PJCIS report.

Amendment 146: Schedule 2, item 6, page 61 (line 17)

645.           This amendment will remove the reference to ‘relating to dealing with information’ in subsection 122.5(9) to accommodate Amendments 148 and 149, which, consistent with Recommendation 26 of the PJCIS report, broadens the defence at subsection 122.5(9) to explicitly cover communicating, holding, removing, or dealing with information. 

Amendment 147: Schedule 2, item 6, page 61 (line 18)

646.           This amendment will substitute the reference to ‘the information’ with ‘the relevant information’ as a consequence of Amendment 146, which removes the preceding description of the information. 

Amendments 148 and 149: Schedule 2, item 6, page 61 (line 27) and page 62 (line 1)

647.           These amendments will broaden the scope of the defence at subsection 122.5(9) to apply where the person communicates, or holds, removes, or otherwise deals with information in the specified circumstances. The existing wording of subsection 122.5(9) is limited to dealing with the information. This amendment will ensure that the defence applies to all possible conduct (communicating, holding, removing or dealing) that could constitute a secrecy offence in Division 122.

648.           This implements Recommendation 26 of the PJCIS report.

Amendment 150: Schedule 2, item 6, page 62 (after line 6)

649.           This amendment will insert a new subsection 122.5(11) which provides that for the purpose of the defences in subsections 122.5(3), (4), (5) or (5A), it is not necessary to prove in relation to information that was held, removed, or otherwise dealt with for the purposes of communicating the information that the information was actually communicated. The defendant, in seeking to rely on a defence in subsection 122.5(3), (4) or (5), is not required to prove the ultimate communication.    

650.           This amendment will also insert a new subsection 122.5(12) to provide that employees and officials of integrity agencies covered by subsection 122.5(3) (the Inspector-General of Intelligence and Security, the Commonwealth Ombudsman, the Law Enforcement Integrity Commissioner, and the Australian Information Commissioner) do not bear an evidential burden to prove:

·            in relation to the defence at subsection 122.5(1)—that the relevant conduct was an exercise of a power, or the performance of a function or duty, in the integrity official’s capacity as a Commonwealth officer or in accordance with a Commonwealth agreement or arrangement.

·            in relation to the defence at subsection 122.5(3)—that the person to whom the information was, or intended to be, communicated was an integrity official or that the relevant conduct was undertaken for the purpose of the integrity agency exercising a power, or performing a function or duty, and

·            in relation to the defence at subsection 122.5(4)—that the relevant conduct was in accordance with the Public Interest Disclosure Act 2013 .

651.           This is because each of these integrity agencies are generally prohibited from disclosing to a court any information acquired by reason of holding that office, as outlined in the following legislation:

·            section 34 of the Inspector-General of Intelligence and Security Act 1986

·            section 211 of the Law Enforcement Integrity Commissioner Act 2006 , and

·            section 35 of the Ombudsman Act 1976 .

652.           A similar limitation can be found in section 29 of the Australian Information Commissioner Act 2010

653.           This amendment implements Recommendation 25 of the PJCIS report.

Amendment 151: Schedule 2, item 6, page 63 (after line 9)

654.           This amendment will include a new section 123.4 to clarify that the offences and defences in Part 5.6 (Secrecy of information) do not affect any other right, privilege, immunity or defence in other legislation. This implements Recommendation 31 of the PJCIS report and applies to any rights, immunities or defences that exist outside of Part 5.6.  This includes the obligations and immunities listed in Recommendation 31:

·            Freedom of Information Act 1982

·            Privacy Act 1988

·            Ombudsman Act 1976

·            Inspector-General of Intelligence and Security Act 1986 , and

·            Public Interest Disclosure Act 2013.

655.           This amendment will further include a new section 123.5 to provide that proceedings for the commitment of a person for trial for an offence against Part 5.6 (Secrecy of information) must not be instituted without the written consent of the Attorney-General.

656.           The Attorney -General’s consent is commonly required to commence proceedings that could affect Australia’s international relations or national security. These are considerations that the CDPP is not able to take into account under the Prosecution Policy of the Commonwealth .

657.           Paragraph 123 .5(1)(a) requires the Attorney-General to provide written consent before proceedings for the commitment of a person for trial for an offence against Part 5.6 can be commenced.  This provides the Attorney-General opportunity to receive advice from relevant agencies and other Ministers on sensitivities that might arise if proceedings are commenced for offences under Part 5.6, and provides opportunity for consideration of whether the prosecution could be detrimental to Australia’s foreign relations and national security.

658.           Consistent with paragraph 123.5(1)(b), proceedings that relate to security classified information (as defined in section 121.1) must also not be initiated unless the Attorney-General has certified that, at the time of the conduct that is alleged to constitute the offence, it was appropriate that the information had a security classification. This will ensure that a person is safeguarded from prosecution for an offence relating to information classified secret or top secret if the classification was not appropriate at the time the person committed the offence. For example, a document may have been created many years ago, when it appropriately carried a classification of TOP SECRET but given the passage of time the document may now not be sensitive and may be unclassified. In these circumstances, certification could not be given. 

659.           As long as a classification of either SECRET or TOP SECRET is appropriate, the Attorney-General will be able to give a certification under paragraph 123.5(1)(b).  For example, if a document was classified as TOP SECRET two years ago, but now appropriately carries a classification of SECRET, the Attorney-General will be able to give the certification. 

660.           This amendment implements Recommendation 10 of the PJCIS report.  Although the PJCIS recommended that the head of the originating agency given the relevant certification, it is not considered appropriate to require the CDPP to see certification from an agency head as well as consent to prosecute from the Attorney-General.  It is more administratively efficient to combine the two processes.  The Attorney-General will need to receive briefing from the originating agency about the appropriate level of security classification that should be applied to the information. 

661.           Subsection 123.5(2) clarifies that the following steps can be taken towards preparing for proceedings, without the written consent of the Attorney-General having been given:

·           a person may be arrested for the offence and a warrant for such an arrest may be issued and executed

·           a person may be charged with the offence, and

·           a person so charged may be remanded in custody or on bail.

662.           Subsection 123.5(3) provides that nothing in subsection 123.5(2) prevents the discharge of the accused if proceedings are not continued within a reasonable time. Australian common law recognises that a prosecution may be stayed where there is undue delay, to protect Australia’s justice system from abuse of processes. The right to stay a prosecution also supports the Court’s role in providing procedural fairness to a defendant, and helps maintain public confidence in the administration of justice. It is therefore appropriate that subsection 123.5(3) specify that the steps towards commencing proceedings as described at subsection 123.5(2) do not prevent the discharge of the accused if proceedings are not continued within a reasonable time.

663.           Subsection 123.5(4) provides that the Attorney-General must consider whether the conduct constituting an offence against Part 5.6 of the Criminal Code might be authorised in a way mentioned in subsection 122.5.

664.           Subsection 122.5 provides defences to offences against Part 5.6.  Therefore, the effect of subsection 123.5(4) is to ensure that the Attorney-General consider whether an accused’s conduct might be authorised as described in a defence when considering whether to provide consent to prosecute.

665.           This amendment implements Recommendation 33 of the PJCIS Report.

Amendment 152: Schedule 2, item 11, page 64 (lines 15 to 17)

666.             This amendment will remove Item 11 of Part 2 of Schedule 2 of the Bill, which currently includes Part 5.6 of the Criminal Code (secrecy of information) in the definition of ‘national security offence’ in the Australian Citizenship Act 2007 . This inclusion would require the Minister of Home Affairs to refuse a citizenship application if the person has been convicted of a Part 5.6 secrecy offence. That amendment will no longer be pursued to minimise any risk of inconsistency with Australia’s obligations under the 1961 Convention on the Reduction of Statelessness , which provides that member states shall grant nationality to a person  who would otherwise be stateless if, among other conditions, the person has not been convicted of an offence against national security.

667.           There is a risk that some of the secrecy offences in Part 5.6 of the Criminal Code may not be sufficiently connected to national security and therefore risk inconsistency with Australia’s obligations under the Statelessness Convention. For example , section 122.2 makes it a secrecy offence to engage in conduct causing harm to Australia’s interests, which is defined to include outcomes that do not all necessarily relate to national security, for example interfering with a criminal prosecution.    

668.           This amendment implements Recommendation 54 of the PJCIS report.

Amendment 153: Schedule 5, item 5, page 75 (lines 2 to 5)

669.           This amendment will substitute the reference to ‘relationship with foreign principals within the meaning of paragraph (a), (b) or (c) of the definition of foreign principal in section 10, or with bodies controlled by such foreign principals’ with ‘relationships with foreign principals’ in new subparagraph 12(7)(a)(vi) of the Foreign Influence Transparency Scheme Act.

670.           The Foreign Influence Transparency Scheme Act 2017 will be amended to limit  the definition of foreign principal in section 10 of the Act to foreign governments, foreign political organisations, foreign government related entities and foreign government related individuals.  These amendments will remove the term ‘foreign public enterprise’ from the definition of foreign principal at paragraph (b) and remove foreign businesses and individuals from the definition at paragraphs (d) and (e).

671.           Item 5 of Schedule 5 currently applies to processes in relation to a political campaigner’s relationship with foreign principals that were foreign governments, foreign public enterprises or foreign political organisations, or with bodies controlled by such foreign principals.

672.           The effect of this amendment is that subparagraph 12(7)(a)(vi) will now apply to each of the foreign principals listed in the definition of foreign principal at section 10 of the Foreign Influence Transparency Scheme Act, making it unnecessary to specify specific subsections of the definition of foreign principal in this subparagraph.

Amendment 154: Page 75 (after line 11)

673.           This amendment will insert new section 34B in the Inspector-General of Intelligence and Security Act 1986 . This section will confer immunity from liability to penalty on people who voluntarily provide or make available information or documents to the IGIS, for the purpose of the IGIS performing oversight functions under the IGIS Act. The new section is intended to ensure that people who provide information or documents to the IGIS on a voluntary basis have equivalent legal protections to those available under the Public Interest Disclosure Act 2013 for people who make, investigate or assist in the investigation of public interest disclosures including PIDs that are made to, or are investigated by, the IGIS. 

674.           This amendment implements Recommendation 32 of the PJCIS report.

675.            The new section has been inserted to address issues identified during the PJCIS inquiry into the Bill relating to the potential effect of section 122.1 of the Criminal Code (inserted by Schedule 2 to the Bill) on persons who voluntarily disclose security classified information to the IGIS.  New section 34B of the IGIS Act is directed at ensuring that the secrecy offences in Schedule 2 do not create a disincentive for people coming forward to the IGIS with information about suspected or perceived wrongdoing by an intelligence agency, as a result of their being wholly reliant on a defence.  It will ensure that people who voluntarily provide information to the IGIS will have equal legal protection to those who do so under compulsion in an inquiry and are covered by the immunity in existing subsection 18(9).

676.           The new immunity provision of the IGIS Act will complement new section 123.4 of the Criminal Code, which will be inserted by Amendment 151.  New section 123.4 of the Criminal Code will have the effect that nothing in new Part 5.6 of the Criminal Code (including the offences in Division 122) is to be taken to limit or affect the immunities in the IGIS Act, which will include new section 34B of the latter Act.

677.           New subsection 34B(1) outlines the circumstances in which the immunity from liability to penalty will apply. Namely, it applies if a person voluntarily provides or makes available information or documents to the IGIS, for the purpose of the IGIS performing any of the oversight functions under the IGIS Act that are specified in paragraphs 34B(1)(a)-(d).  These cover all of the oversight functions under the IGIS Act, namely:

·           the making of complaints to the IGIS

·           the conduct by the IGIS of preliminary inquiries into complaints to determine whether to conduct an inquiry into those matters

·           the conduct by the IGIS of inquiries, and

·           the conduct by the IGIS of inspections of intelligence agencies.

678.           The use of the word voluntarily in this provision is intended to denote the provision of information or documents other than under compulsion as a result of the exercise by the IGIS of coercive information-gathering powers in an inquiry under section 18 of the IGIS Act. It is intended to cover the provision of information or documents on an unsolicited basis, such as the making of a complaint by a person, or a pro-active disclosure by a member of an intelligence agency in the course of an inspection or inquiry. It is also intended to cover the provision of information or documents to the IGIS in an inquiry in response to a simple request rather than a formal notice to produce under section 18 of the IGIS Act.

679.           The word provides is intended to cover those circumstances in which a person gives (in the sense of providing or delivering) documents or information to the IGIS. For example, hand-delivering or emailing documents. 

680.           The phrase makes available is intended to cover those circumstances in which a person or an agency gives the IGIS access to its records (physical and electronic) in order for the IGIS to conduct a search of those holdings and extract relevant documents or information. In particular, this is intended to cover the actions of members of intelligence agencies who give IGIS officials access to their analytical and other electronic record-keeping systems for the purpose of the IGIS performing oversight functions in relation to that agency.

681.           The provision applies to persons who provide or make available information or documents to the IGIS, for the purpose of the IGIS performing the specified oversight functions in subsection 34B(1). There will be a question of fact, in individual cases, as to whether a person provided or made available the relevant information or documents for that purpose. If there is evidence suggesting that a person acted in bad faith or with a malicious intent in giving or making available the information or documents to the IGIS, this will be material to the availability or otherwise of the immunity.

682.           Subsection 34B(2) confers the immunity from liability to penalty, in relation to the conduct covered by subsection 34B(1). It provides that a person is not liable to a penalty under any other law of the Commonwealth for providing or making available the information or documents.  This is subject to the exception at subsection 34B(3) (below).

683.           The immunity is intended to cover all forms of criminal, civil and administrative penalty.  Importantly, the immunity only applies to a person’s conduct in providing or making available the information or documents to the IGIS.  If a person engaged in unlawful conduct to obtain that information or those documents, the immunity in the IGIS Act would not extend to that conduct.  Similarly, if the person provided the information or documents to a person in addition to the IGIS, the immunity in the IGIS Act would not extend to that conduct.  In both instances, the person would be exposed to liability to criminal, civil or administrative penalties in relation to that conduct, and would be separately reliant on defences or exceptions that may be available.  This is consistent with the scope of immunities from liability currently conferred by the PID Act.

684.           Subsection 34B (3) provides two main exceptions from the immunity from liability in subsection 34B(2), which are analogous to those currently in the PID Act.

685.           The first exception is in paragraph 34B(3)(a).  It provides that the immunity from penalty is not available in relation to proceedings for an offence under certain provisions of the Criminal Code and Crimes Act that relate to the provision of false or misleading information and use of fraudulent documents, the obstruction of Commonwealth officials, offences relating to evidence and witnesses, and preparatory and ancillary offences to the above.  This is intended to ensure that people who voluntarily provide information to the IGIS with the intention of obstructing or frustrating the conduct of an oversight activity (for example, by deliberately giving false or misleading information or forged documents to the IGIS) are not entitled to shelter behind an immunity in relation to that conduct.

686.           The second exception is in paragraph 34B(3)(b).  It replicates similar provisions in sections 24 and 75 of the PID Act.  Its effect is to provide an explicit statement of the legislative intention that the immunity from liability in subsection 34B(2) is intended to have effect over all other provisions of Commonwealth laws (such as secrecy offences) that were enacted before the commencement of the new section, and all provisions enacted after the commencement of the section unless those future provisions are expressed to have effect despite new section 34B.  

687.           For the avoidance of doubt, paragraph 34B(3)(b) does not purport to oust or fetter the Parliament’s power to legislate in respect of these provisions in later enactments.  Rather, it is intended to make clear that the protection given in subsection 34B(2) should not be affected unless there is a clear expression of legislative intention to do so.  This intention would be taken into account by a court in determining whether new section 34B of the IGIS Act and a provision of a later Commonwealth law were capable of operating together, or were actually inconsistent. 



ATTACHMENT A

 

Parliamentary Amendments in Response to:

Parliamentary Joint Committee on Intelligence and Security

Advisory Report on the

National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017

(Report tabled 7 June 2018)

Recommendation

Parliamentary amendments

1. Passage of the Bill

The Committee recommends that, following implementation of the recommendations in this report, the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 be passed.

Not applicable.

Definitions

2. Prejudice to national security

The Committee recommends that the Bill be amended to clarify that, for the purpose of the Bill’s espionage, foreign interference and sabotage offences, the expression ‘prejudice to national security’ cannot consist of embarrassment alone, and must also include a degree of damage or harm.

Amendment 6.

3. Advantaging the national security of a foreign country

The Committee recommends that the Bill be amended to reflect the intent of the Explanatory Memorandum that the term ‘advantaging the national security of a foreign country’, does not apply to conduct that is mutually advantageous to the security of both Australia and a foreign country.

Amendment 22. 

The definition will require the conduct to advantage Australia’s national security to an equivalent extent.

4. Meaning of ‘Espionage’, ‘sabotage’, ‘political violence’ and ‘foreign interference’

The Committee recommends that the Explanatory Memorandum be amended to provide greater clarity about the intended meaning of the terms, ‘espionage’, ‘sabotage’, ‘political violence’ and ‘foreign interference’ for the purposes of the definition of national security at proposed section 90.4.

Not applicable.

5. ASIO Act

The Committee recommends that the Bill be amended to clarify that the Bill does not affect the operation of existing provision in the ASIO Act, unless explicitly stated.

Amendments 2, 7, 11, and 34.

6. Foreign political organisation

The Committee recommends that the Bill be amended to define what foreign political organisation may be covered by the term ‘foreign political organisation’.

Amendment 24.

7.  Australian Government security clearance

The Committee recommends that the Bill be amended to define the meaning of ‘Australian Government security clearance’.

Amendment 69.

Security Classifications

8. Security classification - definition and regulations

The Committee recommends that the Bill be amended to define each ‘security classification’ to which criminal liability attaches. Each definition should include harm-based statutory criteria to determine proper classification to apply to that information. Any material incorporated by reference into the regulations should be required to be publically available.

Amendments 31 and 33.

9. Security classification and strict liability

The Committee recommends implementation of the Attorney-General’s proposed amendments to

·          narrow the proposed definition of ‘security classification’ to a classification of SECRET or TOP SECRET

·          remove strict liability from espionage and secrecy offences

Amendments 31, 38, 42, 53, 89, 109, and 124.

Strict liability will not apply to the definition of ‘security classification’ to the extent that the definition relates to the information carrying a classification of SECRET or TOP SECRET.  The prosecution will need to prove that the defendant was reckless as to this.  Strict liability will apply to other aspects of the definition, which are technical matters and not relevant to the defendant’s culpability.

Evidentiary certificates

10. Certification of security classification

The Committee recommends that the Bill be amended to require that, prior to initiating proceedings for an espionage or secrecy offence that relies on the fact that information is security classified, the head of the originating agency must certify that it is appropriate that the information had a security classification at the time of the conduct that is alleged to constitute the offence. This certificate should operate as a condition precedent to the initiation of proceedings. The certificate should not have any evidentiary effect.

Amendments 62 and 151.

The Attorney-General will be responsible for providing this certification as part of the consent to prosecute process.  The Attorney-General will receive advice from the originating agency to inform this decision.

11. Evidentiary certificate regimes - security classified information

The Committee recommends that the Bill be amended to remove the evidentiary certificate regimes in proposed section 93.3 (1)(a)-(b) and 121.3, in relation to security classified information.

Amendments 66 and 93.

12. Evidentiary certificate regimes -concerns national security

The Committee recommends that the Bill be amended to remove the evidentiary certificate regimes in proposed section 93.3 (1)(c)-(d) in relation to information that ‘concerns Australia’s national security’. 

Amendment 66.

 

 

Prepatory offences

13. Guide to Framing Commonwealth Offences

The Committee recommends that the Government amend the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers to identify criteria to be used for determining the kinds of criminal conduct that warrant preparatory offences.

Not applicable.

Secrecy

14. Secrecy offences - intention and recklessness

The Committee recommends that the Bill include a note making explicit that the secrecy offences relating to security classified information and other ‘inherently harmful information’ will only apply where a person intentionally deals with the relevant information, and where the person reckless as to the nature of that information.                                     

Amendments 97, 100, 103, and 107.

15.  Scope of section 122.1

The Committee recommends that the Attorney-General’s proposed amendments to narrow the scope of the offences at proposed section 122.1 in relation to ‘inherently harmful information’ be implemented. This includes removing paragraph (d) from the definition of ‘inherently harmful information’, removing strict liability from elements of the offences, and limiting the offence to Commonwealth officers.

Amendments 88, 95, 99, 102, 106, 109, 111, 113, 115, 117, and 124.

Strict liability will not apply to the definition of ‘security classification’ to the extent that the definition relates to the information carrying a classification of SECRET or TOP SECRET.  The prosecution will need to prove that the defendant was reckless as to this.  Strict liability will apply to other aspects of the definition, which are technical matters and not relevant to the defendant’s culpability.

16.  Inherently harmful information

The Committee recommends that the Bill be amended to move paragraph (b) - information the communication of which would, or could be reasonable expected to, damage the security or defence of Australia - from the definition of ‘inherently harmful information’ into the definition of cause harm to Australia’s interest’ in proposed section 121.1.

Amendments 82 and 87.

17.  Scope of section 122.2

The Committee recommends that the Attorney-General’s proposed amendments to narrow the scope of the offences at proposed section 122.2 in relation to conduct causing harm to Australia’s interests be implemented. This includes removing paragraphs (a)(ii), (d) and (e) from the definition of ‘cause harm to Australia’s interest’, clarifying that paragraph (f) applies to the health or safety of the Australian public, or a section of the Australian public, and limiting the offences to Commonwealth officers.

Amendments 78, 79, 80, and 81.

18.  Regulations prescribing ‘proper place of custody’

The Committee recommends that the Bill be amended to require that any material incorporated into regulations for the purpose of the definition of ‘proper place of custody’ at proposed section 121.2 be publically available.

Amendment 92.

19.  Scope of section 122.1(4)

The Committee recommends that the Bill be amended to limit the secrecy offence at proposed section 122.1(4), in relation to failing to comply with a lawful direction, to directions that have been issued for the purpose of protecting the security of the ‘inherently harmful information’ against unauthorised access or disclosure.

Amendment 105.

The scope of section 122.1(4) has been narrowed to apply where the failure to comply with a direction results in a risk to security .

20.  Aggravating factor - holds security clearance

The Committee recommends that the Bill be amended to limit the aggravating factor at subparagraph 122.3(1)(b)(v), in relation to the proposed secrecy offences for Commonwealth officers, to persons holding an Australian Government security clearance that allows the person to access information with a classification of SECRET or above.

Amendment 121.

21.  Secrecy offence for non-Commonwealth officers

The Committee recommends that the Attorney-General’s proposed amendments, to create separate secrecy offences that apply to non-Commonwealth officers that are narrower in scope than those applying to Commonwealth officers, be implemented.

Amendment 127.

22.  Section 122.5 defence and FOI Act

The Committee recommends that the Bill be amended to make clear the effect of the defence in subsection 122.5(1) and (2) in relation to the Freedom of Information Act 1982.

Amendment 138. 

A new defence specifically covering the Freedom of Information Act 1982 has been created at subsection 122.5(4) rather than amending subsections 122.5(1) and (2).

23.  Sunset period on section 122.4

The Committee recommends that the Bill be amended to apply a sunset period of five years to proposed section 122.4 (‘Unauthorised disclosure of information by current and former Commonwealth officers etc’)

Amendment 126.

24.  Review of existing secrecy offences in other legislation

The Committee recommends that, following the passage of the general secrecy offences in Schedule 2 to the Bill, the Attorney-General initiate a review of existing secrecy offences contained in other legislation, taking into account the set of principles contained in the Australian Law Reform Commission’s report, Secrecy Laws and Open Government in Australia.

Not applicable.

25.  Protections for IGIS

The Committee recommends that the Bill be amended to ensure that staff of the Inspector-General of Intelligence and Security are appropriately protected, noting the limitations on the Inspector-General and members of staff of the Inspector-General giving evidence under the Inspector-General of Intelligence and Security Act 1986 . The Committee recommends that this amendment be developed in consultation with the Inspector-General and her Office.

Amendment 150.

The Inspector-General of Intelligence and Security and her Office were consulted and have agreed to these amendments.

26.  Defences in section 122.5

The Committee recommends that the following proposed defence be broadened to cover all dealings with information, rather than being limited to communication of information:

·          proposed section 122.5(3) - relating to the Inspector-General of Intelligence and Security, the Commonwealth Ombudsman and the Law Enforcement Integrity Commissioner

·          proposed section 122.5(4) - relating the Public Interest Disclosure Act 2013

·          proposed section 122.5(5) - relating to information provided to a court or tribunal, and

·          propose section 122.5(8) - relating to information that has been previously communicated.

Amendments 130, 134, 138, 140, 143, 145, 148, and 149.

27.  Defence for journalists

The Committee recommends that the Attorney-General’s proposed amendments to the defence for journalists at proposed section 122.5(6), and the associated amendments at 122.5(7), be implemented. This includes expanding the defence to all persons engaged in reporting news, presenting current affairs or expressing editorial content in news media where the person reasonably believed that dealing with or holding the information was in the public interests.

The Committee also recommends that the Government consider further refinements to the propose defence in order to

·          make explicit the editorial support staff are covered by the defence, including legal advisors and administrative staff,

·          ensure editorial staff and lawyers, who are engaging with the substance of the information, be required to hold a reasonable belief that their conduct is in the public interest, and

·          allow administrative support staff working at the direction of a journalist, editor or lawyer who holds the reasonable belief, to benefit from the defence.

Amendment 142.

28.  Defence for journalists

The Committee recommends that the Bill be amended to remove proposed paragraph 122.5(7)(d), which currently limits the availability of the defence for persons engaged in reporting news.

Amendment 142.

29.  Defence for reporting maladministration in Commonwealth criminal proceedings

The Committee recommends that the Bill be amended to provide for a defence for a person who reports, to an appropriate entity, malpractice or maladministration in the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth or the functions of the Australian Federal Police under paragraph 8(1)(be) of the Australian Federal Police Act 1979 or the Proceeds of Crimes Act 2002 .

Amendment 138. 

This defence (at subsection 122.5(4A)) has been broadened to also cover persons who are dealing with information for the purpose of reporting an alleged crime against a law of the Commonwealth.

30.  Defence for obtaining legal advice

The Committee recommends that the Bill be amended to include a defence for dealing with information for the purpose of obtaining legal advice.

Amendment 141.

31.  Obligations and immunities

The Committee recommends that the Bill be amended to clarify that the secrecy offences in Schedule 2 do no override the obligations and immunities included in the:

·          Freedom of Information Act 1982,

·          Privacy Act 1988,

·          Ombudsman Act 1976,

·          Inspector-General of Intelligence and Security Act 1986, or

·          Public Interest Disclosure Act 2013.

Amendment 151.

The legislation listed in the recommendation does not need to be specifically included in the provision, which applies to any other right, privilege, immunity or defence.

32 . Information provided to IGIS - statutory immunity

The Committee recommends that the Inspector-General of Intelligence and Security Act 1986 be amended to extend statutory immunity to persons who voluntarily provide information to the Inspector-General or her office.

Amendment 154.

33. Consent to prosecute 

The Committee recommends that Bill be amended to require the Attorney-General’s consent for a prosecution under the proposed secrecy offences in Division 122 of the Bill. In deciding whether to consent, the Attorney-General should be required to consider whether the conduct might have been authorised or is otherwise covered by an exception under any of the proposed defence in the Division.

Amendment 151.

34. Reduction of penalties

Consistent with recommendations of the Australian Law Reform Commission, the Committee recommends that the Bill be amended to reduce the maximum penalty for the secrecy offences in proposed sections 122.1, 122.2 and 122.4A to seven years’ imprisonment for conduct involving communication of information, and three years’ imprisonment for other dealings.

The maximum penalty for the aggravated secrecy offences in proposed section 122.3 should be ten years’ imprisonment for conduct involving communication of information (consistent with the most serious secrecy offences in the Australian Security Intelligence Organisation Act 1979 and the Intelligence Services Act 2001 ), and five years’ for other dealings.

 

 

 

Amendments 98, 101, 104, 108, 112, 114, 116, 118, 122, and 123.

The penalties for the offences at section 122.4A applying to non-Commonwealth officers have also been reduced to ensure they remain lower than the penalties applying to current and former Commonwealth officers.

Espionage

35. Definition of ‘concerns’

The Committee recommends that the Bill be amended to define the term ‘concerns’ national security.

Amendment 22.

36. Definition of ‘make available’

The Committee recommends that the Bill be amended to define the term ‘made available’ for the purpose of the espionage offences.

Amendment 25.

37. Prior publication defence

The Committee recommends that the Bill be amended to introduce a prior publication defence for the proposed espionage offences. The defence should be appropriately drafted to ensure the effectiveness of the provisions whilst protecting freedom of expression and the implied constitutional right to freedom of political communication.

The Bill should further be amended to require that, prior to instituting proceedings to commit a person to trial for an espionage offence, the Attorney-General must consider whether the conduct might be authorised in any of the defence outline in Division 91

Amendments 49 and 64.

 

38. ‘Primary purpose’ of making information available to foreign principal

The Committee recommends that the Attorney-General’s proposed amendments to narrow the scope of the offence in proposed section 91.3 of the Bill be implemented. This includes requiring that the person dealt with the information for the ‘primary purpose’ of making it available to a foreign principal, limiting the offence to information or articles that have a security classification, and removing strict liability from the offence.

Amendment 42.

39. Scope of defences - ‘in accordance with a law of the Commonwealth’

The Committee recommends that the Explanatory memorandum be amended to clarify the intended scope of the proposed defence in Division 91 for dealings ‘in accordance with a law of the Commonwealth’. The Explanatory Memorandum should provide examples of situations in which conduct would be excused by the specific defence, but not the general defence of lawful authority available under section 10.5 of the Criminal Code.

Not applicable.

40. Aggravating factor 91.6(1)(b)(v)

The Committee recommends that the Bill be amended to limit the aggravating factor at subparagraph 91.6(1)(b)(v), in relation to the proposed espionage offences, to persons holding an Australian Government security clearance that allows the person to access information with a classification of SECRET or above.

Amendment 52.

41. Right to freedom of expression

The Committee recommends that the Explanatory Memorandum be amended so that the Statement of Compatibility with Human Rights explicitly addresses the limitation to the right to freedom of expression imposed by the espionage offences.

Not applicable.

Foreign Interference and theft of trade secrets

42. Material support

The Committee recommends that the Bill be amended to explicitly provide that the term ‘support’ refers to ‘material support’, and that the Explanatory Memorandum provide examples of conduct that will not constitute material support, for example,  news reporting, editorial or opinion writing and humanitarian assistance.

Amendment 59.

43. Online theft of trade secrets

The Committee recommends that the Explanatory Memorandum be amended to clarify whether the offence is intended to capture the theft of trade secrets by hacking or other online vectors.

Not applicable.

Sabotage

44. Introducing vulnerability offences

Consistent with the other sabotage offences in the Bill, the Committee recommends that proposed sections 82.7 and 82.8 (introducing vulnerability with intention, or recklessness, as to national security) be amended to remove the following elements:

·          harm or prejudice to Australia’s economic interests,

·          disruption to the functions of the government of the Commonwealth, or a State or of a Territory, and damage to public infrastructure.

Amendments 8 and 9.

45. Defence for private owners of public infrastructure

The Committee recommends that the defence at proposed section 82.10, in relation to the Bill’s sabotage offences, be broadened to include conduct engaged in on behalf of a private owner or operator of infrastructure, in addition to public officials.

Amendment 10.

Treason, treachery and other threats to security

46. Advocating mutiny - definition of ‘advocating’

The Committee recommends that the Bill be amended to define the term ‘advocating’ for the purpose of proposed section 83.1 (advocating mutiny), consistent with other existing offences in the Criminal Code.

Amendment 13.

47. Advocating mutiny - good faith defence

The Committee recommends that the Bill be amended to provide that the ‘good’ faith defence at section 80.3 of the Criminal Code is available for the offence of advocating mutiny.

Amendment 3.

48. Advocating mutiny - consent to prosecute consideration

The Committee recommends that proposed section 83.5(4) ‘Consent of Attorney-General required for prosecutions’ be amended so that, for an offence against section 83.1 (advocating mutiny), the Attorney-General must consider whether conduct might be authorised in a way mentioned in section 80.3.

Amendment 21.

49. Military style training - humanitarian defence

The Committee recommends that proposed section 83.3 (military style training involving foreign government) be amended to provide a defence against prosecution for those engaged in humanitarian work, including compliance training on the laws of armed conflict.

Amendment 17.

50. Interference with political rights and duties - penalty

The Committee recommends that the Government reduce the penalty for the offence of ‘interference with political rights and duties’ at proposed section 83.4 from 10 years’ imprisonment.

Amendment 19.

51. Interference with political rights and duties - contempt of Parliament

The Committee recommends that the Explanatory Memorandum be amended to clarify that nothing in the Bill affects the Parliament’s powers in relation to contempt.

Not applicable.

Schedules 3 - 5 and consequential amendments

52. Telecommunication interception powers

The Committee recommends that the Explanatory Memorandum be amended so that the Statement of Compatibility with Human Rights explicitly addresses the necessity, reasonableness and proportionality of the expansion of telecommunications interceptions powers to all of the offences specified in Schedule 4 of the Bill.

Not applicable.

53. Australian Citizenship Act - section 35A

The Committee recommends that Schedule 1, item 29 of the Bill be amended such that section 35A of the Australia Citizenship Act 2007 applies to the foreign interference offences in the Bill, and does not apply to

·          proposed section 82.9 (preparing for or planning sabotage  offence),

·          proposed section 83.4 (interference with political rights and duties), or

·          proposed Part 5.6 - Secrecy of information

Amendments 71 and 72.

54. Australian Citizenship Act - national security offence

The Committee recommends that the Bill be amended such that the phrase ‘national security offence’ in the Australian Citizenship Act 2007 is limited to those offences which contain a clear nexus to national security.

Amendments 70 and 152.

55. Citizenship amendments and statelessness

The Committee recommends that the Explanatory Memorandum be amended so that the Statement of Compatibility with Human Rights explicitly addresses the interaction between the proposed consequential amendments to citizenship application provisions, and Australia’s international obligations regarding stateless persons.

Not applicable.

56. Presumption against bail

The Committee recommends that the Bill be amended to provide that section 15AA(1) of the Crimes Act 1914 applies to an offence against proposed Division 80, Division 91 and Division 92 of the Criminal Code only if:

·          the death of a person is alleged to have been caused by conduct that is a physical element of the offence, or

·          conduct that is a physical element of the offence carried a substantial risk of causing the death of a person.

Amendment 73.

57. Application of s93.2 Criminal Code - hearing in camera etc.

The Committee recommends that the Explanatory Memorandum for the Bill be amended to clarify the scope and application of section 93.2 of the Criminal Code.

Not applicable.

58. Minimum non-parole periods

The Committee recommends that the Bill be amended to provide that section 19AG of the Crimes Act 1914 , relating to minimum non-parole periods for certain offences, applies to an espionage offence against section 91.1(1) or 91.2(1), rather than all espionage offences in Division 91.

Amendment 74.

Concluding recommendations

59. INSLM Review

The Committee recommends that, after a period of three years, the Independent National Security Legislation Monitor be required to conduct a review of Division 82 (sabotage), Part 5.2 (espionage, foreign interference, theft of trade secrets), and Part 5.6 (secrecy) of the Criminal Code.

 

A copy of the report on the independent review should be provided to the Attorney-General, who should be required to provide it to the Committee. Any amendments proposed to be made to the laws a as a result of the review should be referred to the Committee for inquiry.

Amendment 77.

60. Correction of drafting errors

The Committee recommends that the Attorney-General’s Department review the Bill and Explanatory Memorandum in detail with a view to making amendments to correct any drafting errors prior to the conclusion of debate in the Parliament.

Amendments 18, 47, 48, 50, 54, 55, 56, 57, 58, 61 and 67.