2016 - 2017

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

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

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Attorney-General, Senator the Honourable George Brandis QC)       

 

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

GENERAL OUTLINE

1.                    This Bill amends the Criminal Code Act 1995, Crimes Act 1914 and Telecommunications (Interception and Access) Act 1979 and makes consequential amendments to other legislation.

2.                    Espionage and foreign interference pose significant risks to Australia’s security and defence.  Foreign adversaries are actively working against Australia’s interests through a variety of means, including obtaining classified information or seeking to influence the outcome of Australia’s democratic processes. 

3.                    Activities undertaken by foreign adversaries, and those acting on their behalf, can cause severe harm to Australia’s national security, compromising Australia’s military capabilities and alliance relationships, and can pose a grave threat to Australia’s economic stability and well-being. By wielding undue influence on the Australian political landscape, foreign adversaries have the potential to undermine Australia’s sovereignty and system of government. 

4.                    The Bill will comprehensively reform key offences dealing with threats to national security, particularly those posed by foreign principals.  The Bill:

·          strengthens existing espionage offences

·          introduces new foreign interference offences targeting covert, deceptive or threatening actions by foreign actors who intend to influence Australia’s democratic or government processes or to harm Australia

·          reforms Commonwealth’s secrecy offences, ensuring they appropriately criminalise leaks of harmful information while also protecting freedom of speech

·          introduces comprehensive new sabotage offences that effectively protect critical infrastructure in the modern environment

·          modernises and reforms offences against government, including treason, to better protect Australia’s defence and democracy

·          introduces a new theft of trade secrets offence to protect Australia from economic espionage by foreign government principals,

·          introduces a new aggravated offence for providing false and misleading information in the context of security clearance processes, and

·          ensures law enforcement agencies have access to telecommunications interception powers to investigate these serious offences.

5.                    Schedule 1 amends Part 5.1 of the Criminal Code to modernise Australia’s treason offences.  It will ensure that treason offences appropriately reflect modern terminology related to armed conflict.  The amendments to Part 5.1 will also create a new offence of treachery in the Criminal Code (replacing the existing archaic and antiquated treachery offence in section 24AA of the Crimes Act) that applies where a person seeks to use force or violence to overthrow the Constitution or an Australian government.

6.                    Schedule 1 introduces comprehensive sabotage offences into new Division 82 in Part 5.1 of the Criminal Code, replacing the existing sabotage offence at section 24AB of the Crimes Act, which only protects Defence facilities.  The new sabotage offences will criminalise conduct causing damage to a broad range of critical infrastructure where it could prejudice Australia’s national security.  The offences in new Division 82 will apply higher penalties where sabotage offences are committed on behalf of foreign principals.  New Division 82 will also contain offences that apply where a person’s conduct does not immediately cause damage, but leaves an item or system vulnerable to future misuse or exploitation.

7.                    Schedule 1 introduces new Division 83 into Part 5.1 of the Criminal Code.  Division 83 will modernise and improve the existing offences against government in Part II of the Crimes Act (which will be repealed).  The offences in Division 83 criminalise threats to Australia’s security, including advocating mutiny, assisting prisoners of war to escape and military-style training for a foreign government.  New Division 83 also criminalises the use of force, violence or intimidation to interfere with Australian democratic or political rights.

8.                    Schedule 1 amends Part 5.2 of the Criminal Code to introduce comprehensive new espionage offences in Division 91.  The new offences criminalise a broad range of dealings with information, including possessing or receiving, and protect a broader range of information, including unclassified material.  The current methodology of Australia’s adversaries means that dealings with unclassified information, if accompanied by the requisite intention to harm Australia, can be as damaging as the passage of classified information.  The new offences will not just target the person who discloses the information, but also the actions of the foreign principal who receives the information.  The new offences in Division 91 will also, for the first time, criminalise soliciting or procuring a person to engage in espionage and will introduce a new preparation or planning offence, which will allow law enforcement agencies to intervene at an earlier stage to prevent harmful conduct occurring.

9.                    Schedule 1 introduces new Division 92 into Part 5.2 of the Criminal Code which will contain new foreign interference offences.  These offences complement the espionage offences by criminalising a range of other harmful conduct undertaken by foreign principals who seek to interfere with Australia’s political, governmental or democratic processes, to support their own intelligence activities or to otherwise prejudice Australia’s national security.  The offences will apply where a person’s conduct is covert or deceptive, involves threats or menaces or does not disclose the fact that conduct is undertaken on behalf of a foreign principal.  New Division 92 also criminalises the provision of support or funding to foreign intelligence agencies.

10.                Schedule 1 introduces new Division 92A into Part 5.2 of the Criminal Code which contains a new offence targeting theft of trade secrets on behalf of a foreign government.  This amounts to economic espionage and can severely damage Australia’s national security and economic interests.  The new offence will apply to dishonest dealings with trade secrets on behalf of a foreign government principal.

11.                Schedule 2 introduces new Part 5.6 and Division 122 into the Criminal Code.  New Part 5.6 contains a suite of new Commonwealth secrecy offences.  These new offences replace sections 70 and 79 of the Crimes Act and will apply if the information disclosed is inherently harmful (such as security classified information) or would otherwise cause harm to Australia’s interests.  The offences will apply to all persons, not just Commonwealth officers.  New Division 122 includes defences to ensure the offences do not apply too broadly, including a defence specifically applying to journalists engaged in fair and accurate reporting in the public interest.  The offences ensure harmful information cannot be released, while appropriate defences protect freedom of speech.

12.                Schedule 3 amends Division 137 of Part 7.4 of the Criminal Code to introduce a new aggravated offence that applies where a person provides false or misleading information in relation to an Australian Government security clearance process.  This reflects the serious consequences that can flow from the provision of misleading information, or the omission of relevant information, during a security clearance process.

13.                Schedule 4 amends the Telecommunications (Interception and Access) Act 1979 to ensure the powers under that Act are available to investigate the offences contained in the Bill.

14.                Schedule 5 makes amendments relevant to the Foreign Influence Transparency Scheme. Transitional amendments address pre-existing arrangements with foreign principals at the time of commencement of the Foreign Influence Transparency Scheme Act. Other amendments reflect the interaction between the Foreign Influence Transparency Scheme Act 2017 and the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2017 .

FINANCIAL IMPACT

2.                 The amendments in this Bill have no financial impact on Government revenue.

 

ACRONYMS

Acts Interpretation Act	Acts Interpretation Act 1901
AFP	Australian Federal Police
ALRC	Australian Law Reform Commission
ASIO	Australian Security Intelligence Organisation
ASIO Act	Australian Security Intelligence Organisation Act 1979
Australian Citizenship Act	Australian Citizenship Act 2007
Australian Federal Police Act	Australian Federal Police Act 1979
CDPP	Commonwealth Director of Public Prosecutions
Commonwealth Electoral Act	Commonwealth Electoral Act 1918
Crimes Act	Crimes Act 1914
Criminal Code	Criminal Code Act 1995
Defence Act	Defence Act 1903
Defence Force Discipline Act	Defence Force Discipline Act 1982
Guide to Framing Commonwealth Offences	Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers
ICRC	International Committee of the Red Cross
NSI Act	National Security Information (Criminal and Civil Proceedings) Act 2004
POCA	Proceeds of Crime Act 2002
PID Act	Public Interest Disclosure Act 2013
Telecommunications Act	Telecommunications Act 1997
TIA Act	Telecommunications (Interception and Access) Act 1979
UN	United Nations

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

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

15.                This Bill is 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

16.                The National Security (Espionage and Foreign Interference) Bill 2017 (the Bill) amends the Criminal Code Act 1995 , the Crimes Act 1914 and the Telecommunications (Interception and Access) Act 1979 in response to the Government’s review of Australia’s espionage and foreign interference laws. The Bill will modernise and strengthen espionage, secrecy and related laws, and create new foreign interference laws to ensure the protection of Australia and Australia’s interests.

17.                Outlined below is a brief summary of the substantive changes to each of the relevant Acts.

Criminal Code Act 1995

18.                The Bill:

·          strengthens existing espionage offences

·          introduces new foreign interference offences targeting covert, deceptive or threatening actions by foreign actors who intend to influence Australia’s democratic or government processes or to harm Australia

·          reforms Commonwealth’s secrecy offences, ensuring they appropriately criminalise leaks of harmful information while also protecting freedom of speech

·          introduces comprehensive new sabotage offences that effectively protect critical infrastructure in the modern environment

·          modernises and reforms offences against government, including treason, to better protect Australia’s defence and democracy

·          introduce a new theft of trade secrets offence to protect Australia from economic espionage by foreign government principals, and

·          introduces a new aggravated offence for providing false and misleading information in the context of security clearance processes, and

·          ensures law enforcement agencies have access to telecommunications interception powers to investigate these serious offences.

Crimes Act 1914

19.                The amendments to the Crimes Act include repealing existing offences relating to secrecy, sabotage and other offences against government in Part II of the Crimes Act and transferring them to the Criminal Code.

Telecommunications (Interception and Access) Act 1979

20.                The definition of ‘serious offence’ in subsection 5D(1) of the TIA Act will be amended so that the powers in the TIA Act to apply to all offences created in the Bill.  This ensures law enforcement agencies have access to telecommunications interception powers to investigate these serious offences.

Human rights implications

21.                This Bill engages the following rights:

·          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

·          the right to privacy in Article 17 of the ICCPR

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

·          the prohibition on propaganda for war and advocacy of national, racial or religious hatred in Article 20 of the ICCPR

·          the right to peaceful assembly in Article 21 of the ICCPR

·          the right to freedom of association in Article 22 of the ICCPR, and

·          the right to take part in public affairs and the right to vote in Article 25 of the ICCPR.

Human rights promoted by the Bill

Right to liberty and freedom from arbitrary detention

22.                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. The Bill engages the right to liberty and freedom from arbitrary detention by requiring consent of the Attorney-General prior to the prosecution of an offence of espionage, foreign interference, sabotage, theft of trade secrets, or other threats against security.

23.                In circumstances in which a person is not arrested or remanded in custody pending a decision of the Attorney-General, the requirement for consent will protect and promote the right to liberty and freedom from arbitrary detention. This is because in deciding whether to consent to the prosecution of an offence the Attorney-General must consider whether the conduct in question was authorised and therefore whether the accused has a defence available. In this respect a proposed prosecution is scrutinised from both the prosecution and defence perspectives, and a judgment made about the appropriateness of the prosecution, having regard to the facts of the case and the scope of authorised conduct provided for in the Bill.

24.                This individualised assessment prior to the prosecution may prevent any unwarranted deprivation of liberty thereby safeguarding the rights contained in Article 9(1). 

Right to opinion and freedom of expression, right to freedom of assembly and association and right to take part in public affairs and elections

25.                Article 19 of the ICCPR states that everyone has the right to hold opinions without interference and that everyone shall have the right to freedom of expression. Article 21 of the ICCPR recognises the right to peaceful assembly while Article 22 provides for the right to freedom of association with others. Article 25 of the ICCPR further states that every citizen shall have the right and the opportunity to take part in the conduct of public affairs, directly or through freely chosen representatives, and to vote and to be elected at genuine periodic elections.

26.                The Bill protects and promotes the right to opinion and freedom of expression, the freedom of assembly and association and the right to take part in public affairs and elections by:

·          introducing foreign interference offences, which will criminalise certain conduct that seeks to influence the exercise of Australian democratic or political rights, and

·          replacing the offence of ‘interference with political liberty’ with the offence of ‘interference with political rights and duties’.

27.                Foreign interference offences will criminalise conduct engaged in on behalf of a foreign principal that is covert or involves deception, threats or menaces and which seeks to influence a political or governmental process of an Australian government or the exercise of an Australian democratic or political right. Reference to the exercise of Australian democratic or political rights is intended to cover a broad range of rights held by Australians in relation to participation in Australia’s democracy, including voting in elections and referenda and participating in lawful protests, rights which clearly fall within the scope of Articles 19, 21, 22 and 25.

28.                Unlike the routine business of diplomatic influence practised by all nation states, foreign interference is characterised by clandestine and deceptive activities undertaken by foreign actors seeking to cause significant harm to Australia’s national interests, or to advance their own interests. Foreign interference can erode Australia’s sovereignty by diminishing public confidence in the integrity of Australia’s political and government institutions, and undermining Australian societal values. During elections, referendums and plebiscites in particular, foreign interference can undermine the legitimacy or perceived legitimacy of government and its processes, enable the perception of corruption, and obfuscate information that might impact the voting decisions of the public.

29.                In addition to foreign interference offences, the Bill creates the offence of ‘interference with political rights and duties’ which will apply where a person uses force, violence, threats or intimidation to interfere with a person’s democratic or political right under the Constitution or Commonwealth law. The term ‘Australian democratic or political right’ is intended to cover a broad range of rights held by Australians in relation to participation in Australia’s democracy, including voting in elections and referenda and participating in lawful protests.  The limitation to ‘Australian’ democratic and political rights is intended to limit the operation of this paragraph to rights that arise because of a person’s status as Australian. The limitation to rights which ‘arise under the Constitution or a law of the Commonwealth’ ties the offence to Commonwealth jurisdiction, excluding rights and duties which arise under state and territory laws. Democratic or political rights which arise under the Constitution or a Commonwealth law may include for example:

• the implied freedom of political communication, and
• the right to vote as provided for in section 41 of the Constitution and in the Commonwealth Electoral Act 1918 .

30.                The implied freedom of political communication and the right to vote clearly engage Article 19 of the ICCPR (right to opinion and freedom of expression) and Article 25 of the ICCPR (right to take part in political affairs and right to vote). 

31.                As with foreign interference, conduct which interferes with political rights and duties can diminish public confidence in the integrity of Australia’s political and government institutions, enable the perception of corruption, and obfuscate information that might impact the voting decisions of the public during election periods. Unlike foreign interference, the offence of interference with political rights and duties requires the use of force, violence, threats or intimidation. In the worst case scenario, people may be killed or seriously harmed as a result of violence used to interfere with a person’s democratic or political rights.

32.                By criminalising foreign interference and interference with political rights and duties the Bill will prevent the harmful impact that such acts have on Australians and Australia’s political and governmental processes. In accordance with the obligations which arise under Article 19 of the ICCPR, these offences will protect Australians from ‘any acts by private persons or entities that would impair the enjoyment of the freedoms of opinion and expression.’ During elections, the prohibition on foreign interference will ensure the right ‘to vote without undue influence or coercion of any kind’ while the offence of interference with political rights and duties will ensure persons are ‘free to form opinions without the threat of violence, compulsion, inducement or manipulative interference’.

33.                On this basis, the Bill will enable the exercise of democratic and political rights and duties without interference (as described) and thereby protect and promote the rights contained in Articles 19, 21, 22 and 25.

Prohibition on propaganda for war and advocacy of national, racial, or religious hatred

34.                Article 20 of the ICCPR states that any propaganda for war and any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. According to the United Nations Human Rights Committee (the Human Rights Committee), the prohibition on propaganda for war extends to all forms of propaganda threatening or resulting in an act of aggression or breach of the peace contrary to the Charter of the United Nations; while the prohibition on advocacy of national, racial or religious hatred constituting incitement to discrimination, hostility or violence occurs regardless of whether such advocacy is internal or external to the State concerned. Article 20 requires States to provide for laws which clearly prohibit propaganda and advocacy as described and which provide for appropriate sanctions in cases of violation.

35.                The Bill protects and promotes the prohibitions contained in Article 20 by replacing the existing offence of inciting mutiny with the offence of advocating mutiny and enacting a treachery offence where a person uses force or violence and intends to overthrow the Constitution or an Australian government.

36.                The advocating mutiny offence will apply where a person advocates mutiny, reckless as to whether the result will be that a member of the defence force takes part in a mutiny. The term ‘advocating’ is intended to take its ordinary meaning and could include supporting, recommending, promoting, encouraging, urging and inciting. The term ‘mutiny’ will be defined as a combination between persons who are, or at least two of whom are, members of the Australian Defence Force (ADF) who overthrow lawful authority in the ADF or in a force of another country that is acting in cooperation with the ADF; or who resist such lawful authority in such a manner as to substantially prejudice the operational efficiency of the ADF or of, or of a part of, a force of another country that is acting in cooperation with the ADF.

37.                The treachery offence criminalises the use of force or violence intended to overthrow the Constitution, the Government of the Commonwealth or of a State or Territory or the lawful authority of the government of the Commonwealth.  The new treachery offence will carry a penalty of life imprisonment.

38.                Conduct which advocates mutiny or involves the use of force or violence to overthrow the government falls within the prohibitions contained in Article 20. By its very nature, overthrow of the defence force or government of Australia would involve hostility and/or violence.  Advocating the overthrow of the government or defence force of Australia may also constitute national hatred within the context of Article 20.  In this respect, the Bill ensures that the propaganda and advocacy described in Article 20 is clearly prohibited and further ensures appropriate sanctions by providing for a penalty of imprisonment in cases of violation.  By replacing the existing offence of ‘inciting mutiny’ to reflect the modern Australian context, the Bill will further strengthen the prohibitions in Article 20.

Human rights limited by the Bill

Legitimate objective of the Bill

39.                Under international human rights law, any limitation on rights and freedoms must be reasonable, necessary and proportionate for the pursuit of a legitimate objective. For an objective to be legitimate, it must address a pressing or substantial concern, and not simply seek an outcome regarded as desirable or convenient.

40.                The objective of the Bill is to modernise and strengthen Australia’s espionage, foreign interference, secrecy and related laws to ensure the protection of Australia’s security and Australian interests. Foreign actors are currently seeking to harm Australian interests on an unprecedented scale, posing a grave threat to Australia’s sovereignty, prosperity and national security. This threat is a substantial concern for the Australian Government. If left unchecked, espionage and foreign interference activities may diminish public confidence in the integrity of political and government institutions, compromise Australia’s military capabilities and alliance relationships, and undercut economic and business interests within Australia and overseas.

41.                Existing laws in Australia are currently inadequate to deter and counter pervasive espionage and foreign interference activities directed against Australian interests. Espionage, secrecy and related criminal offences fail to take into account the current operational environment and technological advances which have provided hostile foreign intelligence services with greater global reach, access to sensitive data and tools to obscure identity. It is essential to expand the scope of the criminal law to cover contemporary methodologies for espionage and foreign interference currently occurring in Australia, as well as to allow for coverage of such methodologies as may be developed in the future. A lack of serious criminal penalties and law enforcement powers has also resulted in a permissive operating environment for malicious foreign actors, in which Australian agencies are unable to effectively disrupt and mitigate threats. Agencies must have the full suite of powers available to them under law to successfully investigate and prosecute acts of espionage and foreign interference.

42.                The Bill will achieve its objective in ensuring the protection of Australia’s national security by:

·          broadening the investigative powers of Australian agencies

·          updating existing offences dealing with espionage, secrecy, sabotage and treason, and

·          creating new offences to address foreign interference and the theft of trade secrets.

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

43.                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.

44.                The Bill engages the prohibition on torture, cruel, inhuman or degrading treatment by providing for penalties of imprisonment. Penalties of imprisonment may amount to cruel, inhuman or degrading treatment where their application is disproportionate to the offence committed.

45.                The penalties in the Bill have been set at a level that is adequate to deter and punish a worst case scenario, including repeat offences.  Responsibility for determining criminal guilt and imposing an appropriate sentence rests with the courts in their exercise of judicial power.  The court will have discretion to implement an appropriate penalty based on all of the circumstances of the case.  In this regard, the application of the penalties is not disproportionate.

Right to liberty of person and freedom from arbitrary detention

46.                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. The Bill limits the right to liberty of a person and freedom from arbitrary arrest and detention by imposing and increasing penalties of imprisonment and by allowing the arrest and remand of persons in custody pending consent of the Attorney-General for the prosecution of certain offences.

Penalties of imprisonment

47.                The Bill limits the right to liberty by significantly increasing the penalty of imprisonment for the offences of espionage, sabotage and secrecy. The purpose of increasing the penalty of imprisonment for these offences is to ensure that the penalties reflect the gravity of each offence, particularly where the offence has been amended to include conduct which is more serious in nature. In this respect, the measures will address the growing risk that espionage and related activities pose to Australia’s national security. Increasing penalties of imprisonment in these circumstances is consistent with the established principle of Commonwealth criminal law policy as set out in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (Guide to Framing Commonwealth Offences) to impose a heavier penalty where the consequences of the offence are particularly dangerous or damaging. Increasing penalties of imprisonment will also ensure effective deterrence of the commission of offences. A lack of serious criminal penalties for existing offences has resulted in a permissive operating environment for malicious foreign actors.

48.                The Bill also limits the right to liberty by imposing a penalty of imprisonment for the new offences of foreign interference and theft of trade secrets. The penalty of 25 years for foreign interference, and 15 years for theft of the trade secrets, reflects an appropriate gradation with the amended penalties for treason, espionage, sabotage and secrecy which range from two years to life imprisonment. Consequently, the penalties for the new offences are proportionate and reflect the seriousness of the conduct engaged in. Tiered penalties for espionage, secrecy and foreign interference offences further ensure that penalties are commensurate with the seriousness and culpability of offending. The higher penalty in each of the tiered offences ensures that penalties are proportionate to the person’s intent or the harm flowing from the offence.

49.                The Bill further introduces an aggravated offence for providing false or misleading information in relation to an Australian Government security clearance.  The aggravated offence will attract a maximum penalty of five years imprisonment as opposed to a maximum penalty of 12 months imprisonment for the underlying offence. The aggravated offence relates to providing false or misleading information in relation to an application for or the maintenance of, an Australian Government security clearance. The introduction of an aggravated offence and higher penalty reflects the significant national security risks of the provision of false or misleading information in security clearance processes. Failing to disclose, or providing false or misleading statements concerning, links to foreign individuals, entities and governments may be considered particularly harmful as vetting and security agencies are unable to adequately assess the risks and vulnerabilities of foreign influence or interference if that person is given access to a range of classified material and places, disclosure of or access to which may cause significant harm. The introduction of the aggravated offence is also consistent with the Guide to Framing Commonwealth Offences principle to impose a heavier penalty where the consequences of the offence are particularly dangerous or damaging.

50.                Responsibility for determining criminal guilt and imposing an appropriate sentence rests with the courts in their exercise of judicial power.  The court will have discretion to implement an appropriate penalty based on all of the circumstances of the case.  In this regard, the application of the penalties is not disproportionate.  The offences will be subject to a number of safeguards to ensure their appropriate application and which promote the right to liberty and freedom from arbitrary detention including the availability of defences, bail and parole entitlements and fair trial rights such as to have matters heard by a competent, independent and impartial tribunal established by law.

 

Defences

51.                Specific defences will be available for the offences of sabotage, espionage, foreign interference and secrecy. In addition to specific defences, the general defences under Part 2.3 of the Criminal Code will be available for all offences. These general defences include mistake or ignorance of fact, ignorance of subordinate legislation that was not available, claim of right over property, duress, sudden or extraordinary emergency, self-defence, and lawful authority. Defences will allow persons at risk of deprivations of liberty to justify their actions and defend the criminal charge against them.

 

Bail

52.                Section 68 of the Judiciary Act 1903 confers federal jurisdiction on state and territory courts for criminal matters including in relation to the procedure for and determination of bail for persons remanded in custody accused of a federal offence. As such, bail applications for federal offences are dealt with according to the bail procedure of the state or territory where the offence was committed. In most states and territories criminal procedure laws provide for a general presumption in favour of bail. This presumption ensures deprivations of liberty are kept to a minimum by allowing the temporary release of an accused pending criminal proceedings.

53.                The general presumption in favour of bail may be displaced in certain circumstances. For example, it may be necessary to refuse bail to prevent the communication of information already within the knowledge or possession of the accused or to prevent interference with evidence or flight of the accused. The general presumption may also be displaced by a presumption against bail for certain offences. Under existing section 15AA of the Crimes Act, and the amendments in this Bill, bail must not be granted for offences including treason, treachery and espionage unless ‘exceptional circumstances’ apply. The presumption against bail is appropriately reserved for serious offences recognising the need to balance the right to liberty and the protection of the community.

54.                For offences subject to a presumption against bail the accused will nevertheless be afforded to opportunity to rebut the presumption. Further, the granting or refusing of bail is not arbitrary, as it is determined by a court in accordance with the relevant rules and principles of criminal procedure.

 

Parole and early release

55.                Under section 19AB of the Crimes Act, persons convicted of a federal offence will be entitled to parole in circumstances in which the court imposes a life sentence or an aggregate of sentences which exceeds three years and where the person is not already serving or subject to a federal sentence. The entitlement of parole will ensure that persons will be released from prison after serving a specified period of their federal sentence subject to conditions that they must obey while they are in the community.

56.                As a further safeguard, persons serving a federal sentence may be entitled to early release on licence. Early release on licence allows the Attorney-General to consider exceptional circumstances in which a person should be released from prison prior to the expiration of their sentence.  In deciding whether to grant a licence the Attorney-General may have regard to extensive cooperation by the person with law enforcement agencies before or after sentencing or any serious medical condition the person has that cannot adequately be treated or managed within the prison system.

57.                The availability of parole and early release will ensure that lawful deprivations of liberty are no longer than is necessary in the circumstances.

Fair trial rights and minimum guarantees in criminal proceedings 

58.                Fair trial rights include the right to equality before courts and tribunals and the right to a fair and public hearing before a competence, independent and impartial court or tribunal established by law. Fair trial rights are supplemented by minimum guarantees in criminal proceedings which include to be tried in person and without undue delay, to be free from self-incrimination, to have a conviction and sentence reviewed by a higher court and not to be tried or punished for the same offence more than once. These rights and guarantees are protected in common law as well as in the Crimes Act, the Evidence Act 1995 and in the criminal laws and procedures of states and territories.

59.                Imprisonment following an unfair trial may amount to arbitrary detention. In these circumstances, the protection of fair trial rights and minimum guarantees will ensure the appropriate application of offences under the Bill and thereby protect the right to liberty and freedom from arbitrary detention.

60.                On this basis, the limitation imposed on the right to liberty and freedom from arbitrary detention is reasonable, necessary and proportionate to achieving the legitimate objective of strengthening espionage and foreign interference laws to ensure the protection of Australians and Australia’s national security.

Consent of the Attorney-General for prosecution

61.                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 threats against security offences. The Bill confirms that 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.

62.                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 Bill ensures 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.

63.                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

64.                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’. It relates not only to the time by which a trial should commence, but also to the time by which it should conclude and judgment be given.

65.                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. According the Human Rights Committee, whether a delay is ‘undue’ will depend on the circumstances of each case taking into account the complexity and seriousness of the case and whether the accused is remanded in custody.

66.                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 Bill limits 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. 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. Further, the Bill ensures 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.

67.                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

68.                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.

69.                The Bill limits the presumption of innocence by:

·          imposing strict liability and absolute liability for certain offence elements

·          placing an evidentiary burden on the defendant with respect to defences

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

Strict liability

70.                Strict liability applies to elements of the offences of espionage, secrecy and treason. For espionage offences these elements include that the information or thing dealt with has a security classification.

71.                For secrecy offences strict liability applies to the element that the information disclosed or communicated is inherently harmful information to the extent that the information is security classified information. For aggravated espionage and secrecy offences the element that a person dealt with five or more documents or things each of which has a security classification is also subject to strict liability. Finally, for the offence of treason (assisting an enemy to engage in armed conflict) strict liability applies to the elements that the enemy is engaged in armed conflict against the Commonwealth or the Australian Defence Force and that the enemy is identified in a Proclamation made under section 80.1AB of the Criminal Code.

72.                Strict liability also applies to elements of the advocating mutiny and treason offences to remove the requirement to prove that a body corporate knows that it is incorporated in Australia.

73.                The effect of applying strict liability to an element of an offence is that no fault element needs to be proved. This means that the prosecution will be required to prove, for the offence of espionage for example; that information dealt with has a security classification but will not need to prove that the person who dealt with the information knew this. The application of strict liability may limit the presumption of innocence to the extent that it allows for the imposition of criminal liability without requiring the prosecution to prove fault in the defendant for that particular element. Strict liability provisions will not violate the presumption of innocence so long as they are reasonable in the circumstances, and maintain rights of defence .

74.                For the elements relevant to information or articles carrying a security classification, this is appropriate because such information or articles are clearly marked with the security classification and any person who has access to security classified information should easily be able to identify as such. 

75.                In the case of the treason offence, it is not necessary for the person to have a state of mind as to the specific nature of a Proclamation made under section 80.1AB.  The prosecution is already required to prove that the person was reckless as to whether the enemy was engaged in armed conflict involving the Commonwealth or the Australian Defence Force under paragraph 80.1AA(1)(a).  It would be inappropriate for a prosecution to be able to proceed where a defendant knew a party was an enemy of Australia but was not aware of a substantial risk that there was a Proclamation made under section 80.1AB.  The purpose of the Proclamation is to ensure that a person can identify whether there are any ‘enemies’ for the purpose of the treason offences should they wish to check, not for them to be specifically aware of the Proclamation in order to commit the offence.

76.                The application of strict liability is also necessary to ensure that a person cannot avoid criminal responsibility because they were unaware of certain circumstances for example that information was security classified information. Consistent with the Guide to Framing Commonwealth Offences, requiring knowledge of such an element in these circumstances would undermine deterrence of the offence. There are also legitimate grounds for penalising a person’s lacking ‘fault’ in these circumstances because, with an offence of espionage for example,  the person still engaged in conduct with the intention to, or reckless as to whether, that conduct would prejudice Australia’s national security or advantage the national security of a foreign country.

77.                The application of strict liability will also make available the general defence of mistake of fact as set out in section 9.2 of the Criminal Code.  This 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.

78.                The strict liability measures are proportionate in that they only apply to elements of the offence and not to 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.

Absolute liability

79.                Absolute liability applies to a number of elements of the offences in the Bill.

80.                Absolute liability also applies to jurisdictional elements of the offences. A jurisdictional element is an element of an offence that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do not.  According to the Guide to Framing Commonwealth Offences, absolute liability should apply to all jurisdictional elements.

81.                 For example, the definition of ‘public infrastructure’ for the purpose of the sabotage offences applies absolute liability to the element that the infrastructure, facility, premises, network or electronic system ‘belongs’ to the Commonwealth and to the element that ‘the infrastructure, facility, premises, network or electronic system belongs to, or is operated by, a constitutional corporation or used to facilitate constitutional trade or commerce’.  These matters are not relevant to the offender’s culpability and are included in order to link the offences to the Commonwealth’s power to legislate under the Constitution.

82.                As with strict liability, the application of absolute liability limits the presumption of innocence to the extent that it allows for the imposition of criminal liability without requiring the prosecution to prove fault in the defendant.

83.                The application of absolute liability is also necessary to ensure that a person cannot avoid criminal responsibility because they were unaware of certain circumstances for example that property they damaged or destroyed belonged to a Commonwealth entity or of the level of government law that gave rise to a particular Australian democratic or political right. Consistent with the Guide to Framing Commonwealth Offences, requiring knowledge of such elements in these circumstances would undermine deterrence of the offences. There are also legitimate grounds for penalising a person’s lacking ‘fault’ in these circumstances for example, because the person still intentionally damaged property or used violence to interfere with a person’s political right or duty.

84.                Further, the absolute liability measures are proportionate in that they only apply to elements of the offence and not to 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 fault elements of intention, knowledge or recklessness.

Reversal of burden of proof

85.                The Bill creates a number of specific defences applying to the offences in the Bill, which reverse the burden of proof by providing that a defendant bears the evidential burden in proving the elements of the defence. Consistent with section 13.3 of the Criminal Code, this burden requires the defendant 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.

86.                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. For example, for a defence at section 91.4(2) (espionage) a defendant should be readily able to point to evidence that they acquired the relevant information or article indirectly from a publically available source. For a defence at subsection 83.3(2) (military-style training involving foreign government principal) the defendant is best placed to know of the existence of the type of agreement therein and to provide evidence in relation to that agreement. 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.

87.                Reversal of proof provisions are proportionate because, as 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 also be required to disprove those matters beyond reasonable doubt, consistent with section 13.1 of the Criminal Code.

Evidentiary certificates

88.                Sections 93.3 and 121.3 of the Bill provide that a certificate signed by the Attorney-General is prima facie evidence that the information or thing specified in the certificate concerns Australia’s national security or relates to security classified information. Evidentiary certificate provisions may limit Article 14(2) to the extent that they create a presumption as to the existence of the factual basis on which a certificate is issued which requires the accused to disprove the matters certified in the certificate. Accordingly, evidentiary certificate provisions reverse the burden of proof.

89.                The evidentiary certificates provided for in the Bill will be used to settle formal matters of fact, being that certain information concerns national security or is security classified, which would otherwise be difficult to prove under the normal rules of evidence. This is because matters relating to national security and security classified information can be said to be peculiarly within the knowledge of the Commonwealth. By precluding a requirement on the prosecution to prove certain factual matters, the Bill will ensure that the accused is tried without delay in accordance with Article 14(3)(c) of the ICCPR. Furthermore, the evidentiary certificates will establish prima facie evidence, rather than conclusive evidence and as such may be challenged by the accused during the court proceedings. Importantly, the evidentiary certificates will not establish the weight or veracity of the evidence, which will remain a matter for the court.

90.                On this basis, the limitations on the right to the presumption of innocence are reasonable, necessary and proportionate to achieving the legitimate objective of protecting Australia’s national security.

Right to privacy

91.                Article 17 of the ICCPR states that no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. The Human Rights Committee have interpreted the right to privacy as comprising freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy. The right to privacy may be limited where the limitation is lawful and not arbitrary and where it is reasonable, necessary and proportionate to achieve a legitimate objective. The Bill limits the right to privacy in that it will enable the interception of telecommunications under the TIA Act in respect of the offences provided for in the Bill.

92.                The gravity of the threat posed to Australia’s national security by espionage, foreign interference and related activities demonstrates the need to take reasonable steps to detect, investigate and prosecute those suspected of engaging in such conduct.  The current lack of law enforcement and intelligence powers with respect to these activities has resulted in a permissive operating environment for malicious foreign actors, which Australian agencies are unable to effectively disrupt and mitigate.

93.                The interception regime is clearly authorised by law and its application authorised by the legislative framework in the TIA Act. Before issuing an interception warrant, the relevant authority must be satisfied that the agency is investigating a serious offence, the gravity of the offence warrants intrusion into privacy and the interception is likely to support the investigation. This threshold acts as a safeguard against the arbitrary or capricious use of the interception regime and also ensures that any interception will be proportionate to the national security objective.

94.                Moreover, there is independent oversight of the use of interception powers of law enforcement agencies by the Commonwealth Ombudsman. At least twice a year, the Commonwealth Ombudsman must inspect bodies such as the AFP in relation to their use, dissemination and destruction of intercepted information. The Commonwealth Ombudsman is also required under the TIA Act to report to the Attorney-General about these inspections, including any information about deficiencies identified and remedial action.

95.                The safeguards identified and the legal framework around which interception warrants are issued ensure that the use of this power is prescribed by law and not arbitrary. Accordingly, the limitation on the right to privacy is reasonable, necessary and proportionate to achieve the legitimate objective of assisting of ensuring the protection of Australia’s national security.

Freedom of expression

96.                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.

97.                The Bill engages the right to freedom of expression by:

·          replacing the offence of ‘inciting mutiny’ with the offence of ‘advocating mutiny’, and

·          amending secrecy offences to better deal with unauthorised disclosure and unlawful handling of Commonwealth information.

Advocating mutiny

98.                The new offence of advocating mutiny will apply where a person advocates mutiny, reckless as to whether the result will be that a member of the defence force takes part in a mutiny. The term ‘mutiny’ will be defined as a combination between persons who are, or at least 2 of whom are, members of the Australian Defence Force (ADF) who overthrow lawful authority in the ADF or in a force of another country that is acting in cooperation with the ADF; or who resist such lawful authority in such a manner as to substantially prejudice the operational efficiency of the ADF or of, or of a part of, a force of another country that is acting in cooperation with the ADF. The term ‘advocating’ is intended to take its ordinary meaning and could include supporting, recommending, promoting, encouraging, urging and inciting. Such conduct falls within the scope of the right to freedom of expression in so far as advocating is form of expression which involves the imparting of information and ideas. By criminalising conduct which advocates mutiny, the Bill will limit the right to freedom of expression.

99.                As established, the criminalisation of conduct which advocates mutiny will ensure the protection of the prohibitions contained in Article 20 regarding propaganda for war and advocacy of national, racial or religious hatred. According to the Human Rights Committee, the prohibitions provided for in Article 20 are fully compatible with the right to freedom of expression, the exercise of which carries special duties and responsibilities. As such, according to the Committee, any limitation that is justified on the basis of Article 20 must still comply with Article 19(3), that is that it must be necessary for the respect of the rights or reputations of others or for the protection of national security, public order, or public health or morals.

100.            The primary responsibility of the Australian Defence Force is to defend Australia and Australia’s interests. By seeking to overthrow the defence force of Australia, acts of mutiny clearly threaten Australia’s national security and public order. In certain circumstances, acts of mutiny may also result in the arbitrary detention, torture or cruel, inhuman or degrading treatment or even the death of persons. Prohibiting conduct which advocates mutiny in these circumstances will promote the rights of others including the right to life, the right to liberty and the right not to be subject to torture as covered by Article 6, 7 and 9 of the ICCPR respectively. The gravity of the threat posed by acts of mutiny both to Australia’s national security and public order and to the rights and freedoms of others demonstrates the need to take reasonable steps to discourage behaviour that promotes such activities. Besides prohibition there is no less restrictive measure to ensure the deterrence of conduct which advocates mutiny. The availability of the general defences under Part 2.3 of the Criminal Code including the defences of duress and self-defence will ensure that the application of the offence of advocating mutiny is reasonable and proportionate to achieve its objective.

Secrecy

101.            Secrecy offences relating to inherently harmful information will apply where a person communicates or publishes ( subsection 122.1(1)) or otherwise deals with (subsection 122.1(2)) inherently harmful information and 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. Secrecy offences causing harm to Australia’s interests will apply where a person communicates ( subsection 122.2(1)) or otherwise deals with (subsection 122.1(2)) information, the communication or dealing with causes, will cause or is likely to cause harm to Australia’s interest and 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.   A person deals with information if the person receives, obtains, collects, possesses, makes a record of, copies, alters, conceals, communicates, publishes or makes available the information. Further, an offence of unauthorised disclosure of information (section 122.4) will apply where a person communications information which was made or obtained by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and the person is under a duty , which rises under law of the Commonwealth, not to disclose the information.

102.            Conduct which receives, obtains, collects, communicates, publishes or makes available information clearly falls within the scope of the right to freedom of expression in so far as it involves the seeking, receiving or imparting of information and ideas. By criminalising these activities in certain circumstances secrecy offences will limit the right to freedom of expression.

103.            In General Comment No. 34 (CCPR/C/GC/34) the Human Rights Committee stated that care must be taken by States parties to ensure official secrets laws, are crafted and applied in a manner that conforms to the requirements of Article 19(3). According to the Committee:

It is not compatible with paragraph 3, for instance, to invoke such laws to suppress or withhold from the public information of legitimate public interest that does not harm national security or to prosecute journalists, researchers, environmental activists, human rights defenders, or others, for having disseminated such information. Nor is it generally appropriate to include in the remit of such laws such categories of information as those relating to the commercial sector, banking and scientific progress.

104.            The offences in section 122.1 apply only to information within narrowly defined categories of inherently harmful information. The offences in section 122.2 apply only to information made or obtained by a Commonwealth officer, the communication of which would cause harm to specified essential public interests, and where that harm does or was likely to eventuate as a result of the person’s conduct. The gravity of the threat posed by the disclosure of inherently harmful information or information which causes or will cause harm to Australia’s interests demonstrates the need to criminalise such conduct.

105.            Section 122.4 does not criminalise the disclosure of any particular information in its own right. Section 122.4 contains a narrower and modernised version of the general secrecy offence currently contained in section 70 of the Crimes Act, which will make it an offence for a Commonwealth officer or a person engaged to perform work for a Commonwealth entity to communicate information in breach of a duty arising elsewhere under the law of the Commonwealth. As such, section 122.4 does not establish a new limitation on the ability of such persons to communicate information.

106.            The availability of the general defences under Part 2.3 of the Criminal Code as well as the specific defences provided for in section 122.5 will further ensure that the application of secrecy offences is reasonable and proportionate to achieve their objective

Freedom of assembly and association 

107.            Article 21 of the ICCPR recognises the right to peaceful assembly. This right protects the rights of individuals and groups to meet and to engage in peaceful protest. Article 21 extends to all gatherings for peaceful purposes, regardless of the degree of public support for the purpose of the gathering. Article 22 of the ICCPR states that everyone shall have the right to freedom of association with others. This right protects the right to form and join associations to pursue common goals.

108.            The Bill engages the right to freedom of assembly and association by replacing the offence of ‘unlawful drilling’ with the offence of ‘military-style training involving a foreign government principal’. This offence applies where a person provides, receives or participates in training that involves using arms or practising military exercises, movements or evolutions on behalf of or directed, funded or supervised by a foreign government principal or by a person acting on behalf of a foreign government principal.

109.            The conduct involved in the offences falls within the scope of Articles 21 and 22 to the extent that the meeting of one or more persons for the purpose of military-style training constitutes an assembly and/or an association of persons. By criminalising such conduct, the Bill will limit the right to freedom of assembly and association. Any limitation on the freedom of assembly and association must be necessary in a democratic society in the interest of national security or public safety, public order, the protection of health or morals or the protection of the rights and freedoms of others.

110.            Military-style training on behalf of a foreign government can erode Australia’s sovereignty and undermine the authority of the Australian military. On this basis, military-style training threatens Australia’s national security and public order.   In the worst case scenario, military-style training may result in the death of persons. Prohibiting military-style training in these circumstances will promote public safety and the rights of others including the right to life as covered by Article 6 of the ICCPR.

111.            The gravity of the threat posed by military-style training both to Australia’s national security, public safety and public order and to the rights of others demonstrates the need to take reasonable steps to prevent such activities. Besides prohibition there is no less restrictive measure to ensure the deterrence of military-style training. The availability of the general defences under Part 2.3 of the Criminal Code and the specific defences provided in section 83.3 ensures that the application of the offence is reasonable and proportionate to achieve its objective.

Conclusion

112.            The Bill is compatible with human rights because it promotes the protection of a number of human rights including the right to liberty, the right to freedom expression, assembly and association and the right to take part in public affairs and elections. To the extent that it 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 CLAUSES

Preliminary

Clause 1 - Short title

113.            This clause provides that when the Bill is enacted, it is to be cited as the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2017 .

Clause 2 - Commencement

114.            This clause sets out when the various parts of the Act are to commence. 

115.            Item 1 of the table provides that sections 1 to 3 and anything else in the Act not elsewhere covered by the table in Clause 2 commence the day the Act receives Royal Assent.

116.            Item 2 of the table provides that Schedule 1 (Treason, espionage, foreign interference and related offences) commences the day after the Act receives Royal Assent.

117.            Item 3 of the table provides that Schedule 2 (Secrecy) commences on a single day to be fixed by Proclamation.  However, if the provisions do not commence within the period of six months beginning on the day the Act receives Royal Assent, they commence on the day after the end of that period.  Commencement by Proclamation is appropriate to ensure appropriate regulations can be made to support key definitions in Schedule 2 and to ensure that departments and agencies can provide appropriate information to staff and contractors about the new offences.

118.            Item 4 of the table provides that Schedule 3 (Aggravated offence for giving false or misleading information) commences the day after the Act receives Royal Assent.

119.            Item 5 of the table provides that Part 1 of Schedule 4 (Telecommunications serious offences) commences the day after the Act receives Royal Assent.

120.            Item 6 of the table provides that Part 2 of Schedule 4 (Telecommunications serious offences) commences at the same time as Schedule 2 (covered by Item 3 of the table).

121.            Item 7 of the table provides that Schedule 5, Part 1 commences at the same time as the Foreign Influence Transparency Scheme Act 2017 commences.  If the Foreign Influence Transparency Scheme Act 2017 does not commence, then Part 1 of Schedule 5 will not commence at all.

122.            Schedule 5, Part 2 commences on the later of:

·          immediately after the commencement of the Foreign Influence Transparency Scheme Act 2017 , and

·          immediately after the commencement of Part 1 of Schedule 1 to the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2017 .

123.            However, if both of the events listed above do not occur then Part 2 of Schedule 5 will not commence at all.

Clause 3 - Schedules

124.            This is a formal clause that enables the Schedules to amend Acts by including amendments under the title of the relevant Act.

 

Schedule 1 - Treason, espionage, foreign interference and related offences

General Outline

125.            The purpose of Schedule 1 is to make amendments to offences relevant to Australia’s defence and security.  The amendments will ensure Commonwealth law comprehensively criminalises activities that could prejudice Australia’s national security or facilitate the intelligence activities of foreign governments. 

126.            The amendments in Schedule 1 will send an important deterrence message to Australia’s foreign adversaries that conduct that prejudices Australia’s national security will not be tolerated.

Espionage

127.            The Criminal Code currently contains espionage offences, but these are too narrow and have not evolved to deal with the modern threat environment.

128.            Schedule 1 amends Part 5.2 of the Criminal Code to introduce comprehensive new espionage offences in Division 91.  The new offences criminalise a broad range of dealings with information, including possessing or receiving, and protect a broader range of information, including unclassified material.  The current methodology of Australia’s adversaries means that dealings with unclassified information, if accompanied by the requisite intention to harm Australia, can be as damaging as the passage of classified information.  The new offences will not just target the person who discloses the information, but also the actions of the foreign principal who receives the information.  The new offences in Division 91 will also, for the first time, criminalise soliciting or procuring a person to engage in espionage and will introduce a new preparation or planning offence, which will allow law enforcement agencies to intervene at an earlier stage to prevent harmful conduct occurring.

Foreign interference

129.            Currently, Commonwealth criminal law contains no offences targeting conduct undertaken by foreign government that falls short of espionage but is intended to harm Australia’s national security or influence Australia’s political or governmental processes. 

130.            Schedule 1 introduces new Division 92 into Part 5.2 of the Criminal Code which will contain new foreign interference offences.  These offences complement the espionage offences by criminalising a range of other harmful conduct undertaken by foreign principals who seek to interfere with Australia’s political, governmental or democratic processes, to support their own intelligence activities or to otherwise prejudice Australia’s national security.  The offences will apply where a person’s conduct is covert or deceptive, involves threats or menaces or does not disclose the fact that conduct is undertaken on behalf of a foreign principal.  New Division 92 also criminalises the provision of support or funding to foreign intelligence agencies.

Sabotage

131.            The Commonwealth’s current sabotage offence was introduced into the Crimes Act in 1960 and has not evolved to reflect the modern threat environment.  The existing sabotage offence only protects Defence facilities.  Schedule 1 introduces comprehensive sabotage offences into new Division 82 in Part 5.1 of the Criminal Code.  The new sabotage offences will criminalise conduct causing damage to a broad range of critical infrastructure where it could prejudice Australia’s national security.  The offences in new Division 82 will apply higher penalties where sabotage offences are committed on behalf of foreign principals.  New Division 82 will also contain offences that apply where a person’s conduct does not immediately cause damage, but leaves an item or system vulnerable to future misuse or exploitation.

Theft of trade secrets on behalf of a foreign government

132.            Schedule 1 introduces a new offence targeting theft of trade secrets on behalf of a foreign government.  This amounts to economic espionage and can severely damage Australia’s national security and economic interests.  The new offence will apply to dishonest dealings with trade secrets on behalf of a foreign actor.

Treason and other threats to security

133.            Although rarely used, treason offences are a critical part of Commonwealth criminal law.  Part II of the Crimes Act also contains a series of rarely used offences protecting the security and defence of the Commonwealth.  These offences require modernisation to reflect the modern environment.

134.            Schedule 1 amends Part 5.1 of the Criminal Code to modernise Australia’s treason offences.  It will ensure that treason offences regarding assisting an enemy to engage in armed conflict against Australia, which carries a penalty of life imprisonment, appropriately reflect moderns terminology related to armed conflict.  The amendments to Part 5.1 will also create a new offence of treachery in the Criminal Code (replacing the existing archaic and antiquated treachery offence in section 24AA of the Crimes Act) that applies where a person seeks to use force or violence to overthrow the Constitution or an Australian government.

135.            Schedule 1 introduces new Division 83 into Part 5.1 of the Criminal Code.  Division 83 will modernise and improve the existing offences against government in Part II of the Crimes Act (which will be repealed).  The offences in Division 83 aim to protect Australia’s defence by criminalising advocating mutiny, assisting prisoners of war to escape and military-style training by foreign governments.  New Division 83 also criminalises interference with Australian democratic or political rights where the conduct involves the use of force, violence or intimidation.

 

Part 1 - Main amendments

Criminal Code Act 1995

Item 1

136.            Item 1 repeals the heading of Part 5.1 of the Criminal Code and substitutes a new heading.  The heading is changing from ‘Treason, urging violence and advocating terrorism or genocide’ to ‘Treason and related offences’.  The heading requires updating to reflect the broader range of offences within Part 5.1 due to the enactment of new sabotage offences in Division 82 and new offences dealing with other threats to security in new Division 83following the repeal of Part II of the Crimes Act (by Item 43 of Schedule 1).

Item 2

137.            Item 2 repeals the heading of section 80.1A of the Criminal Code and substitutes a new heading.  The heading is changing from ‘Definition of organisation ’ to ‘Definitions’.  This change is needed because an additional definition is being added to section 80.1A by Item 3.

Item 3

138.            Item 3 inserts a new definition of party in section 80.1A of the Criminal Code.  This term is used in the new treason offence in section 80.1AA (to be inserted by Item 4) and is defined to include a person, body or group of any kind.  This is intended to reflect the broad range of organisations or groups who may engage in armed conflict with the Commonwealth or the Australian Defence Force.  This will range from nation states through to organised armed groups using force to achieve their purposes. An example of an organised armed group would be a separatist or rebel group seeking to overthrow the government of another nation state.

Item 4

Section 80.1AA - Treason - assisting enemy to engage in armed conflict

139.            Item 4 repeals existing section 80.1AA, which contains two offences of ‘Assisting enemies at war with the Commonwealth’ (at subsection 80.1AA(1)) and ‘Assisting countries etc. engaged in armed hostilities against the ADF’ (at subsection 80.1AA(4)).

140.            Item 4 combines the existing offences in subsections 80.1AA(1) and (4) into one new offence titled ‘Treason - assisting enemy to engage in armed conflict’.  This new offence simplifies the structure of the treason offences, updates the references in the offence to reflect modern international terminology about armed conflict and removes the confusing terminology at existing subsection 80.1AA(4) about ‘armed hostilities’.  The new offence carries a maximum penalty of life imprisonment, which is consistent with the existing treason offences at subsections 80.1AA(1) and (4).

141.            Consistent with the existing treason offences, this offence will only be able to be committed by a person who owes an allegiance to the Commonwealth (paragraph 80.1AA(1)(f)). The person must know that they owe an allegiance to the Commonwealth.  This is appropriate because only persons who benefit from the protection of the Australian nation state should be able to commit treason against Australia.

142.            The offence will also only be able to be committed if the Commonwealth has, by proclamation made by the Governor-General, declared a party to be an enemy engaged in armed conflict involving the Commonwealth or the Australian Defence Force (paragraph 80.1AA(1)(a)), that is, if a party is the Commonwealth’s adversary in armed conflict.  A person should not be able to commit treason against Australia if it was impossible for them to know that another party was Australia’s enemy.  The requirement for the Commonwealth to proclaim its enemies for the purpose of the treason offence at section 80.1AA ensures that there is a publicly accessible record of enemies against whom the Commonwealth is engaged in an armed conflict for the purposes of the treason offence at section 80.1AA.

143.            An example of this offence is as follows.  Person A is a dual citizen of Australia and Country X, a repressive regime seeking to expand its territory.  As part of a coalition of nation states, Australia has been engaged in an international armed conflict with Country X for two years (and the Governor-General has declared Country X to be an enemy for the purpose of section 80.1AA). Hostilities between Country X and the Australia are occurring primarily in the airspace above Country X’s territorial sea.  Person A still holds a strong connection to Country X and does not support Australia’s military action.  Person A has access to classified information about Royal Australian Air Force (RAAF) operations and passes details of a planned operation to a friend who works in the military forces of Country X.  As a result, Country X uses anti-aircraft weapons to shoot down Australian aircraft, resulting in casualties to RAAF personnel and destroying Australia’s aircraft, thereby enabling Country X to gain a military advantage over Australia.

144.            To establish this offence, the prosecution will have to prove beyond a reasonable doubt that:

·          a party (the enemy) was engaged in armed conflict involving the Commonwealth or the Australian Defence Force and the person was reckless as to this element

·          the enemy was identified in a Proclamation made under section 80.1AB

·          the person intentionally engaged in conduct

·          the person intended that his or her conduct would materially assist the enemy to engage in armed conflict involving the Commonwealth or the Australian Defence Force

·          the conduct materially assisted the enemy to engage in armed conflict involving the Commonwealth or the Australian Defence Force, and

·          at the time he or she engaged in the conduct, the person was:

o    was an Australian citizen, and knew that he or she was an Australian citizen

o    was a resident of Australia, and knew that he or she was an Australian citizen

o    had voluntarily put him or herself under the protection of the Commonwealth, and knew that he or she had done so, or

o    was a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

145.            Recklessness is the fault element for paragraph 80.1AA(1)(a).  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.

146.            Strict liability will apply to paragraph 80.1AA(1)(b) consistent with subsection 80.1AA(2).

147.             Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 80.1AA(1)(c).  Intention also applies to paragraph 80.1AA(1)(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. 

148.            Absolute liability applies to paragraph 80.1AA consistent with subsection 80.1AA(3).

149.            The fault element for subparagraphs 80.1AA(1)(f)(i) and (ii) is knowledge. Under section 5.3 of the Criminal Code, a person has knowledge of a circumstance if he or she is aware that it exists or that it will exist in the ordinary course of events.

150.            Strict liability applies to paragraph 80.1AA(1)(f)(iii) due to the application of subsection 80.1AA(2).

151.            For paragraph 80.1AA(1)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that a party (the ‘enemy’) is engaged in armed conflict involving the Commonwealth or the Australian Defence Force and that the person was reckless as to this element.  The term party is defined in section 80.1A (as amended by Item 3) to include a person, body or group of any kind. The use of the term ‘armed conflict’ is intended to cover both international armed conflicts and non-international armed conflicts.  The prosecution will also have to prove that the defendant was aware of a substantial risk that an enemy was engaged in armed conflict involving the Commonwealth or Australian Defence Force and that, having regard to the circumstances known to him or her, it was unjustifiable to take the risk.

152.            For paragraph 80.1AA(1)(b) of the offence, the prosecution will have to prove beyond a reasonable doubt that the enemy is identified in a Proclamation made under section 80.1AB.  Consistent with subsection 80.1AA(2), strict liability will apply to paragraph 80.1AA(1)(b).  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.

153.            Applying strict liability to this element of the offence is appropriate because it is not necessary for the person to have a state of mind as to the specific nature of a Proclamation made under section 80.1AB.  The prosecution is already required to prove that the person was reckless as to whether the enemy was engaged in armed conflict involving the Commonwealth or the Australian Defence Force under paragraph 80.1AA(1)(a).  It would be inappropriate for the defendant to be able to avoid criminal liability for the offence because they lacked specific knowledge of the Proclamation, especially because the prosecution is required to prove that the person was reckless as to whether their conduct would materially assist an enemy to engage in armed conflict involving the Commonwealth or the Australian Defence Force in paragraph 80.1AA(1)(a)).  The purpose of the Proclamation is to ensure that a person can identify whether there are any ‘enemies’ for the purpose of the treason offences should they wish to check, not for them to be specifically aware of the Proclamation in order to commit the offence.

154.            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.

155.            This defence would be available if, for example, a defendant had specifically turned his or her mind to whether there was a Proclamation under section 80.1AB and had mistakenly, but reasonably, concluded that no such Proclamation existed. 

156.            The defendant bears 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).  

157.            For paragraph 80.1AA(1)(c), the prosecution will have to prove beyond a reasonable doubt that the person intentionally engaged in conduct.  Consistent with subsection 4.1(2) of the Criminal Code, the reference to ‘engages in conduct’ in paragraph 80.1AA(1)(c) means to do an act or to omit to perform an act. 

158.            For paragraph 80.1AA(1)(d), the prosecution will have to prove beyond a reasonable doubt that the person intended that his or her conduct would materially assist the enemy to engage in armed conflict involving the Commonwealth or the Australian Defence Force.  The term ‘materially assist’ is not defined and will be given its ordinary meaning.  It is intended that this term will cover assistance in the form of money or practical goods, and that the assistance will have to be more than merely trivial in order to ‘materially’ assist.  The conduct must also be intended to materially assist the enemy in armed conflict. 

159.            For paragraph 80.1AA(1)(e), the prosecution must prove beyond a reasonable doubt that the person’s conduct materially assisted the enemy to engage in armed conflict involving the Commonwealth or the Australian Defence Force.  This result must occur for the offence in section80.1AA to be committed.  Absolute liability applies to this element, consistent with subsection 80.1AA(3).  Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying absolute liability to an element of an offence is that no fault element needs to be proved and the defence of mistake of fact is unavailable.

160.            Absolute liability is appropriate for this element because the prosecution is already required to prove the person’s intention to materially assist the enemy in paragraph 80.1AA(1)(d).  The purpose of the element in paragraph 80.1AA(1)(e) is to require proof of the physical element that the person’s conduct materially assisted the enemy to engage in armed conflict involving the Commonwealth or the Australian Defence Force. 

161.            If absolute liability did not apply then, consistent with section 5.6 of the Criminal Code, recklessness would be the fault element for paragraph 80.1AA(1)(e).  It is unnecessary for the prosecution to prove the lower fault element of recklessness for paragraph 80.1AA(1)(e) when the prosecution will already have proved the higher fault element of intention for the same physical element in paragraph 80.1AA(1)(d).

162.            For subparagraph 80.1AA(1)(f)(i) or (ii), the prosecution will have to prove beyond a reasonable that, at the time he or she engaged in the conduct, the person was, and knew that he or she was, :

·          an Australian citizen (defined in section 2B of the Acts Interpretation Act and section 4 of the Australian Citizenship Act)

·          a resident of Australia (defined in the Dictionary to the Criminal Code as an individual who is a resident of Australia), or

·          voluntarily under the protection of the Commonwealth (for example through the grant of asylum).

163.            Under section 5.3 of the Criminal Code, a person has knowledge of a circumstance if he or she is aware that it exists or that it will exist in the ordinary course of events.

164.            For subparagraph 80.1AA(1)(f)(iii), the prosecution will have to prove that the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.  Strict liability is appropriate for this element because section 12.3 of the Criminal Code (which provides that where knowledge is a fault element, the element attributed to a body corporate is that they ‘expressly, tacitly or impliedly authorised or permitted the commission of the offence’) does not fit well with establishing that the body corporate ‘knows’ it is incorporated under a law of the Commonwealth.  The defence of mistake of fact, set out in section 9.2 of the Criminal Code, will apply.

165.            Paragraph 80.1AA(1)(f) ensures that a person only commits this offence if he or she knows that they owe an allegiance to the Commonwealth.  This is appropriate because only persons who benefit from the protection of the Australian state should be able to commit treason against the Commonwealth.

166.            The penalty for this offence is life imprisonment.  This is appropriate because the offence, at its core, represents a violation or betrayal of a person’s allegiance to Australia by providing assistance to an enemy in an armed conflict against which Australia is engaged in fighting.  This is one of the most serious offences in Commonwealth criminal law and is deserving of the most serious penalty.

167.            Note 1 under subsection 80.1AA(1) clarifies that the existing defence in section 80.3 for acts done in good faith is available in relation to the offence at subsection 80.1AA(1).

168.            Note 2 under subsection 80.1AA(1) clarifies the effect of subsection 4B(3) of the Crimes Act.  Subsection 4B(3) provides that, if a body corporate is convicted of an offence against subsection 80.1AA(1), a court may impose a fine of up to 10,000 penalty units.

169.            Subsection 80.1AA(4) provides a defence to the offence at subsection 80.1AA(1) if a person engaged in conduct solely by way of, or for the purposes of, the provision of aid or assistance of a humanitarian nature.  The provision of aid or assistance of a humanitarian nature would include activities that are humanitarian in character and are conducted by or in association with the International Committee of the Red Cross, the United Nations or its agencies, and agencies contracted or mandated to work with the UN or its agencies. This is consistent with the existing defence in subsection 80.1AA(6) and is intended to ensure that a person is not criminally liable for this offence if they provided material assistance to a party, for example by providing financial aid or food, but intended genuinely to engage in humanitarian activities instead of to support the party to engage in armed conflict against Australia.

170.            The Note under the defence at subsection 80.1AA(4) 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).   This is appropriate because a person’s intention in providing aid or assistance of a humanitarian nature is peculiarly within his or her knowledge.  The person will need to point to evidence that suggests a reasonable possibility that the defence is made out, which could include the fact that the conduct was undertaken through the UN, ICRC, an agency contracted or mandated to work with the UN or its agencies or a legitimate, registered charity.  If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).  

Section 80.1AB - Proclamation of enemy engaged in armed conflict

171.            Section 80.1AB empowers the Governor-General to, by Proclamation, declare a party identified in the Proclamation to be an enemy engaged in armed conflict involving the Commonwealth or the Australian Defence Force.

172.            A person should not be able to commit treason against Australia if it was impossible for them to know that another party was an enemy of Australia or the Australian Defence Force.  The requirement for the Commonwealth to proclaim its enemies for the purpose of the treason offence at section 80.1AA ensures that there is a publicly accessible record of enemies with whom the Commonwealth is engaged in armed conflict.

173.            The Proclamation as described at section 80.1AB will be subject to Parliamentary scrutiny and will be publically accessible. In accordance with the Legislation Act 2003 , unless exempt, declarations by legislative instrument can be disallowed by Parliament. In accordance with section 38 of the Legislation Act, disallowable instruments must be tabled in each House of Parliament within six days of the instrument being registered. If a legislative instrument is disallowed, then it is repealed and ceases to have effect.

174.            A Note to section 80.1AB notifies the reader that the offence provision at subsection 80.1AA(1) deals with the effect of the Proclamation. 

Section 80.1AC - Treachery

175.            Section 80.1AC will replace the existing treachery offence at subsection 24AA(1) of the Crimes Act, which is repealed by Item 43 of Schedule 1.  The new treachery offence will criminalise the use of force or violence intended to overthrow the Constitution, the Government of the Commonwealth or of a State or Territory or the lawful authority of the government of the Commonwealth.  The new treachery offence will carry a penalty of life imprisonment.

176.            The existing treachery offence at subsection 24AA(1) is not being replicated in the new treachery offence at section 80.1AC to the extent that it relates to acts intended to overthrow the government of a proclaimed country.  These are more appropriately dealt with by the laws of the relevant country or through the foreign incursions offences in Part 5.5 of the Criminal Code.

177.            The existing treachery offence at subsection 24AA(2) is not being replicated in the new treachery offence because assisting enemies of the Australian Defence Force is covered by the treason offence in section 80.1AA, as inserted by Item 4 of Schedule 1.

178.            An example of the offence is as follows.  Person B holds the strong view that Australia’s constitutional democracy does not best serve the interests of the Australian people and that anarchy is preferable.  Person B forms an anarchist group with a large number of like-minded people and they storm Parliament House.  Using weapons and violence, the group seeks to cause harm to a large number of parliamentarians, intending that the anarchist movement will remove the established government.

179.            This offence complements the existing treason offence at section 80.1 of the Criminal Code targeting conduct causing death or harm to the Sovereign, Governor-General or Prime Minister and the offence at section 80.2 of the Criminal Code regarding urging another person to overthrow, by force or violence, the Constitution, the Government of the Commonwealth or a State or Territory or the lawful authority of the Government of the Commonwealth.

180.            To establish this offence, the prosecution will need to prove beyond a reasonable doubt that:

·          the person intentionally engaged in conduct

·          the conduct involves force or violence and the person was reckless as to this element

·          the person engaged in the conduct with the intention of overthrowing:

o    the Constitution

o    the Government of the Commonwealth or of a State or Territory, or

o    the lawful authority of the government of the Commonwealth.

181.            Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 80.1AC(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.  

182.            Recklessness is the fault element for paragraph 80.1AC(1)(b).  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.

183.            For paragraph 80.1AC(1)(a), the prosecution will have to prove beyond a reasonable doubt that the person intentionally engaged in conduct.  Consistent with subsection 4.1(2) of the Criminal Code, the reference to ‘engages in conduct’ in paragraph 80.1AC(1)(a) means to do an act or to omit to perform an act. 

184.            For paragraph 80.1AC(1)(b), the prosecution will have to prove beyond a reasonable doubt that the person’s conduct involved force or violence and that the person was reckless as to this element.  Therefore, the defendant must have been aware of a substantial risk that his or conduct involved force or violence and, having regard to the circumstances known to him or her it was unjustifiable to take that risk. Consistent with the offences in Subdivision C of Division 80 of the Criminal Code, the term ‘force or violence’ is not defined and will have its ordinary meaning.

185.            For paragraph 80.1AC(1)(c), the prosecution will have to prove beyond a reasonable doubt that the person engaged in his or her conduct with the intention of overthrowing the Constitution, the Government of the Commonwealth or a State or Territory or the lawful authority of the Government of the Commonwealth.  This could include the overthrow of an arm of the Government.  If a person intended to overthrow the Executive Government then this will be sufficient even if they do not intend to overthrow the Parliament or the judiciary.  The application of intention to this result element means that the prosecution will have to prove that the person means to bring about the overthrow or is aware that it will occur in the ordinary course of events.

186.            Whether or not the overthrow of the Constitution or government occurs or the conduct is capable of bringing it about is not relevant to the defendant’s culpability for the offence. For example, Person B’s conduct may not be capable of defeating the security measures in place at Parliament House and therefore Person B’s conduct was not capable of overthrowing the Government.  The defendant could still commit the offence despite the fact that this outcome does not occur, or is not capable of occurring.

187.            The offence at section 80.1AC will be punishable by a maximum penalty of life imprisonment.  This is appropriate because of the serious threat to the stability and security of Australia caused by conduct involving force or violence that is intended to overthrow an Australian government or the Constitution. The penalty is also consistent with the existing penalty of life imprisonment for the treachery offence at section 24AA of the Crimes Act.

188.            Note 1 under subsection 80.1AC(1) clarifies that the existing defence in section 80.3 for acts done in good faith is available in relation to the offence at subsection 80.1AC(1).

189.            Note 2 under subsection 80.1AC(1) clarifies the effect of subsection 4B(3) of the Crimes Act.  Subsection 4B(3) provides that, if a body corporate is convicted of an offence against subsection 80.1AC(1), a court may impose a fine of up to 10,000 penalty units.

Item 5

190.            Item 5 amends subsection 80.3(1) of the Criminal Code to insert the words ‘and section 83.4’ after the words ‘Subdivisions B and C’.  The effect of this amendment is to apply the defence for acts done in good faith in section 80.3 to the new offence of ‘Interference with political rights and duties’ in new section 83.4.

Item 6

191.            Item 6 repeals existing paragraphs 80.3(2)(b), (c), (d) and (e) of the Criminal Code and creates a new paragraph 80.3(2)(b) that reflects the language of the new treason offence at section 80.1AA.

192.            Paragraph 80.3(2)(b) provides clarity about the matters the Court can have regard to when considering whether the defence of acts of good faith applies.  Under new paragraph 80.3(2)(b), to be inserted by Item 6, the Court may have regard to any matter, including whether the acts constituting the offence were done with the intention of assisting an enemy:

·          engaged in armed conflict involving the Commonwealth or the Australian Defence Force, and

·          declared in a Proclamation made under section 80.1AB to be an enemy engaged in armed conflict involving the Commonwealth or the Australian Defence Force.

193.            This amendment ensures that the matters the Court may take into account when considering the applicability of the defence at subsection 80.3(1) are consistent with the language of the new treason offence at section 80.1AA.

194.            Item 6 repeals paragraphs 80.3(2)(c), (d) and (e) of the Criminal Code.  This amendment is required to reflect the repeal of the existing offences at subsection 80.1AA(4) and section 24AA of the Crimes Act.

195.            Existing paragraph 80.3(2)(c) provides that a Court may take into account whether a person’s acts were done with the intention of assisting another country, or an organisation, that is engaged in armed hostilities against the Australian Defence Force.  This reflects the elements of the existing offence of ‘Assisting countries etc. engaged in armed hostilities against the ADF’ in subsection 80.1AA(4), which is being repealed by Item 4 of Schedule 1.  

196.            Following the repeal of the offence at subsection 80.1AA(4), it will not be necessary for a Court to be able to take these matters into account when considering a defence under subsection 80.3(1).

197.            Existing paragraph 80.3(2)(d) provides that a Court may take into account whether a person’s acts were done with the intention of assisting a proclaimed enemy of a proclaimed country (within the meaning of subsection 24AA(4) of the Crimes Act).  Existing paragraph 80.3(2)(e) provides that a Court may take into account whether a person’s acts were done with the intention of assisting persons specified in paragraphs 24AA(2)(a) of the Crimes Act.  These paragraphs reflect the elements of the existing offence of treachery in section 24AA of the Crimes Act, which is being repealed by Item 43 of Schedule 1.  These aspects of the treachery offence are not being replicated in the new offence of treachery proposed to be created in section 80.1AC through Item 4 of Schedule 1.

198.            Following the repeal of the offence at section 24AA of the Crimes Act, it will not be necessary for a Court to be able to take these matters into account when considering a defence under subsection 80.3(1).

Item 7

199.            Item 7 amends subsection 80.4(2) of the Criminal Code to insert the words ‘section 80.1AC’.  This has the effect of applying Section 15.4 (extended geographical jurisdiction—Category D) to the treachery offence in section 80.1AC of the Criminal Code (to be inserted by Item 4 of Schedule 1).

200.            Under section 15.4, the effect of Category D geographical jurisdiction is that the offence applies:

·          whether or not the conduct constituting the alleged offence occurs in Australia, and

·          whether or not a result of the conduct constituting the alleged offence occurs in Australia.

201.            Category D jurisdiction is appropriate because acts of force or violence intended to overthrow the Constitution, the Government of the Commonwealth or of a State or Territory or the lawful authority of the Government of the Commonwealth can pose a threat to Australia regardless of where the conduct constituting the offence occurs.

Item 8

202.            Item 8 inserts new Division 82 - Sabotage at the end of Part 5.1 of the Criminal Code.  The Commonwealth’s current sabotage offence (section 24AB of the Crimes Act) was introduced in 1960 and has not evolved to reflect the modern threat environment.  The existing sabotage offence only protects Defence facilities. 

Division 82 - Sabotage

Section 82.1 - Definitions

203.            Section 82.1 inserts definitions relevant to the sabotage offences in Division 82.

204.            Conduct will result in damage to public infrastructure if any of the paragraphs in the definition apply in relation to public infrastructure (as defined in section 82.2).  The paragraphs in the definition are:

·          the conduct destroys it or results in its destruction

·          the conduct involves interfering with it, or abandoning it, resulting in it being lost or rendered unserviceable

·          the conduct results in it suffering a loss of function or becoming unsafe or unfit for its purpose

·          the conduct limits or prevents access to it or any part of it by persons who are ordinarily entitled to access it or that part of it

·          the conduct results in it or any part of it becoming defective or being contaminated

·          the conduct significantly degrades its quality, or

·          if it is an electronic system—the conduct seriously disrupts it.

205.            Section 82.1 defines foreign principal as having the meaning given by section 90.2.  Section 90.2 provides that each of the following is a foreign principal :

·          a foreign government principal

·          a public international organisation

·          a terrorist organisation within the meaning of Division 102 (see section 102.1)

·          an entity or organisation directed or controlled by:

o    a public international organisation

o    a terrorist organisation within the meaning of Division 102

·          an entity or organisation directed or controlled by two or more foreign principals within the meaning of any other paragraph of the definition.

206.            The definition of foreign principal in section 90.2 is explained in detail at Item 16 of Schedule 1.

207.            Section 82.1 defines national security as having the meaning given by section 90.4.  Section 90.4 provides that the national security of Australia or a foreign country means:

·          the defence of the country

·          the protection of the country or any part of it, or the people of the country or any part of it, from activities covered by subsection 90.4(2)

·          the protection of the integrity of the country’s territory and borders from serious threats

·          the carrying out of the country’s responsibilities to any other country in relation to the protection of the integrity of the country’s territory and borders from serious threats and the activities covered by subsection 90.4(2), and

·          the country’s political, military or economic relations with another country or other countries.

208.            Subsection 90.4(2) provides that, for the purposes of subsection 90.4(1), this subsection covers the following activities relating to a country, whether or not directed from, or committed within, the country:

·          espionage

·          sabotage

·          terrorism

·          political violence

·          activities intended and likely to obstruct, hinder or interfere with the performance by the country’s defence force of its functions or with the carrying out of other activities by or for the country for the purposes of its defence or safety, and

·          foreign interference.

209.            Section 82.1 defines public infrastructure to have the meaning given by section 82.2.  Section 82.2 defines public infrastructure to mean any of the following:

·          any infrastructure, facility, premises, network or electronic system that belongs to the Commonwealth

·          defence premises within the meaning of Part VIA of the Defence Act

·          service property and service land, within the meaning of the Defence Force Discipline Act

·          any part of the infrastructure of a telecommunications network within the meaning of the Telecommunications Act, and

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

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

o    is located in Australia, and

o    belongs to or is operated by a constitutional corporation or is used to facilitate constitutional trade and commerce.

210.            The definition of public infrastructure covers infrastructure and services that are essential to everyday life in Australia.  A disruption to public infrastructure due to sabotage could have a range of serious implications for business, governments and the community.

Section 82.2 - Public infrastructure

211.            Section 82.2 sets out a definition of public infrastructure for the purpose of the sabotage offences in Division 82.

212.            Paragraph 82.2(1)(a) deals with any infrastructure, facility, premises, network or electronic system that belongs to the Commonwealth. 

·          Infrastructure is not defined and is intended to take its ordinary meaning, which would include the structures and facilities needed for the operation of society.

·          Facilities is not defined and is intended to take its ordinary meaning, which would include a place, amenity or piece of equipment.

·          Premises is not defined and is intended to take its ordinary meaning, which would include a building, together with its land, occupied by a business or used in an official context.

·          Network is not defined and is intended to take its ordinary meaning.  This is primarily intended to cover networks of interconnected computers or other machines.

·          Electronic system is not defined and is intended to take its ordinary meaning, which would include a physical interconnection of components or parts that gather various amounts of information together.  This may include databases or software and may or may not be connected to other computers or machines as part of a network .

213.            Consistent with subsection 82.2(1), the infrastructure, facility, premises, network or electronic system must belong to the Commonwealth.  Subsection 82.2(2) provides that whether the property belongs to the Commonwealth is to be determined in the same way as it would be under Chapter 7 of the Criminal Code, specifically section 130.2 of the Criminal Code.

214.            Under section 130.2, property belongs to a person if, and only if:

·          the person has possession or control of the property

·          the person has a proprietary right or interest in the property, other than an equitable interest arising only from:

o    an agreement to transfer an interest

o    an agreement to grant an interest, or

o    a constructive trust.

215.            Paragraph 82.2(1)(b) deals with defence premises within the meaning of Part VIA of the Defence Act.

216.            Section 71A of the Defence Act defines defence premises to mean any of the following that is in Australia, and is owned or occupied by the Commonwealth for use by the Defence Force or the Department:

·          an area of land or any other place (whether or not it is enclosed or built on)

·          a building or other structure

·          a vehicle, vessel or aircraft, including any fixed or moveable ramp, stairs or other means of access to, or exit from, the vehicle, vessel or aircraft

·          a prohibited area, within the meaning of the  Defence (Special Undertakings) Act 1952 , or

·          Woomera Prohibited Area.

217.            The Defence (Special Undertakings) Act defines a prohibited area as a place, or an area, that is a prohibited area under section 7, 8 or 8A.

·          Section 7 defines a prohibited area as a place being used or occupied for the purpose of a special defence undertaking (as defined in section 6).

·          Section 8 allows the Minister to declare a prohibited area if it is necessary for the purposes of the defence of the Commonwealth.

·          Section 8A provides that the Joint Defence Facility Pine Gap is a prohibited area.

218.            The Defence Act defines the Woomera Prohibited Area in section 72TA as an area prescribed by the Rules that is intended for use for the purposes of testing war materiel and may be used for those purposes.  The Woomera Prohibited Area Rule 2014 defines the Woomera Prohibited Area.

219.            Paragraph 82.2(1)(c) deals with service property and service land within the meaning of the Defence Force Discipline Act.

220.            Section 3 of the Defence Force Discipline Act defines service property as property used by, or in the possession or under the control of:

·          the Defence Force

·          an allied force (also defined in section 3 to mean a force of another country that is acting in cooperation with the Defence Force), or

·          an institution of the Defence Force or of an allied force.

221.            Section 3 of the Defence Force Discipline Act defines service land as land (including a building or other structure) used or occupied by:

·          the Defence Force

·          an allied force (also defined in section 3 to mean a force of another country that is acting in cooperation with the Defence Force), or

·          an institution of the Defence Force or of an allied force.

222.            Paragraph 82.2(1)(d) deals with any part of the infrastructure of a telecommunications network within the meaning of the Telecommunications Act.

223.            Section 7 of the Telecommunications Act defines telecommunications network as a system, or series of systems, that carries, or is capable of carrying, communications by means of guided and/or unguided electromagnetic energy.

224.            The reference in paragraph 82.2(1)(d) to ‘any part of the infrastructure of a telecommunications network’, is intended to clarify that the definition does not include customer cabling or equipment.

225.            Paragraph 82.2(1)(e) deals with any infrastructure, facility, premises, network or electronic system (including an information, telecommunications or financial system) that:

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

·          is located in Australia, and

·          belongs to or is operated by a constitutional corporation or used to facilitate constitutional trade and commerce.

226.            The terms ‘infrastructure, facility, premises, network or electronic system’ are described in detail in the explanation of paragraph 82.2(1)(a), above.

227.            Paragraph 82.2(1)(e) is intended to cover essential services that are provided to the Australian community but do not belong to the Government.  This would include private companies (that are a constitutional corporation within the existing definition of constitutional corporation in the Dictionary to the Criminal Code or are engaged in activities that facilitate constitutional trade and commerce within the definition to be inserted into the Dictionary to the Criminal Code by Item 24 of Schedule 1). 

228.            The Dictionary to the Criminal Code defines constitutional corporation as meaning a corporation to which paragraph 51(xx) of the Constitution applies.

229.            Item 24 of Schedule 1 will insert a definition of constitutional trade and commerce into the Dictionary to the Criminal Code.  The term will be defined to mean trade and commerce:

·          with other countries

·          among the States

·          between a State and Territory, or

·          between two Territories.

230.            It is essential to cover privately owned infrastructure within the definition of public infrastructure because the consequences flowing from damage to these types of infrastructure could be as damaging as damage to infrastructure owned by the Commonwealth.

231.            Subsection 82.2(2) provides that, for the purposes of the application of paragraphs 82.2(1)(a) (e) in relation to property within the meaning of Chapter 7, whether the property belongs to the Commonwealth or a constitutional corporation is to be determined in the same way as it would be under Chapter 7.  The effect of section 130.2 is described above in relation to paragraph 82.2(1)(a).

232.            Subsection 82.2(3) provides that, for the purposes of a reference in an element of an offence to public infrastructure (within the meaning of Division 82), absolute liability applies:

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

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

233.            It is appropriate to apply absolute liability to offences that rely on paragraphs 82.2(1)(a) or (e) because these are jurisdictional elements.  A jurisdictional element of the offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do.

234.            The application of absolute liability to the element of the offence that the infrastructure ‘belongs’ to the Commonwealth is consistent with other offences dealing with property belonging to the Commonwealth.  For example, section 131.1 of the Criminal Code (dealing with theft of Commonwealth property) applies absolute liability to the element of the offence that the property belongs to a Commonwealth entity.

235.            Similarly, it is consistent with existing offences in the Criminal Code to apply absolute liability to offences dealing with activities undertaken by constitutional corporations or that facilitate constitutional trade and commerce.  For example, section 380.2 of the Criminal Code (dealing with contaminating goods) applies absolute liability to the element of the offence relevant to constitutional corporations and facilitating constitutional trade and commerce (subsection 380.2(3)).

236.            The implications of applying absolute liability to the relevant elements of the sabotage offences are considered below in the discussion of each offence.

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

237.            Subsection 82.3(1) will make it an offence to engage in conduct on behalf of a foreign principal or directed, funded or supervised by a foreign principal, that results in damage to public infrastructure, with an intention to prejudice Australia’s national security or advantage the national security of a foreign country.

238.            This offence will be punishable by a maximum penalty of 25 years imprisonment.

239.            An example of this offence is as follows.  Person A is an employee of Country B, an adversary of Australia.  At the direction of Country B, Person A gains access to a sensitive Defence facility and damages electronic equipment, meaning that the Australian Defence Force is unable to undertake essential satellite monitoring.  Person A intended that the damage to the equipment would advantage the national security of Country B by enabling it to undertake missile launches without timely detection by the Australian Government.

240.            To establish this offence, the prosecution will need to prove, beyond a reasonable doubt, that:

·          a person intentionally engages in conduct

·          the person’s conduct results in damage to public infrastructure and the person is reckless as to this element

·          the person intends that their conduct will prejudice Australia’s national security or advantage the national security of a foreign country

·          the conduct was engaged in:

o    on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal and the person was reckless as to this, or

o    the conduct was directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal and the person was reckless as to this.

241.            Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraphs 82.3(1)(a).  Intention is also the fault element in relation to paragraph 82.3(1) c). 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.

242.            Recklessness is the fault element applying to paragraphs 82.3(1)(b) 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.

243.            For paragraph 82.3(1)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intended to engage in the relevant conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to ‘engages in conduct’ in paragraph 82.3(1)(a) means to do an act or to omit to perform an act. 

244.            For paragraph 82.3(1)(b) of the offence, the prosecution will have to prove, beyond a reasonable doubt, that the person’s conduct resulted in damage to public infrastructure and that the person was reckless as to this element.  Therefore, the defendant must have been aware of a substantial risk that their act or omission would result in damage to public infrastructure and that, having regard to the circumstances known to him or her that it is unjustifiable to take that risk.

245.            Paragraph 82.3(1)(b) refers to conduct that results in damage to public infrastructure, which section 82.1 defines to mean any of the following in relation to public infrastructure:

·          the conduct destroys it or results in its destruction

·          the conduct involves interfering with it, or abandoning it, resulting in it being lost or rendered unserviceable

·          the conduct results in it suffering a loss of function or becoming unsafe or unfit for its purpose

·          the conduct limits or prevents access to it or any part of it by persons who are ordinarily entitled to access it or that part of it

·          the conduct results in it or any part of it becoming defective or being contaminated

·          the conduct significantly degrades its quality, or

·          if it is an electronic system—the conduct seriously disrupts it.

246.            Section 82.2 defines public infrastructure to mean any of the following:

·          any infrastructure, facility, premises, network or electronic system that belongs to the Commonwealth

·          defence premises within the meaning of Part VIA of the Defence Act

·          service property and service land, within the meaning of the Defence Force Discipline Act

·          any part of the infrastructure of a telecommunications network within the meaning of the Telecommunications Act 1997 , and

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

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

o    is located in Australia, and

o    belongs to or is operated by a constitutional corporation or used to facilitate constitutional trade and commerce.

247.            To the extent that the prosecution is relying on paragraph 82.2(1)(a) of the definition of public infrastructure , absolute liability will apply to the element that the infrastructure, facility or premises, network or electronic system belongs to the Commonwealth.  To the extent that the prosecution is relying on paragraph 82.2(1)(e) of the definition of public infrastructure , absolute liability will apply to the element that the infrastructure, facility or premises, network or electronic system belongs to, or is operated by, a constitutional corporation or is used to facilitate constitutional trade or commerce.

248.            It is appropriate to apply absolute liability to these matters because these are jurisdictional elements.  A jurisdictional element of the offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences. 

249.            Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying absolute liability to an element of an offence is that no fault element needs to be proved and the defence of mistake of fact is unavailable. Accordingly, the prosecution will be required to prove only the physical element that the relevant infrastructure:

·          belongs to the Commonwealth

·          belongs to a constitutional corporation

·          is operated by a constitutional corporation, or

·          is used to facilitate constitutional trade or commerce.

250.            For paragraph 82.3(1)(c) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intended for their act or omission to prejudice Australia’s national security or advantage the national security of a foreign country. The national security of Australia or a foreign country is defined in section 90.4 and covers a broad range of possible prejudice to Australia’s national security, such as damage to Australia’s defence operations or harm to Australia’s international relations.

251.            The term ‘prejudice’ is intended to capture a broad range of intended conduct, including an intention to harm or injure Australia’s national security or to cause disadvantage to Australia.  The term is also intended to cover impairment or loss to Australia’s national security interests.  The prejudice to Australia’s national security is not required to be serious or substantial but is intended to be more than a minor or trivial prejudice that has no long-lasting effect, nor embarrassment to an Australian person or Australia’s people.

252.            The term ‘advantage’ is intended to capture an intention to put another country’s national security in a favourable or superior position compared to Australia’s position or to benefit or profit another’s country’s national security compared to Australia’s national security. 

253.            Whether or not the prejudice to Australia’s national security or advantage to the national security of a foreign country occurs or the conduct is capable of bringing it about is not relevant to the defendant’s culpability for the offence. For example, the equipment that Person A damaged may not have been capable of disabling the satellite monitoring system, and therefore Person A’s conduct was not capable of advantaging the national security of Country B. 

254.            For subparagraph 82.3(1)(c)(ii), the person must intend to advantage the national security of a ‘foreign country’, not a ‘foreign principal’.  This is because the interests of nation states in relation to ‘national security’ are unique and often relate to the protection to the territory of the country. 

255.            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.

256.            Consistent with subsection 82.3(2), for the purposes of subparagraph 82.3(1)(c)(ii), the person does not need to have in mind a particular foreign country and may have in mind more than one foreign country.  For example, a person’s conduct may be directed by a foreign political organisation (which falls within the definition of foreign principal in section 90.) and may be aware of a substantial risk that their conduct will advantage the national security of a foreign country but will not know, or necessarily care, which foreign country that is.  Similarly, a person may intend to advantage the national security of more than one foreign country by damaging Australian public infrastructure.

257.            For paragraph 82.3(1)(d) the prosecution will have to prove beyond a reasonable doubt that the defendant’s conduct was engaged in on behalf of, or in collaboration with, a foreign principal (as defined in section 90.), on behalf of, or in collaboration with, a person acting on behalf of a foreign principal, directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.  The prosecution will also have to prove that the person was reckless as to this element.  Therefore, the person must be aware of a substantial risk that their act or omission was engaged in on behalf of, or in collaboration with, a foreign principal, on behalf of, or in collaboration with, a person acting on behalf of a foreign principal, directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal, or and that, having regard to the circumstances known to him or her that it is unjustifiable to take that risk.

258.            For subparagraph 82.3(1)(d)(i), the term ‘on behalf of’ is intended to include where a person or entity represents, acts in the interests of, or acts as a proxy for, a foreign government principal.

259.            It is possible that a defendant will know, or be reckless, as to the fact that they are engaging in conduct for a foreign government because they are being tasked by a person who identifies himself or herself as an official of a foreign government.  In this case, the person will be engaging in the conduct on behalf of the foreign principal. 

260.            However, it may also be the case that the defendant is not tasked directly by a foreign government official, but by an intermediary.  In this case, the prosecution will have to prove beyond a reasonable doubt that the defendant was aware of a substantial risk that he or she was being tasked by a person acting on behalf of a foreign principal and that it was unjustifiable to take that risk.  This may be the case where, for example, the intermediary advises the defendant that the intermediary acts in coordination with foreign officials, or the intermediary facilitates preferential treatment for the defendant from a foreign government.

261.            Consistent with subsection 82.3(3), for the purposes of paragraph 82.3(1)(d), the person will not need to have in mind a particular foreign principal and may have in mind more than one foreign principal.  For example, a defendant 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 defendant may provide assistance in the knowledge this assistance will or could assist multiple foreign principals at the same time.

262.            The maximum penalty for the offence in section 82.3 is 25 years imprisonment.  The commission of this offence would have serious consequences for the sovereignty and national security of Australia.  It is unacceptable for foreign principals to seek to damage Australia’s public infrastructure. In the worst case scenario, Australians could be killed or seriously harmed as a result of damage caused to public infrastructure by a person acting on behalf of a foreign principal intending to harm Australia’s national security.  This justifies the serious maximum penalty for the offence.

263.            The Note to section 82.3 notes that an alternative verdict may be available for an offence against section 82.3.  The alternative verdicts for sabotage offences are set out at section 82.12.

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

264.            Subsection 82.4(1) will make it an offence to engage in conduct on behalf of, or in collaboration with, a foreign principal or directed, funded or supervised by a foreign principal, that results in damage to public infrastructure, reckless as to whether the conduct will prejudice Australia’s national security or advantage the national security of a foreign country.

265.            The offence will be punishable by a maximum penalty of 20 years imprisonment.

266.            An example of this offence is as follows.  Person C is an employee of Country D, an adversary of Australia.  At the direction of Country D, Person C damages electricity substations in Canberra, interrupting the power supply to several parts of the city, including areas in which Commonwealth departments are located.  Person C is aware that the damage to the equipment is likely to prevent the Department of Defence and Australian intelligence agencies from operating.

267.            To establish the offence, the prosecution will need to prove, beyond a reasonable doubt, that:

·          a person intentionally engages in conduct

·          the person’s conduct results in damage to public infrastructure and the person is reckless as to this element

·          the person is reckless as to whether their conduct will prejudice Australia’s national security or advantage the national security of a foreign country

·          the conduct was engaged in:

o    on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal and the person was reckless as to this, or

o    the conduct was directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal and the person was reckless as to this.

268.            Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 82.4(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.

269.            Recklessness is the fault element for paragraphs 82.4(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.

270.            For paragraph 82.4(1)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intended to engage in the relevant conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to ‘engages in conduct’ in paragraph 82.4(1)(a) means to do an act or to omit to perform an act. 

271.            For paragraph 82.4(1)(b) of the offence, the prosecution will have to prove, beyond a reasonable doubt, that the person’s conduct resulted in damage to public infrastructure and that the person was reckless as to this element.  Therefore, the defendant must have been aware of a substantial risk that their act or omission would result in damage to public infrastructure and that, having regard to the circumstances known to him or her that it is unjustifiable to take that risk.

272.            Paragraph 82.4(1)(b) refers to conduct that results in damage to public infrastructure, which section 82.1 defines to mean any of the following in relation to public infrastructure:

·          the conduct destroys it or results in its destruction

·          the conduct involves interfering with it, or abandoning it, resulting in it being lost or rendered unserviceable

·          the conduct results in it suffering a loss of function or becoming unsafe or unfit for its purpose

·          the conduct limits or prevents access to it or any part of it by persons who are ordinarily entitled to access it or that part of it

·          the conduct results in it or any part of it becoming defective or being contaminated

·          the conduct significantly degrades its quality, or

·          if it is an electronic system—the conduct seriously disrupts it.

273.            Section 82.2 defines public infrastructure to mean any of the following:

·          any infrastructure, facility, premises, network or electronic system that belongs to the Commonwealth

·          defence premises within the meaning of Part VIA of the Defence Act

·          service property and service land, within the meaning of the Defence Force Discipline Act

·          any part of the infrastructure of a telecommunications network within the meaning of the Telecommunications Act, and

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

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

o    is located in Australia, and

o    belongs to or is operated by a constitutional corporation or used to facilitate constitutional trade and commerce.

274.            To the extent that the prosecution is relying on paragraph 82.2(1)(a) of the definition of public infrastructure , absolute liability will apply to the element that the infrastructure, facility or premises, network or electronic system belongs to the Commonwealth.  To the extent that the prosecution is relying on paragraph 82.2(1)(e) of the definition of public infrastructure , absolute liability will apply to the element that the infrastructure, facility or premises, network or electronic system belongs to, or is operated by, a constitutional corporation or is used to facilitate constitutional trade or commerce.

275.            It is appropriate to apply absolute liability to these matters because these are jurisdictional elements.  A jurisdictional element of the offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences. 

276.            Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying absolute liability to an element of an offence is that no fault element needs to be proved and the defence of mistake of fact is unavailable. Accordingly, the prosecution will be required to prove only the fact that the relevant infrastructure:

·          belongs to the Commonwealth

·          belongs to a constitutional corporation

·          is operated by a constitutional corporation, or

·          is used to facilitate constitutional trade or commerce.

277.            For paragraph 82.4(1)(c) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant was aware of a substantial risk that their act or omission would prejudice to Australia’s national security or advantage the national security of a foreign country and that, having regard to the circumstances known to him or her that it is unjustifiable to take that risk.

278.            National security is defined in section 90.4 and covers a broad range of possible prejudice to Australia’s national security, such as damage to Australia’s defence operations or harm to Australia’s international relations.

279.            The term ‘prejudice’ is intended to capture a broad range of intended conduct, including an intention to harm or injure Australia’s national security or to cause disadvantage to Australia.  The term is also intended to cover impairment or loss to Australia’s national security interests.  The prejudice to Australia’s national security is not required to be serious or substantial but is intended to be more than a minor or trivial prejudice that has no long-lasting effect, nor embarrassment to an Australian person or Australia’s people.

280.            The term ‘advantage’ is intended to capture an intention to put another country’s national security in a favourable or superior position compared to Australia’s position or to benefit or profit another’s country’s national security compared to Australia’s national security. 

281.            Whether or not the prejudice to Australia’s national security or advantage to a foreign country’s national security occurs or the conduct is capable of bringing it about is not relevant to the defendant’s culpability for the offence. For example, the departments and agencies that Person C intended to prevent from operating may have had power available from generators and their power supply may not have been interrupted and therefore Person C’s conduct was not capable of prejudicing Australia’s national security. 

282.            For subparagraph 82.4(1)(c)(ii), the person must be reckless as to whether his or her conduct will advantage the national security of a ‘foreign country’, not a ‘foreign principal’.  This is because the interests of nation states in relation to ‘national security’ are unique and often relate to the protection to the territory of the country. 

283.            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.

284.            Consistent with subsection 82.4(2), for the purposes of subparagraph 82.4(1)(c)(ii), the person does not need to have in mind a particular foreign country and may have in mind more than one foreign country.  For example, a person’s conduct may be directed by a foreign political organisation (which falls within the definition of foreign principal in section 90.) and may be aware of a substantial risk that their conduct will advantage the national security of a foreign country but will not know, or necessarily care, which foreign country that is.  Similarly, a person may intend to advantage the national security of more than one foreign country by damaging Australian public infrastructure.

285.            For paragraph 82.4(1)(d) the prosecution will have to prove beyond a reasonable doubt that the defendant’s conduct was engaged in on behalf of, or in collaboration with, a foreign principal (as defined in section 90.), on behalf of, or in collaboration with, a person acting on behalf of a foreign principal, directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.  The prosecution will also have to prove that the person was reckless as to this element.  Therefore, the person must be aware of a substantial risk that their act or omission was engaged in on behalf of, or in collaboration with, a foreign principal, on behalf of, or in collaboration with, a person acting on behalf of a foreign principal, directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal, or and that, having regard to the circumstances known to him or her that it is unjustifiable to take that risk.

286.            It is possible that a defendant will know, or be reckless, as to the fact that they are engaging in conduct for a foreign principal because they are being tasked by a person who identifies himself or herself as an official of a foreign government.  In this case, the person will be engaging in the conduct on behalf of the foreign principal. 

287.            However, it may also be the case that the defendant is not tasked directly by a foreign government official, but by an intermediary.  In this case, the prosecution will have to prove beyond a reasonable doubt that the defendant was aware of a substantial risk that he or she was being tasked by a person acting on behalf of a foreign principal and that it was unjustifiable to take that risk.  This may be the case where, for example, the intermediary advises the defendant that the intermediary acts in coordination with foreign officials, or the intermediary facilitates preferential treatment for the defendant from a foreign government. 

288.            Consistent with subsection 82.4(3), for the purposes of paragraph 82.4(1)(d), the person will not need to have in mind a particular foreign principal and may have in mind more than one foreign principal.  For example, a defendant 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 defendant may provide assistance in the knowledge this assistance will or could assist multiple foreign principals at the same time.

289.            The maximum penalty for the offence in section 82.4 is 20 years imprisonment.  It is unacceptable for foreign principals to seek to damage Australia’s public infrastructure, reckless as to whether it will prejudice Australia’s national security or advantage the national security of a foreign country. In the worst case scenario, Australians could be killed or seriously harmed as a result of damage to public infrastructure.  This justifies the serious maximum penalty for the offence.

290.            The Note to section 82.4 notes that an alternative verdict may be available for an offence against section 82.3.  The alternative verdicts for sabotage offences are set out at section 82.12.

Section 82.5 - Offence of sabotage with intention as to national security

291.            Section 82.5 will make it an offence to engage in conduct that results in damage to public infrastructure, with an intention to prejudice Australia’s national security or advantage the national security of a foreign country.

292.            The offence will be punishable by a maximum penalty of 20 years imprisonment.

293.            An example of this offence is as follows. Person E is an employee of a Defence contractor.  Person E is entitled to access highly sensitive Defence systems and uses that access to take the system offline at a critical point in a Defence operation.  Person E is aware of the ongoing operation and knows that the system is essential to the success of the operation.

294.            To establish the offence, the prosecution will need to prove, beyond a reasonable doubt, that:

·          the person intentionally engages in conduct

·          the conduct results in damage to public infrastructure and the person is reckless as to this element, and

·          the person intends that his or her conduct will prejudice Australia’s national security or advantage the national security of a foreign country.

295.            Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 82.5(1)(a). Intention is also the fault element for paragraph 82.5(1)(c).  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.

296.            Recklessness is the fault element for paragraph 82.5(1)(b). 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.

297.            For paragraph 82.5(1)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intended to engage in the relevant conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to ‘engages in conduct’ in paragraph 82.4(1)(a) means to do an act or to omit to perform an act. 

298.            For paragraph 82.5(1)(b) of the offence, the prosecution will have to prove, beyond a reasonable doubt, that the person’s conduct resulted in damage to public infrastructure and that the person was reckless as to this element.  Therefore, the defendant must have been aware of a substantial risk that their act or omission would result in damage to public infrastructure and that, having regard to the circumstances known to him or her that it is unjustifiable to take that risk.

299.            Paragraph 82.5(1)(b) refers to conduct that results in damage to public infrastructure, which section 82.1 defines to mean any of the following in relation to public infrastructure:

·          the conduct destroys it or results in its destruction

·          the conduct involves interfering with it, or abandoning it, resulting in it being lost or rendered unserviceable

·          the conduct results in it suffering a loss of function or becoming unsafe or unfit for its purpose

·          the conduct limits or prevents access to it or any part of it by persons who are ordinarily entitled to access it or that part of it

·          the conduct results in it or any part of it becoming defective or being contaminated

·          the conduct significantly degrades its quality, or

·          if it is an electronic system—the conduct seriously disrupts it.

300.            Section 82.2 defines public infrastructure to mean any of the following:

·          any infrastructure, facility, premises, network or electronic system that belongs to the Commonwealth

·          defence premises within the meaning of Part VIA of the Defence Act

·          service property and service land, within the meaning of the Defence Force Discipline Act

·          any part of the infrastructure of a telecommunications network within the meaning of the Telecommunications Act, and

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

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

o    is located in Australia, and

o    belongs to or is operated by a constitutional corporation or used to facilitate constitutional trade and commerce.

301.            To the extent that the prosecution is relying on paragraph 82.2(1)(a) of the definition of public infrastructure , absolute liability will apply to the element that the infrastructure, facility or premises, network or electronic system belongs to the Commonwealth.  To the extent that the prosecution is relying on paragraph 82.2(1)(e) of the definition of public infrastructure , absolute liability will apply to the element that the infrastructure, facility or premises, network or electronic system belongs to, or is operated by, a constitutional corporation or is used to facilitate constitutional trade or commerce.

302.            It is appropriate to apply absolute liability to these matters because these are jurisdictional elements.  A jurisdictional element of the offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences. 

303.            Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying absolute liability to an element of an offence is that no fault element needs to be proved and the defence of mistake of fact is unavailable. Accordingly, the prosecution will be required to prove only the physical element that the relevant infrastructure:

·          belongs to the Commonwealth

·          belongs to a constitutional corporation

·          is operated by a constitutional corporation, or

·          is used to facilitate constitutional trade or commerce.

304.            For paragraph 82.5(1)(c) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intended for their act or omission to prejudice Australia’s national security or advantage the national security of a foreign country. The national security of Australia or a foreign country is defined in section 90.4 and covers a broad range of possible prejudice to Australia’s national security, such as damage to Australia’s defence operations or harm to Australia’s international relations.

305.            Whether or not the prejudice to Australia’s national security or advantage to the national security of the foreign country occurs or the conduct is capable of bringing it about is not relevant to the defendant’s culpability for the offence. For example, the system that Person E took offline may not actually have been essential to the mission and therefore Person E’s conduct was not capable of prejudicing Australia’s national security. 

306.            For subparagraph 82.5(1)(c)(ii), the person must intend to advantage the national security of a ‘foreign country’, not a ‘foreign principal’.  This is because the interests of countries in relation to ‘national security’ are unique and often relate to the protection to the territory of the country. 

307.            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.

308.            Consistent with subsection 82.5(2), for the purposes of subparagraph 82.5(1)(c)(ii), the person does not need to have in mind a particular foreign country and may have in mind more than one foreign country.  For example, a person’s conduct may be directed by a foreign political organisation (which falls within the definition of foreign principal in section 90.) and may be aware of a substantial risk that their conduct will advantage the national security of a foreign country but will not know, or necessarily care, which foreign country that is.  Similarly, a person may intend to advantage the national security of more than one foreign country by damaging Australian public infrastructure.

309.            The maximum penalty for the offence in section 82.5 is 20 years imprisonment.  The commission of this offence would have serious consequences for the sovereignty and national security of Australia.  It is unacceptable for persons to seek to damage Australia’s public infrastructure intending to prejudice Australia’s national security or advantage the national security of a foreign principal. In the worst case scenario, Australians could be killed or seriously harmed as a result of infrastructure damage by a person intending to harm Australia’s national security.  This justifies the serious maximum penalty for the offence.

310.            The Note to section 82.5 notes that an alternative verdict may be available for an offence against section 82.3.  The alternative verdicts are set out at section 82.12.

Section 82.6 - Offence of sabotage reckless as to national security

311.            Section 82.6 will make it an offence to engage in conduct that results in damage to public infrastructure, reckless as to whether that conduct will prejudice Australia’s national security or advantage the national security of a foreign country.

312.            The offence will be punishable by a maximum penalty of 15 years imprisonment.

313.            An example of this offence is as follows. Person F places several locks on the gates of part of a Defence facility in a foreign country which is used as a base for troops involved in an international armed conflict.  It would take up to 30 minutes to cut the locks off and gain access to the weapons.  Person F is aware of an imminent planned attack on the Defence facility.

314.            To establish the offence, the prosecution will need to prove, beyond a reasonable doubt, that:

·          a person intentionally engages in conduct;

·          the person’s conduct results in damage to public infrastructure and the person is reckless as to this element, and

·          the person is reckless as to whether the person’s conduct will prejudice Australia’s national security or advantage the national security of a foreign country.

315.            Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 82.6(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.

316.            Recklessness is the fault element of recklessness for paragraphs 82.6(1)(b) and (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.

317.            For paragraph 82.6(1)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intended to engage in the relevant conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to ‘engages in conduct’ in paragraph 82.6(1)(a) means to do an act or to omit to perform an act. 

318.            For paragraph 82.6(1)(b) of the offence, the prosecution will have to prove, beyond a reasonable doubt, that the defendant was aware of a substantial risk that their act or omission would result in damage to public infrastructure and that, having regard to the circumstances known to him or her that it is unjustifiable to take that risk.

319.            Paragraph 82.6(1)(b) refers to conduct that results in damage to public infrastructure, which subsection 82.1 defines to mean any of the following in relation to public infrastructure:

·          the conduct destroys it or results in its destruction

·          the conduct involves interfering with it, or abandoning it, resulting in it being lost or rendered unserviceable

·          the conduct results in it suffering a loss of function or becoming unsafe or unfit for its purpose

·          the conduct limits or prevents access to it or any part of it by persons who are ordinarily entitled to access it or that part of it

·          the conduct results in it or any part of it becoming defective or being contaminated

·          the conduct significantly degrades its quality, or

·          if it is an electronic system—the conduct seriously disrupts it.

320.            Section 82.2 defines public infrastructure to mean any of the following:

·          any infrastructure, facility, premises, network or electronic system that belongs to the Commonwealth

·          defence premises within the meaning of Part VIA of the Defence Act

·          service property and service land, within the meaning of the Defence Force Discipline Act

·          any part of the infrastructure of a telecommunications network within the meaning of the Telecommunications Act, and

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

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

o    is located in Australia, and

o    belongs to or is operated by a constitutional corporation or used to facilitate constitutional trade and commerce.

321.            To the extent that the prosecution is relying on paragraph 82.2(1)(a) of the definition of public infrastructure , absolute liability will apply to the element that the infrastructure, facility or premises, network or electronic system belongs to the Commonwealth.  To the extent that the prosecution is relying on paragraph 82.2(1)(e) of the definition of public infrastructure , absolute liability will apply to the element that the infrastructure, facility or premises, network or electronic system belongs to, or is operated by, a constitutional corporation or is used to facilitate constitutional trade or commerce.

322.            It is appropriate to apply absolute liability to these matters because these are jurisdictional elements.  A jurisdictional element of the offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences. 

323.            Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying absolute liability to an element of an offence is that no fault element needs to be proved and the defence of mistake of fact is unavailable. Accordingly, the prosecution will be required to prove only the fact that the relevant infrastructure:

·          belongs to the Commonwealth

·          belongs to a constitutional corporation

·          is operated by a constitutional corporation, or

·          is used to facilitate constitutional trade or commerce.

324.            For paragraph 82.6(1)(c) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant was aware of a substantial risk that their act or omission would prejudice Australia’s national security or advantage the national security of a foreign country and that, having regard to the circumstances known to him or her that it is unjustifiable to take that risk. The national security of Australia or a foreign country is defined in section 90.4 and covers a broad range of possible prejudice to Australia’s national security, such as damage to Australia’s defence operations or harm to Australia’s international relations.

325.            The term ‘prejudice’ is intended to capture a broad range of intended conduct, including an intention to harm or injure Australia’s national security or to cause disadvantage to Australia.  The term is also intended to cover impairment or loss to Australia’s national security interests.  The prejudice to Australia’s national security is not required to be serious or substantial but is intended to be more than a minor or trivial prejudice that has no long-lasting effect, nor embarrassment to an Australian person or Australia’s people.

326.            The term ‘advantage’ is intended to capture an intention to put another country’s national security in a favourable or superior position compared to Australia’s position or to benefit or profit another’s country’s national security compared to Australia’s national security. 

327.            Whether or not prejudice to Australia’s national security or advantage to the national security of a foreign country occurs or the conduct is capable of bringing it about is not relevant to the defendant’s culpability for the offence. For example, the weapons which Person F has prevented Defence personnel from accessing may not be critical to protecting the facility from an attack and therefore Person F’s conduct may not have been capable of prejudicing Australia’s national security. 

328.            For subparagraph 82.6(1)(c)(ii), the person must be reckless as to whether his or her conduct will advantage the national security of a ‘foreign country’, not a ‘foreign principal’.  This is because the interests of nation states in relation to ‘national security’ are unique and often relate to the protection to the territory of the country. 

329.            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.

330.            Consistent with subsection 82.6(2), for the purposes of subparagraph 82.6(1)(c), the person does not need to have in mind a particular foreign country and may have in mind more than one foreign country.  For example, a person’s conduct may be directed by a foreign political organisation (which falls within the definition of foreign principal in section 90.2 and may be aware of a substantial risk that their conduct will advantage the national security of a foreign country but will not know, or necessarily care, which foreign country that is.  Similarly, a person may intend to advantage the national security of more than one foreign country by damaging Australian public infrastructure.

331.            The maximum penalty for the offence in section 82.6 is 15 years imprisonment.  The commission of this offence would have serious consequences for the sovereignty and national security of Australia. It is unacceptable for persons to seek to damage Australia’s public infrastructure reckless as to whether his or her conduct would prejudice Australia’s national security or advantage the national security of a foreign country. In the worst case scenario, Australians could be killed or seriously harmed as a result of infrastructure damage by a person reckless so to whether their conduct will harm Australia’s national security. This justifies the serious maximum penalty for the offence.

Section 82.7 - Offence of introducing vulnerability with intention as to national security

332.            Section 82.7 will make it an offence for a person to engage in conduct that results in an article, thing or software that is, or is part of, public infrastructure becoming vulnerable to misuse, impairment or unauthorised access or modification where the conduct is intended to prejudice Australia’s national security, harm or prejudice Australia’s economic interests, disrupt the functions of an Australian government or to damage public infrastructure.

333.            The offence will be punishable by a maximum penalty of 15 years imprisonment.

334.            An example of this offence is as follows.  Person G is a subcontractor engaged to build a software system to be used by a Commonwealth department involved in national security.  When building the system, Person G deliberately creates a backdoor through which an intrusion into the software will be possible in future.  Person G intends that this will enable a person to hack into the system in future and extract data.  Person G intends to sell information about this vulnerability to a foreign country in order to harm Australia’s interests by enabling that country to use the vulnerability to access highly sensitive data.

335.            To establish the offence, the prosecution will need to prove, beyond a reasonable doubt, that:

·          a person intentionally engages in conduct

·          the person’s conduct has the result that an article or thing, or software becoming vulnerable to:

o    misuse or impairment, or

o    to being accessed or modified by person not entitled to access or modify it

and the person is reckless as to this element

·          the article or thing or software, is or is part of public infrastructure and the person is reckless as to this element

·          the person engages in the conduct intending that, whether at the time or at a future time, that one of the following will occur:

o    prejudice to Australia’s national security

o    harm or prejudice to Australia’s economic interests

o    disruption to the functions of the Government of the Commonwealth, of a State or of a Territory, or

o    damage to public infrastructure.

336.            Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 82.7(a). Intention is also the fault element for 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.

337.            Recklessness is the fault element for paragraphs 82.7(b) and (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.

338.            For paragraph 82.7(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intended to engage in the relevant conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to ‘engages in conduct’ in paragraph 82.7(a) means to do an act or to omit to perform an act. 

339.            For paragraph 82.7(b) of the offence, the prosecution will have to prove, beyond a reasonable doubt, that the defendant’s conduct had the result that an article or thing or software becomes vulnerable to misuse or impairment or to being accessed or modified by a person not entitled to access or modify it.  The person must be reckless as to this element.  Therefore, the defendant must be aware of a substantial risk that their act or omission would result in an article, thing or software becoming vulnerable to misuse, impairment or access or modification by a person not entitled to access or modify it and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk.

340.            For the purposes of paragraph 82.7(b):

·          Article is intended to include substances and materials.

·          Thing is intended to cover all objects.

·          Software is intended to cover programs and operating systems used by computers.

·          Vulnerable is intended to cover leaving the article, thing or software exposed to the possibility of being attacked or harmed.

·          Misuse is intended to cover using something in the wrong way or for an unauthorised purpose.

·          Impairment is intended to include weakening or damaging something or rendering it unusable.

341.            For paragraph 82.7(c) of the offence, the prosecution will have to prove, beyond a reasonable doubt, that the article or thing or software is, or is part of, public infrastructure.  The defendant must be reckless in relation to this element.  Therefore, the defendant must have been aware of a substantial risk that the article, thing or software was part of public infrastructure and that, having regard to those circumstances, it is unjustifiable to take the risk.

342.            Section 82.2 defines public infrastructure to mean any of the following:

·          any infrastructure, facility, premises, network or electronic system that belongs to the Commonwealth

·          defence premises within the meaning of Part VIA of the Defence Act

·          service property and service land, within the meaning of the Defence Force Discipline Act

·          any part of the infrastructure of a telecommunications network within the meaning of the Telecommunications Act, and

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

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

o    is located in Australia, and

o    belongs to or is operated by a constitutional corporation or used to facilitate constitutional trade and commerce.

343.            To the extent that the prosecution is relying on paragraph 82.2(1)(a) of the definition of public infrastructure , absolute liability will apply to the element that the infrastructure, facility or premises, network or electronic system belongs to the Commonwealth.  To the extent that the prosecution is relying on paragraph 82.2(1)(e) of the definition of public infrastructure , absolute liability will apply to the element that the infrastructure, facility or premises, network or electronic system belongs to, or is operated by, a constitutional corporation or is used to facilitate constitutional trade or commerce.

344.            It is appropriate to apply absolute liability to these matters because these are jurisdictional elements.  A jurisdictional element of the offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences. 

345.            Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying absolute liability to an element of an offence is that no fault element needs to be proved and the defence of mistake of fact is unavailable. Accordingly, the prosecution will be required to prove only the physical element that the relevant infrastructure:

·          belongs to the Commonwealth

·          belongs to a constitutional corporation

·          is operated by a constitutional corporation, or

·          is used to facilitate constitutional trade or commerce.

346.            For paragraph 82.7(d) of the offence, the prosecution will have to prove, beyond a reasonable doubt, that the defendant undertook their act or omission with the intention that any of the following would occur, whether at the time or at a future time:

·          prejudice to Australia’s national security,

·          damage to Australia’s economic interests,

·          disruption to the functions of the Government of the Commonwealth, of a State or of a Territory or

·          damage to public infrastructure.

347.            Whether or not the one of these matters occurs or the conduct is capable of bringing it about is not relevant to the defendant’s culpability for the offence. For example, Person G’s backdoor in the relevant software may actually not allow for data to be extracted in the future.

348.            Subparagraph 82.7(d)(i) refers to prejudice to Australia’s national security.  The term ‘prejudice’ is intended to capture a broad range of intended conduct, including an intention to harm or injure Australia’s national security or to cause disadvantage to Australia.  The term is also intended to cover impairment or loss to Australia’s national security interests.  The prejudice to Australia’s national security is not required to be serious or substantial but is intended to be more than a minor or trivial prejudice that has no long-lasting effect, nor embarrassment to an Australian person or Australia’s people.

349.            The national security of Australia is defined in section 90.4 and covers a broad range of possible prejudice to Australia’s national security, such as damage to Australia’s defence operations or harm to Australia’s international relations.

350.            Subparagraph 82.7(d)(ii) refers to harm or prejudice to Australia’s economic interests.  The term ‘prejudice’ is intended to capture a broad range of intended conduct, including an intention to harm or injure Australia’s economic interests or to cause disadvantage to Australia.  The term is also intended to cover impairment or loss to Australia’s economic interests.  The prejudice to Australia’s economic interests is not required to be serious or substantial but is intended to be more than a minor or trivial prejudice that has no long-lasting effect on Australia’s overall economy.

351.            Paragraph 82.7(d)(iii) refers to disruption to the functions of the Government of the Commonwealth or of a State or Territory.  This is intended to cover a disturbance or interruption to the functions of these governments.  Although the disruption need not be serious or substantial, it is intended to be more than a minor or trivial disruption.  The disruption may be to any of the functions of the Commonwealth or a State or Territory government.

352.            Paragraph 82.7(d)(iv) refers to damage to public infrastructure, which section 82.1 defines to mean any of the following in relation to public infrastructure:

·          the conduct destroys it or results in its destruction

·          the conduct involves interfering with it, or abandoning it, resulting in it being lost or rendered unserviceable

·          the conduct results in it suffering a loss of function or becoming unsafe or unfit for its purpose

·          the conduct limits or prevents access to it or any part of it by persons who are ordinarily entitled to access it or that part of it

·          the conduct results in it or any part of it becoming defective or being contaminated

·          the conduct significantly degrades its quality, or

·          if it is an electronic system—the conduct seriously disrupts it.

353.            The offence will be punishable by a maximum penalty of 15 years imprisonment. The commission of this offence would have serious consequences for Australia’s national security and economic interests. It is unacceptable for persons to enable the misuse, impairment or unauthorised access or modification of an article, thing or software that is or is part of public infrastructure. In the worst case scenario, Australians could be killed or seriously harmed as a result of the modification or impairment of public infrastructure by a person intending to harm Australia’s national security. This justifies the serious maximum penalty for the offence.

Section 82.8 - Offence of introducing vulnerability reckless as to national security

354.            Section 82.8 will make it an offence for a person to engage in conduct that results in an article, thing or software that is or is part of public infrastructure becoming vulnerable to misuse, impairment or unauthorised access or modification where the person is reckless as to whether it will prejudice Australia’s national security, harm or prejudice Australia’s economic interests, disrupt the functions of an Australian government or damage public infrastructure.

355.            The offence will be punishable by a maximum penalty of 10 years imprisonment.

356.            An example of this offence is as follows.  Person A works for the Australian Bureau of Statistics on the IT support helpdesk.  Person A makes a change to security settings on the ABS’s website that makes it vulnerable to a denial of service attack, and posts details of this vulnerability on a hacking noticeboard.  Third parties conduct a denial of service using this vulnerability on the day that the ABS is scheduled to release important economic statistics, causing a loss of confidence and a severe drop in stock values across the Australian Stock Exchange.  At the time they change the security settings, Person A is aware of the importance of the statistics to Australia’s economy.

357.            To establish the offence, the prosecution will need to prove, beyond a reasonable doubt, that:

·          a person intentionally engages in conduct

·          the person’s conduct has the result that an article or thing, or software becoming vulnerable to:

o    misuse or impairment, or

o    to being accessed or modified by person not entitled to access or modify it

and the person is reckless as to this element

·          the article or thing or software, is or is part of public infrastructure and the person is reckless as to this element

·          the person engages in the conduct reckless as to whether any of the following will occur (whether at the time or at a future time):

o    prejudice to Australia’s national security

o    harm or prejudice to Australia’s economic interests

o    disruption to the functions of the Government of the Commonwealth, of a State or of a Territory, or

o    damage to public infrastructure.

358.            Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 82.8(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.

359.            Recklessness will be the fault element in relation to paragraphs 82.8(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.

360.            For paragraph 82.8(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intended to engage in the relevant conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to ‘engages in conduct’ in paragraph 82.8(a) means to do an act or to omit to perform an act. 

361.            For paragraph 82.8(b) of the offence, the prosecution will have to prove, beyond a reasonable doubt, that the defendant’s conduct had the result that an article, thing or software becomes vulnerable to misuse or impairment or to being accessed or modified by a person not entitled to access or modify it.  Recklessness is the fault element for this element.  Therefore, the defendant must have been aware of a substantial risk that their act or omission would result in an article, thing or software becoming vulnerable to misuse, impairment or access or modification by a person not entitled to access or modify it and, having regard to the circumstances known to him or her that it is unjustifiable to take that risk.

362.            For the purposes of paragraph 82.8(b):

·          Article is intended to include substances and materials.

·          Thing is intended to cover all objects.

·          Software is intended to cover programs and operating systems used by computers.

·          Vulnerable is intended to cover leaving the article, thing or software exposed to the possibility of being attacked or harmed.

·          Misuse is intended to cover using something in the wrong way or for an unauthorised purpose.

·          Impairment is intended to include weakening or damaging something or rendering it unusable.

363.            For paragraph 82.8(c) of the offence, the prosecution will have to prove, beyond a reasonable doubt, that the article or thing or software is or is part of public infrastructure and that, having regard to those circumstances, it is unjustifiable to take the risk. Recklessness is the fault element for this element.  Therefore, the defendant must have been aware of a substantial risk that the article, thing or software was part of public infrastructure and that, having regard to those circumstances, it is unjustifiable to take the risk.

364.            Section 82.2 defines public infrastructure to mean any of the following:

·          any infrastructure, facility, premises, network or electronic system that belongs to the Commonwealth

·          defence premises within the meaning of Part VIA of the Defence Act

·          service property and service land, within the meaning of the Defence Force Discipline Act

·          any part of the infrastructure of a telecommunications network within the meaning of the Telecommunications Act, and

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

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

o    is located in Australia, and

o    belongs to or is operated by a constitutional corporation or used to facilitate constitutional trade and commerce.

365.            To the extent that the prosecution is relying on paragraph 82.2(1)(a) of the definition of public infrastructure , absolute liability will apply to the element that the infrastructure, facility or premises, network or electronic system belongs to the Commonwealth.  To the extent that the prosecution is relying on paragraph 82.2(1)(e) of the definition of public infrastructure , absolute liability will apply to the element that the infrastructure, facility or premises, network or electronic system belongs to, or is operated by, a constitutional corporation or is used to facilitate constitutional trade or commerce.

366.            It is appropriate to apply absolute liability to these matters because these are jurisdictional elements.  A jurisdictional element of the offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences. 

367.            Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying absolute liability to an element of an offence is that no fault element needs to be proved and the defence of mistake of fact is unavailable. Accordingly, the prosecution will be required to prove only the fact that the relevant infrastructure:

·          belongs to the Commonwealth

·          belongs to a constitutional corporation

·          is operated by a constitutional corporation, or

·          is used to facilitate constitutional trade or commerce.

368.            For paragraph 82.8(d) of the offence, the prosecution will have to prove, beyond a reasonable doubt, that the defendant undertook their act or omission with the intention that any of the following would occur, whether at the time or at a future time:

·          prejudice to Australia’s national security,

·          damage to Australia’s economic interests,

·          disruption to the functions of the Government of the Commonwealth, of a State or of a Territory or

·          damage to public infrastructure.

369.            Whether or not the one of these matters occurs or the conduct is capable of bringing it about is not relevant to the defendant’s culpability for the offence. For example, Person G’s backdoor in the relevant software may actually not allow for data to be extracted in the future.

370.            Subparagraph 82.8(d)(i) refers to prejudice to Australia’s national security.  The term ‘prejudice’ is intended to capture a broad range of intended conduct, including an intention to harm or injure Australia’s national security or to cause disadvantage to Australia.  The term is also intended to cover impairment or loss to Australia’s national security interests.  The prejudice to Australia’s national security is not required to be serious or substantial but is intended to be more than a minor or trivial prejudice that has no long-lasting effect, nor embarrassment to an Australian person or Australia’s people.

371.            The national security of Australia is defined in section 90.4 and covers a broad range of possible prejudice to Australia’s national security, such as damage to Australia’s defence operations or harm to Australia’s international relations.

372.            Subparagraph 82.8(d)(ii) refers to harm or prejudice to Australia’s economic interests.  The term ‘prejudice’ is intended to capture a broad range of intended conduct, including an intention to harm or injure Australia’s economic interests or to cause disadvantage to Australia.  The term is also intended to cover impairment or loss to Australia’s economic interests.  The prejudice to Australia’s economic interests is not required to be serious or substantial but is intended to be more than a minor or trivial prejudice that has no long-lasting effect on Australia’s overall economy.

373.            Paragraph 82.8(d)(iii) refers to disruption to the functions of the Government of the Commonwealth or of a State or Territory.  This is intended to cover a disturbance or interruption to the functions of these governments.  Although the disruption need not be serious or substantial, it is intended to be more than a minor or trivial disruption.  The disruption may be to any of the functions of the Commonwealth or a State or Territory government.

374.            Paragraph 82.8(d)(iv) refers to damage to public infrastructure, which section 82.1 defines to mean any of the following in relation to public infrastructure:

·          the conduct destroys it or results in its destruction

·          the conduct involves interfering with it, or abandoning it, resulting in it being lost or rendered unserviceable

·          the conduct results in it suffering a loss of function or becoming unsafe or unfit for its purpose

·          the conduct limits or prevents access to it or any part of it by persons who are ordinarily entitled to access it or that part of it

·          the conduct results in it or any part of it becoming defective or being contaminated

·          the conduct significantly degrades its quality, or

·          if it is an electronic system—the conduct seriously disrupts it.

375.            The offence will be punishable by a maximum penalty of 10 years imprisonment. The commission of this offence would have serious consequences for Australia’s national security and economic interests. It is unacceptable for persons to enable the misuse, impairment or unauthorised access or modification of an article, thing or software that is or is part of public infrastructure. In the worst case scenario, Australians could be killed or seriously harmed as a result of the modification or impairment of public infrastructure by a person who is reckless as to the harm that may result. This justifies the serious maximum penalty for the offence.

Section 82.9 - Offence of preparing for, or planning, a sabotage offence

376.            Section 82.9 will establish a new offence of preparing for a sabotage offence. The new offence will criminalise conduct in preparation for, or planning, an offence against Division 82 (sabotage).

377.            The offence will be punishable by a maximum penalty of seven years imprisonment.

378.            An example of this offence is as follows. Person H intends to damage public infrastructure in another city. Person H has arranged travel to the city, has purchased the equipment needed to cause damage and has communicated with other people about his/her intention to damage the facility, including their intention to cause the damage in order to advantage a foreign country’s national security.

379.            The purpose of the offence is to give law enforcement authorities the means to deal with preparatory conduct and enable a person to be arrested before Australia’s national security is prejudiced or the national security of a foreign country is advantaged.

380.            To establish the offence, the prosecution will need to prove, beyond a reasonable doubt, that:

·          a person intentionally engages in conduct, and

·          the person does so with the intention of preparing for, or planning, an offence against Division 82 (sabotage).

381.            Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 82.9(1)(a).  Under section 5.2 of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

382.            For paragraph 82.9(1)(a), the prosecution will have to prove beyond a reasonable doubt that the defendant intentionally engaged in the relevant conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to ‘engages in conduct’ in paragraph 82.9(1)(a) means to do an act or to omit to perform an act.

383.            For paragraph 82.9(1)(b), the prosecution will have to prove beyond a reasonable doubt that the person engages in conduct with the intention of preparing for, or planning, an offence against Division 82 (sabotage). The terms preparing and planning are not defined and are intended to take their ordinary meanings.

·          The term ‘preparing’ could include acts to conceive, formulate, make ready, arrange, and assemble an idea, plan, thing, or person for an offence against Division 82 (sabotage).

·          The term ‘planning’ could include acts to organise, arrange, design, draft, or setup an idea, plan, thing, or person for an offence against Division 82 (sabotage).

384.            Given the offences are directed at behaviour at the planning or preparation stage, it is appropriate to impose the fault element of intention on both of the elements of the offence.  This will ensure that a person will only be guilty of this offence where there is sufficient evidence that the person intended to prepare for, or plan, a sabotage offence.

385.            The maximum penalty for this offence is seven years imprisonment. While persons who attempt to commit offences are generally subject to the same penalty as if the actual offence had been carried out, the offence at subsection 82.9(1) is intended to capture behaviour at the planning stage, rather than the more advanced stage at which an ancillary offence of attempt could otherwise apply.

386.            Subsection 82.9(2) specifies that section 11.1 (attempt) does not apply to an offence against subsection 82.9(1). Section 11.1 of the Criminal Code extends criminal responsibility for all Commonwealth offences and operates to automatically provide for ancillary offences such as attempting to commit an offence or inciting the commission of an offence. Subsection 82.9(2) modifies the automatic application of section 11.1 in relation to the ancillary offence of attempt. This is appropriate because the offence is already directed at conduct that is preparatory in nature.

387.            Under paragraph 82.9(3)(a), the preparatory offence at subsection 82.9(1) will apply whether or not an offence against Division 82 is actually committed. This is consistent with the intention behind the offence to allow intervention by law enforcement prior to an act of sabotage occurring.

388.            Under paragraph 82.9(3)(b), the preparatory offence at subsection 82.9(1) will apply whether or not the person engages in conduct in preparation for, or planning, a specific offence against a provision of Division 82. This clarifies that it is not necessary for the prosecution to identify a specific offence.  It will be sufficient for the prosecution to prove that the particular conduct was related to ‘an’ offence. This ensures that the offence will be available where a person has planned a range of activities preparatory to committing a sabotage offence that are still in the formative stages. For example, where a person has not necessarily decided on a particular target, time or date or other specific details that would constitute one of the specified offences against Division 82.   

389.            Under paragraph 82.9(3)(c), the preparatory offence at subsection 82.9(1) will apply whether or not the act is done in preparation for, or planning, more than one offence against a provision of Division 82. This clarifies that the offence will still apply where a person has engaged in preparatory conduct in relation to several sabotage offences.

Section 82.10 - Defence

390.            The general defences available under Part 2.3 of the Criminal Code will be available to a person accused of an offence under Division 82.  In addition, section 82.10 creates a specific defence.

391.            Section 82.10 provides for a defence to prosecution for an offence against Division 82 if:

·          the conduct the person engaged in was accessing or using a computer or other electronic system and

·          the person engaged in the conduct in the person’s capacity as a public official.

392.            Public official is defined in the Dictionary to the Criminal Code to include:

o    an authority of the Commonwealth, or

o    an authority of a State or Territory.

393.            Commonwealth public official is defined in the Dictionary to the Criminal Code to mean:

o    the Corporations (Aboriginal and Torres Strait Islander) Act 2006

o    the Australian Capital Territory (Self-Government) Act 1988

o    the Corporations Act 2001

o    the Norfolk Island Act 1979 , or

o    the Northern Territory (Self-Government) Act 1978

o    the Corporations (Aboriginal and Torres Strait Islander) Act 2006

o    the Australian Capital Territory (Self-Government) Act 1988

o    the Corporations Act 2001

o    the Norfolk Island Act 1979

o    the Northern Territory (Self-Government) Act 1978 , or

o    a provision specified in the regulations

394.            An example of where this defence would apply would be where a Commonwealth department engages a contractor to conduct a penetration test of the department’s electronic systems for vulnerabilities. 

395.            Note 1 under the defence at section 82.10 clarifies that the defendant will bear an evidentiary burden in relation to this offence. This is appropriate because the defendant should be readily able to point to evidence that the conduct engaged in was accessing or using a computer or other electronic system and was in their capacity as a public official.

396.            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.

397.            Both AFP and CDPP consider the availability of any defences when considering whether to investigate and prosecute criminal offences.  In relation to prosecution decisions, the Prosecution Policy of the Commonwealth specifically requires the CDPP to take into account any lines of defence which are plainly open to, or have been indicated by, the alleged offender in deciding whether there is a reasonable prospect of a conviction being secured.  Subsection 82.13(4) requires the Attorney-General consider whether the defendant’s conduct is authorised under the defences in section 82.10 before providing his or her consent to the institution of proceedings for the commitment of a person for trial for an offence to which the defence applies.

Section 82.11 - Geographical jurisdiction

398.            Section 82.11 applies Section 15.4 (extended geographical jurisdiction—Category D) to each offence against Division 82 (Sabotage). Under section 15.4, the effect of Category D geographical jurisdiction is that the offence applies:

·          whether or not the conduct constituting the alleged offence occurs in Australia, and

·          whether or not a result of the conduct constituting the alleged offence occurs in Australia.

399.            Category D jurisdiction is appropriate because acts of sabotage may be undertaken from outside of Australia, particularly in relation to accessing software or electronic systems.

400.            The application of Category D jurisdiction is consistent with other offences dealing with Commonwealth property, such as Part 7.2 of the Criminal Code.

401.            Category D is also necessary to protect Defence facilities located outside Australia from sabotage.

Section 82.12 - Alternative verdicts

402.            Subsection 82.12(1) provides that if the trier of fact is not satisfied that a person is guilty of an offence specific in column 1 (see table below) and is satisfied, beyond reasonable doubt, that the person is guilty of an offence against the corresponding offence specified in column 2 then it may find the person not guilty of the column 1 offence but guilty of the column 2 offence.

403.            Subsection 82.12(2) provides that subsection 82.12(1) only applies if the person has been accorded procedural fairness in relation to the finding of guilt for the relevant offence specified in column 2.

A lternative verdicts
Item	Column 1 For an offence against:	Column 2 The alternative verdict is an offence against:
1	section 82.3 (sabotage involving foreign principal with intention as to national security)	any of the following: (a) section 82.4 (sabotage involving foreign principal reckless as to national security); (b) section 82.5 (sabotage with intention as to national security); (c) section 82.6 (sabotage reckless as to national security)
2	section 82.4 (sabotage involving foreign principal reckless as to national security)	section 82.6 (sabotage reckless as to national security)
3	section 82.5 (sabotage with intention as to national security)	section 82.6 (sabotage reckless as to national security)
4	section 82.7 (introducing vulnerability with intention as to national security)	section 82.8 (introducing vulnerability reckless as to national security)

404.            For example, if the defendant is on trial for an offence against new subsection 82.3 (offence of sabotage involving foreign principal with intention as to national security) and the jury is not satisfied that the defendant is guilty of an offence against that section, but is satisfied that he or she is guilty of an offence against new subsection 82.4 (offence of sabotage involving foreign principal reckless as to national security), it will be able to find the defendant guilty of the offence against section 82.4 instead.

Section 82.13 - Consent of Attorney-General required for prosecutions

405.            Section 82.13 requires the written consent of the Attorney-General to commence proceedings against a person for offences in Division 82 of the Criminal Code, and is intended to ensure that there is appropriate oversight of prosecutions. This is appropriate given the seriousness of offences in Division 82 and the potential for national security or international considerations to arise.

406.            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 Commonwealth Director of Public Prosecutions (CDPP) is not able to take into account under the Prosecution Policy of the Commonwealth .

407.            Section 82.13 provides the Attorney-General opportunity to receive advice from relevant agencies and other Ministers about sensitivities that might arise if proceedings are commenced for offences under Division 82, and provides opportunity for consideration of whether the prosecution could be detrimental to Australia’s foreign relations and national security. Section 82.13 is particularly appropriate given the nature of the new offence at section 82.3 of sabotage involving a foreign government principal.

408.            Subsection 82.13(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.

409.            Given the seriousness of offences contained in Division 82 of the Criminal Code, it is appropriate that some measures towards commencing proceeds be permitted without the consent of the Attorney-General. The steps specified at subsection 82.13(2) are intended to ensure that law enforcement agencies can intervene to prevent a person from continuing to offend, promoting the protection of the Australian public and Australia’s national interests.

410.            Subsection 82.13(3) provides that nothing in subsection 82.13(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 82.13(3) specify that the steps towards commencing proceedings as described at subsection 82.13(2) do not prevent the discharge of the accused if proceedings are not continued within a reasonable time.

411.            Subsection 82.13(4) provides that the Attorney-General must consider whether the conduct constituting an offence against Division 82 of the Criminal Code might be authorised by section 82.10, which provides a defence to offences against Division 82 where:

·          the conduct the person engaged in was accessing or using a computer or other electronic system, and 

·          the person engaged in the conduct in the person’s capacity as a public official.

412.            In this example, the Attorney-General must consider whether an accused’s conduct might be authorised as described in the defence at subsection 82.10 when considering whether to provide consent to prosecute a sabotage offence.

Division 83 - Other threats to security

Section 83.1 - Advocating mutiny

413.            Section 83.1 will replace the existing offence of inciting mutiny at section 25 of the Crimes Act, which will be repealed by Item 43 of Schedule 1.

414.            Section 83.1 creates an offence that applies where a person advocates mutiny, reckless as to whether the result will be that a defence member takes part in a mutiny.  

415.            The offence will carry a maximum penalty of seven years imprisonment.

416.            An example of this offence is as follows. Person A is an Australian citizen and is married to a member of the Australian Defence Force. Person A is aware that his spouse is unhappy in her role and encourages his spouse to convince other members of the Australian Defence Force to resist orders from their superiors so that a particular Defence operation against one of Australia’s enemies cannot take place. 

417.            This offence is required in addition to the existing offence of incitement (section 11.4 of the Criminal Code) because of the broader definition of the term ‘advocates’ compared to the definition of incitement.  The ancillary offence of incitement means to ‘urge’ the commission of an offence whereas the term ‘advocates’ includes promoting and encouraging an offence.  The ancillary offence of incitement also requires the person to intend that the offence incited be committed (subsection 11.4(2) of the Criminal Code) whereas section 83.1 will apply where a person is reckless as to whether the result will be that a defence member will take part in a mutiny.  It is appropriate to criminalise this broader range of conduct due to the potentially serious military consequences of the commission of a mutiny offence by a defence force member.

418.            To establish this offence, the prosecution will need to prove beyond a reasonable doubt that:

·          the person (the advocate) intentionally engages in conduct

·          the advocate’s conduct involves advocating mutiny and the advocate is reckless as to this element

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

·          at the time he or she engaged in the conduct, the advocate was:

o    was an Australian citizen, and knew that he or she was an Australian citizen

o    was a resident of Australia, and knew that he or she was an Australian citizen

o    had voluntarily put him or herself under the protection of the Commonwealth, and knew that he or she had done so, or

o    was a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

419.            Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 83.1(1)(a). Under section 5.2 of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct. 

420.            Recklessness is the fault element for paragraphs 83.1(1)(b) and (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.

421.            Knowledge is the fault element for subparagraphs 83.1(1)(d)(i) and (ii). Section 5.3 of the Criminal Code provides that a person has knowledge of a circumstance if he or she is aware that it exists or will exist in the ordinary course of events.

422.            Strict liability will apply to subparagraph 83.1(1)(d)(iii) consistent with subsection 83.1(3).

423.            For paragraph 83.1(1)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intentionally engaged in the relevant conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to ‘engages in conduct’ in paragraph 83.1(1)(a) means to do an act or to omit to perform an act.

424.            For paragraph 83.1(1)(b) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant’s conduct involves advocating mutiny.  The fault element for this element is recklessness.  Therefore, the defendant must have been aware of a substantial risk that his or her conduct constituted advocating mutiny, and having regard to the circumstances known to him or her it was unjustifiable to take that risk.

425.            The term ‘mutiny’ is defined at subsection 83.1(2) as a combination between persons who are, or at least two of whom are, members of the Australian Defence Force:

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

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

426.            This definition is consistent with the definition of mutiny in section 3 of the Defence Force Discipline Act. 

427.            The term ‘advocate’ is not defined and is intended to take its ordinary meaning, including to counsel, promote, encourage or urge the commission of a mutiny.   The ordinary meaning of each of the relevant expressions varies, but it is important that they be interpreted broadly to ensure a person who advocates mutiny does not escape punishment by relying on a narrow construction of the terms or one of the terms.  However, some examples of the ordinary meaning of each of the expressions follow: to ‘counsel’ the doing of an act (when used as a verb) is to urge the doing or adoption of the action or to recommend doing the action; to ‘encourage’ means to inspire or stimulate by assistance or approval; to ‘promote’ means to advance, further or launch; and ‘urge’ covers pressing by persuasion or recommendation, insisting on, pushing along and exerting a driving or impelling force. 

428.            While there may be some overlap between the expressions, it is clear that they do not cover merely commenting on or drawing attention to a factual scenario.

429.            For paragraph 83.1(1)(c) the prosecution will have to prove beyond a reasonable doubt that the defendant engaged in the conduct reckless as to whether the result would be that a defence member (within the meaning of the Defence Force Discipline Act) would take part in a mutiny. Therefore, the defendant must have been aware of a substantial risk that his or her conduct would result in a defence member taking part in a mutiny and having regard to the circumstances known to him or her it was unjustifiable to take that risk.

430.            Paragraph 83.1(1)(c) specifies that the term ‘defence member’ takes its meaning from its definition in the Defence Force Discipline Act. The term is defined in section 3 of the Defence Force Discipline Act as:

·          a member of the Permanent Navy, the Regular Army or the Permanent Air Force, or

·          a member of the Reserves who is:

o    rendering continuous full-time service, or

o    is on duty or in uniform.

431.            Section 3 of the Defence Force Discipline Act defines ‘Reserves’ as meaning the Naval Reserve, the Army Reserve and the Air Force Reserve.

432.            Any person, not just a defence member, will be able to commit the offence of advocating mutiny under section 83.1 even though they are not able to commit the primary offence of mutiny that exists at section 20 of the Defence Force Discipline Act.  However, in accordance with paragraph 83.1(1)(d), the person will have to have an allegiance to Australia in order to be able to commit the offence. 

433.            Subsection 20(1) of the Defence Force Discipline Act creates an offence of mutiny (as defined in section 3 of that Act), punishable by a maximum penalty of 10 years imprisonment, where a defence member takes part in a mutiny.  Subsection 20(2) creates an offence, punishment by imprisonment for life, where a defence member takes part in a mutiny and the mutiny’s object, or one of its objects, is the refusal or avoidance of duty or service in connection with operations against the enemy or the impeding of the performance of such a duty or service.

434.            The offence at section 83.1 complements these offences by ensuring that a person who advocates the commission of these serious offences by a defence member is also subject to serious criminal penalties.

435.            For subparagraphs 83.1(1)(d)(i) and (ii), the prosecution will have to prove beyond a reasonable that, at the time he or she engaged in the conduct, the person was, and knew that he or she was:

·          an Australian citizen (defined in section 2B of the Acts Interpretation Act and section 4 of the Australian Citizenship Act)

·          a resident of Australia (defined in the Dictionary to the Criminal Code as an individual who is a resident of Australia), or

·          voluntarily under the protection of the Commonwealth (for example through the grant of asylum).

436.            Under section 5.3 of the Criminal Code, a person has knowledge of a circumstance if he or she is aware that it exists or that it will exist in the ordinary course of events.

437.            For subparagraph 83.1(1)(d)(iii), the prosecution will have to prove that the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.  Strict liability is appropriate for this element because section 12.3 of the Criminal Code (which provides that where knowledge is a fault element, the element attributed to a body corporate is that they ‘expressly, tacitly or impliedly authorised or permitted the commission of the offence’) fits well with establishing that the body corporate ‘knows’ it is incorporated under a law of the Commonwealth.

438.            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.

439.            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.

440.            This offence will only be able to be committed by a person who owes an allegiance to the Commonwealth (paragraph 83.1(1)(d)). The person must know that they owe an allegiance to the Commonwealth.  This is appropriate because only persons who benefit from the protection of the Australian state should be penalised for advocating that members of the Australian Defence Force take part in a mutiny.

441.            Subsection 83.1(4) applies Section 15.4 (extended geographical jurisdiction—Category D) to the offence at subsection 83.1 (advocating mutiny). Under section 15.4, the effect of Category D geographical jurisdiction is that the offence applies:

·          whether or not the conduct constituting the alleged offence occurs in Australia, and

·          whether or not a result of the conduct constituting the alleged offence occurs in Australia.

442.            Category D jurisdiction is appropriate because the Australian Defence Force engages in conduct that is outside Australian territory and members of the ADF may be vulnerable to a person advocating mutiny while overseas.  Consistent with section 83.1(1)(d), only persons who owe an allegiance to Australia will be able to commit the offence, regardless of where the conduct occurs.

443.            Section 83.1 replaces section 25 of the Crimes Act which carries a maximum penalty of life imprisonment.  Section 25 of the Crimes Act was enacted in the original Crimes Act in 1914 and the penalty of life imprisonment does not reflect contemporary standards.  It is not appropriate for an offence of advocating mutiny (especially where committed by a civilian rather than a defence member) to carry the same penalty as the most serious mutiny offence applying to defence members (subsection 20(2) of the Defence Force Discipline Act). 

444.            The maximum penalty of seven years imprisonment is consistent with maximum penalties for the Criminal Code offences of urging violence (section 80.2) and advocating genocide (section 80.2D), which also carry maximum penalties of seven years imprisonment. 

Section 83.2 - Assisting prisoners of war to escape

445.             Section 83.2 will replace the existing offence of assisting prisoners of war to escape at section 26 of the Crimes Act, which will be repealed by Item 43 of Schedule 1.

446.            Section 83.2 creates an offence that applies where a person assists one or more prisoners of war to escape from custody controlled by the Commonwealth or Australian Defence Force in the context of an international armed conflict. The offence will be punishable by a maximum penalty of 15 years imprisonment.

447.            An example of this offence is as follows.  Australia is engaged in an international armed conflict on the territory of another country. Person A is a detention officer that works in a Commonwealth controlled detention facility in that country. Person A intentionally leaves the facility unlocked overnight so that a number of prisoners of war are able to escape.

448.            To establish the offence, prosecution will need to prove beyond reasonable doubt that:

·          the person intentionally engages in conduct

·          the person’s conduct assists one or more prisoners of war (within the meaning of Article 4 of the Third Geneva Convention) to escape from custody and the person is reckless as to this element

·          the custody is controlled wholly or partly by the Commonwealth or the Australian Defence Force and the person is reckless as to this element, and

·          the conduct takes place in the context of, and is associated with, an international armed conflict. 

449.            Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 83.2(1)(a).  Under section 5.2 of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct. 

450.            Recklessness is the fault element for paragraphs 83.2(1)(b) and (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.

451.            Absolute liability will apply to paragraph 83.2(1)(d) consistent with subsection 83.2(2).

452.            For paragraph 83.2(1)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intentionally engaged in the relevant conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to ‘engages in conduct’ in paragraph 83.2(1)(a) means to do an act or to omit to perform an act.

453.            For paragraph 83.2(1)(b) of the offence, the prosecution will have to prove beyond a reasonable doubt that the conduct assists one or more prisoners of war (within the meaning of Article 4 of the Third Geneva Convention) to escape from custody. The terms escape and custody are not defined and are intended to take their ordinary meaning.

454.            Article 4 of the Third Geneva Convention defines prisoners of war as ‘those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of persons a Part to the conflict or Occupying Power of which they are nationals’.  Prisoners of war are therefore members of the armed forces of one of the parties to a conflict who fall into the hands of the adverse party.

455.            The term escape in intended to include a continuum of conduct that could include physically breaking free from a place of detention and other conduct that contributes to a person eluding, avoiding, evading, or breaking free from the custody of the Commonwealth or the Australian Defence Force.

456.            The term custody is intended to describe when a person is in the care or control of the Commonwealth or the Australian Defence Force. It is not intended that the term custody be linked to a particular type or location of detention. The term is intended to include custody that could take place in permanent, temporary or itinerant locations, both within and outside of Australian territory.

457.            The fault element for paragraph 83.2(1)(b) is recklessness.  Therefore, the defendant must have been aware of a substantial risk that his or her conduct assists one or more prisoners of war (within the meaning of Article 4 of the Third Geneva Convention) to escape from custody, and having regard to the circumstances known to him or her it was unjustifiable to take that risk.

458.            For paragraph 83.2(1)(c) of the offence, the prosecution will have to prove beyond a reasonable doubt that the custody is controlled wholly or partly by the Commonwealth or the Australian Defence Force.  The fault element for this element is recklessness.  Therefore, the defendant must have been aware of a substantial risk that the custody is controlled wholly or partly by the Commonwealth or the Australian Defence Force and that, having regard to the circumstances known to him or her it was unjustifiable to take that risk.

459.            The term controlled could include financial, administrative or operational power, authority, governance, leadership or command.

460.            For paragraph 83.2(1)(d), the prosecution will have to prove beyond a reasonable doubt that the conduct takes place in the context of, and is associated with, an international armed conflict. 

461.            The term international armed conflict is intended to take its meaning from International Humanitarian Law. Common Article 2 to the Geneva Conventions of 1949 states the Conventions ‘shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.’ Accordingly, the term international armed conflict in the context of the offence at section 83.2 means armed conflict between two nation States. It is not intended for the term international armed conflict to include conflict with or between non-state actors such as terrorist groups, or conflict within a State, such as in times of civil war or internal disturbance.

462.            The terms ‘in the context of’, and ‘associated with’ are not defined and are intended to take their ordinary meaning. Both terms are intended to establish a clear connection between the conduct and the circumstance of international armed conflict.

463.            Subsection 83.2(2) applies absolute liability to paragraph 83.2(1)(d). Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying absolute liability to an element of an offence is that no fault element needs to be proved and the defence of mistake of fact is unavailable. Accordingly, prosecution will not be required to prove that the person knew or was reckless as to the fact that the defendant’s conduct took place in the context of, and in association with, an international armed conflict.

464.            Absolute liability is appropriate and required for the element of the offence that the conduct takes place in the context of, and is associated with, an international armed conflict.  This element reflects the circumstances in which Article 4 of the Third Geneva Conventions apply, which is limited to international armed conflict, and does not relate to the substance of the offence.

465.            As described above, the prosecution will need to prove that the defendant was aware of a substantial risk that his or her conduct assists one or more prisoners of war to escape from custody that is controlled by the Commonwealth or the Australian Defence Force, and having regard to the circumstances known to him or her it was unjustifiable to take that risk.  The issue of whether the person knows that their conduct takes place in the context of, and in association with, an international armed conflict is not relevant to their culpability. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences. 

466.            The application of absolute liability to paragraph 83.2(1)(d) also ensures that a person cannot avoid criminal responsibility because they were unaware of the type of conflict that gave rise to the circumstance of the Commonwealth or Australian Defence Force having custody of one or more prisoners of war. With the application of absolute liability, a defendant could, for example, admit that they knew they were assisting a prisoner of war to escape from the custody of the Commonwealth or Australian Defence Force, but thought that they had done so in the context of non-international armed conflict, rather than an international armed conflict.

467.            Subsection 83.2(3) applies Section 15.4 (extended geographical jurisdiction—Category D) to section 83.2. Under section 15.4, the effect of Category D geographical jurisdiction is that the offence applies:

·          whether or not the conduct constituting the alleged offence occurs in Australia, and

·          whether or not a result of the conduct constituting the alleged offence occurs in Australia.

468.            Category D jurisdiction is appropriate in order to cover offences that occur within the context of international armed conflicts that do not take place within Australian territory, for example, when Australia is taking part in military operations overseas. It is foreseeable that the Australian Defence Force would have custody of prisoners of war (within the meaning of Article 4 of the Third Geneva Convention) wholly outside of Australia.  This offence needs to criminalise conduct that assists such prisoners of war to escape.

469.            Section 83.2 replaces section 26 of the Crimes Act which carries a maximum penalty of life imprisonment.  Section 26 of the Crimes Act was enacted in the original Crimes Act in 1914 and the existing penalty of life imprisonment does not reflect contemporary standards of seriousness.  The maximum penalty of 15 years imprisonment is comparable with maximum penalties for offences relating to escaping criminal detention. For example, section 47A of the Crimes Act specifies a maximum penalty of 14 years imprisonment for the offence of rescuing a prisoner from criminal detention. 

Section 83.3 - Military-style training involving foreign government principal

470.            Section 83.3 creates an offence that applies where a person provides, receives or participates in training that involves using arms or practising military exercises, movements or evolutions. The offence applies when that training is provided on behalf of a foreign government principal, or is directed, funded or supervised by a foreign government. Appropriate defences apply to permit training expressly authorised by the Commonwealth, as part of service with the armed forces of the government of a foreign country, or where a declaration in relation to specified armed forces is made. The offence is punishable by a maximum penalty of 20 years imprisonment.

471.            An example of this offence is as follows. Person A participates in training in Australia which is provided by Country E.  The training involves the use of weapons and military-style drills.  Country E is undertaking the training at a hidden rural location and intends for the training to assist it to conduct military operations against Country F, a close neighbour of Australia. Person A is intending to participate in those future military operations against Country F.

472.            To establish this offence, the prosecution will need to prove beyond a reasonable doubt that:

·          the person intentionally provides, receives, or participates in, training

·          the training involves using arms or practising military exercises, movements or evolutions and the person is reckless as to this element, and

·          the training is provided on behalf of a foreign government principal, or is directed, funded or supervised by a foreign government principal and the person is reckless as to this element.

473.            Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 83.3(1)(a). Under section 5.2 of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct. 

474.            Recklessness is the fault element for paragraphs 83.3(1)(b) and (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.

475.            For paragraph 83.3(1)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intentionally provides, receives or participates in training.  The terms provides, receives and participates are not defined and are intended to take their ordinary meanings.

476.            The term ‘provides’ could include organising, facilitating, supplying, and delivering training. The term is intended to include any conduct that actually constitutes the delivery of the content of the training. However, it could also include conduct that contributes to the provision of training, such as supplying weapons or constructing the training course.

477.            The terms ‘receives’ and ‘participates’ could include being given or accepting, taking part in, engaging in, joining, being involved in and partaking in training. The terms are intended to cover situations where a person only received or participates in part of the training. For example, Person A might engage in just one day of a ten day training course of the type described in subsection 83.3(1).

478.            The term ‘training’ could include instruction, tuition, preparation, guidance, lessons, drilling and priming.

479.            The prosecution will have to prove beyond a reasonable doubt that the training involves using arms or practising military exercises, movements or evolutions.  The fault element for this element is recklessness. Therefore, the defendant must have been aware of a substantial risk that his or her conduct involves the use of arms or practising military exercises, movements or evolutions and, having regard to the circumstances known to him or her it is not justifiable to take that risk.

480.            The terms ‘using’, ‘arms’, ‘practising’ and ‘military exercises, movements or evolutions’ are not defined and are intended to take their ordinary meanings.

481.            The term ‘use of’ could include to take hold of, deploy, operate, wield and handle.

482.            The term ‘arms’ is intended to include any instrument or instrumentality used to inflict bodily harm or physical damage.   The term is intended to be interpreted broadly and could include items that were not originally designed for the purpose of being used as arms. Examples of arms could include:

·          items with blades including knives, machetes, axes and spears

·          items with ammunition including guns and rifles

·          items with explosive capability including land mines, bombs and grenades

·          items that disperse hazardous substances such as hazardous gas, and

·          items repurposed as arms, for example tools, sports equipment, construction materials and objects made of glass.

483.            The term ‘practising’ could include rehearsing, working at, working on and running through. This term is intended to include conduct that involves physical activity such as practising military drills, and non-physical activity such as studying or learning about the use of arms, military exercises, movements or evolutions.

484.            The term ‘military exercises, movements or evolutions’ is intended to include activities that involve the use of military resources in training for military purposes. This could include activities to increase capabilities in operations, combat or strategy. The term ‘military’ is not intended to restrict the exercises, movements or evolutions to those conducted by State armed forces. The term is intended to relate to the character of the ‘exercises, movements or evolutions’ in that they involve the use of arms and are organised and coordinated in their delivery. The term ‘evolutions’ is intended to capture military manoeuvres involving planned and regulated movements of troops or tactical exercises carried out in the field.

485.            The prosecution will have to prove beyond a reasonable doubt that the training is provided on behalf of a foreign government principal, or is directed, funded or supervised by a foreign government principal.  The fault element for this element is recklessness. Therefore, the defendant must have been aware of a substantial risk that the circumstances described at paragraph 83.3(1)(c) exist, and having regard to the circumstance known to him or her it was unjustifiable to take that risk.

486.            The terms ‘on behalf of’, and ‘directed’, ‘funded’ and ‘supervised’ are not defined and are intended to take their ordinary meanings.

487.            Subparagraph 83.3(1)(c)(i) provides that ‘foreign government principal’ has the meaning given to it by Part 5.2 of the Criminal Code, and is defined at section 90.3.

488.            Section 90.3 provides that each of the following is a foreign government principal :

·          the government of a foreign country or a part of a foreign country

·          an authority of the government of a foreign country

·          an authority of the government of part of a foreign country

·          a foreign local government body or foreign regional government body

·          a company to which any of the subparagraphs of paragraph (a) of the definition of foreign public enterprise in section 70.1 applies

·          a body or association to which either of the subparagraphs of paragraph (b) of the definition of foreign public enterprise in section 70.1 applies

·          a foreign political organisation, or

·          an entity or organisation directed or controlled:

o    by a foreign government principal within the meaning of any other paragraph of this definition, or

o    by two or more such foreign government principals that are foreign government principals of the same foreign country.

489.            Paragraphs (a) to (d) of this definition cover governments or authorities of foreign countries.  Foreign country 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.

490.            For subparagraph 83.3(1)(c)(i), the term ‘on behalf of’ is intended to include where a person or entity represents, acts in the interests of, or acts as a proxy for, a foreign government principal.

491.            For subparagraph 83.3(1)(c)(ii), the term ‘directed’ and ‘supervised’ could include controlled, managed, governed, instructed, administered, overseen, presided over and run. The term is intended to include where the direction or supervision is in part or in whole. For example, a foreign government principal might instruct that training be conducted, but the details of that training are overseen by a subcontracted company that delivers the training.

492.            For subparagraph 83.3(1)(c)(ii), the term ‘funded’ is intended to include when a foreign government principal or person acting on behalf of a foreign government principal provides resources towards the training described in subsection 83.3(1). The term is intended to include where the funding is in part or in whole. The term is also intended to include financing, loans, agreements, appropriations, contracts or promises of funding, in part or in whole.

493.            It is possible that a defendant will know, or be reckless, as to the fact that they are providing, receiving or participating in training that is provided by, directed, funded or supervised by a person who identifies himself or herself as an official of a foreign government.  In this case, the person will be engaging in the conduct on behalf of the foreign principal and the defendant will have satisfied the elements of the offence as described at subparagraph 83.3(1)(c).

494.            However, it may also be the case that the defendant provides, receives or participates in training that is provided by, directed, funded or supervised by an intermediary, and not by a foreign government principal, or foreign government official.  In this case, the prosecution will have to prove beyond a reasonable doubt that the defendant was aware of a substantial risk that he or she was engaging in training provided on behalf of, directed, funded or supervised by a person acting on behalf of a foreign principal and that it was unjustifiable to take that risk.  This may be the case where, for example, the intermediary advises the defendant that the intermediary acts in coordination with foreign officials, or the intermediary facilitates preferential treatment for the defendant from a foreign government. 

495.            The maximum penalty of 20 years imprisonment is comparable with maximum penalties for offences for providing or receiving training connected to terrorist acts which carry penalties of 15 and 25 years imprisonment.  The maximum penalty is appropriate to recognise the serious harm to Australia’s sovereignty, national security and other defence interests that could result from the provision and receipt of military style training by a foreign government principal.

496.            Subsection 83.3(2) provides that the offence created by subsection 83.3(1) does not apply to a person in relation to conduct engaged in by the person that is authorised by written agreement to which the Commonwealth is a party.  The term ‘written agreement’ could include agreement through a memorandum of understanding, diplomatic correspondence, the exchange of letters or emails, or an international instrument. The term ‘Commonwealth’ is intended to include Commonwealth entities including Commonwealth departments and agencies.

497.            An example of where the defence at subsection 83.3(2) could apply is where members of the Australian Defence Force are permitted through a memorandum of understanding to undertake training of the kind described at subsection 83.3(1) with the military forces of a foreign government.

498.            The Note under subsection 83.3(2) notes that the defendant will bear an evidential burden in relation to the defence at subsection 83.3(2). Consistent with section 13.3 of the Criminal Code, the defendant will need to point 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.

499.            It is appropriate that the defendant bear the evidential burden in relation to this defence as they are best placed to know of the existence of the type of agreement described at subsection 83.3(2) and to produce evidence in relation to that agreement.

500.            Subsection 83.3(3) provides that the offence created by subsection 83.3(1) does not apply in relation to training in the course of, or as part of a person’s service with:

·           the armed forces of the government of a foreign country, or

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

501.            For paragraph 83.3(3)(a), it is appropriate that a defence be available to a person in the course of, and as part of, a person’s service with the armed forces of the government of a foreign country. For example, a person may be required to undertake compulsory military service with the armed forces of the government of a foreign country of which they are a citizen. In this example, the defence at paragraph 83.3(3)(a) would be available.

502.            The defendant will bear an evidential burden in relation to the defence at paragraph 83.3(3)(a). Consistent with section 13.3 of the Criminal Code, the defendant will need to point 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.

503.            In relation to paragraph 83.3(3)(b), subsection 119.8(1) of the Criminal Code provides that the Minister may by legislative instrument make a declaration concerning a specified person or class of persons. To make such a declaration, the Minister must be satisfied that it is in the interests of the defence or international relations of Australia to permit service with a specified armed force in a foreign country.

504.            An example of when a declaration might be made under subsection 119.8(1) could include where an individual is providing training assistance on behalf of a foreign government with the consent of both the Australian and foreign governments.

505.            The defendant will bear an evidential burden in relation to the defence at paragraph 83.3(3)(b). Consistent with section 13.3 of the Criminal Code, the defendant will need to point 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.

506.            Subsection 83.3(4) specifies that subsection 83.3(3) does not apply if at the time of engaging in the conduct described at 83.3(1), the person is:

·          in or with a listed terrorist organisation within the meaning at Part 5.3 or a prescribed organisation within the meaning of Part 5.5, or

·          the training is wholly or partly funded by a listed terrorist organisation within the meaning at Part 5.3 or a prescribed organisation within the meaning of Part 5.5.

507.            Part 5.3 of the Criminal Code defines ‘listed terrorist organisation’ as an organisation that is specified by regulations for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in section 102.1.

508.            Part 5.5 of the Criminal Code defines ‘prescribed organisation’ as an organisation prescribed by the regulations for the purpose of this paragraph, or an organisation referred to paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1).

509.            Subsection 83.3(4) is appropriate to ensure the offence is consistent with, and complements, Commonwealth terrorism offences at Division 101 of the Criminal Code. Subsection 83.3(4) also guards against situations where the armed forces of a foreign country, or a foreign country’s government, itself is listed terrorist or other prescribed organisations.

510.            Subsection 83.3(5) applies Section 15.2 of the Criminal Code (extended geographical jurisdiction - Category B) to section 83.3. Under section 15.2, the effect of Category B jurisdiction is that the offence applies:

·          if the conduct constituting the  offence occurs wholly or partly in Australia

·          if the result of that conduct occurs wholly or partly in Australia, and

·          if the conduct occurs outside Australia and at the time of committing the offence, the person is an Australian citizen, resident or body corporate.

511.            Category B jurisdiction is appropriate to ensure that this offence appropriately protects Australia’s from military threats caused by unlawful military training undertaken on behalf of a foreign government principal, wherever that conduct occurs.

Section 83.4 - Interference with political rights and duties

512.            Section 83.4 will replace the existing offence of interfering with political liberty at section 28 of the Crimes Act, which will be repealed by Item 43 of Schedule 1.

513.            Section 83.4 creates an offence that applies where a person uses force, violence, threats or intimidation to interfere with a person’s democratic or political right under the Constitution or Commonwealth law.

514.            The offence will be punishable by a maximum penalty of ten years imprisonment.

515.            An example of this offence is where Person C wishes to prevent Person D from exercising their right to vote because Person C knows that Person D is going to vote for a particular Senate candidate in a federal election. Person C considers the relevant candidate unfit to hold public office because of their extreme views.  Person C threatens to cause serious physical harm to Person D if they vote for that particular candidate in the election.

516.            To establish the offence, prosecution will need to prove beyond reasonable doubt that:

·          the person intentionally engages in conduct

·          the person’s conduct involves:

o    the use of force

o    violence

o    intimidation, or

o    the making of threats of any kind

and the person is reckless as to this element

·          the person’s conduct will result in interference with the exercise or performance, by another person, of an Australian democratic or political right and the person is reckless to this element, and

·          the right arises under the Constitution or a law of the Commonwealth.

517.            Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 83.4(1)(a). Under section 5.2 of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct. 

518.            Recklessness is the fault element applying to paragraphs 83.4(1)(b) and (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 that risk.

519.            Absolute liability will apply to the circumstance in paragraph 83.5(1)(d) consistent with subsection 83.4(2).

520.            For paragraph 83.4(1)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intentionally engaged in the relevant conduct. Consistent with subsection 4.1(2) of the Criminal Code, the reference to ‘engages in conduct’ in paragraph 83.4(1)(a) means to do an act or to omit to perform an act.

521.            While it is unlikely that an omission could constitute force, violence, intimidation or threats, the term ‘engages in conduct’ allows the prosecution to allege a course of conduct in charging an offence rather than being required to identify a particular act as constituting the offending conduct.

522.            For paragraph 83.4(1)(b) of the offence, the prosecution will have to prove beyond a reasonable doubt that the person’s conduct involves the use of force or violence, or intimidation, or the making of threats of any kind.  The fault element for this element is recklessness. Therefore, the defendant must have been aware of a substantial risk that his or her conduct involves force, violence, intimidation or threats and, having regard to the circumstances known to him or her it was unjustifiable to take that risk.

523.            The terms force, violence and intimidation are not defined and are intended to take their ordinary meanings.

·          The term force could include acts such as restraining, manipulating, coercing and physically making a person do something against their will.

·          The term violence is not intended to require evidence of actual harm to establish that an act of violence has been conducted. For example, a person might set off an explosive device to interfere with a political protest, but the device does not actually cause harm to any person. For the purposes of paragraph 83.4(1)(b), it is intended that this conduct would be considered an act of violence and would satisfy this element of the offence.

·          The term intimidation is intended to include conduct that makes a person timid or fearful.

·          The term threat is defined in the Dictionary to the Criminal Code as including a threat made by any conduct, whether express or implied and whether conditional or unconditional.

524.            For paragraph 83.4(1)(c) of the offence, the prosecution will have to prove beyond a reasonable doubt that the person’s conduct results in interference with the exercise or performance, by any other person, of an Australian democratic or political right. Recklessness is the fault element for this offence. Therefore, the defendant must have been aware of a substantial risk that his or conduct would result in interference with the exercise or performance, by any other person, of an Australian democratic or political right and, having regard to the circumstances known to him or her it was unjustifiable to take that risk.

525.            The term Australian democratic or political right is intended to cover a broad range of rights held by Australians in relation to participation in Australia’s democracy, including voting in elections and referenda and participating in lawful protests.  The limitation to ‘Australian’ democratic and political rights is intended to limit the operation of this paragraph only to rights that arise because of a person’s status as Australian.  For example, it is not intended to cover a situation where a person is a joint citizen of Australia and the United Kingdom and has a right to vote in United Kingdom elections while physically located in Australia.  This would be a United Kingdom democratic right, rather than an Australian democratic right, even though it is being exercised ‘in’ Australia.

526.            For paragraph 83.4(1)(d) of the offence, the prosecution will have to prove beyond reasonable doubt that the democratic or political right referred to in paragraph 83.4(1)(c) arises under the Constitution or a law of the Commonwealth. This paragraph ties the offence to Commonwealth jurisdiction. For example, interference with democratic and political rights arising under state and territory law would not captured by this offence. Examples of democratic and political rights under the Constitution or a law of the Commonwealth include:

·          the right to vote

·          the implied right to freedom of political communication

·          making political donations

527.            Subsection 83.4(2) applies absolute liability to paragraph 83.4(1)(d). Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying absolute liability to an element of an offence is that no fault element needs to be proved and the defence of mistake of fact is unavailable. Accordingly, for paragraph 83.4(1)(d), the prosecution will be required to prove only the physical element that the Australian democratic and political right ‘arises under the Constitution or a law of the Commonwealth.’

528.            Absolute liability is appropriate and required for the element of the offence that the right arises under the Constitution or a law of the Commonwealth because this element is a jurisdictional element of the offence.  A jurisdictional element of the offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do not.  The issue of whether the person knew that the right arose under the Constitution or a law of the Commonwealth is not relevant to their culpability.  This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences. 

529.            The application of absolute liability to paragraph 83.4(1)(d) also ensures that a person cannot avoid criminal responsibility because they were unaware of the level of government law that gave rise to a particular Australian democratic or political right, for example by admitting that they knew they were interfering with the exercise by another person of an Australian democratic or political right but thought that the right arose due to a law of a State rather than a law of the Commonwealth.

530.            The Note to subsection 83.4(1) clarifies that the defence for acts of done in good faith at subsection 80.3 applies to the offence at section 83.4.

531.            An example of where the defence at section 80.3 could apply is where a person participates in a counter-protest and forcefully and aggressively shouts at the opposing protestors in an intimidating way, but does so in order to point out, in good faith, the errors in the arguments or position of the opposing protestors.

532.            The defendant will bear an evidential burden in relation to the defence at section 80.3 in relation to acts done in good faith. It is appropriate for the defendant to bear an evidential burden because the defendant is placed to explain their motivations when engaging in the relevant conduct and it is peculiarly within their knowledge as to how and why they should be considered to be acting in good faith. 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).  

533.            The maximum penalty of ten years imprisonment is appropriate and appropriately criminalises conduct involving force or violence that interferences with a person’s exercise of their democratic or political rights or duties.

Section 83.5 - Consent of Attorney-General required for prosecutions

534.            Section 83.5 requires the written consent of the Attorney-General to commence proceedings against a person for offences in Division 83 of the Criminal Code, and is intended to ensure that there is appropriate oversight of prosecutions. This is appropriate given the nature of the offences in Division 83 and the potential for national security or international considerations to arise.

535.            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 .

536.            Section 83.5 provides the Attorney-General with an opportunity to receive advice from relevant agencies and other Ministers about sensitivities that might arise if proceedings are commenced for offences under Division 83, and provides opportunity for consideration of whether the prosecution could be detrimental to Australia’s foreign relations and national security.

537.            Subsection 83.5(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.

538.            Given the seriousness of offences contained in Division 83 of the Criminal Code, it is appropriate that some measures towards commencing proceeds be permitted without the consent of the Attorney-General. The steps specified at subsection 83.5(2) are intended to ensure that law enforcement agencies can intervene to prevent a person from continuing to offend, promoting the protection of the Australian public and Australia’s national interests.

539.            Subsection 83.5(3) provides that nothing in subsection 83.5(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 83.5(3) specify that the steps towards commencing proceedings as described at subsection 83.5(2) do not prevent the discharge of the accused if proceedings are not continued within a reasonable time.

540.            Subsection 83.5(4) provides that the Attorney-General must consider whether the conduct constituting an offence against Division 83 of the Criminal Code might be authorised by subsections 83.3(2) or (3), which provides defences to an offence against section 83.3, or section 80.3, which provides a defence to an offence against section 83.4.

Item 9

541.            Item 9 repeals the heading of Part 5.2 and substitutes a new heading.  The heading is changing from ‘Offences relating to espionage and similar activities to ‘Espionage and related offences.  The heading requires updating to reflect the broader range of offences that will be housed within Part 5.2 due to the enactment of new foreign interference offences.

Item 10

Section 90.1 - Definitions

542.            Item 10 inserts the following new definitions relevant to the espionage offences into section 90.1 of the Criminal Code:

·          deals

·          foreign government principal

·          foreign political organisation, and

·          foreign principal.

543.            Section 90.1 defines deals for the purposes of the espionage offences in Part 5.2.  A person deals with information or an article if the person does any of the following in relation to the information or article:

·          receives or obtains it

·          collects it

·          possesses it

·          makes a record of it

·          copies it

·          alters it

·          conceals it

·          communicates it

·          publishes it, or

·          makes it available.

544.            Descriptions of what these terms are intended to cover and examples of the types of conduct that would fall within each term are as follows.

·          Receives is intended to cover being given or presented with information or an article.  This would include a person being given a classified document by another person.

·          Obtains is intended to cover getting or acquiring information or an article.  This is intended to be a more active term than ‘receives’ and implies that a person made an active effort to acquire information or an article.  This may include a person opening a filing cabinet or accessing an electronic filing system to get or acquire a document or article.

·          Possesses is intended to cover a person intentionally exercising control over information or an article.  This would include a person having actual physical custody of information or an article, such as having a classified document in their direct custody by storing it in their house or carrying it in their bag.  The term is also intended to cover the concept of ‘constructive possession’ where the person has the ability to control the object even if they have no physical contact with it.  An example of this would be where the person has removed a classified document from his or her workplace and secured it in a bank safety deposit box.  Although the bank may technically have physical custody of the document, the fact that the person placed the document there and holds the key to the safety deposit box would be sufficient for the person to be ‘possessing’ the document.

·          Makes a record of it is intended to cover the situation where a makes notes of the content of classified document.  The notes would convey the content of the information but the person would not actually be dealing with the classified document by other than reading it.  The notes of the content would be a ‘record’ of the information for the purposes of this definition.

·          Copies is intended to cover reproducing or making an identical version of information or an article.  The most obvious example of this would be where a person photocopies a classified document and makes an identical copy of the document.  It may also include where a person copies the information by making notes that entirely replicate the content of a document.  This overlaps with the definition of ‘makes a record’ to some extent, but ‘copies’ is intended to cover the situation where the content is replicated entirely whereas a person may ‘make a record’ of information by making notes that summarise or paraphrase the information.

·          Alters is intended to cover the situation where a person amends or changes the information or article in any way.  This may include amending a classified document to change or remove the classification level, extracting excerpts from a classified document to create a new document, or substituting text to remove recognisable details without losing the essential information.

·          Conceals is intended to cover hiding or preventing from being seen.  This would include a person hiding documents by sliding them between the pages of books or putting them in the bottom of boxes holding other household items that prevent the documents from being seen.

·          Communicates is intended to cover any actions that disclose, divulge, convey, impart, relay, convey, transmit or pass on information or an article.  This would include a person passing a document to another person, whether in person or via electronic means.  It would also include a person having a conversation with another person and telling them the information.

·          Publishes is intended to cover conduct that makes information or an article generally known.  For example, a person would ‘publish’ information for the purpose of these offences if they made information available online.  By contrast to ‘communicates’ or ‘makes available’, the term ‘publishes’ implies that the information is made available to a number of people at the same time, as opposed to being disclosed or conveyed in a more direct form to another person.

·          Makes it available is intended to cover the passage of information or articles other than by disclosing or publishing it.  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 the 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 ‘makes it available’ will provide clarity in situations where intermediaries are used.

545.            Section 90.1 provides that foreign government principal has the meaning given to it by section 90.3.  This term is used in the definition of foreign principal in section 90.2 (to be inserted by Item 16) and in Division 92A, which creates a new theft of trade secrets offence.

546.            Foreign political organisation is defined to mean a foreign political party or a foreign political organisation.  This will include political parties of foreign countries.

547.            Section 90.1 provides that foreign principal has the meaning given to it by section 90.2.  This term is used throughout Part 5.2 for the purpose of the espionage and foreign interference offences. 

Item 11

548.            Item 11 repeals the definition of intelligence or security agency from section 90.1 of the Criminal Code.  This term is not used in the new espionage offences inserted into Part 5.2 of the Criminal Code by Item 16 and is therefore obsolete.

Item 12

549.            Item 12 inserts the following new definitions relevant to the espionage offences into section 90.1 of the Criminal Code:

·          national security, and

·          security classification

550.            Section 90.1 provides that national security has the meaning given to it by section 90.4.  This term is used throughout Part 5.2 and also supports the sabotage offences in Division 82.

551.            Section 90.1 provides that security classification has the meaning given to it by section 90.5.  This term is used in the espionage offences in Part 5.2 and the secrecy offences in Schedule 2.

Item 13

552.            Item 13 repeals the existing definition of security or defence from section 90.1 of the Criminal Code.  This term is not used in the new espionage offences inserted into Part 5.2 of the Criminal Code by Item 16 and is therefore obsolete.

Item 14

553.            Item 14 repeals the definition of the Commonwealth from section 90.1 of the Criminal Code.  This term is not relevant for the new espionage offences inserted into Part 5.2 of the Criminal Code by Item 16 and is therefore obsolete.

Item 15

554.            Item 15 repeals existing subsections 90.1(2) and (3) and inserts new subsection 90.2(2).  Existing subsection 90.1(2) provides that, for Part 5.2, unless the contrary intention appears:

·          expressions referring to obtaining, recording, using, having in possession, communicating or retaining including obtaining, recording, using, having in possession, communicating or retaining in whole or in part, and whether the article or information itself, or only the substance, effect or description of the article or information, is obtained, recorded, used, possessed, communicated or retained, and

·          a reference to a sketch, document or article or to information is to be read as including a reference to a copy of, a part of or a copy of a part of a sketch, document or article or information.

555.            This provision can be simplified due to the new definition of deals , to be inserted in section 90.1 by Item 10.  Item 15 inserts a new subsection 90.1(2), which provides that in Part 5.2, 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 or article.

556.            An example of this would be where Person X describes an aspect of a military capability that allows it to effectively countered by a foreign adversary, but does not describe the capability as a whole.

557.            Existing subsection 90.1(3) provides that, for the purposes of Part 5.2 of the Criminal Code, a place that is occupied by, or a thing that is under the control of, the Commonwealth is taken to belong to the Commonwealth.  This provision is not necessary for the new espionage offences inserted by Schedule 1, and is therefore being repealed by Item 15.

Item 16

558.            Item 16 inserts the following new definitions relevant to the espionage offences into section 90.1 of the Criminal Code:

·          foreign principal

·          foreign government principal,

·          national security, and

·          security classification

Section 90.2 - Definition of foreign principal

559.            Section 90.2 defines foreign principal as each of the following:

·          a foreign government principal

·          a public international organisation within the meaning of Division 70 (see section 70.1)

·          a terrorist organisation within the meaning of Division 102 (see section 102.1)

·          an entity or organisation directed or controlled by:

o    a public international organisation

o    a terrorist organisation within the meaning of Division 102

·          an entity or organisation directed or controlled by two or more foreign principals within the meaning of any other paragraph of the definition.

560.            The term foreign government principal in paragraph 90.2(a) is further defined at section 90.3, described in detail below. 

561.            The term public international organisation in paragraph 90.2(b) refers to the definition in section 70.1 of the Criminal Code.  The term public international organisation is defined in section 70.1 of the Criminal Code to mean:

·          an organisation:

o    of which two or more countries, or the governments of two or more countries, are members, or

o    that is constituted by persons representing two or more countries, or representing the governments of two or more countries, or

·          an organisation established by, or a group of organisations constituted by:

o    organisations of which two or more countries, or the governments of two or more countries, are members, or

o    organisations that are constituted by the representatives of two or more countries, or the governments of two or more countries, or

·          an organisation that is:

o    an organ of, or office within, an organisation described above

o    a commission, council or other body established by an organisation so described or such an organ, or

o    a committee, or sub-committee of a committee, of an organisation described above, or of such an organ, council or body.

562.            The term will include multi-lateral international organisations such as the World Bank, the World Trade Organisation and the International Monetary Fund.  In some situations, the provision of information to such organisations could prejudice Australia’s national security and constitute espionage.  For example, Person I is an official of International Organisation Z and obtains confidential information concerning a significant impending change in Australia’s economic policies from Person J, an Australian official who intends to harm Australian interests for ideological reasons.  International Organisation Z uses this information to undermine Australia’s position in multilateral trade negotiations, causing significant damage to Australia’s international relationships.

563.            The term terrorist organisation within the meaning of Division 102 of the Criminal Code in paragraph (c) of the definition refers to the definition in section102.1 of the Criminal Code.

564.            Section 102.1 of the Criminal Code defines terrorist organisation to mean:

·          an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, or

·          an organisation that is specified by the regulations.

565.            It is appropriate to cover terrorist organisations within the definition of foreign principal because of the significant consequences for Australia’s security an offence against Part 5.2 be committed by a person acting on behalf of a terrorist organisation.

566.            Paragraph 90.2(e) covers entities or organisations directed or controlled by a public international organisation or a terrorist organisation within the meaning of Division 102.  This ensures that foreign principals cannot avoid falling within the definition by using another entity or organisation to undertake espionage or foreign interference activities.

567.            Paragraph 90.2(e) covers entities or organisations directed or controlled by two or more foreign principals within the meaning of paragraphs 90.2(a), (b) or (c).  For example, two foreign countries with shared interests may jointly establish and control a company which is used to conceal espionage activities against Australia.  Paragraph 90.2(e) ensures that such entities fall within the definition of foreign principal.

Section 90.3 - Definition of foreign government principal

568.            Section 90.3 defines foreign government principal for the purposes of Part 5.2 of the Criminal Code.  This term is used in the definition of foreign principal in section 90.2 and in the offence in Division 92A regarding theft of trade secrets.

569.            Section 90.3 provides that each of the following is a foreign government principal :

·          the government of a foreign country or a part of a foreign country

·          an authority of the government of a foreign country

·          an authority of the government of part of a foreign country

·          a foreign local government body or foreign regional government body

·          a company to which any of the subparagraphs of paragraph (a) of the definition of foreign public enterprise in section 70.1 applies

·          a body or association to which either of the subparagraphs of paragraph (b) of the definition of foreign public enterprise in section 70.1 applies

·          a foreign political organisation, or

·          an entity or organisation directed or controlled:

o    by a foreign government principal within the meaning of any other paragraph of this definition, or

o    by two or more such foreign government principals that are foreign government principals of the same foreign country.

570.            Paragraphs 90.3(a) to (d) cover governments or authorities of foreign countries.  Foreign country 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.

571.            Paragraphs 90.3(a) to (d) ensure that the definition of foreign government principal comprehensively covers the governments and authorities of foreign countries.  Historically, foreign countries are the most likely to seek to engage in espionage and foreign interference activities and it is essential that their activities are covered by the definition regardless of which level of government, or which type of government department or agency, is responsible for the conduct.

572.            Under paragraph 90.3(e) of foreign government principal , a company will fall within the definition if any of the subparagraphs of paragraph (a) of the definition of foreign public enterprise in section 70.1 applies.  Paragraph (a) of the definition of foreign public enterprise means a company where one of the following applies:

·          the government of a foreign country or of part of a foreign country holds more than 50% of the issued share capital of the company

·          the government of a foreign country or of part of a foreign country holds more than 50% of the voting power in the country

·          the government of a foreign country or of part of a foreign country is in a position to appoint more than 50% of the company’s board of directors

·          the directors (however described) of the company are accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of the government of a foreign country or of part of a foreign country, or

·          the government of a foreign country or of part of a foreign country is in a position to exercise control over the company.

573.            Under paragraph 90.3(f) of the definition of foreign government principal , a company will fall within the definition if either of the subparagraphs of paragraph (b) of the definition of foreign public enterprise in section 70.1 applies.  Paragraph (b) of the definition of foreign public enterprise means a body or association (other than a company, which is covered by paragraph (a) of the definition in section 70.1) where one of the following applies:

·          the members of the executive committee (however described) of the body or association are accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of the government of a foreign country or of part of a foreign country, or

·          the government of a foreign country or of part of a foreign country is in a position to exercise control over the body or association.

574.            Paragraphs (a) and (b) of the definition of foreign public enterprise cover state-owned enterprises and other bodies and associations that are controlled by foreign governments.  It is essential that these bodies are covered by the definition of foreign government principal so that there are no gaps in the espionage and foreign interference offences that could be exploited by foreign governments.

575.            Paragraph 90.3(g) covers foreign political organisations.  Foreign political organisation is defined by section 90.1 as including foreign political parties.  This will include political parties of foreign countries.

576.            Paragraph 90.3(h) covers an entity or organisation directed or controlled:

·          by a foreign government principal within the meaning of any other paragraph of this definition, or

·          by two or more such government principals that are foreign government principals of the same foreign country.

577.            Paragraph 90.3(h) ensures that foreign government principals are not able to avoid the application of the espionage and foreign interference activities by channelling their activities through another organisation that is a front for the foreign government principal. 

578.            Paragraph 90.3(h) also ensures that entities or organisations directed or controlled by more than one foreign government principals (from the same foreign country) are covered by the definition. For example, two authorities of a foreign country may jointly establish an entity and use that organisation to direct espionage in Australia.  In this respect, paragraph (h) is limited to situations where the two (or more) foreign government principals are from the same foreign country.  This is because entities or organisations that are directed or controlled by more than one foreign country fall within paragraph 90.2(f) of the definition of foreign principal .

Section 90.4 - Definition of national security

579.            Section 90.4 provides that the national security of Australia or a foreign country means:

·          the defence of the country

·          the protection of the country or any part of it, or the people of the country or any part of it, from activities covered by subsection 90.4(2)

·          the protection of the integrity of the country’s territory and borders from serious threats

·          the carrying out of the country’s responsibilities to any other country in relation to the protection of the integrity of the country’s territory and borders from serious threats and the activities covered by subsection 90.4(2), and

·          the country’s political, military or economic relations with another country or other countries.

580.            Subsection 90.4(2) provides that, for the purposes of subsection 90.4(1), this subsection covers the following activities relating to a country, whether or not directed from, or committed within, the country:

·          espionage

·          sabotage

·          terrorism

·          political violence

·          activities intended and likely to obstruct, hinder or interfere with the performance by the country’s defence force of its functions or with the carrying out of other activities by or for the country for the purposes of its defence or safety, and

·          foreign interference.

581.            The purpose of the definition of national security is to exhaustively cover the matters relevant to the security and defence of a country.  The definition needs to cover matters relevant to Australia’s national security as well as the national security of a foreign country.  This is due to the use of this defined term in the espionage offences where a person commits the offence if they intend to prejudice Australia’s national security or advantage the national security of a foreign country.

582.            This definition reflects traditional concepts of national security that fall within the Commonwealth’s legislative power.  This includes matters relating to the defence of a country from hostilities and military threats (paragraph 90.4(1)(a)) as well as the protection of a country from espionage, sabotage, terrorism, political violence and foreign interference, whether or not directed from, or committed within, the country (paragraph 90.4(1)(b) and subsection 90.4(2)). 

583.            Because the definition of national security also covers foreign countries, the terms espionage, sabotage, terrorism, political violence and foreign interference are not further defined.  This ensures that the terms are not limited by Australian concepts of these matters and are flexible to accommodate the meaning of these terms in foreign countries.

584.            The definition also covers the protection of the integrity of a country’s territory and borders from serious threats (paragraph 90.4(1)(c)).  This is limited to ‘serious’ threats so that it does not include matters that, although rightly criminal, do not amount to national security threats, such as smuggling of illicit tobacco or other prohibited goods.

585.            The definition also reflects the importance of international relationships to national security.  Paragraphs 90.4(1)(d) and (e) deal with:

·          the carrying out of the country’s responsibilities to any other country in relation to:

o    the protection of the integrity of the country’s territory and borders from serious threats, and

o    espionage, sabotage, terrorism, political violence and foreign interference (whether or not directed from, or committed within the country), and

·          the country’s political, military or economic relations with another country or other countries.

Section 90.5 - Definition of security classification

586.            Subsection 90.5(1) provides that security classification has the meaning prescribed by the regulations.

587.            Part 2.3.4 of the Guide to Framing Commonwealth Offences provides that the content of an offence should only be delegated to another instrument where there is a demonstrated need to do so.

588.            It is necessary to prescribe the meaning of the term security classification in the regulations for the following reasons.

·          The definition will involve a level of detail that is not appropriate for inclusion in the Criminal Code.  The definition may prescribe specific words and protective markings that indicated that a document or article carries a security classification.

·          Prescription in regulations is necessary because of the changing nature of the subject matter.  It will be necessary for the definition to keep up to date with changes to Commonwealth protective security policy, to ensure that there is no inconsistency between that which the policy requires or authorises, and that which is subject to the offence provisions;

·          The relevant material involves material of such a technical nature that it is not appropriate to deal with it in the Criminal Code.

·          Elements of the offence may be determined by reference to treaties in order to comply with Australia’s international obligations.  Australia concludes treaties and international agreements for the handling of certain information, such as classified information received from or given to foreign governments, which may be relevant to the definition of a security classification in relation to such information.

589.            It is anticipated that the regulations will prescribe the relevant protective markings that will denote information as being classified for the purpose of these offences.  At this time, these markings are listed in the Australian Government information security management guidelines - Australian Government security classification system (available at www.protectivesecurity.gov.au ) and include:

·          PROTECTED

·          CONFIDENTIAL

·          SECRET

·          TOP SECRET

590.            Subsection 90.5(2) requires that, before the Governor-General makes regulations for the purposes of subsection 90.5(1), the Minister must be satisfied that the regulations are not inconsistent with the policies of the Government of the Commonwealth in relation to protective security.  The intention is to allow the protective markings set out in the Protective Security Policy Framework to be reproduced in the regulations and kept updated in accordance with any changes to that Framework. 

591.            Subsection 90.5(3) provides that, despite subsection 14(2) of the Legislation Act, regulations made for the purposes of subsection 90.5(1) may prescribe a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.

592.            This provision is included to allow the Australian Government information security management guidelines - Australian Government security classification system or other documents that exist as part of the Protective Security Policy Framework to be incorporated into the regulations if this is considered an efficient and appropriate manner of ensuring the definition of security classification is consistent with the Australian Government’s policies relating to protective security.  Importantly, these documents are all publicly available on the internet at www.protectivesecurity.gov.au .

Item 17

593.            Item 17 repeals Division 91 of the Criminal Code, titled ‘Offences relating to espionage and similar activities’ and substitutes a new Division 91 titled ‘Espionage’.

594.            New Division 91 has three subdivisions:

·          Subdivision A - Espionage

·          Subdivision B - Espionage on behalf of foreign principal

·          Subdivision C - Espionage-related offences.

595.            Subdivision A introduces new tiered espionage offences to the Criminal Code.

·          The most serious offence in section 91.1 applies where a person deals with information concerning Australia’s national security and the person intended, or was reckless as to whether, their conduct would prejudice Australia’s national security or advantage the national security of a foreign country. These offences are the most serious as the risks to Australia’s national security are far higher if a person is dealing with information that concerns Australia’s national security.

·          A second tier of offences in section 91.2 applies where a person deals with any information and the person intended, or was reckless as to whether, their conduct would prejudice Australia’s national security. As these offences can be committed even if the information the person deals with does not relate to national security, the offences only apply where the person intends to prejudice Australia’s national security.

·          Section 91.3 applies where a person makes security classified information available to a foreign principal.

·          A range of aggravating factors are set out at section 91.6, including where a person deals with high volumes of classified information or holds a security clearance.

596.            The maximum penalties for the offences in Subdivision A range from life imprisonment to 20 years imprisonment.  This reflects the extreme harm that is likely to result from the conduct covered by the offences and the threat that espionage poses to Australia’s security, prosperity and sovereignty.

Division 91 - Espionage

Subdivision A - Espionage

Section 91.1 - Espionage - dealing with information etc. concerning national security which is or will be made available to a foreign principal

Intention as to national security

597.            Subsection 91.1(1) will make it an offence for a person to deal with information or an article that is security classified or concerns Australia’s national security where the person intends to prejudice Australia’s national security or advantage the national security of a foreign country.  The offence will only apply where the conduct has resulted in, or will result in the information or article being made available to a foreign principal.

598.            This offence will carry a maximum penalty of life imprisonment.

599.            An example of this offence is as follows.  Person A is employed in a Commonwealth government department and has access to highly sensitive, classified information about Country Y’s espionage activities in Australia and Australia’s attempts to combat them.  Person A has a close affiliation with Country Y, having spent time studying there during university and having become a specialist in the affairs of Country Y over the course of their employment with the Commonwealth.  Person A makes a copy of one highly sensitive, classified document and takes it home.  Person A hides the document in a spare room then makes contact with an official at Country Y’s embassy to describe the content of the document and to offer to provide the document.  Person Y intends to disclose the document because it would assist Country Y to avoid or disrupt Australia’s activities.  Person A arranges to leave the document in a particular location in suburban Canberra and a representative of Country Y collects it shortly thereafter.

600.            To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

·          a person intentionally dealt with information or an article

·          either:

o    the information or article had a security classification, or

o    the information or article concerns Australia’s national security and the defendant is reckless as to this element

·          the person intended that his or her conduct would prejudice Australia’s national security or advantage the national security of a foreign country, and

·          the person’s conduct resulted, or would result in, the information being made available to a foreign principal or a person acting on behalf of a foreign principal and the person was reckless as to this.

601.            Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 91.1(1)(a) and (c). Intention is also the fault element for paragraph 91.1(1)(c).  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. 

602.            Strict liability applies to the circumstance in subparagraph 91.1(1)(b)(i) consistent with subsection 91.1(3). 

603.            Recklessness is the fault element for subparagraph 91.1(1)(b)(ii) and paragraph 91.1(1)(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.

604.            For paragraph 91.1(1)(a) the prosecution will have to prove beyond reasonable doubt that the defendant intentionally deals with information or an article.  Consistent with the definition of deals in section 90.1, this may include receiving, obtaining, collecting, possessing, making a record or copying, altering, concealing, communicating, publishing or making available the information or article.  In the example of the offence above, Person A has ‘dealt’ with the information by:

·          copying the document

·          concealing the document (by hiding it in the spare room)

·          communicating the information (by describing the content of the document to the embassy official), and

·          making the document available (by leaving it in the prearranged location in suburban Canberra)

605.            For subparagraph 91.1(1)(b)(i), the prosecution will need to prove beyond a reasonable doubt that the information has a security classification.  In accordance with subsection 91.1(3), strict liability will apply to this paragraph.  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.

606.            Applying strict liability to this element of the offence is appropriate because information or articles carrying a security classification are clearly marked with the security classification and any person who has access to security classified information should easily be able to identify as such.  

607.            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.

608.            The defendant bears 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).  

609.            This defence would be available if, for example, a defendant had specifically turned his or her mind to whether the information or article had a security classification and had mistakenly, but reasonably, concluded that the information or article did not have a security classification. 

610.            Security classification is defined in section 90.5, to be inserted by Item 16 of Schedule 1. The definition will be prescribed in the regulations by reference to the protective security policies of the Commonwealth.

611.            For subparagraph 91.1(1)(b)(ii), the prosecution will need to prove that the information or article dealt with by the defendant concerned Australia’s national security.  Consistent with the definition of national security in section 90.4, this could include information or articles relating to:

·          the defence of Australia (paragraphs 90.4(1)(a) and (e) and 90.4(2)(e))

·          Australia’s border protection (paragraph 90.4(1)(c))

·          activities of Australia’s intelligence agencies, including ASIO (subsection 90.4(2)), and

·          Australia’s relationships with other countries (paragraph 90.4(1)(e)).

612.            In the example above, the information in the document ‘concerns national security’ because it relates to Australia’s intelligence activities to prevent Country Y from engaging in espionage in Australia and falls within paragraph 90.4(1)(b) of the definition of national security .

613.            The prosecution will also have to prove that the defendant was reckless as to whether the information or article concerns Australia’s national security.  Therefore, the defendant must have been aware of a substantial risk that the information concerns Australia’s national security and, having regard to the circumstances known to him or her it was unjustifiable to take that risk.

614.            For paragraph 91.1(1)(c), the prosecution will have to prove beyond reasonable doubt that the defendant intended that his or her conduct would prejudice Australia’s national security or advantage the national security of a foreign country.

615.            The term ‘prejudice’ is intended to capture a broad range of intended conduct, including an intention to harm or injure Australia’s national security or to cause disadvantage to Australia.  The term is also intended to cover impairment or loss to Australia’s national security interests.  The prejudice to Australia’s national security is not required to be serious or substantial but is intended to be more than a minor or trivial prejudice that has no long-lasting effect, nor embarrassment to an Australian person or Australia’s people.

616.            The term ‘advantage’ is intended to capture an intention to put another country’s national security in a favourable or superior position than it would have been without the communication of this information.

617.            For subparagraph 91.1(1)(c)(ii), the person must intend to advantage the national security of a ‘foreign country’, not a ‘foreign principal’.  This is because the interests of countries in relation to ‘national security’ are unique and often relate to the protection to the territory of the country. 

618.            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.

619.            In the example listed above, Person A has dealt with the document intending to advantage the national security of a foreign country.  Person A made the document available to Country Y to allow them to successfully pursue espionage activities in Australia.

620.            Whether or not the prejudice to Australia’s national security or advantage to the national security of the foreign country occurs or the conduct is capable of bringing it about is not relevant to the defendant’s culpability for the offence. For example, if the foreign country already had a copy of the document provided by the defendant then the disclosure by the defendant may not prejudice Australia’s national security of advantage the national security of the foreign principal). 

621.            Consistent with subsection 91.1(4), for the purposes of subparagraph 91.1(1)(c)(ii) the person does not need to have in mind a particular foreign country and may have in mind more than one foreign country.  For example, a person may be in possession of classified information and be willing to pass the information to whichever country is the highest bidder.  The person may still be reckless as to whether passing the information to a foreign country will prejudice the national security of Australia or advantage the national security of a foreign country.

622.            For paragraph 91.1(1)(d), the prosecution will have to prove beyond reasonable doubt that the defendant’s conduct resulted in, or would result in, the information or article being made available to a foreign principal.  The prosecution must also prove that the defendant was reckless as to this element.  Therefore, the defendant must have been aware of a substantial risk that the information or article would be made available to a foreign principal and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

623.            In the example above, Person A was aware that Country Y would collect the document from the prearranged location and Country Y did collect it.  By leaving the document in that location, Person A was aware of a substantial risk that the document would be made available to Country Y.  Person A would also have been aware that it was unjustifiable to take the risk given the highly sensitive nature of the classified document.

624.            Consistent with subsection 91.1(5), for the purposes of paragraph 91.1(1)(d), the person will not need to have in mind a particular foreign principal and may have in mind more than one foreign principal.  For example, a defendant 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 defendant may provide assistance in the knowledge this assistance will or could assist multiple foreign principals at the same time.

625.            The maximum penalty for this offence is life imprisonment.  The maximum penalty needs to be adequate to deter and punish a worst case offence, including repeat offences.  For the offence at subsection 91.1(1), the worst case scenario is a person disclosing highly classified information to a foreign country, intending to prejudice Australia’s national security. The risks that may be posed to Australia’s safety and security by such a disclosure are extreme and it is appropriate that the offence be punishable by the most serious penalty of life imprisonment.

626.            The Note to subsection 91.1(1) specifies that an alternative verdict may be available for an offence against section 91.1(1) in accordance with section 93.5.

Reckless as to national security

627.            Subsection 91.1(2) will make it an offence for a person to deal with information or a article that is security classified or concerns Australia’s national security where the person is reckless as to whether their conduct will prejudice Australia’s national security or advantage the national security of a foreign country and where the conduct has resulted in, or will result in, the information or article being made available to a foreign principal.

628.            This offence will carry a maximum penalty of 25 years imprisonment.

629.            An example of this offence is as follows. Person A is employed in a Commonwealth government department and has access to highly sensitive, classified information. Person A has an association with Person B, who is an academic and a citizen of Country X. Person B has told Person A that he provides advice and commentary on Australia’s foreign policy activities to Country X and has strong links to government in Country X. Person B asks Person A to collect privileged/classified intelligence information about a topical issue involving Australia and Country X and provide it to Person B in exchange for money. Person B says that this information will assist him/her in providing advice to Country X. Person A accepts this request, searches the department’s internal electronic files and locates a classified document which contains intelligence information about the Australian Government’s position on the topical issue. Person A prints a copy of this document and provides this to Person B. 

630.            To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

·          a person intentionally dealt with information or an article

·          either:

o    the information or article had a security classification, or

o    the information or article concerns Australia’s national security and the person was reckless as to this element

·          the person was reckless as to whether his or her conduct would prejudice Australia’s national security or advantage the national security of a foreign country, and

·          the person’s conduct resulted, or would result, in the information being made available to a foreign principal or a person acting on behalf of a foreign principal and the person was reckless as to this.

631.            Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 91.1(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.

632.            Strict liability applies to the circumstance in subparagraph 91.1(2)(b)(i).    

633.            Recklessness is the fault element for subparagraph 91.1(2)(b)(ii) and paragraphs 91.1(2)(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.

634.            For paragraph 91.1(2)(a) the prosecution will have to prove beyond a reasonable doubt that the defendant intentionally deals with information or an article.  Consistent with the definition of deals in section 90.1, this may include receiving, obtaining, collecting, possessing, making a record or copying, altering, concealing, communicating, publishing or making available the information or article.  In the example of the offence above, Person A has ‘dealt’ with the information by:

·          obtaining the information (by making an active effort to search the department’s internal files for intelligence information on the topical issue)

·          copying the document by printing it, and

·          making it available (by passing the document to Person B).

635.            For subparagraph 91.1(2)(b)(i), the prosecution will need to prove beyond a reasonable doubt that the information has a security classification.  In accordance with subsection 91.1(3), strict liability will apply to this subparagraph.  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.

636.            Applying strict liability to this element of the offence is appropriate because information or articles carrying a security classification are clearly marked with the security classification and any person who has access to security classified information should easily be able to identify as such.  

637.            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.

638.            The defendant bears 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).  

639.            This defence would be available if, for example, a defendant had specifically turned his or her mind to whether the information or article had a security classification and had mistakenly, but reasonably, concluded that the information or article did not have a security classification. 

640.            Security classification is defined in section 90.5, to be inserted by Item 16 of Schedule 1. The definition will be prescribed in the regulations by reference to the protective security policies of the Commonwealth.

641.            For subparagraph 91.1(2)(b)(ii), the prosecution will need to prove that the information or article dealt with by the defendant concerned Australia’s national security.  Consistent with the definition of national security in section 90.4, this could include information or articles relating to:

·          the defence of Australia (paragraphs 90.4(1)(a) and (e) and 90.4(2)(e))

·          Australia’s border protection (paragraph 90.4(1)(c))

·          activities of Australia’s intelligence agencies, including ASIO (subsection 90.4(2)), and

·          Australia’s relationships with other countries (paragraph 90.4(1)(e)).

642.            In the example above, the information in the document ‘concerns national security’ because it is intelligence information on a topic issue involving Australia and another country and falls within paragraph 90.4(1)(e) of the definition of national security . Depending on the topic, the information may also relate to other categories of national security in section 90.4. For example, the topical issue may relate to the Australia’s military activities, in which case it could fall within paragraphs 90.4(1)(a) or (c) of the definition of national security.

643.            The prosecution will also have to prove that the defendant was reckless as to whether the information or article concerns Australia’s national security.  Therefore, the defendant must have been aware of a substantial risk that the information concerns Australia’s national security and, having regard to the circumstances known to him or her it was unjustifiable to take that risk.

644.            For subparagraph 91.1(2)(c)(ii), the prosecution will have to prove beyond reasonable doubt that the defendant was reckless as to whether his or her conduct would prejudice Australia’s national security or advantage the national security of a foreign country. Therefore, the defendant must have been aware of a substantial risk that the information or article could prejudice Australia’s national security or advantage the national security of a foreign country, and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

645.            The term ‘prejudice’ is intended to capture a broad range of intended conduct, including an intention to harm or injure Australia’s national security or to cause disadvantage to Australia.  The term is also intended to cover impairment or loss to Australia’s national security interests.  The prejudice to Australia’s national security is not required to be serious or substantial but is intended to be more than a minor or trivial prejudice that has no long-lasting effect, nor embarrassment to an Australian person or Australia’s people.

646.            The term ‘advantage’ is intended to cover putting another country’s national security in a favourable or superior position than it would have been without the communication of this information. 

647.            For paragraph 91.1(2)(c), the person must be reckless as to whether his or her conduct would advantage the national security of a ‘foreign country’.  This is because the interests of countries in relation to ‘national security’ are unique and often relate to the protection to the territory of the country. 

648.            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.

649.            In the example listed above, Person A has dealt with the document reckless as to whether it would prejudice Australia’s national security or advantage the national security of a foreign country. Person A knows that Person B is a citizen of Country X and that Person B advises, and has strong links to government, in Country X.  Therefore, Person A would be aware of the substantial risk that providing intelligence information about Australia’s position on the topical issue to Person B would assist Country X to devise a strategy which effectively counters Australia’s position in favour of Country X’s interests.

650.            Whether or not the prejudice to Australia’s national security or advantage to the national security of a foreign country occurs or the conduct is capable of bringing it about is not relevant to the defendant’s culpability for the offence.  For example, if the foreign country already had a copy of the document provided by the defendant then the disclosure by the defendant may not prejudice Australia’s national security of advantage the national security of the foreign actor). 

651.            Consistent with subsection 91.1(4), for the purposes of subparagraph 91.1(2)(c)(ii), the person does not need to have in mind a particular foreign country and may have in mind more than one foreign country.  For example, a person may be in possession of classified information and be willing to pass the information to whichever country is the highest bidder.  the person may still be reckless as to whether passing the information to a foreign country will prejudice the national security of Australia or advantage the national security of a foreign country.

652.            For paragraph 91.1(2)(d), the prosecution will have to prove beyond reasonable doubt that the defendant’s conduct resulted in, or would result in, the information or article being made available to a foreign principal.  The prosecution must also prove that the person was reckless as to this element.  Therefore, the defendant must have been aware of a substantial risk that the information or article would be made available to a foreign principal and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

653.            In the example above, Person A is aware that Person B provides advice to, and has strong links in, the government of Country X. Person B has told Person A that the information he/she provides will assist Person B in advising the government of Country X. By providing Person B with the document, Person A was aware of the substantial risk that the document or information in the document would be made available to Country Y. Person A would be aware that it was unjustifiable to take that risk given that the document contained sensitive/classified intelligence information. 

654.            Consistent with subsection 91.1(5), for the purposes of paragraph 91.1(2)(d), the person will not need to have in mind a particular foreign principal and may have in mind more than one foreign principal.  For example, a defendant 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 defendant may provide assistance in the knowledge this assistance will or could assist multiple foreign principals at the same time.

655.            The maximum penalty for this offence is 25 years imprisonment.  The maximum penalty needs to be adequate to deter and punish a worst case offence, including repeat offences.  For the offence at subsection 91.1(2), the worst case scenario is a person disclosing highly classified information to a foreign country, aware of a substantial risk that such a disclosure would prejudice Australia’s national security. The risks that may be posed to Australia’s safety and security by such a disclosure are extreme and it is appropriate that the offence be punishable by a serious penalty.

Section 91.2 - Espionage - dealing with information etc. which is or will be made available to foreign principal

Intention as to national security

656.            Subsection 91.2(1) will make it an offence for a person to deal with information or a article where the person intends to prejudice Australia’s national security or advantage the national security of a foreign country.  The offence will only apply where the conduct has resulted in, or will result in the information or article being made available to a foreign principal.

657.            This offence should carry a maximum penalty of 25 years imprisonment.

658.            An example of this offence is as follows.  Person A is a Commonwealth official employed as an analyst at a government department. Person A is strongly opposed to Australia’s intention to negotiate a treaty with Country B.  Person A compiles a report informed by the knowledge he has gained through his role as an analyst in the government department, which contains an aggregation of sensitive, but publically available, information - informed by expertise Person A has developed as a government analyst.  Person A provides this to an official of Country B with the intention of convincing Country B not to negotiate the treaty with Australia, thereby harming Australia’s international relations. 

659.            To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

·          a person intentionally dealt with information or an article

·          the person intended that his or her conduct would prejudice Australia’s national security, and

·          the person’s conduct resulted, or would result in, the information being made available to a foreign principal or a person acting on behalf of a foreign principal and the person was reckless as to this element.

660.            Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 91.2(1)(a). Intention also applies to paragraph 91.2(1)(b).  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. 

661.            Recklessness is the fault element for paragraph 91.2(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.

662.            For paragraph 91.2(1)(a) the prosecution will have to prove beyond reasonable doubt that the defendant intentionally deals with information or an article.  Consistent with the definition of deals in section 90.1, this may include receiving, obtaining, collecting, possessing, making a record or copying, altering, concealing, communicating, publishing or making available the information or article.  In the example of the offence above, Person A has dealt with the information by collecting it, making a record of it in the report and communicating the report to Country B.

663.            For paragraph 91.2(1)(b), the prosecution will have to prove beyond reasonable doubt that the defendant intended that his or her conduct would prejudice Australia’s national security, as defined in section 90.4. Unlike the offences in section 91.1, a person will not commit the offence at subsection 91.2(1) if they hold an intention to advantage the national security of a foreign country.  This is because the offences in section 91.2 apply to any information, not only information carrying a security classification or concerning Australia’s national security.

664.            The term ‘prejudice’ is intended to capture a broad range of intended conduct, including an intention to harm or injure Australia’s national security or to cause disadvantage to Australia.  The term is also intended to cover impairment or loss to Australia’s national security interests.  The prejudice to Australia’s national security is not required to be serious or substantial but is intended to be more than a minor or trivial prejudice that has no long-lasting effect, nor embarrassment to an Australian person or Australia’s people.

665.            Whether or not the prejudice to Australia’s national security or advantage to the national security of a foreign country occurs or the conduct is capable of bringing it about is not relevant to the defendant’s culpability for the offence. For example, if the foreign country already knew the information provided by the defendant then the disclosure by the defendant may not prejudice Australia’s national security.

666.            For paragraph 91.2(1)(c), the prosecution will have to prove beyond reasonable doubt that the defendant’s conduct resulted in, or would result in, the information or article being made available to a foreign principal.  Recklessness is the fault element for this element.  Therefore, the defendant must have been aware of a substantial risk that the information or article would be made available to a foreign principal and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

667.            In the example above, Person A has sent the report to Country B and would therefore have knowledge that the information was made available to a foreign principal.

668.            Consistent with subsection 91.2(3), for the purpose of paragraph 91.2(1)(c), the person will not need to have in mind a particular foreign principal and may have in mind more than one foreign principal.  For example, a defendant 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 defendant may provide assistance in the knowledge this assistance will or could assist multiple foreign principals at the same time.

669.            The maximum penalty for this offence is 25 years imprisonment.  The maximum penalty needs to be adequate to deter and punish a worst case offence, including repeat offences.  For the offence at subsection 91.2(1), the worst case scenario is a person disclosing information to a foreign country, intending to prejudice Australia’s national security. The risks that may be posed to Australia’s safety and security by such a disclosure are extreme and it is appropriate that the offence be punishable by a serious penalty.

670.            The Note to subsection 91.2(1) specifies that an alternative verdict may be available for an offence against section 91.2(1) in accordance with section 93.5.  

Reckless as to national security

671.            Subsection 91.2(2) will make it an offence for a person to deal with any information or a article where the person is reckless as to whether their conduct will prejudice Australia’s national security and where the conduct has resulted in, or will result in, the information or article being made available to a foreign principal.

672.            This offence will carry a maximum penalty of 20 years imprisonment.

673.            An example of this offence is as follows.  Person A is a Commonwealth official employed as an analyst at a government department. Person A is approached by Person B, a diplomat from Country X who is posted to Australia, and is offered a large sum of money if he can provide information which would assist Country X in undertaking intelligence operations in Australia. Person A compiles a report informed by the knowledge he has gained through his role as an analyst in the government department, which contains sensitive, but publically available, information about Australian interests. Person A sends the report to an email address provided by Person B at the embassy of Country X. 

674.            To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

·          a person intentionally dealt with information or an article

·          the person was reckless as to whether his or her conduct would prejudice Australia’s national security, and

·          the person’s conduct resulted, or would result, in the information being made available to a foreign principal or a person acting on behalf of a foreign principal and the person was reckless as to this element.

675.            Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 91.2(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.

676.            Recklessness is the fault element for paragraphs 91.2(2)(b) and (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.

677.            For paragraph 91.2(2)(a) the prosecution will have to prove beyond a reasonable doubt that the defendant intentionally deals with information or an article.  Consistent with the definition of deals in section 90.1, this may include receiving, obtaining, collecting, possessing, making a record or copying, altering, concealing, communicating, publishing or making available the information or article.  In the example of the offence above, Person A has dealt with the information by collecting it, making a record of it in the report and communicating the report to Country X.

678.            For paragraph 91.2(2)(b), the prosecution will have to prove beyond reasonable doubt that the defendant was reckless as to whether his or her conduct would prejudice Australia’s national security. Unlike the offences in section 91.1, a person will not commit the offence at subsection 91.2(2) if they hold an intention to advantage the national security of a foreign country.  This is because the offences in section 91.2 apply to any information, not only information carrying a security classification or concerning Australia’s national security.

679.            The defendant must have been aware of a substantial risk that the information or article could prejudice Australia’s national security and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

680.            The term ‘prejudice’ is intended to capture a broad range of intended conduct, including an intention to harm or injure Australia’s national security or to cause disadvantage to Australia.  The term is also intended to cover impairment or loss to Australia’s national security interests.  The prejudice to Australia’s national security is not required to be serious or substantial but is intended to be more than a minor or trivial prejudice that has no long-lasting effect, nor embarrassment to an Australian person or Australia’s people.

681.            Whether or not the prejudice to Australia’s national security occurs or the conduct is capable of bringing it about is not relevant to the defendant’s culpability for the offence.  For example, if the foreign country already knew the information provided by the defendant then the disclosure by the defendant may not prejudice Australia’s national security. 

682.            For paragraph 91.2(2)(c), the prosecution will have to prove beyond reasonable doubt that the defendant’s conduct resulted in, or would result in, the information or article being made available to a foreign principal.  Recklessness is the fault element for this element.  Therefore, the defendant must have been aware of a substantial risk that the information or article would be made available to a foreign principal and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

683.            Consistent with subsection 91.2(3), for the purposes of paragraph 91.2(2)(c), the person will not need to have in mind a particular foreign principal and may have in mind more than one foreign principal.  For example, a defendant 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 defendant may provide assistance in the knowledge this assistance will or could assist multiple foreign principals at the same time.

684.            The maximum penalty for this offence is 20 years imprisonment.  The maximum penalty needs to be adequate to deter and punish a worst case offence, including repeat offences.  For the offence at subsection 91.2(2), the worst case scenario is a person disclosing information to a foreign country, aware of a substantial risk that such a disclosure would prejudice Australia’s national security. The risks that may be posed to Australia’s safety and security by such a disclosure are very high and it is appropriate that the offence be punishable by a serious penalty.

Section 91.3 - Espionage - security classified information etc.

685.            Section 91.3 will make it an offence for a person to deal with information or an article that has a security classification or concerns national security where the person is reckless as to whether their conduct has resulted in, or will result in, the information or article being made available to a foreign principal or a person acting on behalf of a foreign principal.

686.            This offence will carry a maximum penalty of 20 years imprisonment.

687.            Examples of this offence are as follows.

·          Example 1: Person A is a Commonwealth official with access to classified information. Person A copies a document classified as TOP SECRET, makes contact with an official from Country X.  Person A arranges to leave the document in an agreed public location and a representative of Country X collects it shortly thereafter.

·          Example 2: Person B is a Commonwealth official. Person B meets Person C, who identifies themselves as an employee of a foreign ‘think tank’ that provides advice to the government of Country Y. Person B agrees to provide both open source and privileged information to Person C in exchange for money and other benefits. Person B is privy to classified conversations as part of his work. Person B details these conversations in the form of meeting notes meets Person C at a private location to relay the conversations and provide the notes. Person B does not apply a security classification to the notes but the content reveals capability gaps in the Australian Intelligence Community’s effort to combat espionage and foreign interference activities directed against Australia.

688.            To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

·          a person intentionally dealt with information or an article

·          the person’s conduct results in, or will result in, the information or article being made available to a foreign principal or a person acting on behalf of a foreign principal and the person is reckless as to this element, and

·          either:

o    the information or article has a security classification, or

o    the information or article concerns national security and the person is reckless as to this element.

689.            Section 5.6 of the Criminal Code will apply the automatic fault element of intention to paragraph 91.3(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. 

690.            Recklessness is the fault element for paragraph 91.3(1)(b) and subparagraph 91.3(1)(c)(ii). 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.

691.            Strict liability applies to the circumstance in subparagraph 91.3(1)(c) (i) consistent with subsection 91.3(3).

692.            For paragraph 91.3(1)(a), the prosecution will have to prove beyond reasonable doubt that the defendant intentionally deals with information or an article.  Consistent with the definition of deals in section 90.1, this may include receiving, obtaining, collecting, possessing, making a record or copying, altering, concealing, communicating, publishing or making available the information or article.  In Example 1 above, Person A has dealt with the information by copying a document and making it available to Country X. In Example 2 above, Person B has dealt with the information by making a record of it in the form of meeting notes, communicating it, and making it available to Person C.

693.            For paragraph 91.3(1)(b), the prosecution will have to prove beyond reasonable doubt that the defendant’s conduct resulted in, or would result in, the information or article being made available to a foreign principal or person acting on behalf of a foreign principal.  Recklessness is the fault element for this element.  Therefore, the defendant must have been aware of a substantial risk that the information or article would be made available to a foreign principal and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

694.            In Example 1 above, Person A is aware that Country X would collect the document from a prearranged location. By leaving that document in that location, Person A was aware of the substantial risk that the document would be made available to Country X. Similarly, in Example 2 above, Person B is aware that Person C works for an entity that provides advice to the government of Country Y.  By providing Person C with the meeting notes, Person B is aware of the substantial risk that the document would be made available to Country Y.  Both Person A and Person B would have been aware that it is unjustifiable to take that risk given the sensitive nature of the TOP SECRET document and the classified conversations, respectively.

695.            Consistent with subsection 91.3(2), for the purposes of paragraph 91.3(1)(b), the person will not need to have in mind a particular foreign principal and may have in mind more than one foreign principal. For example, a defendant 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 defendant may provide assistance in the knowledge this assistance will or could assist multiple foreign principals at the same time.

696.            For subparagraph 91.3(1)(c)(i), the prosecution will need to prove beyond a reasonable doubt that the information or article has a security classification.  Consistent with subsection 91.3(3), strict liability will apply to this subparagraph.  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.

697.            Applying strict liability to this element of the offence is appropriate because information or articles carrying a security classification are clearly marked with the security classification and any person who has access to security classified information should easily be able to identify as such.  

698.            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:

699.            The defendant bears 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).  

700.            This defence would be available if, for example, a defendant had specifically turned his or her mind to whether the information or article had a security classification and had mistakenly but reasonably concluded that the information or article did not have a security classification. 

701.            Security classification is defined in section 90.5, to be inserted by Item 16 of Schedule 1. The definition will be prescribed in the regulations by reference to the protective security policies of the Commonwealth.

702.            In the first example above, Person A has dealt with a document containing a security classification of ‘TOP SECRET’. The prosecution would need to prove this physical element beyond a reasonable doubt, but would not need to prove any fault element.

703.            For subparagraph 91.3(1)(c)(ii), the prosecution will need to prove that the information or article dealt with by the defendant concerned Australia’s national security.  Consistent with the definition of national security in section 90.4, this could include information or articles relating to:

·          the defence of Australia (paragraphs 90.4(1)(a) and (e) and 90.4(1)(e))

·          Australia’s border protection (paragraph 90.4(1)(c))

·          activities of Australia’s intelligence agencies, including ASIO (subsection 90.4(2)), and

·          Australia’s relationships with other countries (paragraph 90.4(1)(e)).

704.            In Example 2 above, the information contained in Person B’s meeting notes ‘relates to national security’ because it reveals capability gaps in the Australian Intelligence Community’s counter espionage and foreign interference effort and falls within paragraph 90.4(1)(b) of the definition of national security .  

705.            The prosecution will also have to prove that the defendant was reckless as to whether the information or article concerns Australia’s national security.  Therefore, the defendant must have been aware of a substantial risk that the information concerns Australia’s national security (as defined in section 90.4) and, having regard to the circumstances known to him or her it was unjustifiable to take that risk.

706.            The maximum penalty for this offence is 20 years imprisonment.  The maximum penalty needs to be adequate to deter and punish a worst case offence, including repeat offences.  For the offence at subsection 91.3, the worst case scenario is a person disclosing highly classified information to a foreign country. The risks that may be posed to Australia’s safety and security by such a disclosure are very high and it is appropriate that the offence be punishable by a serious penalty.

Section 91.4 - Defences

707.            The general defences available under Part 2.3 of the Criminal Code will be available to a person accused of an offence under Subdivision A.  In addition, section 91.4 creates specific defences.

708.            The offences in Subdivision A are only intended to apply where a person’s dealing with information is not a proper or legitimate part of their work.  There are a vast range of legitimate circumstances in which public officials deal with information concerning Australia’s national security (including highly classified information) in performing their duties.  For example, possessing or copying information concerning national security is a day to day occurrence in many Commonwealth departments and agencies and for Ministers and their staff.  It is not intended to criminalise these dealings.

709.            Lawful authority is currently included as a physical element of some of the existing espionage offences in Division 91 of the Criminal Code where a person communicates, or makes available, information intending to give an advantage another country’s security or defence (for example, subparagraph 91.1(2)(b)(i)). This requires the prosecution to prove, beyond a reasonable doubt, that the person did not have lawful authority for their actions. In contrast, subsection 91.4(1) casts the matter of lawful authority as a defence, which has the effect of placing an evidentiary burden of proof on the defendant.

710.            If lawful authority was an element of the espionage offences in Subdivision A, it would be necessary for the prosecution to prove, beyond a reasonable doubt, that there was no authority in any law or in any aspect of the person’s duties that authorised the person to deal with the information or article in the relevant manner.  This is a significant barrier to prosecutions.

711.            It is appropriate for the matter of lawful authority to be cast as a defence because the source of the alleged authority for the defendant’s actions is peculiarly within the defendant’s knowledge.  It is significantly more cost-effective for the defendant to assert this matter rather than the prosecution needing to disprove the existence of any authority, from any source. 

712.            Consistent with section 13.3 of the Criminal Code, in the case of an evidential burden, 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.

713.            Subsection 91.4(1) will provide a defence if a person dealt with the relevant information or article:

·          in accordance with a law of the Commonwealth (paragraph 91.4(1)(a)), or

·          in accordance with an arrangement or agreement to which the Commonwealth is party and which allows for the exchange of information or articles (paragraph 91.4(1)(b)), or

·          in the person’s capacity as a public official (paragraph 91.4(1)(c)).

714.            Section 10.5 of the Criminal Code provides a general defence of lawful authority applicable to all Commonwealth offences. This defence is narrow and only applies to conduct that is specifically justified or excused by a law.  Consistent with the definition of law in the Dictionary to the Criminal Code, this means the conduct must be specifically justified or excused by a law of the Commonwealth, and includes the Criminal Code. 

715.            The defence at paragraph 91.4(1)(a) is broader than the lawful authority defence available under section 10.5 and will cover a person acting ‘in accordance’ with a law of the Commonwealth, rather than the law of the Commonwealth needing to specifically justify or excuse the person’s conduct.

716.            The defence at paragraph 91.4(1)(b) applies when  person dealt with the information or article in accordance with an agreement or arrangement to which the Commonwealth is party allowing for the exchange of information or articles.  Many departments and agencies share information with international counterparts as part of their normal business dealings.  Often this information is highly sensitive and highly classified.  This defence provides that the espionage offences in Subdivision A do not apply if a person was sharing information or articles in accordance with an agreement or arrangement to which the Commonwealth was a party and which allows for the exchange of information or articles. 

717.            The terms &ls