Bills Digest No. 117 2001-02
Criminal Code Amendment (Espionage and Related Offences)
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
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Criminal Code Amendment (Espionage and
Related Offences) Bill 2002
Date Introduced: 13 March 2002
House: House of Representatives
Commencement: The Bill itself commences on
Royal Assent. However, the main operational aspects of the Bill
generally(18) commence 28 days after Royal Assent.
To transfer the
offence of espionage and some related matters from Part VII of the
Crimes Act 1914 to new Chapter 5 of the Criminal Code
Act 1995. Some changes to the law are made, particularly in
increasing the maximum penalty for espionage.
The Criminal Code Amendment (Espionage and
Related Offences) Bill 2002 (the Bill) is a modified version of a
bill of the same name that was introduced but not debated shortly
before the November 2001 Federal election.
In addition to the espionage provisions, the
2001 version of the Bill also transferred the official secrets
provisions of Part VII of the Crimes Act 1914 to Chapter 5
of the Criminal Code Act 1995 (the Criminal Code). Whilst
the 2001 Bill did not significantly change the law on official
secrets, this aspect of the Bill was heavily criticised
particularly in the press for containing gaol terms for secondary
disclosure or 'whistleblowing' in relation to non-national security
matters, even when the information was disclosed or published on
so-called public interest grounds. In maintaining the status quo in
this area, the 2001 Bill did not take up the recommendations of the
Gibbs Review of Commonwealth Criminal Law(1) and two
subsequent related inquiries.(2)
Given the criticism of the official secrets
provisions of the 2001 Bill, the Government has - apart from one
amendment in Schedule 1(3) - chosen to drop these
elements from the 2002 Bill. Other than this change, and some other
minor consequential alterations, the 2002 Bill is the same as the
law on espionage Part VII of the Crimes Act 1914
The current form of Part VII dates from 1960
with no substantive amendments made since.(4)
Part VII actually contains offences relating
- Official secrets
- Unlawful soundings
- Harbouring spies, and
- Illegal use of uniforms, official permits, impersonation.
Apart from the issue of official secrets
discussed above, not all of Part VII will be carried over to the
Criminal Code. The offences of harbouring spies and illegal use of
uniforms, official permits and impersonation will disappear from
the statute books.
Part VII also contains various procedural
elements such as arrest, search, institution of prosecutions, and
in camera hearings. Again, only some of these are carried over in
the Bill and these are noted in the main provisions section of this
The following describes the existing Part VII
espionage provisions as this offence is the main focus of the Bill.
The equivalent provisions in the Bill are analysed in the main
provisions section of this Digest.
The offence of espionage is contained in
existing section 78 of Part VII.
For a section 78 offence to have occurred, both
a physical element (an act or a result of an act) and a mental
element (a person's intention, or state of mind) are required to be
The physical element occurs if a person
makes, collects, records, possesses, communicates information that
is likely to be, might be, or intended to be directly or indirectly
useful to an enemy or foreign power, or approaches, inspects or is
in a prohibited place. The definition of prohibited place appears
to be extremely wide.(5) The mental element is
satisfied if the person committed the physical element with the
'intention of prejudicing the safety or defence of the
Commonwealth or a part of the Queen's dominions'.
The offence carries a maximum penalty of 7
The Gibbs Review
Part VII was examined by the independent Review
Committee on Commonwealth Criminal Law (the Gibbs review)
established by the then ALP Government in 1987. The recommendations
of the Gibbs review were delivered in 1991.
One universal change recommended by the Gibbs
review was the deletion of all reference to the Queen's dominions
in the context of the safety or defence of Commonwealth (ie
Australia). This recommendation was made to reflect 'the changing
pattern of Australia's international relations and relations within
the Commonwealth of Nations'.(6) This recommendation has
been incorporated into the Bill.
In relation to espionage, the main
recommendation was to delete the provisions that allowed, amongst
other things, an offence to be proved through the accused's
'conduct or known character' rather then having to prove that a
particular act had been committed. This was done on the ground that
it was unclear how such a provision would operate in practice. This
recommendation has also been incorporated into the Bill.
Clause 2 sets out when various parts of the Bill
are to commence. Note there are some typographical errors in
paragraphs (4) and (5). These paragraphs should respectively refer
to item 6 of Schedule 1 to the Security Legislation Amendment
(Terrorism) Act 2002 (not item 6 of Schedule 2 as printed) and
item 7 of Schedule 1 to the Security Legislation Amendment
(Terrorism) Act 2002 (not item 6 of Schedule 2 as
Clause 4 provides that the Bill
is not intended to operate retrospectively, ie. existing Part VII
will continue to apply to offences that take place before the Bill
Item 1 repeals section 78 of
the Crimes Act 1914 which contains the offence of
Item 2 amends section 79 of the
Crimes Act 1914 which contains the offence of unlawful
disclosure of official secrets. The amendment replaces the term
'[intention to prejudice the] safety or
defence'(7) currently in Part VII with that of
'[intention to prejudice the] security or defence'.
Security or defence is defined in new section 90.1
of the Criminal Code (see item 5 below) as including 'the
operations, capabilities and technologies of, and methods and
sources used by, the country's intelligence or security agencies'.
However, this new section 90.1 definition only
applies to Part 5.2 of the Criminal Code, not to the Crimes Act
1914. In the interests of clarity, a definition should also be
included for the Crimes Act 1914.
The Government has stated that the objective
behind this substituting the new term security for
existing safety is to '[afford] protection to a wider
range of material that may not be protected under the current
laws'.(8) The protection of security matters, rather
just traditional defence matters, was actually advocated by the
Australian Secret Intelligence Service over ten years ago in its
submission to the Gibbs review. This proposal was rejected in the
report with rather a cursory comment that 'the meaning of security
if not specifically defined, is unclear and in the context safety
appears to be the more appropriate term'.(9)
Item 3 repeals sections 81
(harbouring spies), 83 (unlawful soundings), 83A (illegal use of
uniforms, official permits, impersonation etc), 83B (arrest without
a warrant) 84 (arrest of persons in or around prohibited places)
84A (search of suspects), 85A (offences by companies) and 85C
(imprints to be evidence) of the Crimes Act 1914. Only
section 83 is carried over by the Bill to the criminal Code.
Item 4 inserts the heading for
the new Chapter 5 of the Criminal Code - The integrity and
security of the Commonwealth. This heading is also inserted by
other pieces of anti-terrorism legislation introduced into
Parliament by the Government on 12 March 2002. Item
4 will only come into force if the Bill receives Royal
Assent before the other relevant anti-terrorism legislation.
Item 5 inserts the main
operational elements of the Bill - new Divisions
90-94 within new Part 5.2 of the Criminal Code.
New Division 90 incorporates a
number of definitions and concepts. Most of these are simply copied
from existing section 77 of the Crimes Act. New definitions are
'security or defence' (see earlier comment on item 2) and 'record'
which clarifies that a record of information may take virtually any
form. The definition of 'information', which includes an opinion or
a report of a conversation (irrespective of whether either of these
are true or not), is virtually identical to that in existing
New Division 91 contains four
separate espionage offences. All carry a maximum
penalty of 25 years imprisonment, an increase from the current
maximum of 7 years. By comparison, maximum penalties in other
jurisdictions including New Zealand, Canada, and the United Kingdom
are in the range from 10-14 years. In the United States the
penalties are more severe, with certain acts of espionage
attracting a maximum of life, or even the death penalty if they
relate to certain types of information(10) or the
espionage results in the death of a US agent.
New subsections 91.1(1) and
91.1(2) both incorporate a common physical element
of a person communicating or making available information
concerning either the Commonwealth's security or defence, or
security or defence of another country where that information is or
has been in the control or possession of the Commonwealth. The
person's act must also be likely to result in the information being
disclosed to a foreign country or organisation, or their agent.
The difference between new subsections
91.1(1) and 91.1(2) is a required mental element - for
new subsection 91.1(1) it is that the person
committed the act 'intending to prejudice the Commonwealth's
security or defence'; for new subsection 91.1(2)
the person must act without lawful authority and 'intend
to give an advantage to another country's security or defence'.
This latter mental element could apply in a number of different
situations. An example might include if the information in question
concerned plans for a defence weapons system that has been provided
to, or developed by, Australia, but that Australia does not intend
to use for whatever reason. If these plans were compromised by
communication to a foreign agent, Australia s security or defence
would not be directly prejudiced (although it may impact on the
extent to which other countries are confident about sharing
intelligence with Australia), but the security or defence of the
receiving country might well be advantaged. This makes the
information very valuable and, consequently, just as susceptible to
compromise as information of a more directly relevant to
Australia's security or defence nature. The mental element might
arguably also cover situations where Australia or its allies gather
domestic intelligence(11) on other countries and the
information leaked to another country or organisation will
compromise these intelligence efforts. In summary, new
subsection 91.1(2) expands the scope of Commonwealth law
as compared to existing section 78 of the Crimes Act.
New subsections 91.1(3) and
91.1(4) both incorporate a common physical element
of making, obtaining or copying available information concerning
either the Commonwealth's security, or defence or security or
defence of another country where that information is or has been in
the control or possession of the Commonwealth. Both have
two required mental elements. Under new subsection
91.1(3), the person must commit that act intending both
that the information may be delivered to a foreign country or
organisation, or their agent and to prejudice the
Commonwealth's security or defence. In relation to new
subsection 91.1(4), the act must be committed without
lawful authority intending both that the information may be
delivered to a foreign country or organisation, or their agent
and to give an advantage to another country's security or
Note that the current offence under paragraph
78(1)(c) of 'approaching, being in, etc a prohibited place with the
intention of prejudicing the safety or defence of the Commonwealth'
has not been carried over to the Bill. As it stands, it is arguable
that paragraph 78(1)(c) allows for a person participating in some
form of civil disobedience activity (eg a sit-in) at a defence
facility to be found guilty of espionage.
Persons charged with a Division
91 offence can only remanded on bail by a Supreme Court
judge of the relevant State or Territory: new subsection
91.1(6). Apart from this requirement, applications are to
be determined according the bail legislation of the State or
Territory in which the charges are brought.
New subsection 91.1(7) provides
that the Criminal Code extended geographical jurisdiction category
D(12) applies to new section 91.1
espionage offences. This is the broadest jurisdictional category
and the offence provisions apply to any person, including where
their actions take place outside of Australia. This is effectively
the same as the existing section 78 espionage offences since
existing section 3A of the Crimes Act 1914 states that
'this Act also applies beyond the Commonwealth and the
Division 92, offences related
to soundings, is modelled on existing section
Soundings are measurements of water depth. The
offence only applies to sounds taken in Australia's territorial sea
(that is, within twelve nautical miles seaward of coastal baselines
defined under the Seas and Submerged Lands Act 1973).
Essentially, new section 92.1
provides that unless a person can prove(14)
that the soundings in question were made with Federal, State or
Territory authority or were reasonably necessary for vessel
navigation or any other lawful activity of the vessel that person
commits an offence if they
- Take any soundings or record them, or
- Have any records of soundings in their possession, or
- Communicate information about the soundings to a person outside
the Commonwealth or communicate that information to a person with
the intention that the information would ultimately be passed on to
someone outside the Commonwealth.
The maximum penalty is unchanged from section 83
at 2 years.
New Division 93 deals with the
bringing of prosecutions under new Part
5.2 and the hearing of those prosecutions.
As is the case for the equivalent provisions in
Part VII, prosecutions of offences under new Part
5.2 (including section 93.2)(15) can only be
instituted with the consent of the Attorney-General or a person
acting under the Attorney-General s direction: new
subsection 93.1(1). The Explanatory Memorandum to the Bill
comments that such prosecutions 'are likely to raise issues
regarding matters of national security or sensitive international
relations that require government to government
contact'.(16) It also comments that such consent is
required for prosecutions under other security and
counter-terrorism legislation.(17) Under new
subsection 93.1(2), the Attorney-General's consent is not
required for the arrest and / or remanding in custody or on bail of
a person alleged to have committed an offence.
New section 93.2 provides that
a judge, magistrate or other competent person may, 'if satisfied
that it is in the interest of the security or defence of the
Commonwealth' exclude the public from court hearings, prevent the
publishing of report about any part of proceedings or prevent
access to evidence or other information relevant to the
proceedings. The equivalent provision in Part VII (subsection
85B(1)) is 'if satisfied such a course is expedient in the interest
of the defence of the Commonwealth'.
New section 93.2 only applies
to a federal court, a court exercising federal jurisdiction, or a
court of a Territory, but the proceedings may relate to any Act,
not just Chapter 5 of the Criminal Code. A person who violates a
new section 93.2 order or direction is subject to
a maximum penalty of five years imprisonment.
New Division 94 provides that
any information or related device that is dealt with in
contravention of new Part 5.2 is forfeited to the
Schedule 2 -
Schedule 2 deletes references
in both the Crimes Act 1914 and the
Australian Protective Service Act 1987 to those sections
repealed by items 1 and 3 in
Schedule 1 and where appropriate replaces these
with equivalent references to the Criminal Code.
- Certain items do not commence at all if other anti-terrorism
legislation introduced on March 12 comes into force first. For
example, see item 4 in Schedule 1.
- Review of Commonwealth Criminal Law, Fifth Interim
Report, June 1991.
- In the Public Interest, Report of the Senate Committee
on Public Interest Whistleblowing, August 1994; Commission of
Inquiry on Australian Secret Intelligence Service, 1994.
- Item 2, Schedule 1. See comments in the main provisions section
of the digest.
- Sections 78 and 79 were amended by the Law and Justice
Legislation Amendment (Application of Criminal Code) Act 2001.
The amendment replaced the old phrase 'a purpose intended to be
prejudicial to the safety or defence of the Commonwealth ' with a
new version 'with the intention of prejudicing the safety or
defence of the Commonwealth'. The amendment was to clarify that, as
a matter of law, the prosecution is required to prove a (mental)
fault element rather than a physical element that is the result of
the accused's actions.
- The very broad nature of the definition is due to the rather
ambiguous provisions in paragraph 80(a) that appears to state that
any office belonging to the Commonwealth is a prohibited place,
even in times of peace. Military installations or places used to
produce, store, test etc war material are included within the
definition. The Governor-General also has the power to declare
places as prohibited places on the grounds that information, damage
or interference related to the place 'would be useful to an enemy
or to a foreign power': paragraph 80(c).
- Review of Commonwealth Criminal Law, op cit, paragraph
42.27 at p. 365.
- The term 'safety or defence' is not defined in Part VII.
- The Hon Daryl Williams, second reading speech, House of
Representatives Debates, 13 March 2002 p. 1021.
- Review of Commonwealth Criminal Law, op cit, paragraph
42.26 at p. 365.
- For example, information relating to nuclear defences.
- That is, intelligence that does not relate to these countries
views on, or operations relevant to, Australia.
- Section 15.4.
- Although it is arguable that there is some doubt whether
section 3A means that all parts of the Crimes Act
necessarily applies to acts of foreign nationals occurring wholly
outside of the Commonwealth and Territories: see McDonald v
Bojovic  VR 387 at 393.
- The same burden of proof exists under existing subsection 83(3)
in Part VII.
- That is, a prosecution for violating an order / direction to
exclude the public from court hearings, prevent the publishing of a
report about any part of proceedings or prevent access to evidence
or other information relevant to the proceedings.
- Explanatory Memorandum, at p. 9.
- Ibid. Legislation listed is the Weapons of Mass Destruction
(Prevention of Proliferation) Act 1995 (section 20),
Crimes (Foreign Incursions and Recruitment) 1978 (section
10), Crimes (Internationally Protected Persons) Act 1976
(subsection 12(3)) and the Crimes (Biological Weapons) Act
1976 (subsection 10(3)).
Appendix - The Lappas case
In July 2000, Simon Lappas, a former Defence
Intelligence Organisation analyst, was charged with official
secrets offences under subsection 79(2) of the Crimes Act
1914. Additional espionage charges under subsection 78(1) were
brought in 2001. The charges stem from allegations that Lappas gave
several classified documents to an unauthorised person, Sherryll
Dowling, in order that she could sell the documents to a foreign
power. Dowling was also charged with related offences under section
Under the particular circumstances of the case,
it appears Lappas could only be found guilty of the subsection
78(1) charges if the documents were passed with the intention of
them being useful to a foreign power.1
The documents allegedly passed by Lappas were
tendered as evidence, in camera, in the April 2001 committal
hearing and defence counsel were given access at that time.
However, at trial, the prosecution counsel declined to tender the
same documents as evidence, rather making a claim for state
interest immunity under section 130 of the Evidence Act. This
section provides that
If the public interest in admitting into
evidence information or a document that relates to matters of state
is outweighed by the public interest in preserving secrecy or
confidentiality in relation to the information or document, the
court may direct that the information or document not be adduced as
The prosecution intended to tender 'blacked out'
versions of the documents and lead oral evidence that would
describe the blacked out contents in general terms. However,
Justice Gray of the ACT Supreme Court ruled that to do so would
hinder the defence's ability to adduce evidence before the jury on
the question of the document's usefulness to a foreign power and
thus the accused would not get a fair trial under these
circumstances. The end result was that Justice Gray, while allowing
the claim for state interest immunity, also directed that the
charges under subsection 78(1) be stayed. Lappas' trial on the
remaining charges is scheduled to start in May 2002.
1 R v Simon Lappas and Sherryll Dowling
 ACTSC 115 at paragraph 20.
4 April 2002
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