Introductory Info
Date introduced: 7 December 2017
House: House of Representatives
Portfolio: Attorney-General
Commencement: Schedules 1, 3 and 6, and Part 1 of Schedule 4 will commence on the day after Royal Assent.
Schedule 2 and Part 2 of Schedule 4 will commence on a day to be fixed by Proclamation or six months after Royal Assent, whichever
occurs first.
The commencement of the two Parts of Schedule 5 is conditional on the commencement of other proposed legislation.
Introduction
The National
Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017
(the Bill) was introduced into the House of Representatives on 7 December 2017
as part of a suite of proposed national security legislation.[1]
The next day the Bill, together with the other national security bills, was
referred to the Parliamentary Joint Committee on Intelligence and Security
(PJCIS) for review.[2]
On 5 March 2018, the Attorney-General, Christian Porter,
provided the PJCIS with a range of proposed amendments to the original Bill
(Attorney-General’s amendments).[3]
The PJCIS released its advisory report into the Bill on 7
June 2018. The PJCIS advisory report included 60 recommendations which
endorsed a number of the proposed amendments by the Attorney-General and also
made recommendations for further amendments to the Bill and other related
matters.[4]
In relation to the PJCIS report, the Attorney-General
stated:
Given the rapid change in the threat environment it is the
Government’s intention to consider the report and recommendations for
amendments very quickly and my expectation is that the Bill, in essentially the
form now recommend[ed] by the Committee, should be passed through Parliament
during the next sitting period later this month; noting of course the primary
and most significant recommendation of the report is that the Bill be passed.[5]
On 26 June 2018, the Government introduced amendments to
the Bill which incorporated some of the Attorney-General’s earlier proposed
amendments and responded to the recommendations of the PJCIS report (proposed
Government amendments).[6]
This Bill Digest addresses both the Bill as introduced and the Government’s
proposed amendments.
Purpose of the Bill
The purpose of the Bill is to amend the Criminal Code Act 1995, the Crimes Act 1914,
the Telecommunications
(Interception and Access) Act 1979, and the Inspector-General
of Intelligence and Security Act 1986 (with consequential amendments to
other legislation) to ‘modernise and strengthen Australia’s espionage, foreign
interference, secrecy and related laws to ensure the protection of Australia’s
security and Australian interests’.[7]
The Prime Minister, Malcolm Turnbull, in his second reading speech stated:
We are ... introducing, for the first time, offences for acts
of foreign interference. Addressing a clear gap, we will criminalise covert,
deceptive and threatening actions by persons acting on behalf of, or in
collaboration with, a foreign principal aiming to influence Australia's
political processes or prejudice our national security. Acts of foreign
interference are often intertwined with espionage. But our espionage laws are
so unwieldy they have not supported a single conviction in decades, even as the
threat reaches unprecedented levels. So we will also introduce a range of
carefully structured espionage offences as well as new provisions for secrecy,
sabotage and treason.[8]
The Explanatory Memorandum highlights eight reforms to
‘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.[9]
Structure of the Bill
Taking into account the Government proposed amendments,
the Bill now contains six schedules.
Schedule 1 amends the Criminal Code to:
- update
treason offences and create a new offence of treachery
- introduce
new sabotage offences
- amend
the existing offences against government (including advocating mutiny,
assisting prisoners of war to escape and military-style training for a foreign
government) and criminalise the use of force, violence or intimidation to
interfere with Australian democratic or political rights
- introduce
new espionage offences
- introduce
new foreign interference offences and
- introduce
a new offence targeting theft of trade secrets on behalf of a foreign
government.
Schedule 2 will:
- repeal
existing secrecy and official secrets offences in the Crimes Act
- introduce
a range of new secrecy offences into the Criminal Code which will apply,
in particular, where the information which is misused is ‘inherently harmful’
or would ‘cause harm to Australia’s interests’
- introduce
a range of defences to the new Commonwealth secrecy offences, including for
journalists.
Schedule 3 introduces a new aggravated offence
where a person provides false or misleading information in relation to an
Australian Government security clearance process.
Schedule 4 amends the Telecommunications
(Interception and Access) Act to allow the powers under that Act to be used
to investigate the offences contained in the Bill.
Schedule 5 makes amendments relevant to the proposed
Foreign Influence Transparency Scheme and other transitional amendments.
Schedule 6 inserts a provision into the Inspector-General
of Intelligence and Security Act to protect persons providing information
voluntarily to the Inspector-General.[10]
Commencement
Clause 2 deals with the commencement of the Bill.
Sections 1 to 3 commence on Royal Assent. Schedules 1, 3 and 6, and Part 1
of Schedule 4, commence the day after Royal Assent.
Schedule 2 and Part 2 of Schedule 4 commence on
Proclamation or six months after Royal Assent, whichever occurs first.
Part 1 of Schedule 5 commences at the same time as the Foreign
Influence Transparency Scheme Act 2017, and will not commence at all if
that Act does not commence. Part 2 of Schedule 5 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 of the Electoral Legislation
Amendment (Electoral Funding and Disclosure Reform) Act 2017.
However, Part 2 of Schedule 5 will not commence at all
unless both these events occur.
Background
The Bill was introduced into the House of Representatives
in December 2017 as part of a package of legislation intended to counter
foreign interference and influence in Australia. This includes interference and
influence in Australia’s political and electoral systems. The related proposed
legislation is the:
Prime Minister Turnbull has stated that the Bill is the
result of a review he commissioned in August 2016 by former Attorney-General,
George Brandis, into foreign influence, interference and coercion.[13]
The Attorney-General’s Department outlined that in May 2017 the former
Attorney-General was requested to review Australia’s existing laws relating to
espionage and foreign interference, to consider:
- the
adequacy and effectiveness of existing espionage, treason and official secrets
offences
- the
merit of creating specific foreign interference offences
- the
merit of establishing a foreign agents registration scheme (based on the United
States’ Foreign Agents Registration Act 1938) and
- hether
there were complementary provisions which could strengthen the ability of
intelligence agencies to investigate and prosecute acts of espionage and
foreign interference.[14]
The Attorney-General’s Department has reported:
It was apparent to the review that foreign intelligence
services are currently seeking to harm Australia’s interests on an
unprecedented scale and through a variety of means, including by obtaining
classified information or by seeking to influence the outcome of Australia’s
democratic and institutional processes. The review found that existing criminal
offences have proven inadequate in addressing such conduct and have therefore
had limited impact in deterring and countering espionage and foreign
interference activities occurring in Australia.[15]
Further details of the review and its findings have not
been made publicly available. However, it has occurred amidst increased
warnings from the Australian Security and Intelligence Organisation (ASIO)
about the threat posed to Australia by espionage and foreign interference
activities, as well as increased media attention to the issue of foreign
influence in Australia’s political systems.
Concerns of foreign influence in politics
In the last twelve months there have been mounting
concerns about the extent of foreign influence in Australia’s political system.
In June 2017, a joint investigation by the Australian Broadcasting Corporation’s
(ABC) Four Corners program and Fairfax Media reported that ASIO had
previously briefed Malcolm Turnbull, former Prime Minister Tony Abbott and
Leader of the Opposition, Bill Shorten, about accepting donations from property
developers with possible links to the Chinese Communist Party.[16]
It was reported that Australian intelligence agencies held concerns the Chinese
Communist Party was seeking to use political donations to gain access to
Australia’s political institutions, and that since the 2015 briefings, both
major parties had continued to accept donations.[17]
The most high profile incident concerned former Senator
Sam Dastyari, who resigned from Parliament in December 2017 following reports
that he had informed a Chinese political donor that his phone was probably
under surveillance by security agencies, and had made public remarks on the
South China Sea that contradicted the Australian Labor Party’s official policy
position.[18]
Another point of concern has been the activities and affiliations of members of
Parliament, and particularly ministers, after leaving Parliament. The
ABC–Fairfax investigation reported that shortly after leaving politics, the
former Minister for Trade, Andrew Robb, began receiving an $880,000 consulting
fee from the Chinese-owned Landbridge Group, which holds the lease of Darwin
Port.[19]
The owner of Landbridge, Ye Cheng, was reported to have strong links with the
Chinese Communist Party.[20]
These concerns have come at a time of increased attention
being paid internationally to the possibility of foreign interference in
domestic politics. In his second reading speech for the Bill, Malcolm Turnbull
pointed to recent incidents overseas as highlighting the significance of the
issue:
Anyone who has glanced at the international media over the
course of this year will see that questions of foreign interference are not all
about China—far, far from it. Globally, Russia has been wreaking havoc across
the democratic world.
There are credible reports that Russia was actively
undermining the integrity of the Brexit referendum, this year's presidential
elections in France and last year's presidential election in the United States.
And other nations are reportedly conducting interference
operations outside their borders, including Iran and North Korea.
In some cases, authoritarian states have been literally
manufacturing public opinion in order to hijack political discourse and tilt
the decision-making landscape to their advantage.[21]
ASIO
warnings
ASIO has been increasingly vocal about the significance of
the threat posed by foreign actors seeking to interfere with Australia’s
interests. In its Annual report 2016–17, it reported that espionage and
foreign interference in Australia’s economy was a ‘growing concern’, with
foreign intelligence services looking to access bulk data sets and privileged
and/or classified information on Australia’s alliances and partnerships, its
position on international diplomatic, economic and military issues, energy and
mineral resources and technological innovations.[22]
The annual report further stated that resource restraints had restricted ASIO’s
response to such activities:
While we had a number of successes in identifying and
degrading the harmful effects of espionage and foreign interference, the scale
of the threat to Australia and its interests is unprecedented. The heightened
terrorist threat this past decade, which has been further elevated in Australia
since 2014, has limited our scope to redirect resources towards
counterespionage and foreign interference.[23]
Peter Jennings, executive director of the Australian
Strategic Policy Institute, has pointed to the importance of the Australian
Government and national security community finding better ways to communicate
to the public the nature of threats faced from espionage, sabotage and foreign
interference. He notes that:
It is not easy to bridge the necessary gap between what
officials know from classified information and what can be publicly revealed,
but Australian officials have for far too long used the veil of national
security classifications to avoid making a public case for stronger measures
against espionage and subversion.[24]
In his submission to the PJCIS inquiry into the Bill, he
recommended that the PJCIS direct the Australian Intelligence Community to
prepare an annual public report for Parliament on the state of efforts to
counter espionage, sabotage and related activities.[25]
The increased emphasis on foreign interference activities
as a key threat to security has been reflected in an apparent shift in the Government’s
national security agenda. As part of the machinery of government changes in
December 2017, the Department of Home Affairs assumed a number of functions
from the Attorney-General’s Department, including national security policy,
critical infrastructure protection and countering foreign interference.[26]
Minister for Home Affairs, Peter Dutton, indicated that the Department would be
placing a greater focus on espionage, reportedly stating: ‘we’re well and truly
underdone in terms of our counter-espionage effort... So I think we need to
continue to push harder’.[27]
It has been reported that the Department is considering a new joint-agency
taskforce, modelled on the Joint Counter Terrorism Taskforce, in which the
Australian Federal Police would cooperate with intelligence agencies in
counter-espionage operations.[28]
Public
infrastructure and foreign investment
The proposed sabotage offences in the Bill seek to address
threats to public infrastructure. In this respect, the Bill is linked with the Security of
Critical Infrastructure Act 2018, the Bill for which was also introduced
into Parliament on 7 December 2017.[29]
The Security of Critical Infrastructure Act is aimed at managing
national security risks flowing from foreign involvement in Australia’s
critical infrastructure. It creates a critical infrastructure assets register,
in which entities operating certain assets or with direct interest in the asset
will be required to report to the Government, and gives the Minister power to
direct the owner or operator of a critical infrastructure asset to mitigate
national security risks.[30]
Neither the Bill nor the Security of Critical
Infrastructure Act directly deals with the activities of the Foreign Investment
Review Board (FIRB). However, Peter Jennings from the Australian Strategic
Policy Institute has suggested that the FIRB’s operations will inevitably come
within the ambit of Government efforts to protect critical infrastructure:
In my view the new legislation makes the current structure of
the FIRB untenable. The FIRB operates with an ideological disposition to
facilitate foreign investment – as is demonstrated by the tiny (fewer than ten
in the last decade) number of foreign investment refusals the entity has
recommended compared to tens of thousands of approvals. It seems to regard
legitimate concerns about the security of critical infrastructure as confected
threat-mongering. FIRB’s advice to government is based on analysis and
assessment methodologies that are utterly opaque, not least to potential
investors.
For the Government’s new legislation to work, the time has
come to review the governance structures, role and methods of operation of the
FIRB. I recommend that the PJCIS should make the FIRB’s national security role
the subject of a stand-alone review.[31]
‘Foreign Interference’
While the Bill inserts offences (in proposed Division
92 of the Criminal Code) which explicitly address ‘foreign
interference’ these can be seen as using a narrow concept of ‘interference’. A
number of the other parts of the Bill can be perceived as related to addressing
and preventing foreign interference in a broader sense. For example Schedule 1
inserts into the Criminal Code:
- a
new offence of treachery for persons who seek to use force or violence to
overthrow the Constitution or an Australian Government (proposed
section 80.1AC)
- a
range of new sabotage offences including offences which relate to conduct on
behalf of foreign principals (proposed sections 82.3 and 82.4)
- a
range of offences relating to other threats to security, such as advocating
mutiny, assisting prisoners of war to escape, military-style training involving
a foreign principal or interference with Australian political rights and duties
(proposed Division 83)
- a
range of amended espionage and related offences for dealing with information
which includes offences which target the actions of foreign principals who
receive information, criminalise soliciting or procuring a person to commit an
espionage offence and contain a preparation or planning offence
-
a new offence of theft of trade secrets on behalf of a foreign
government principal (proposed Division 92A).
Schedule 2 contains a range of new secrecy offences for
disclosure of information which is ‘inherently harmful information’ or would
‘cause harm to Australia’s interests’. These offences are intended to apply to
all persons, not just Commonwealth officers (proposed Part 5.6 and Division
122). However, these offences can be considered more defensive provisions
to prevent harmful disclosures, rather than offences to deter active attempts
at interference from outside Australia.
Committee consideration
Senate
Standing Committee for the Scrutiny of Bills
The Senate Scrutiny of Bills Committee (Scrutiny committee)
considered the Bill in Scrutiny Digest No. 1 of 2018.[32]
Following a response from the Attorney-General and the release of the proposed
amendments, the Scrutiny committee concluded its consideration of the Bill in Scrutiny
Digest No. 4 of 2018.[33]
However, it also indicated that it would consider amendments made to the
Bill in the future.
Broad scope
of offence provisions
The Scrutiny committee initially sought a detailed
justification for broad definition of terms central to the new offences in the Bill
such as ‘deal’, ‘foreign principal’, ‘national security’ and ‘inherently
harmful information’ as well as the breadth of some of the proposed offences.[34]
It considered that the proposed amendments to the Bill would ‘help to alleviate
a number of the committee’s concerns’ and requested that key information
provided by the Attorney-General be included in the explanatory memorandum.
However, its concerns regarding the breadth of some of the offences remained.
The Scrutiny committee considered ‘the breadth of the offences in proposed
subsection 91.2(2) and sections 91.3, 122.1 and 122.4A,
coupled with the significant custodial penalties, no requirement of an
intention to do harm to Australia's interests and no public interest defence,
may unduly trespass on personal rights and liberties’.[35]
The broad scope of the new treachery offence in proposed
section 80.1AC was also highlighted. The Scrutiny committee sought a
detailed justification for the maximum penalty (life imprisonment) ‘when the
provision does not precisely specify the nature of the offending conduct’.[36]
The Scrutiny committee was satisfied with the Attorney-General’s advice which
indicated the proposed offence ‘criminalises serious conduct’ but requested the
key information provided be included in the Explanatory Memorandum of the Bill.[37]
Reversal of
evidential burden of proof
A number of key offences relating to threats to national
security provide offence-specific defences, which provide that the offence does
not apply, or it is a defence to the offence, in certain specified
circumstances. In doing so, these provisions reverse the evidential burden of
proof. The Scrutiny committee sought detailed advice as to:
- the
appropriateness of including each of the specified matters as an
offence-specific defence
- whether
secrecy provisions in other legislation could prevent officials (such as Inspector-General
of Intelligence and Security (IGIS) officers) from discharging an evidential
burden of proof as to whether they were acting in accordance with their statutory
duties and
- the
appropriateness of amending the Bill to provide that relevant matters be
included as an element of each offence or that a defendant not bear the burden
of proof in relying on the offence-specific defences.[38]
The Scrutiny committee requested key information provided by
the Attorney-General be included in the Explanatory Memorandum and welcomed:
... the Attorney-General’s statement that the government will
develop amendments to the bill to ensure that IGIS officials do not bear an
evidential burden in relation to the defences in proposed section 122.5; will
broaden the defences at proposed subsections 122.5(3) and (4) to cover all
dealing with information; and will clarify that the defences in section 122.5
do not affect any immunities that exist in other legislation.[39]
Nonetheless, the Scrutiny committee drew its concerns
regarding ‘the appropriateness of reversing the evidential burden of proof in
relation to matters that do not appear to be peculiarly within the knowledge of
the defendant’ to the attention of the Senate.[40]
Strict
liability offences
The Scrutiny committee also drew attention to its concerns
regarding the appropriateness of applying strict liability to elements of a
number of proposed offences carrying serious penalties.[41]
These elements related mainly to whether information or an article has a
security classification. The Attorney-General advised that ‘[s]trict liability
will be removed from elements of the offences relating to information or
articles carrying a security classification in the proposed amendments to the
Bill’. [42]
The Scrutiny committee welcomed these amendments ‘to remove strict liability
from elements of the offences in proposed sections 91.1, 91.3, 91.6,
122.1 and 122.3 (as to whether information or articles have a
security classification)’.[43]
Presumption against bail
The Scrutiny committee also questioned the appropriateness
of a presumption against bail for certain offences.[44]
The Attorney-General’s advice noted these were ‘very serious offences’ and that
the ‘presumption against bail will limit the possibility of further harmful
offending, the communication of information within the knowledge or possession
of the accused, interference with evidence and flight out of the jurisdiction’.
He observed there were limitations on when the presumption against bail would
apply, that the accused will be afforded to opportunity to rebut the
presumption and that bail decisions will be at the discretion of the judge
hearing the matter.[45]
Nonetheless, the Scrutiny committee reiterated ‘that it is a cornerstone of the
criminal justice system that a person is presumed innocent until proven guilty,
and presumptions against bail (which deny a person their liberty before they
have been convicted) test this presumption’.[46]
Incorporation
of external material into the law
An issue regarding the incorporation of external material
into law was also raised in relation to the definition of ‘proper place of
custody’. The Bill provides this term will have a meaning prescribed by
regulation and that regulations made for this purpose 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. The Scrutiny committee
noted this raised parliamentary scrutiny, uncertainty in law and access to law
issues. The Scrutiny committee requested the Minister’s advice whether, ‘at
minimum’ the Bill could be amended ‘to insert a statutory requirement that the
relevant documents to be incorporated will be made freely and readily available
to all persons in agencies subject to those policies and procedures’.[47]
The Attorney-General responded that the Bill ‘could’ be amended in this way.
The Scrutiny committee made no further comment on the matter, noting that ‘most
of the proposed incorporated material will be readily and freely available on
the internet’.[48]
Parliamentary
Joint Committee on Intelligence and Security (PJCIS)
As noted above, on 8 December 2017, Prime Minister
Turnbull referred the Bill as part of a package of proposed national security
legislation to the PJCIS for inquiry and report by
20 February 2018.[49]
On 1 February 2018, the PJCIS advised that due to an extended period for public
submissions, it would report on 23 March 2018.[50]
After the receipt of proposed amendments to the Bill from
the Attorney-General on 5 March 2018, the PJCIS further extended its
reporting date.[51]
Many of the key proposed amendments related to the secrecy offences in Schedule
2 to the Bill. In summary, the Attorney-General’s proposed amendments:
- narrowed
the key definitions of ‘inherently harmful information’, ‘causes harm to
Australia’s interests’, ‘security classification’ and ‘security classified
information’ in proposed section 121.1
- created
separate offences applying to non-Commonwealth officers which are narrower in
scope than those applying to Commonwealth officers and only apply to the most
serious and dangerous conduct (proposed section 122.4A)
- expanded
the defences for news reporting in proposed section 122.5(6) and excluded
ABC and SBS staff from the definition of ‘Commonwealth officer’ in proposed
section 121.1
- amended
the application of strict liability to elements of the offences relating to
security classified information and
- outlined
a proposed response to concerns raised by the Inspector-General of Intelligence
and Security.[52]
On 7 June 2018, the PJCIS tabled its Advisory
Report on the National Security Legislation Amendment (Espionage and Foreign
Interference) Bill 2017 (PJCIS report).[53]
The PJCIS report contained 60 recommendations with a
number of proposed or suggested amendments to the Bill and Explanatory
Memorandum. Several recommendations endorsed the Attorney-General’s proposed
amendments to the Bill. The PJCIS report’s key recommendation was that the Bill
be passed following implementation of its other recommendations:
During its inquiry, the Committee has received compelling
evidence that Australia is facing an unprecedented threat from espionage and
foreign interference. The Committee has also received evidence that current
laws are not adequate to deal with this threat. Unchecked, espionage has the
potential to significantly reduce Australia’s long-term security, and foreign
interference could undermine our democracy and threaten the rights and freedoms
of our people.
The Committee therefore accepts that there is a pressing need
to strengthen and modernise current espionage and foreign interference laws.
The Committee understands that prosecution for criminal offences is not the
only means available to authorities to deal with espionage and foreign
interference activity. It is, however, important to have criminal laws that are
sufficiently robust to deter the full range of activity that foreign actors may
seek to employ.
The Committee supports the intent of the Bill to achieve
these goals and, subject to the other recommendations in this report, the
Committee supports its passage through the Parliament.[54]
While the PJCIS ‘welcomed’ many of the amendments to the
Bill proposed by the Attorney-General, it did not make specific recommendations
in relation to all of them.[55]
Key recommendations—Schedule 1
Recommendation 2
A number of proposed offences in the Bill relating to
espionage, foreign interference and sabotage include ‘prejudice to Australia’s
national security’ as a key element.[56]
The PJCIS recommended that the Bill be amended to clarify that the expression
‘prejudice to national security’ cannot consist of:
- embarrassment
alone and
- must
also include a degree of damage or harm.[57]
Recommendation 3
Similarly, a number of espionage and sabotage offences
include ‘advantage the national security of a foreign country’ as a key
element.[58]
The PJCIS recommended that the Bill be amended to ‘reflect the intent of the
Explanatory Memorandum that the term “advantage the national security of a
foreign country” does not apply to conduct that is mutually advantageous to the
security of both Australia and the foreign country’.[59]
Recommendation 6
A number of proposed offences relating to espionage,
sabotage, foreign interference and theft of trade secrets include a key element
of a ‘foreign principal’. The definition of ‘foreign principal’ (proposed
section 90.2) includes a ‘foreign government principal’ and in the Bill as
introduced, the definition of ‘foreign government principal’ (proposed
section 90.3) included a ‘foreign political organisation’. The PJCIS noted
‘ambiguity’ in relation to this term and recommended the Bill be amended to
define what foreign political organisations may be covered by the term ‘foreign
political organisation’.
Recommendations 35, 36 and 37
The terms ‘concerns Australia’s national security’ and
‘made available to a foreign principal’ are components of some of the Bill’s
espionage offences.[60]
The PJCIS recommended that the term ‘concerns’ national security be defined to
address a ‘residual risk’ that the Bill has the ‘potential to capture
legitimate expressions of opinion or other commentary that concerns national
security’. Similarly, the PJCIS recommended that the term ‘made available’ be
defined. It noted stakeholder concerns that it was unclear whether this term
‘would include making information or a document available by way of publishing
it’.[61]
The PJCIS also recommended that the Bill be amended to
introduce a ‘prior publication defence’ ‘such that “making available” to a
foreign principal information that is already in the public domain is not
captured by the espionage offences’. It recommended that the new defence ‘be
appropriately drafted to ensure the effectiveness of the provisions whilst
protecting freedom of expression and the implied constitutional right to
freedom of political communication’.[62]
Additionally, the PJCIS recommended that the Bill be amended to ‘require that,
prior to instituting proceedings to commit a person to trial for an espionage
offence, the Attorney-General must consider whether the conduct might be
authorised in any of the defences outlined in Division 91’.[63]
Recommendation 38
The PJCIS recommended that the specific amendments
proposed by the Attorney-General to narrow the scope of the offence in proposed
section 91.3 (espionage—security classified information) be implemented.
This would include requiring that the person dealt with the information for the
‘primary purpose’ of making it available to a foreign principal, limiting the
offence to information or articles that have a security classification, and
removing strict liability from the offence.[64]
Recommendation 42
The PJCIS noted concerns expressed by the joint media
organisations that the term ‘support’ in the proposed offences for knowingly or
recklessly supporting a foreign intelligence agency ‘could extend to
journalists reporting positively, or neutrally, about a foreign intelligence
agency’.[65]
It recommended that the Bill be amended:
... to explicitly provide that the term ‘support’ refers to
‘material support’, and that the Explanatory Memorandum provide examples of
conduct that will not constitute material support, for example, news reporting,
editorial or opinion writing and humanitarian assistance.[66]
Recommendation 44
The PJCIS recommended that the sabotage offences in proposed
section 82.7 ‘introducing vulnerability with intention as to national
security’ and proposed section 82.8 ‘introducing vulnerability reckless
as to national security’ be amended to ensure they are ‘proportional and
appropriately targeted’. The recommended amendment would limit scope of the
offences by removing the following elements:
- harm
or prejudice to Australia’s economic interests
- disruption
to the functions of the Government of the Commonwealth, of a state or of a territory
and
- damage
to public infrastructure.[67]
Recommendation 45
Proposed section 82.10 provides a defence in
relation to sabotage offences. The PJCIS recommended this be broadened to
include ‘conduct engaged in on behalf of a private owner or operator of
infrastructure, in addition to public officials’. The PJCIS noted that the
definition of ‘public infrastructure’ in the Bill (which would be covered by
the proposed sabotage offences) ‘includes a range of privately-owned infrastructure’.[68]
Recommendations 46, 47 and 48
For the ‘advocating mutiny’ offence in proposed section
83.1, the PJCIS noted that the term ‘advocating’ is not defined and
recommended that this term be defined consistent with the existing offences in
the Criminal Code. It also recommended that the Criminal Code be
amended to provide that the ‘acts done in good faith’ defence in section 80.3
is available for this proposed offence. It considered that this would ‘provide
an appropriate balance between free speech, healthy public discourse and the
illegal and unwanted encouragement of mutiny’.[69]
The PJCIS also recommended that the Bill be amended to require the
Attorney-General to consider whether conduct may be authorised ‘in a way
mentioned’ in the good faith defence before giving consent for prosecution of
the offence.[70]
Recommendation 49
The PJCIS did not consider that the proposed offence for
‘military style training involving foreign government principal’ (proposed
section 83.3) was ‘intended to impact on legitimate humanitarian work’. It
recommended an amendment to ‘provide a defence against prosecution for those
engaged in humanitarian work, including compliance training on the laws of
armed conflict’.[71]
Recommendation 50
While acknowledging that the proposed offence of
interference with political rights and duties (proposed section 83.4)
was ‘potentially a very serious matter’, the PJCIS noted that no reasons were
given in the Explanatory Memorandum for increasing the maximum penalty from
‘three years’ imprisonment under the existing offence to ten years’
imprisonment under the revised offence’.[72]
It recommended that the Government ‘reconsider whether this increase in penalty
is necessary and proportionate’ but did not provide a recommended penalty
amount.[73]
Key recommendations—Schedule 2
Recommendation 14
The PJCIS acknowledged that a concern raised regarding the
proposed secrecy offences during its inquiry was that ‘due to the broad
definition of “deals with”, a person could commit a secrecy offence simply by
receiving certain information without being aware of the nature of that
information’. However, it noted that the default application of fault elements
under the Criminal Code means that the prosecution would need to prove
beyond reasonable doubt that a person intentionally dealt with the relevant
information and was reckless as to the nature of that information.[74]
The PJCIS recommended that the Bill include a note:
... making explicit that the secrecy offences relating to
security classified information and other ‘inherently harmful information’ will
only apply where a person intentionally deals with the relevant information,
and where the person is reckless as to the nature of that information.[75]
Recommendations 15 and 16
The PJCIS recommended that the specific amendments
proposed in the Attorney-General’s amendments to narrow the scope of the
offences at proposed section 122.1 in relation to ‘inherently harmful
information’ be implemented. These amendments included removing paragraph (d)
of the definition of ‘inherently harmful information’ at proposed section
121.1, which referred to ‘information that was provided to the Commonwealth
in order to comply with an obligation under a law or otherwise by compulsion of
law’. In the view of the PJCIS, this change would ‘remove from the scope of the
offences a range of information that, while potentially sensitive, may not be
considered ‘inherently harmful’ enough to warrant inclusion in the general
secrecy offences’.[76]
In the Bill as introduced the definition of ‘inherently harmful
information’ included ‘(b) information the communication of which would, or
could reasonably be expected to, damage the security or defence of Australia’.
The PJCIS noted that ‘the wording of this paragraph effectively includes a
harm-based test’ and agreed that it would be more coherent for this paragraph
to be placed in the other key definition for the proposed secrecy offences —‘cause
harm to Australia’s interests’.[77]
Further, the PJCIS also supported the Attorney-General’s
other proposed amendments to the offences in proposed section 122.1 for
communication or dealing with inherently harmful information included removing
strict liability from elements of the offences, and limiting the offences to
Commonwealth officers.
Recommendation 17
Proposed section 122.2 contains secrecy offences in
relation to ‘conduct causing harm to Australia’s interests’. The PJCIS
recommended that the Attorney-General’s proposed amendments to narrow the scope
of these offences be implemented and stated that the amendments ‘will help
ensure the offences are more appropriately targeted towards the most harmful
conduct’.[78]
The amendments included:
... removing paragraphs (a)(i), (d) and (e) from the definition
of ‘cause harm to Australia’s interests’, clarifying that paragraph (f) applies
to the health or safety of the Australian public, or a section of the Australian
public, and limiting the offences to Commonwealth officers.
Recommendation 18
Proposed sections 121.2 and 122.1(3) relate
to removing or holding information from or outside a ‘proper place of custody’.
Proposed section 121.2 provides that the meaning of ‘proper place of
custody’ will be prescribed by the regulations. The PJCIS considered that ‘[t]o
ensure that the law is able to be readily understood ... any material
incorporated into these regulations should be required to be publicly
available’.[79]
It recommended ‘the Bill be amended to require that any material incorporated
into regulations for the purpose of the definition of ‘proper place of custody’
at proposed section 121.2 be publicly available’.[80]
Recommendation 19
Proposed subsections 122.1(4) and 122.2(4)
make it an offence for a person to fail to comply with a lawful direction
regarding the retention, use or disposal of certain sensitive information. The
PJCIS agreed with the Inspector-General of Intelligence and Security ‘that it
would not be appropriate for the offence concerning “inherently harmful
information” to extend to lawful directions that have no bearing upon the
protection of the security of that information’. It supported the suggestion
that further statutory parameters be included to ‘more narrowly target the
scope of the offence’. The PJCIS recommended that ‘the Bill be amended to limit
the secrecy offence at proposed section 122.1(4), in relation to failing to
comply with a lawful direction, to directions that have been issued for the
purpose of protecting the security of the ‘inherently harmful information’
against unauthorised access or disclosure’.[81]
Recommendation 20
Proposed section 122.3 provides for an aggravated
offence to apply if an underlying secrecy offence occurs in particular
circumstances. These circumstances include ‘at the time the person committed
the underlying offence, the person held an Australian Government security
clearance’ (subparagraph 122.3(1)(b)(v)). However, the PJCIS considered that
‘[b]aseline clearance is not sufficiently differentiated from non-clearance
holders to justify an aggravated penalty’.[82]
It recommended that ‘the Bill be amended to limit the aggravating factor at
subparagraph 122.3(1)(b)(v) ... to persons holding an Australian Government
security clearance that allows the person to access information with a
classification of SECRET or above’.[83]
Recommendation 21
The PJCIS ‘strongly supported’ the Attorney-General’s
proposal ‘for separate secrecy offences, narrower in their range of conduct
captured, to be established for non-Commonwealth officers’ and recommended it
be implemented. The Attorney-General’s proposed amendment was for proposed
section 122.4A which creates offences for communicating and dealing with
information by non-Commonwealth officers. The PJCIS stated:
While the Committee notes that the proposed new offences for
non-Commonwealth officers do not fully replicate the model proposed by the
Australian Law Reform Commission, the Committee notes that the offences are
appropriately limited to highly classified information and conduct that results
in, or is likely to result in, harm to essential public interests.[84]
Recommendation 22
The proposed defences to the secrecy offences in Schedule
2 include:
- proposed
section 122.5(1) where the person was exercising a power, or performing a
function or duty, in the person’s capacity as a Commonwealth officer or under
an arrangement with the Commonwealth or a Commonwealth entity and
- proposed
section 122.5(2) where the information has already been communicated or
made available to the public with the authority of the Commonwealth.
The PJCIS noted evidence received during its inquiry that
the proposed secrecy offences may prohibit dealing with or communicating
information that would otherwise be accessible to Australians under the freedom
of information legislation.[85]
It recommended that the Bill be amended to make clear the effect of the
defences in subsections 122.5(1) and (2) in relation to the Freedom of
Information Act 1982.[86]
Recommendation 25
The PJCIS noted the ‘particular difficulty’ of the IGIS
and her staff in meeting the evidential burden for the defence in 122.5(1) ‘due
to their specific legislative obligation not to disclose information obtained
in the course of their duties to any person, or to a court’. It recommended:
... the Bill be amended to ensure that staff of the
Inspector-General of Intelligence and Security are appropriately protected
[and] ... this amendment be developed in consultation with the Inspector-General
and her Office.[87]
Recommendation 26
The PJCIS noted that participants to the inquiry had
pointed out that several of the defences to the secrecy offences in the Bill
only extend to communications and not dealing with certain information. It
considered this was ‘unacceptable’.[88]
The PJCIS recommended that four of the proposed defences ‘be broadened to cover
all dealings with information, rather than being limited to communication of
information’:
- proposed
section 122.5(3) – relating to the Inspector-General of Intelligence and
Security, the Commonwealth Ombudsman and the Law Enforcement Integrity
Commissioner
- proposed
section 122.5(4) – relating to the Public Interest
Disclosure Act 2013
- proposed
section 122.5(5) – relating information provided to a court or tribunal and
- roposed
section 122.5(8) – relating to information that has been previously
communicated.[89]
Recommendation 27
The PJCIS noted the views of participants to its inquiry
that the defence in proposed section 122.5(6) for ‘information
dealt with or held for the purposes of fair and accurate reporting’ was ‘too
narrow and subjective’.[90]
It recommended that the Attorney-General’s proposed amendments to the defence
for journalists at proposed section 122.5(6), and the associated
amendments at 122.5(7), be implemented:
This includes expanding the defence to all persons engaged in
reporting news, presenting current affairs or expressing editorial content in
news media where the person reasonably believed that dealing with or holding
the information was in the public interest.
The Committee also recommends that the Government consider
further refinements to the proposed defence in order to:
- make explicit that editorial support staff are covered by
the defence, including legal advisors and administrative staff,
- ensure editorial staff and lawyers, who are engaging with
the substance of the information, be required to hold a reasonable belief that
their conduct is in the public interest, and
- allow administrative support staff working at the direction
of a journalist, editor or lawyer who holds the reasonable belief, to benefit
from the defence.[91]
Recommendation 28
Some submissions to the PJCIS inquiry suggested the
defence in proposed subsection 122.5(6) should be changed to be an
element of the proposed offences rather than a defence which a defendant would
need to raise. However, the PJCIS did not consider it would ‘be appropriate to
recast the defence as an element of the offence’.[92]
The Attorney-General’s proposed amendments changed the
related proposed subsection 122.5(7) which limits when a person can
‘reasonably believe that dealing with or holding information is in the public
interest’ and fall within the defence in subsection 122.5(6). However, the
PJCIS consider the revised paragraph 122.5(7)(d) would give rise to ‘technical
difficulties ... primarily due to use of similar language in the elements of the
offence’. Accordingly, the PJCIS recommended that ‘the Bill be amended to
remove proposed paragraph 122.5(7)(d), which currently limits the
availability of the defence for persons engaged in reporting news’.[93]
Recommendation 29
While the PJCIS did not considered that ‘an additional,
more broadly drafted public interest defence is necessary in the Bill’, it did
identify an issue with the defence for ‘information that has already been
communicated’ (proposed subsection 122.5(8)). It was concerned that this
defence ‘may not protect a person who wished to report misconduct or
maladministration in, for example, the investigation of a Commonwealth criminal
offence, as it would be difficult for that person to claim that their reporting
of the wrongdoing did not interfere with the investigation’. The PJCIS
recommended:
... the Bill be amended to provide for a defence for a person
who reports, to an appropriate entity, malpractice or maladministration in the
prevention, detection, investigation, prosecution or punishment of a criminal
offence against a law of the Commonwealth or the functions of the Australian
Federal Police under paragraph 8(1)(be) of the Australian Federal Police Act
1979 or the Proceeds of Crimes Act 2002.[94]
Recommendation 30
The PJCIS supported the Attorney-General’s Department’s
suggestion that ‘the Bill be amended to include a defence for dealing with
information for the purpose of obtaining legal advice’.[95]
Recommendations 31 and 32
The PJCIS considered there was ‘scope for further clarity’
in the Bill on the interaction of the proposed secrecy offences with other
legislation. It recommended the Bill be amended ‘to clarify that the secrecy
offences in Schedule 2 do not override the obligations and immunities included
in’:
- Freedom
of Information Act 1982
- Privacy
Act 1988
- Ombudsman
Act 1976
- Inspector-General
of Intelligence and Security Act 1986 or
- Public
Interest Disclosure Act 2013.[96]
Recommendation 33
The PJCIS considered that, due to the broad scope of the
proposed secrecy offences and ‘the potential for highly sensitive cases to
arise, including in relation to journalists and national security matters’, it
was appropriate that the Bill be amended so that the Attorney-General be
required to consent to any prosecution and be required to consider applicable
defences.[97]
Recommendation 34
The PJCIS recommended that the ‘Bill be amended to reduce
the maximum penalty for the secrecy offences in proposed sections 122.1,
122.2 and 122.4A (proposed by the Attorney-General’s amendments)
to seven years’ imprisonment for conduct involving communication of
information, and three years’ imprisonment for other dealings’.[98]
For the aggravated secrecy offences in proposed section
122.3, the PJCIS recommended the maximum penalties should be ten years’
imprisonment for conduct involving communication of information and five years’
for other dealings.[99]
Recommendations concerning security classification,
evidentiary certificates and clearances
A number of PJCIS recommendations were made in relation to
the security classification, evidentiary certificates and clearance aspects of
the proposed offences in the Bill.
Recommendation 7
Whether a person held an ‘Australian Government security
clearance’ is an element in several of the Bill’s proposed aggravated offences.[100]
The PJCIS recommended an amendment to define the meaning of this term.[101]
Recommendation 8 and 9
The definition of ‘security classification’ (proposed
section 90.5) is relevant to proposed offences for espionage in Schedule 1,
the aggravated secrecy offences in Schedule 2 and the secrecy offences for
communicating and dealing with information by non-Commonwealth officers
(proposed by the Attorney-General).
The PJCIS supported the Attorney-General’s proposed
amendments to narrow the proposed definition of ‘security classification’ to a
classification of SECRET or TOP SECRET, or equivalent, and to remove strict
liability from the espionage and secrecy offences. It also recommended that the
Bill be amended to define each ‘security classification’ to which criminal
liability attaches. Its recommendation stated:
Each definition should include harm-based statutory criteria
for determining the proper classification to apply to that information. Any
material incorporated by reference into the regulations should be required to
be publicly available.[102]
Recommendation 10
The PJCIS recognised concerns which were raised during its
inquiry that the security classification system was ‘essentially administrative
in nature’.[103]
It considered there was a need for safeguards ‘to ensure that it was appropriate
for the particular classification to [be] applied to that document or piece of
information’.[104]
The PJCIS recommended that the Bill be amended:
... to require that prior to initiating proceedings for an
espionage or secrecy offence that relies on the fact that information is
security classified, the head of the originating agency must certify that it is
appropriate that the information had a security classification at the time of
the conduct that is alleged to constitute the offence.
This certificate should operate as a condition precedent to
the initiation of proceedings. The certificate should not have any evidentiary
effect.[105]
Other recommendations
Recommendation 23 and 24
The PJCIS noted that proposed section 122.4 dealing
with unauthorised disclosure of information by current and former Commonwealth
officers ‘largely replicates the existing secrecy offences proposed to be
removed from section 70 of the Crimes Act’. It stated:
This offence has been included in the Bill to ‘preserve the
operation of’ other Acts and Regulations that impose duties of non-disclosure
on Commonwealth officers ‘until such time as each duty can be reviewed to
determine whether it should be converted into a stand-alone specific secrecy
offence, or whether criminal liability should be removed’. However, given the
well-documented problems with the existing section 70 offence that are
replicated in proposed section 122.4, and noting the already broad scope of the
new secrecy offences in proposed sections 122.1 and 122.2, the Committee
considers it would be appropriate to put an outer limit on this period of
review.[106]
The PJCIS recommended the Bill be amended to apply a
sunset period of five years to proposed section 122.4.[107]
The PJCIS also recommended:
... following the passage of the general secrecy offences in
Schedule 2 to the Bill, the Attorney-General initiate a review of existing
secrecy offences contained in other legislation, taking into account the set of
principles contained in the Australia Law Reform Commission’s report, Secrecy
Laws and Open Government in Australia.[108]
Recommendation 53 and 54
Section 35A of the Australian
Citizenship Act 2007 enables the Minister to determine that a
person with dual-citizenship ceases to be an Australian citizen where they have
been convicted of specified offences. The PJCIS noted the broader scope of the
proposed offences in the Bill will expand this citizenship cessation regime. It
considered that section 35A should apply to ‘serious national security
offences’. However, the PJCIS recommended that the Bill be amended such that
section 35A of the Australian Citizenship Act applies to the foreign
interference offences but does not apply to:
- proposed
section 82.9 (preparing for or planning sabotage offence)
- proposed
section 83.4 (interference with political rights and duties) or
- proposed
Part 5.6 – Secrecy of information [the proposed secrecy offences in
Schedule 2].[109]
Currently, under the Australian Citizenship Act,
the Minister is required to refuse citizenship applications by stateless
persons where the applicant has been convicted of a ‘national security
offence’. The PJCIS noted that Schedule 1 and 2 contain amendments to the
definition of ‘national security offence’ to include the proposed offences in
the Bill in the definition of a ‘national security offence’.[110]
It recommended the Bill be amended to limit this change to ‘those offences
which contain a clear nexus to national security’.[111]
Recommendation 56
Section 15AA of the Crimes Act provides for bail
not to be granted in certain cases unless exceptional circumstances exist. The
Bill (items 38 and 39 of Schedule 1) will amend section 15AA to
revise this presumption against bail in relation to the offences in Division 80
(treason, urging violence and advocating terrorism or genocide) and Division 91
(espionage) of the Criminal Code. It will also add the foreign
interference offences in proposed subsection 92.2(1) and subsection
92.3(1) in proposed Division 92 ‘where it is alleged that the defendants
conduct in relation to the offence involved making a threat to cause serious
harm or a demand with menaces’.
The PJCIS considered that ‘laws that create a presumption
against bail should be limited to only the most serious offences’.[112]
It recommended that the Bill be amended so that section 15AA would apply to proposed
Division 80, Division 91, and Division 92 of the Criminal
Code only if:
- the
death of a person is alleged to have been caused by conduct that is a physical
element of the offence or
- conduct
that is a physical element of the offence carried a substantial risk of causing
the death of a person.[113]
Recommendation 58
The PJCIS noted that a number of the Bill’s new and
modified offences will be subject to section 19AG of the Crimes Act.
This section requires a sentencing court to impose a non-parole period that is
three-quarters of the sentence imposed by the court or where the sentence is
imprisonment for life, three-quarters of 30 years. The PJCIS noted that section
19AG limits judicial discretion and considered its operation should be limited
to ‘the most serious espionage offences in the Bill’.[114]
It recommended that section 19AG apply to the offences in proposed
subsections 91.1(1) and 91.1(2) (intentionally or recklessly dealing
with information etc. concerning national security which is or will be made
available to foreign principal) ‘rather than all the espionage offences in
Division 91’.[115]
Attorney-General’s response
The Attorney-General welcomed the PJCIS report and stated
that the ‘most substantive changes are those that adopt the Government’s
proposed amendments’:
Those Government amendments expanded the public interest
defence for journalists and created separate graduated offences for
commonwealth officers and non-commonwealth officers. The amendments were
designed to strike the best possible balance between keeping Australia safe and
not impeding the ordinary and important work of journalists and media
organisations.
In addition to minor drafting amendments and the adoption of
the substantive Government amendments that I provided earlier this year, the
additional substantive changes now recommended include that:
There be a reduction to the maximum penalties for the
proposed new secrecy offences, and to require the consent of the
Attorney-General to any prosecution under these proposed new secrecy offences;
That all secrecy offences in other Commonwealth legislation
are reviewed; and
Clarification that the journalism defence extends to all
editorial, legal and administrative staff within the news organisation.[116]
Policy position of
non-government parties/independents
The ALP has offered cautious support for the objectives of
the suite of Bills, with Shadow Minister for Foreign Affairs, Penny Wong,
stating:
Broadly, Labor has said, subject to the detail and subject to
this inquiry, we do think it is appropriate for additional regulation to ensure
that our Australian sovereignty, and the need to safeguard it, is reflected in
our legislative framework.[117]
Following the release of the PJCIS report, the Shadow
Attorney-General, Mark Dreyfus, was reported as stating that ‘I think the Bill
if it is amended in the form recommended by the Committee will strike an
appropriate balance between national security and keeping our freedoms intact’.[118]
The Australian Greens have expressed strong concerns about
the Bill, and the broader package of reforms, arguing that it is too broad in
scope and ‘risks criminalising a wide range of actions which are not only
legitimate, but for the common good’.[119]
Centre Alliance Senator Rex Patrick has proposed amendments
to the Bill which would amend the Intelligence Services Act 2001 to
extend parliamentary oversight of intelligence agencies.[120]
Australian Conservatives Senator Cory Bernardi welcomed
the introduction of the Bills and noted: ‘we will consider specific proposals
when they are tabled and respond in good time’.[121]
Position of major interest
groups
The views of a number of interest groups, government
agencies and individuals are set out in their submissions and evidence to the
PJCIS inquiry. The general views expressed on the Bill are summarised below,
however, some evidence to the PJCIS inquiry was received prior to the release
of the Attorney-General’s proposed amendments to the Bill.
Submitters to the PJCIS inquiry generally accepted the
position that there are ongoing and increasing risks to Australia’s national
security in regard to espionage and foreign interference. There was a general
consensus that there was a need for Australia’s security legislation to be
updated to be relevant to the new challenges. However, views diverged on how
effectively this objective is achieved in the Bill and the unintended
consequences that may result.
Urgency of
reform
The Bill was strongly supported in evidence to the PJCIS
by a number of senior public officials, including from the Australian Security
Intelligence Organisation (ASIO), the Attorney-General’s Department and the
Australian Federal Police.[122]
ASIO officers stressed the current high levels of threat which required
Australia’s national security activity ‘keep pace with this unprecedented
security environment, supported by modern, targeted legislation’.[123]
Mr Peter Jennings of the Australian Strategic Policy
Institute, in his capacity as a private citizen welcomed the Bill. He stated:
The drafters of the Bill should be commended for delivering
such a comprehensive modernisation of Australian legislation relating to
espionage, foreign interference and secrecy offences. New laws designed to
counter sabotage against critical infrastructure and theft of trade secrets are
timely and necessary. Indeed, one could argue that the modernisation of our
legal framework supporting counter-espionage and subversion was long overdue.
So, the legislation is welcome and puts Australia at the forefront of
international efforts on the part of the western powers to counter increased
activities of a number of states, most particularly China, Russia, Iran and
North Korea, to steal intellectual property, threaten the security of critical infrastructure
and undermine liberal democracies by subverting their political processes and
decision-making sovereignty.[124]
Consultation
A number of organisations highlighted the wide-ranging
implications of the proposed amendments and criticised the adequacy of the
consultation process for the Bill. For example, the Australian Conservation
Foundation submitted that ‘the period for consultation has been inadequate, and
that further time is required for Australian civil society organisations to
understand the implications of this Bill’.[125]
The submission from Getup argued that public understanding of the proposed
legislation ‘been hindered by their complexity, lack of consultation and
the way they were introduced’. It asked that the Bill be withdrawn and redrafted
‘after extensive community consultation’.[126]
At the PJCIS public hearing on 31 January 2018, the
Commonwealth Ombudsman indicated that it was only consulted on the
consequential amendments to the Ombudsman Act made by the Bill.[127]
The acting Inspector-General, Mr Blight indicated that the IGIS had not been
consulted in the
lead-up to the drafting of the provisions of the Bill and accessed the Bill
when it was introduced into Parliament.[128]
Officials from the Attorney-General’s Department (AGD) confirmed to the PJCIS
that consultation had been undertaken with portfolio policy departments, such
as Prime Minister and Cabinet, but this process had not included IGIS or the
Commonwealth Ombudsman.[129]
However, AGD officers indicated an openness to addressing concerns raised by
oversight agencies in relation to the Bill. Anna Harmer, from AGD, stated:
We are satisfied that the offences do not capture disclosures
to the IGIS and Ombudsman for the purpose of performing their functions. That
said, we continue to discuss with the IGIS and the Ombudsman the questions that
they have raised to ensure that the bill does operate as intended.[130]
Alleged
Chinese government interference
The Chinese Community Council of Australia highlighted the
potential impact of the Bill and the proposed Foreign Influence Transparency
Scheme legislation on a range of groups including many Australians with
relationships with China and Chinese Australians. It noted that the ‘position
of [the] Chinese Australian community needs to be prime importance because
China is the obvious elephant in the room for either bill’.[131]
In their submission Professor Clive Hamilton and Mr Alex
Joske highlighted alleged ‘foreign interference activities carried out by
agencies of the Chinese Communist Party’ in Australia.[132]
The submission argued that ‘[i]f the offences defined by the new legislation do
not encompass such activities, then the legislation will fail in its
objective’. In terms of the scope of the foreign interference offences their
submission stated ‘[i]t is not clear that the legislation as currently framed
would capture some of the more important foreign interference operations that
are being undertaken...’.[133]
At a public hearing, Professor Hamilton told the PJCIS that he saw the ‘package
of legislation as absolutely vital to the beginning of the pushback so that we
can protect our freedoms and our sovereignty’.[134]
However, a joint submission from concerned scholars of
China and the Chinese diaspora cautioned:
Where criticism of China's actions is substantiated by clear
evidence, there should be no hesitation in applying scrutiny and appropriate
penalties. Too often, though, the media narrative in Australia singles out the
activities of individuals and organisations thought to be linked to the Chinese
state and isolates them from a context of comparable activity, engaged in by a
range of parties (among them our allies).[135]
Notably, on 8 December 2017, the Chinese Foreign Ministry
Spokesperson Geng Shuang responded to Prime Minister Turnbull’s statements
concerning foreign interference when introducing the package of national
security legislation:
We are shocked by the Australian leader's remarks which are
lack of principle and simply pander to those irresponsible reports by some
Australian media. Imbued with bias towards China, these groundless and
unfounded remarks can sabotage China-Australia relations and are detrimental to
the foundation of mutual trust and cooperation. We are strongly dissatisfied
with those remarks and has lodged stern representations with the Australian
side.
China consistently develops its relations with other
countries on the basis of mutual respect and non-interference in domestic
affairs. That is also how we pursues our relationship with Australia. We
strongly urge the relevant people in Australia to shake off their Cold War
mentality and bias against China, immediately stop uttering false remarks that
undermine political mutual trust and mutually beneficial cooperation, and take
effective measures to offset negative effects so as to avoid disrupting and
impacting the development of China-Australia relations.[136]
Scope of
proposed offences
A number of submissions were received from the legal
organisations, including the Law Council of Australia, Australian Lawyers for
Human Rights, the Human Rights Law Centre and the Australian Lawyers Alliance.
A common theme in these submissions was that provisions in the Bill were
drafted so broadly that there was a lack of certainty about what conduct would
be criminalised.
For example, the Law Council of Australia stated that ‘...
many of the offence provisions are broadly drafted to capture a range of benign
conduct that may not necessarily amount to harm or prejudice to Australia’s
interests’. It considered that it was ‘essential that the measures be certain and
well-defined, particularly given the severe criminal sanctions that attach to
the proposed offences.[137]
The Law Council welcomed the Attorney-General’s proposed amendments but
emphasised:
... the need for improvements to be made to the EFI Bill on a
broad range of other proposed offences and particularly in relation to the
extension of the definition of “national security” beyond the security and
defence of Australia and to include Australia’s political and economic
relations with other countries.[138]
The Joint Media Organisations’ submission raised ‘serious
concerns’ with the secrecy and espionage offences in the Bill:
The proposed legislation criminalises all steps of news
reporting, from gathering and researching of information to
publication/communication, and applies criminal risk to journalists, other
editorial staff and support staff that knows of the information that is now an
offence to ‘deal’ with, hold and communicate.
The Bill is a significant step beyond the existing
legislation that applies to Commonwealth officers. This is particularly when it
has not been demonstrated that there are ‘problems’ that need to be ‘fixed’.
The result is that fair scrutiny and public interest reporting is increasingly
difficult and there is a real risk that journalists could go to jail for doing
their jobs. We recommend that a general public interest/news reporting defence
be available for all of the relevant provisions in both the secrecy and
espionage elements of the Bill.[139]
The joint councils for civil liberties’ (CCLs) submission
identified that ‘the new and expanded secrecy offences in Schedule 2 are
of the greatest concern’. It stated:
There are aspects of the Bill we can support as appropriate
modernising of existing offences. But there are many aspects which we see as
unjustified overreach and the overall implications of this Bill, were it to be
implemented in its current form, would be extremely damaging to many core
aspects of Australia’s democracy and open society. The CCLs do not support the
Bill in it is current form.[140]
After examining the Attorney-General’s proposed
amendments, the CCLs described them as ‘significant steps in the right
direction and improve some of the most dangerous aspects of the Bill’. However,
the CCLs maintained their view that ‘the problems with the secrecy offences go
beyond the issues identified by the [Attorney-General]’.[141]
The Australian Human Rights Commission submission
suggested that the definitions of certain terms in the Bill are ‘overbroad’,
which could have the consequence of capturing conduct that is either not
harmful, or not sufficiently harmful to warrant criminalisation.[142]
This submission stresses that human rights, such as freedom of speech, should
only be affected in legislation to a degree that is necessary and proportionate
to the threat. The submission concludes that the Bill should not be passed
until the secrecy provisions in Schedule 2 are amended to ensure that this is
the case.[143]
Uncertainty
concerning key terms
Similarly, submitters and witnesses to the PJCIS inquiry
highlighted the uncertainty in key terms and definitions in the Bill which
potentially give them inappropriately broad application. For example, the IGIS
noted that the term ‘lawful direction’ is not defined in the Bill:
Nor is there any specific limitation on who may make these
directions or the content of directions beyond the broad subject matter to
which they must relate (being the retention, use or disposal of the relevant
information, which could conceivably cover most dealings with it). This means a
broad class of people (including presumably most or all supervisors) will have
the ability to give directions which will effectively criminalise behaviour.
Such directions may well be lawful but, in my view, it does not necessarily
follow from the mere fact that a direction is lawful that there is an
appropriate basis for applying criminal liability to contraventions of all such
directions. The proposed offence could attach significant criminal sanctions to
the breach of directions that are of a relatively trivial nature and do not, in
fact, raise any realistic prospect of the relevant information being placed at
risk of compromise.
There is also a risk that the application of criminal
sanctions to any and all such directions may engender a punitive and defensive
approach towards security compliance. This may create reluctance on the part of
some officers to proactively disclose and report breaches, and may lead to the
concealment of compliance issues out of fear of exposure to criminal penalty.[144]
A number of significant matters and definitions in
relation to the new offences are not set out in the Bill and will be prescribed
by regulation. These include definitions which will be core elements in
determining if conduct will fall under a proposed offence such as the
definition of ‘proper place of custody’. This was highlighted by the
Commonwealth Ombudsman which stated:
The bill and regulations do not currently provide a
definition of a proper place of custody. If inherently harmful information is
not held in a proper place of custody, an offence is committed under section
122.1(3). My office will hold inherently harmful information under the current
definition proposed in the Bill. Without a definition of a proper place of
custody, it is not clear what resourcing or other practical implications this
requirement may have on my office.[145]
The Law Council considered that the ‘basic difficulty’
with the ‘inherently harmful information’ offences, the ‘conduct causing harm
to Australia’s interests’ offences and the related aggravated offences was:
[T]hey cover a broad range of conduct relating to
non-specific interests which may or may not be in the public interest. This
means that while some information may justifiably be subject to a secrecy
offence provision, there may be a ban on a broader range of communications or
dealings with information beyond a clear and specific public interest.[146]
Impact on
oversight and integrity agencies
Oversight and integrity agencies raised concerns with the
Bill in submissions to the PJCIS inquiry. In particular, they highlighted that
the new offences had the potential of forcing staff of these agencies, or those
dealing with these agencies, to rely on a defence to avoid a criminal sanction
and the ‘chilling effect’ of the new offences in relation to disclosures.
The Inspector-General of Intelligence and Security (IGIS)
expressed concern that the legislation may ‘deter some individuals from
speaking up about real or perceived wrongdoing from an intelligence agency’.
This had the potential to make IGIS a less effective body. The submission noted
that the provision of information to IGIS is a defence under the legislation,
but expressed concern about the evidentiary burden that this poses. The fact
that it is a defence effectively means that this may not come into issue until
a criminal charge has been laid. This may also have the effect of inhibiting
public servants from providing information to IGIS in the course of an
investigation.[147]
AGD did not agree with the arguments made during the PJCIS
inquiry that framing a provision as a defence rather than exception to an
offence could procedurally disadvantage a defendant. It stated neither AGD nor
the Office of the Commonwealth Director of Public Prosecutions were aware of
there being a difference in procedure for an exception or a defence:
Regardless of whether the provision is framed as an exception
or defence, the accused must discharge the evidential burden pursuant to
section 13.3 of the Criminal Code. In either circumstance, an accused
may do this by relying on matters that form part of the prosecution case or
seeking to lead evidence as part of the defence case, to discharge the burden.
The question of whether the evidential burden has been satisfied is a question
of law, to be decided by a judge. If discharged, the question of whether the
prosecution has disproven the defence/exception beyond reasonable doubt is put
to a jury.[148]
However, it acknowledged that the ‘question of whether a
matter should be cast as an element of an offence or as a defence is a policy
question’.[149]
After the Attorney-General’s proposed amendments were
released, the IGIS was ‘optimistic that, subject to my consideration of
specific provisions, these proposals have the potential to resolve the key
legal and practical issues for the IGIS that I have raised with the PJCIS’.
However, the IGIS noted that a ‘more definitive opinion on the effectiveness of
the proposals would require an opportunity to consider and comment on specific
provisions’.[150]
Concerns regarding the effect of the Bill for
investigative agencies were also explored in the Commonwealth Ombudsman’s
submission. The Ombudsman noted that the Explanatory Memorandum to the Bill
states that the work of the Ombudsman should not be affected, but states that
contrary to this assertion ‘the current drafting of the amendments appears to
produce several unintended consequences for my office’.[151]
Like IGIS, the Ombudsman raises concerns that agency staff may have to rely on
a defence to a serious criminal charge merely to perform their normal
functions. Also like IGIS, the Ombudsman expressed uncertainty about the
interaction between the new provisions and existing law, such as the Public
Interest Disclosure Act 2013.
The Australian Information Commissioner also submitted
that the scope of interactions and overlaps between the proposed legislation
and existing legislation, particularly the Privacy Act 1988 and
the Freedom of
Information Act 1982, should be clarified. The Commissioner also
expressed concern that the secrecy provisions of the Bill should not affect the
Notifiable Data Breaches scheme, which requires data providers to notify clients
of potentially dangerous data breaches.[152]
Harm-based
approach
Some submitters and witnesses to the PJCIS inquiry argued
that amendments in the Bill were out-of-step with the harm-based approach
recommended by previous inquiries into secrecy offences. For example, the Law
Council of Australia supported the amendment of the Bill consistent with the
previous reports undertaken by the Australian Law Reform Commission (ALRC) and
the Independent National Security Legislation Monitor (INSLM). It noted that
the ALRC recommended that secrecy offences should be 'reserved for behaviours
that harms, is reasonably likely to harm, or intended to harm essential public
interests'.[153]
However, in the proposed secrecy offences harm to ‘essential public interest is
not necessarily implicit in the prescribed categories of information’.[154]
At a public hearing for the PJCIS inquiry, AGD
characterised the Bill as ‘following the ALRC report in spirit if not in letter’,
noting that since the ALRC report there have been a range of disclosures which
have ‘brought into stark relief the consequences that can come from disclosure
of information and the ease with which very large tranches of information can
be disclosed’.[155]
The officer stated:
The fundamental premise of the ALRC's consideration of
secrecy laws was that disclosures that cause harm should be covered by the
criminal law. From our perspective, we would argue that that is what we have
implemented, although in a different form to what the ALRC envisaged in its
report. We have taken the view that there are categories of information the
release of which is inherently harmful, and that is reflected in the bill. The
other offence does require proof of interference with, harm to or prejudice to
what we have determined to be essential public interests. So, although the
offences in the bill do not exactly replicate the structure put forward by the
ALRC, we have taken that as a guiding principle that harmful information is
what should be targeted by the criminal law.[156]
Impact on
journalists and related professionals
The application of the secrecy offences and defences to
the activities of journalists and other related media professionals has been a
key focus in relation the Bill. The submission from the Joint Media
Organisations noted that anyone who ‘communicates’ or ‘deals’ with certain
information provided by a Commonwealth officer could be in breach of the new
secrecy offences. It argued that the term ‘deals’ with information is ‘unnecessarily
broad – particularly when applied to the news media’:
The expansion of the Bill means that journalists, editorial
and support staff – for example legal advisers – that communicate or otherwise
‘deal’ with the information are now at significant risk of jail time as a
result of merely having certain information in their possession in the course
of news reporting and informing the Australian public of matters of public
interest ...
Expanding on that, if the journalist received such
information, how could the journalist determine whether the material is in breach
without possessing, communicating, and otherwise dealing with it? A mere
discussion of unsighted material might place journalists in breach,
notwithstanding that they may then ask others about the information – with or
without being in possession of a document.[157]
While the Joint Media Organisations were ‘grateful’ for
the Attorney-General’s proposed amendments to the Bill, they considered that it
‘remains the case that journalists and their support staff continue to risk
jail time for simply doing their jobs’. It emphasised a ‘long-held recommendation
for exemptions for public interest reporting in response to legislation that
criminalises journalists for going about their jobs’.[158]
In relation to the Attorney-General’s proposed amendments,
the Law Council noted that ‘the absence of a public interest defence (the
preferred position), the broadening of the ‘journalist’ defence is welcome,
although the meaning of the term ‘news media’ is uncertain’.[159]
It observed:
A person who supplied information (e.g. about malpractice in
the prosecution process) to a journalist would have no defence but the person
who reported it in the news media would have a defence. The policy of punishing
those who deal with such information outside the news media also requires justification.[160]
Inspector-General of Intelligence
and Security
Similarly, the Inspector-General of Intelligence and
Security (IGIS) emphasised the design of the new offences may produce a result
which could impact on the ability of the IGIS and IGIS staff to exercise their
powers, or to perform their functions and duties. The IGIS stated:
[I]t is possible that the prospect of exposure to criminal
investigation and prosecution, and the need to satisfy a court of the
evidential burden in relation to a defence, may deter some individuals from
speaking up about real or perceived wrongdoing by an intelligence agency.
Exposure to criminal sanction, and the need to rely on a defence, may also
cause staff within the agencies to hesitate when responding to requests for information
by the IGIS. The design of the proposed defences, and the relationship of the
new offences with existing ‘secrecy override’ provisions in other Acts may also
create legal barriers to disclosures or complaints.[161]
The three key issues were identified by the IGIS:
- The creation of barriers
to people making complaints or disclosures to the IGIS, particularly:
- an absence of
protection for persons who deal with records for the purpose of making a
communication to the Inspector-General or IGIS staff (IGIS officials), but have
not yet done so or are prevented from doing so
- ambiguity about the
relationship between the new offences and other legislation containing ‘secrecy
override’ provisions. There is a risk that the new offences may be construed or
perceived as overriding important immunities available under the Inspector-General
of Intelligence and Security Act 1986 (IGIS Act) and Public
Interest Disclosure Act 2013 (PID Act) for persons who communicate
information to IGIS officials.
- The potential exposure of IGIS
officials to investigation and prosecution for a serious offence, merely for
communicating or dealing with information to undertake their normal duties, and
the need for them to rely on a defence to avoid criminal sanction.
- The proposed defences do not
seem to recognise the legal barrier in s 34 of the IGIS Act[162]
to IGIS officials to providing evidence of the kind that would normally be
required to discharge an evidential burden in defending an alleged offence.[163]
The IGIS’s submission included extracts of other
intelligence and security agency offences in the Australian Security
Intelligence Organisation Act 1979 (ASIO Act) and Intelligence
Services Act 2001 (ISA) which include exceptions ‘if the person
deals with the record for the purpose of the IGIS exercising a power, or
performing a function or duty, under the [IGIS Act]’. The IGIS’s
submission argues:
These exceptions do not require proof that any information
was ultimately communicated to the IGIS. Rather, they require proof of the
person’s intention to do so at the material time of dealing with or making the
record. These provisions of the ASIO Act and ISA would, in my
view, provide a better model for the exceptions in proposed ss 122.5(3) and
(4).[164]
Interaction
with the Privacy Act and the Freedom of Information Act
The Office of the Australian Information Commissioner (OAIC)
highlighted the interaction between the proposed secrecy offences and Privacy
Act and the Freedom of Information Act. The OAIC commented:
As secrecy provisions extend to Australian government
agencies' handling of personal information, they overlap with certain
provisions in the Privacy Act. For example, [Australian Privacy
Principle] 12 outlines an APP entity's obligations when an individual requests
to be given access to personal information held about them by the entity. This
includes a requirement to provide access unless a specific exception applies.
To limit uncertainty regarding the intersection of obligations, I generally
suggest that secrecy provisions that regulate personal information make clear
their interaction with the Privacy Act.[165]
The OAIC also noted the potential impact of the proposed
secrecy offences on the Notifiable Data Breaches (NDB) scheme under Part IIIC
of the Privacy Act. The NDB scheme introduces an obligation from 22
February 2018 for all agencies and organisations with existing personal
information security obligations under the Privacy Act to notify
individuals whose personal information is involved in a data breach that is
likely to result in serious harm, as well as notifying the OAIC. However, there
are exceptions including where a Commonwealth law prohibits or regulates the
use or disclosure of information (a secrecy provision). The OAIC indicated:
My Office's relevant NDB advisory guidance notes that 'if a
secrecy provision permits the disclosure of information in the course of an
officer's duties, there would not be inconsistency between the secrecy
provision and the NDB scheme notification requirements, as complying with the
notification requirements is the responsibility of the agency through its
officers. While it would appear that the defence in section 122.5 of the
Espionage and Other Offences Bill would therefore permit disclosures under the
NDB Scheme, clarification would be useful to limit any uncertainty.[166]
The Law Council also recommended that proposed secrecy
provisions should expressly indicate whether they override the Freedom of
Information Act and how they will interact with obligations under the Privacy
Act.[167]
It suggested Privacy Impact Assessment (PIA) should be conducted of the secrecy
provisions and noted that the ALRC report in 2010 had suggested that a ‘PIA
should be prepared when a secrecy provision is proposed that may have a
significant impact on the handling of personal information’.[168]
Public Interest Disclosures Scheme
Concerns were raised regarding the potential impact of the
new secrecy offences on the Public Interest Disclosures Scheme. For example, the
Human Rights Law Centre stated that the ‘sheer breadth of the offences created
in new sections 122.1-122.4 creates significant risks that the defences in new
section 122.5, including the protections of the [Public Interest Disclosure
Act], do not sufficiently protect the public interest’.[169]
The U.N. Special Rapporteur’s submission observed that the scheme is ‘only
available to public officials’ and the defence does not appear to ‘apply to the
wide range of conduct that would be classified as “dealing” with information’.
The Commonwealth Ombudsman also noted:
Information communicated, or dealt with, in relation to a
disclosure under the PID Act may also fall within the definition of
inherently harmful information. While a defence exists in relation to
communication in accordance with the PID Act, disclosers may need to
rely on a defence to a serious offence in order to make use of the
Commonwealth’s public interest disclosure regime. Similarly, Commonwealth
employees who are tasked with functions under the PID Act which includes
dealing with disclosed information may need to rely on a defence to a serious
offence in order to perform the duties of their role.[170]
Additional
defences and exceptions
Additional defences and exceptions to the secrecy offences
were also proposed in the submissions to the PJCIS. In particular, the Law
Council considered that ‘[t]o aid transparency, there should be a public
interest disclosure defence to the secrecy provisions where the disclosure
would, on balance, be in the public interest’.[171]
Further, the Law Council noted:
There is no proposed exception for where the conduct is
engaged in for the purpose of obtaining legal advice in relation to the matter
the subject of the offence. Such an exception (as opposed to a defence) should
be included, as it is in other secrecy offences such as paragraph 35P(3)(e) of
the ASIO Act.[172]
A defence of communicating or dealing with information for
the purpose of obtaining legal advice is included in the Government amendments
to the Bill.[173]
Financial implications
The Explanatory Memorandum to the Bill states that it will
have no financial impact on Government revenue.[174]
Statement of Compatibility
with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[175]
Parliamentary Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights (PJCHR)
considered the Bill in Report 2 of 2018. It identified that the Bill (in
particular the secrecy offences in Schedule 2) engaged and limited a number of
human rights. These included:
- the
right to freedom of expression
- the
right to an effective remedy
- the
right to be presumed innocent
- the
right to release pending trial and
- the
right to privacy.[176]
The PJCHR sought the Attorney-General’s advice regarding a
number of specific provisions, particularly their effectiveness in relation to
the objectives of the Bill and whether the limitations on rights were
reasonable and proportionate. In relation to Schedule 5 of the Bill, which
amends the Foreign Influence Transparency Bill 2017, the PJCHR noted its
previous consideration of that proposed legislation which identified it would
‘engage and limit the freedom of expression, the freedom of association, the right
to take part in the conduct of public affairs, and the right to privacy’.
Regarding Schedule 5, the PJCHR sought the Attorney-General’s advice in
relation to ‘whether the amendments to the Foreign Influence Transparency
Scheme Bill 2017 introduced by Schedule 5 pursue a legitimate objective, are
rationally connected and proportionate to that objective’.[177]
The PJCHR concluded its consideration of the Bill in Report
3 of 2018 which addressed both the responses of the Attorney-General and
the proposed amendments to the Bill which were released.[178]
Compatibility of the measures with the right to freedom of
expression
While the PJCHR acknowledged the amendments to the Bill
addressed a number of the concerns in respect of the human rights compatibility
of the proposed secrecy offences, it concluded that ‘concerns remain as to the
compatibility of the proposed secrecy offences with the right to freedom of
expression’. Similar concerns existed in respect of the espionage offences.[179]
It also noted that some of the foreign interference offences in the Bill ‘may
not be a proportionate limit on the right to freedom of expression’.[180]
The PJCHR recommended ‘in accordance with the Attorney-General's suggestion’,
that should the Bill be passed, the measures should be subject to a review
after five years in operation.[181]
Compatibility of the measure with the right to an
effective remedy
The Attorney-General highlighted that ‘[w]hile the secrecy
offences engage the right to an effective remedy, that right is not limited due
to a number of defences in Division 122 which protect disclosure in certain
circumstances’. In light of these safeguards, the PJCHR noted the measure may
be compatible with the right to an effective remedy, but drew attention to the
‘recent comments of the United Nations Special Rapporteur on the situation of
human rights defenders on the adequacy of the Public Interest Disclosure
framework’.[182]
Compatibility of the measure with the right to be presumed
innocent
The PJCHR outlined its concerns in relation to two aspects
of the strict liability element of the offences in proposed section 122.1
(offences dealing with inherently harmful information) and the offence-specific
defences which reversed the evidential burden of proof. The Attorney-General's
response indicated that the removal of the strict liability element of the
offences addressed PJCHR’s concerns relating to the compatibility of this
aspect of the offence with the presumption of innocence.[183]
However, the PJCHR considered ‘concerns remain in relation to the compatibility
of the reverse evidential burdens with the presumption of innocence’. It
stated:
In relation to the reverse burdens, the committee notes that
the Attorney-General's response indicates that further amendments will be
developed to broaden defences, to clarify that other immunities (such as
parliamentary privilege) are not affected by the offences and provide that the
reverse burden does not apply to IGIS officers. If these amendments proceed,
they may have a positive impact on the proportionality of the limitation on the
right to be presumed innocent. Once such amendments are developed, the
committee requests a copy of these amendments and an explanation as to how
these amendments affect the limitation on the right to be presumed innocent.[184]
Compatibility of the measures with the right to release
pending trial
The PJCHR noted:
Section 15AA of the Crimes Act provides for a
presumption against bail for persons charged with, or convicted of, certain
Commonwealth offences unless exceptional circumstances exist. Schedule 1 would
update references to offences and apply the presumption against bail to the
proposed offences in Division 80 and 91 of the Criminal Code (urging violence,
advocating terrorism, genocide, offences relating to espionage). It would also
apply the presumption against bail to the new foreign interference offences
where it is alleged that the defendant's conduct involved making a threat to
cause serious harm or a demand with menaces.[185]
The PJCHR consider that ‘if the threshold for displacing
the rebuttable presumption against bail is too high, it may result in loss of
liberty in circumstances that may be incompatible with the right to release
pending trial’.[186]
Compatibility of the measures with the right to privacy
Schedule 4 of the Bill extends the definition of a
'serious offence' in the Telecommunications
(Interception and Access) Act 1979 to include the offences provided for
in the Bill. After requesting and receiving advice from the Attorney-General
the PJCHR indicated that ‘the measure in context may be compatible with the
right to privacy’.[187]
Amendments to the Foreign Influence Transparency Scheme
legislation
The PJCHR noted that the amendments in the Bill ‘broaden
the scope of the foreign influence transparency scheme by including lobbying of
“political campaigners” on behalf of foreign principals, the existing human
rights concerns with the operation of the foreign influence bill and the
electoral funding bill are equally applicable here’.[188]
The PJCHR’s concluded its ‘analysis indicates that the amendments to the
foreign influence transparency scheme introduced by schedule 5 of the bill may
be incompatible with the right to freedom of expression, the right to freedom
of association, the right to privacy, and the right to take part in the conduct
of public affairs’.[189]
Key issues and provisions
National Security
A number of stakeholders expressed concern about the
appropriateness of the scope and operation of the definition of ‘national security’
relied on by a number of provisions in the Bill.
The successful operation of laws dealing with ‘national
security’ arguably relies on a sufficiently well-conceived and articulated
notion of ‘national security’ whose rationale reflects the fundamental elements
that either separately or combined, maintain integrity, stability, viability
and sustainability of Australia as a nation in defence, socio-political,
economic, environmental and international relations terms.
Notwithstanding the apparent breadth of the definition of
‘national security’, it is arguable that it is problematically both
overinclusive and underinclusive in at least two respects.
While national security is reliant on the protection of
critical public infrastructure, and threats and damage to that infrastructure
are captured in for example, the offence of sabotage, it might be useful to
include the protection of the country’s critical public infrastructure more
explicitly and upfront in the meaning of national security, rather than make
reference to it indirectly via an activity covered by subsection 90.4(2).
‘Serious threats’ to the integrity of the country’s
territory is included in the definition of national security, however it is
notable that more explicit mention of the protection of the integrity of
Australia’s natural resources is absent from that list. This may mean that
potentially, the illegal destruction of natural resources by way of what would
be thought of as an act of sabotage, may not necessarily be captured, for
example in the event of damage to aquifers by significant poisoning. While
other laws would capture damage to those aquifers, the penalties under those
laws may not be as great as penalties for the offence of sabotage, where the
impact of that damage might be very significant and serious for both the
community and business.
The Explanatory Memorandum states that the protection of
the integrity of a country’s territory and borders ‘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.’[190]
It is arguable that the explicit inclusion of sabotage to critical natural
resources would be consistent with this logic.
It is also notable that under the rubric of ‘national
security’ is ‘the country’s political, military or economic relations with
another country or other countries’ [emphasis added]. Curiously, protection of
the country’s political, military or economic integrity is not included
separately in and of itself. The Law Council has stated ‘that definition of
‘national security’ extending to the country’s political or economic relations
with another country or countries should be reconsidered.’[191]
It pointed out that a ‘key component of the rule of law [is] that criminal
offences be drafted in a way that’s readily known and available, certain and
clear’.[192] In contrast, the Law Council
characterised the proposed concept of national security in the Bill as ‘vague’,
particularly where it extends to preparatory offences and offences involving
recklessness.[193]
It also seems to be the case that the definition of
national security is somewhat circular, making reference to the offences listed
in proposed subsection 90.4(2): espionage, sabotage, terrorism,
political violence, foreign interference. Reference to these offences is
somewhat helpful, but these offences then make a circular and rather unhelpful
reference back to the rather broad concept of ‘national security’.
Schedule 1—Treason, espionage,
foreign interference and related offences
Part 1—Main amendments
Treason
Historically, the crime of treason was based on the
principle of allegiance to the Crown.[194]
Currently, under section 80.1 of the Criminal Code,
the offence of treason describes rather exceptional and serious conduct that
includes:
- causing
the death or harm, imprisonment or restraint of the Sovereign, the heir
apparent of the Sovereign, the consort of the Sovereign, the Governor-General
or Prime Minister
- levying
war, or doing an act preparatory to levying war against the Commonwealth and
- intentionally
assisting an enemy, at war with the Commonwealth.[195]
The maximum penalty is life imprisonment.
‘Materially’ assisting enemies
In addition to this principal offence of treason,
subsections 80.1AA (1)-(4) outline two offences relating to materially
assisting enemies. A person commits treason if they ‘materially’ assist enemies
at war with the Commonwealth and assist countries et cetera. engaged in armed
hostilities against the Australian Defence Force (ADF).
The maximum penalty is life imprisonment.
Item 4: repeals the two existing offences in
subsections 80.1AA (1)-(4) and amalgamates them into one offence titled
‘Treason – assisting the enemy to engage in armed conflict’ (proposed
section 80.1AA).
The Explanatory Memorandum lists the elements of the new
treason offence the prosecution will have to prove beyond reasonable doubt:
- 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 (discussed
below)
- 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
an Australian citizen, and knew that he or she was an Australian citizen
- was
a resident of Australia, and knew that he or she was a resident of Australia
- had
voluntarily put him or herself under the protection of the Commonwealth, and
knew that he or she had done so, or
- was
a body corporate incorporated by or under a law of the Commonwealth or of a
state or territory.[196]
In the new offence the term ‘armed hostilities’ is
replaced with the phrase ‘armed conflict’, and existing references to a
‘country or organisation engaged in armed hostilities’ is replaced with the
term the ‘enemy’. The Explanatory Memorandum states that the proposed amendments
are designed to streamline the structure of treason offences and ‘update the
references in the offences to reflect modern international terminology about
armed conflict,’ thus removing for example, what is thought to be ‘confusing
terminology’ at existing at subsection 80.1AA(4) about ‘armed hostilities’ to
achieve greater clarity.[197]
Provision is made under proposed section 80.1AB for
the Governor-General to, by way of Proclamation, declare a party to be an enemy
engaged in armed conflict involving the Commonwealth or the ADF. This
provides a ‘publicly accessible record of enemies against whom the
Commonwealth is engaged’.[198]
This is consistent with the operation of the rule of law, which would require
that ‘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.’[199]
The Explanatory Memorandum states that the Proclamation is a legislative
instrument which will be subject to scrutiny and disallowance in Parliament.[200]
Ideally, as a matter of accessibility and transparency this point should have
been included in the Bill rather than the Explanatory Memorandum.
The Law Council has suggested that ‘the Bill should
prescribe certain criteria for when the Governor-General may make a Proclamation
under proposed section 80.1AB’. Furthermore, this Proclamation should
subject to periodic review, with a revocation of the Proclamation ‘where the
Governor-General is no longer satisfied that the criteria for making the
Proclamation continues to be met’.[201]
In response to this concern the Attorney-General’s
Department explained that it did not consider that there would be any benefit:
... in listing further criteria than are already contained in
section 80.1AB. The question of whether a party is an enemy engaged in armed
conflict involving the Commonwealth or the Australian Defence Force will be
determined based on expert advice in the context of the meaning of the terms in
international law.[202]
The Attorney-General’s Department has also stated that as
a legislative instrument, a Proclamation is able to be repealed through the
normal process.[203]
Furthermore, the Proclamation ‘will sunset every ten years under the operation
of the Legislation Act 2003’, and as a result, this would ensure ‘that
such instruments are periodically reviewed and only re-made if required’.[204]
‘Materially assist’
Given one of the stated aims of the proposed amendments to
section 80.1AA was to deal with ‘confusing terminology’, it is unclear why
consideration was not given to clarifying the key concept of ‘material
assistance’ to the enemy. As currently drafted, the proposed offence appears to
result in criminalising conduct which may in practical terms be unduly broad
because of a failure to define the concept of ‘materially assist’ and specify a
connection to a physical element. The proper operation of the rule of law
normally necessitates individuals being able to have ‘knowledge and sufficient
certainty of the scope of their criminal liabilities’ in relation to their
conduct.[205]
It has previously been suggested in relation to this offence that:
The concept of 'material assistance' ought to be defined to
include only direct assistance, such as the provision of troops, funds, arms or
other materiel, or intelligence, but to exclude indirect assistance such as the
refusal to fight, the provision of humanitarian supplies, etc.[206]
The Explanatory Memorandum states that ‘the term
’materially assist’ will be given its ordinary meaning’.[207]
This however, simply raises a new question as to what is meant by the ‘ordinary
meaning’ of the concept to ‘materially assist’. The Explanatory Memorandum
provides a partial response and arguably still insufficient guidance by
stating:
... 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.[208]
The Attorney-General’s Department has provided further
explanation stating:
The use of the term ‘materially assist’ is consistent with
existing treason offences. It has been retained as it is a high threshold for
the assistance that must be provided in order for a treason offence to be
committed. It is a higher threshold than that found in the offence relating to
terrorist organisations at section 102.7, which is considered appropriate given
the severe penalty applying to treason offences.[209]
Perhaps a more helpful approach would be to provide
guidance by way of examples which practically demonstrate an operative
connection between the types of conduct that may amount to assistance which is
material, by virtue of that conduct facilitating pursuit of war or hostilities
by the enemy against Australia or the ADF. An example of relevant content for
inclusion in the term ‘materially assist’ may be found in the US definition
‘providing material support to terrorists’.[210]
This provides:
... the term “material support or resources” means any
property, tangible or intangible, or service, including currency or monetary
instruments or financial securities, financial services, lodging, training,
expert advice or assistance, safehouses, false documentation or identification,
communications equipment, facilities, weapons, lethal substances, explosives,
personnel, and transportation, except medicine or religious materials.[211]
The PJCIS recommended:
... that the Bill be amended to explicitly provide that the
term ‘support’ refers to ‘material support’, and that the Explanatory
Memorandum provide examples of conduct that will not constitute material
support, for example, news reporting, editorial or opinion writing and
humanitarian assistance.[212]
Government amendments
Proposed amendment 59 (Schedule 1, item
17) seeks to amend paragraph 92.7(a) to replace a reference to ‘support’
with a reference to ‘material support’. This is intended to clarify that the
term ‘support’ captures:
... the provision of a benefit or other practical goods or aid
and does not extend to non-material support, for example a journalist reporting
positively, or neutrally about a foreign intelligence agency. News reporting,
editorial or opinion writing and humanitarian assistance will not constitute
‘material support’.[213]
This amendment implements Recommendation 42 of the PJCIS
report.
The establishment of the offence of treason requires not
only provision of material assistance to an enemy country, but that this
material assistance is given intentionally by a person owing an
allegiance to Australia (an Australian citizen or resident) ‘or a person who
has voluntarily placed themselves under the protection of Australia, a body
corporate incorporated by or under a law of the Commonwealth or of a state or territory.’[214]
This is consistent with the traditional concept of treason involving a duty of
allegiance to a country, and thus a divergence from that allegiance in defined
circumstances, amounting to treason. The requirement of an allegiance to
Australia, of the type described, is also consistent with Australia’s
obligations under the Geneva Conventions to treat captured enemies as prisoners
of war, pursuant to the principle of combatant immunity.[215]
The Law Council expressed notional support for the new
treason offence, noting the imperative of updating the offence so as to better
reflect and respond to:
... the reality of the current international engagements of the
ADF and Commonwealth (e.g. the fight against [Islamic State of Iraq and Syria]
and the situation in Syria).[216]
Nonetheless, the Law Council raised concerns about the
breadth of the offence noting that it:
... removes the requirement that the person’s conduct assists a
country or organisation engaged in hostilities against the Commonwealth
or ADF. The proposed requirement is that a person’s conduct provides material
assistance to a country or organisation engaged in an armed conflict involving
the Commonwealth. Given the multilateral nature of modern conflicts (see, for
example, in the case of Syria), this makes the scope of the offence potentially
very broad. Further, that someone contributes to acting against the
Commonwealth or ADF would seem to be the rationale behind treason.[217]
The Joint Councils for Civil Liberties and the Law Council
therefore recommended replacing the word ‘involving’ with the word ‘against’ in
the offence and Proclamation power.[218]
In response to these concerns and recommendations, the
Attorney-General’s Department explained:
This would not be appropriate given the realities of modern
armed conflict. It is entirely possible that the ADF may be engaged in an armed
conflict involving multiple actors such as insurgent groups. The ADF may not
necessarily be engaged in combat operations against all of the actors in such a
context. It may, for example, be engaged in training, advising, and otherwise
assisting missions in support of and with the consent of a foreign government,
which would not see Australia engaged in combat ‘against’ an enemy. In such
circumstances, Australia may still be a party to the armed conflict, in which
case the conduct intended to be caught by this provision should still be
criminalised.[219]
Humanitarian aid and good faith
defence
The existing exclusions for humanitarian aid and the
defence for ‘acts done in good faith’ are maintained in the new offence.
Proposed subsection 80.1AA(4) provides the
offence does not apply ‘to engagement in conduct solely by way of, or
for the purposes of, the provision of aid or assistance of a humanitarian
nature’ (emphasis added). The Explanatory Memorandum notes this defence 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’.[220]
It lists examples of work ‘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’ as
conduct which may fall within the defence. However, the absence of a detailed
definition of ‘aid or assistance of a humanitarian nature’ means there is a
lack of clarity regarding conduct which may not be associated with these
recognised organisations. The defendant will bear the evidential burden in
relation to this defence.
Note 1 under subsection 80.1AA(1) highlights that ‘[t]here
is a defence in section 80.3 for act done in good faith’.
Australian Lawyers for Human Rights has raised concern
that the exemption provided for humanitarian aid is too narrowly drafted, ‘as
the qualification that the conduct be "solely" for the exempt
purpose’ makes it:
... much harder to claim a humanitarian aid exception, as the
exception was to apply only where it was the sole reason for the conduct in
question, even though there could be many additional reasons why the particular
conduct was carried out that were not related to offensive activities.[221]
As a result of amendments made to the offences of
sabotage, treason, espionage and secrecy, item 37 of Schedule 1 to the Bill updates
subsection 4J(7) of the Crimes Act to refer to the new offences against:
- subsections
79(2) or (5) of the Crimes Act
- Division
80 of the Criminal Code (treason, urging violence and advocating
terrorism or genocide)
- Division
82 of the Criminal Code (sabotage)
- Division
91 of the Criminal Code (espionage) and
- Division
92 of the Criminal Code (foreign interference).
The consequence of this change is that offences against
these provisions may not be dealt with summarily.
Treachery
Treachery is an offence in several countries. Both the
Australian and British offences were derived from or inspired by the related
offence of treason. In the UK, the offence of treachery was established in
response to the difficulty in securing convictions for treason, as the offence
could be made out under the same rules of evidence as ordinary offences. More
significantly, the new offence of treachery was considered necessary as doubt
arose as to the capture of treason laws of foreign spies and saboteurs. Specifically,
the offence of treachery did not rely on a requirement or presumption of a duty
of allegiance to the Crown or the State linked to citizenship as for treason.[222]
The Treachery Act 1940 (UK) was repealed but another
Treason-related act, the 1848 Treason Felony Act (UK), remains in force.
Section 24AA of the Crimes Act deals with the
offence of 'Treachery' which covers doing any act or thing with the
intent to overthrow the Constitution by revolution or sabotage, attempts
by force or violence to overthrow an established government in Australia or
abroad, and acts of treason directed against certain proclaimed countries.
Thus, this basically encompasses levying war or doing any act
preparatory to levying war against the Commonwealth or another country, assisting
or intending to assist, a proclaimed enemy of a proclaimed country, or
instigating a person to make an armed invasion of another country. Subsection
24AA(2) also makes it an offence to assist enemies of the Australian Defence
Force.
This offence is punishable by a maximum penalty of life
imprisonment.
Proposed section 80.1AC inserts a contemporary
offence of treachery into the Criminal Code. Item 43 of
Schedule 1 to the Bill correspondingly repeals the existing and archaic offence
of treachery in section 24AA of the Crimes Act.
The new treachery offence criminalises the use of force
or violence intended to overthrow the Constitution, a Commonwealth,
state or territory government or the lawful authority of the Government of the
Commonwealth (emphasis added). This noticeably removes the existing reference
to doing ‘any act or thing.’[223]
The Law Council supports this amendment, confining the particular conduct to use
of force or violence given the severity of the penalty imposed for the
offence.[224]
The new treachery offence also does not contain reference
to acts intended to overthrow the Government of a proclaimed country. The
Explanatory Memorandum states that ‘this conduct is more appropriately dealt
with through the laws of the relevant country or through foreign incursions
offences in the Criminal Code.’[225]
The offence of assisting enemies of the ADF has not been
incorporated into the new contemporary offence of treachery. This is because it
has been more appropriately inserted into the new offence of treason under proposed
section 80.1AA. The maximum penalty of life imprisonment is left unchanged.
The Explanatory Memorandum states that the treachery
offence is designed to complement the proposed treason offence, with an
apparent focus on maintaining the physical and political integrity of the
Sovereign, Governor-General or Prime Minister.[226]
In this regard the amendments made to the treachery offence represent an
overdue rationalisation of the two offences.
The PJCIS has raised concern that neither the Bill nor the
Explanatory Memorandum offer guidance as to the context in which the term
‘lawful authority of the Government of the Commonwealth’ might apply. They have
suggested that the Explanatory Memorandum be revised to include such guidance.[227]
Fault element—conduct involving
‘force or violence’
The Explanatory Memorandum states:
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 her conduct
involved force or violence and, having regard to the circumstances known to him
or her it was unjustifiable to take that risk.[228]
In its report, the PJCIS states that it received
clarification from the Attorney-General’s Department about the nature and scope
of the term use of ‘force or violence’. The Department explained:
The use of the term ‘force or violence’ picks up on the
language used in the existing treachery offence at subparagraph 24AA(1)(a)(ii)
of the Crimes Act. It is also consistent with the language used in the
existing offence of urging violence against the Constitution in section
80.2 of the Criminal Code (see paragraph 80.2(1)(a)).
Conversely, the references to intimidation and threats in new
section 83.4 of the Bill pick up on the existing language used in section 28 of
the Crimes Act.
Given that a penalty of life imprisonment applies to the
treachery offence at subsection 80.1AC of the Bill, it is considered
appropriate that the offence be limited to conduct involving force or violence
and not extend to conduct involving intimidation or threats.[229]
The Law Council of Australia considers that the severity
of the penalty to be imposed (life imprisonment) makes it appropriate to
re-think the fault element and replace it with the requirement of intention. [230]
Sabotage
In general terms the act of sabotage may be thought of as
a ‘deliberate action aimed at weakening another entity through subversion, obstruction,
disruption or destruction’.[231]
The commentary in this space recognises that sabotage may ‘take many different
forms including industrial, economic, intelligence and military operations
designed to damage or disrupt a political, governmental or commercial rival’.[232]
The Crimes Act lists sabotage as one of the
offences against government. Section 24AB(1) currently defines the act of
sabotage to mean the destruction, damage or impairment, with the intention of
prejudicing the safety or defence of the Commonwealth, of any article[233]
used or intended to be used either by the Defence Force; in connexion with the
manufacture, investigation or testing of weapons or apparatus of war; for any
purpose that relates directly the defence of the Commonwealth; or that is in or
forms part of a place that is a Commonwealth ‘prohibited place’.[234]
Thus the existing definition captures only a small class of defence targets,
which due to their high profile and very protected nature makes them hard and
thus less likely to be the targets of sabotage. Item 8 of Schedule 1 to
the Bill proposes to insert a new Division 82 into Part 5.1 of the Criminal
Code, replacing the existing sabotage offence in section 24AB of the Crimes
Act, following the repeal of Part II of the Crimes Act by item 43.
The proposed amendments seek to reflect and respond to the
fast-evolving nature of security threats, (which may be thought of as including
cyber, personnel and physical) and modalities of security attacks by capturing
new conduct and expanding the range of critical public infrastructure to be
protected.[235]
Thus the first step in the proposed amendments is a rather extensive definition
of damage to public infrastructure, followed by a new and expanded
definition of public infrastructure.
The circumstances of conduct which is captured under the
rubric of sabotage is increased by the introduction of the following
offences:
- Sabotage
- involving foreign principal with intention as to national security
- Sabotage
- involving foreign principal reckless as to national security
- Sabotage
- with intention as to national security
- Sabotage
- reckless as to national security
- Introducing
vulnerability - with intention as to national security
- Introducing
vulnerability - reckless as to national security
- Preparing
for or planning sabotage
Penalties
The penalties range from a maximum term of 25 years
imprisonment for the most serious offence to seven years for preparing for or
planning sabotage. In particular the higher penalties attach to sabotage
offences that are committed on behalf of a foreign principal. The
maximum penalty sets the upper limit of judicial discretion and should reflect
the relative gravity of the offence, yet be broad enough to allow the court
sufficient scope to rehabilitate and/ or punish the offender, thus
accommodating the range of severity of examples of the offence that are likely
to be encountered. The setting of a maximum penalty represents symbolic
recognition that the State’s power to deal with offenders must be subject to
lawful restraint.
Proposed section 82.1 - Definitions
Damage to public infrastructure
Damage in relation to public infrastructure means
any of the following:
- conduct
which destroys it or results in its destruction
- conduct
which involves interfering with it, or abandoning it, resulting in it being
lost or rendered unserviceable
- conduct
resulting in it suffering a loss of function or becoming unsafe or unfit for
its purpose
- conduct
which 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
- conduct
which results in it or any part of it becoming defective or being contaminated
- conduct
which significantly degrades its quality
- if
it is an electronic system—the conduct seriously disrupts it.
Public infrastructure has the meaning given
in proposed section 82.2, which states that it is any of the following:
- any
infrastructure, facility, premises, network or electronic
system that belongs[236]
to the Commonwealth
- defence
premises within the meaning of Part VIA of the Defence Act 1903
- service
property, and service land, within the meaning of the Defence Force
Discipline Act 1982
- any
part of the infrastructure of a telecommunications network within the meaning
of the Telecommunications Act 1997[237]
- any
infrastructure, facility, premises, network or electronic system (including an
information, telecommunications or financial system):
-
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[238] or is
used to facilitate constitutional trade and commerce.[239]
The Explanatory Memorandum acknowledges that the terms
infrastructure, facility, premises, network or electronic system used in proposed
paragraph 82.2(1)(a) are left undefined in the Bill. These terms are left
to take their ordinary meaning as follows:
- Infrastructure:
including the structures and facilities needed for the operation of society
- Facilities:
including a place, amenity or piece of equipment
- Premises:
including a building, together with its land, occupied by a business or used in
an official context
- Network:
primarily intended to cover networks of interconnected computers or other
machines
- Electronic
system: including 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.[240]
The Law Council has stated that in relation to the
definition of public infrastructure, ‘there would be benefit in a reference to
the Australian Government Information Security Manual 2016–2017 (for example in
the Explanatory Memorandum) and a need to be consistent with the requirements of
that key policy document.’[241]
Fault element for offences in
relation to public infrastructure
Absolute liability applies for the element of the sabotage
offence 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’. This is because these elements are unrelated
to the offender’s fault and are included in order to link the offences to the
Commonwealth’s power to legislate under the Constitution.[242]
Sabotage - involving foreign
principal with intention as to national security
Proposed section 82.3(1) makes 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, or a person acting on
behalf of a foreign principal, where that conduct results in damage to public
infrastructure and the person intends that this will prejudice
Australia’s national security, or advantage the national security of a
foreign country.[243]
In relation to advantaging the national security of a foreign country, the
person does not need to have in mind a particular country and may have more
than one foreign country in mind.
This offence is punishable by a maximum penalty of 25
years imprisonment.
To establish this offence, the prosecution needs to prove
beyond reasonable doubt that:
- the
person intentionally ‘engaged in the conduct’[244]
- the
person is reckless as to the conduct resulting in damage to public
infrastructure
- the
person intended that their conduct would prejudice Australia’s national
security, or advantage the national security of a foreign country, and
- any
of the following circumstances exist
- the
person was reckless as to the conduct engaged in, being on behalf of, or in
collaboration with, a foreign principal or a person acting on behalf of a
foreign principal
- the
person as reckless as to the conduct being directed, funded or supervised by a
foreign principal or a person acting on behalf of a foreign principal.
Sabotage - involving foreign principal
reckless as to national security
Proposed section 82.4(1) makes 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, or a person acting on
behalf of a foreign principal, where that conduct results in damage to public
infrastructure and the person is reckless as to whether this will prejudice
Australia’s national security, or advantage the national security of a
foreign country. In relation to being reckless as to the conduct advantaging
the national security of a foreign country, the person does not need to have in
mind a particular country and may have more than one foreign country in mind.
This offence is punishable by a maximum penalty of 20
years imprisonment.
To establish this offence, the prosecution needs to prove
beyond reasonable doubt that
- the
person intentionally engaged in the conduct
- the
person is reckless as to the conduct resulting in damage to public
infrastructure
- the
person is reckless as to whether their conduct would prejudice Australia’s
national security, or advantage the national security of a foreign country and
- any
of the following circumstances exist
- he
person was reckless as to the conduct engaged in, being on behalf of, or in
collaboration with, a foreign principal or a person acting on behalf of a
foreign principal
- the
person as reckless as to the conduct being directed, funded or supervised by a
foreign principal or a person acting on behalf of a foreign principal.
Government amendments 26 June 2018
Amendment 5: Schedule 1, item 8
This amendment proposes a new definition of ‘advantage’ in
proposed section 82.1 which clarifies that conduct will not advantage
the national security of a foreign country if the conduct will advantage
Australia’s national security to an equivalent extent.
Sabotage - with intention as to national security
Proposed section 82.5(1) makes it an offence to
engage in conduct where that conduct results in damage to public infrastructure
and the person intends that this will prejudice Australia’s national security,
or advantage the national security of a foreign country.
In relation to advantaging the national security of a
foreign country, the person does not need to have in mind a particular country
and may have more than one foreign country in mind.
This offence is punishable by a maximum penalty of 20
years imprisonment.
To establish this offence, the prosecution needs to prove
beyond reasonable doubt that
- the
person intentionally engaged in the conduct
- the
person is reckless as to the conduct resulting in damage to public
infrastructure
- the
person intends their conduct to prejudice Australia’s national security, or
advantage the national security of a foreign country.
Sabotage - reckless as to national security
Proposed section 82.6(1) makes it an offence to
engage in conduct where that conduct results in damage to public infrastructure
and the person is reckless as to whether this will prejudice Australia’s
national security, or advantage the national security of a foreign country.
In relation to advantaging the national security of a
foreign country, the person does not need to have in mind a particular country
and may have more than one foreign country in mind.
This offence is punishable by a maximum penalty of 15
years imprisonment.
To establish this offence, the prosecution needs to prove
beyond reasonable doubt that
- the
person intentionally engaged in the conduct’
- the
person is reckless as to the conduct resulting in damage to public
infrastructure
- the
person is reckless as to whether their conduct would prejudice
Australia’s national security, or advantage the national security of a foreign
country.
Introducing vulnerability – with intention as to national
security
Proposed section 82.7 creates the offence of
engaging in conduct that results in an article, thing or software (being wholly
or part of public infrastructure) becoming vulnerable to misuse, impairment or
being accessed or modified by a person not entitled to access or modify it,
where the person intends their conduct (at that time or in the future) to
prejudice Australia’s national security.[245]
This offence is punishable by a maximum penalty of 15
years imprisonment.
Introducing vulnerability - reckless as to national
security
Proposed section 82.8 creates the offence of
engaging in conduct that results in an article, thing or software (being wholly
or part of public infrastructure) becoming vulnerable to misuse, impairment or
being accessed or modified by a person not entitled to access or modify it,
where the person is reckless as to whether the conduct will (at that time or in
the future) prejudice Australia’s national security harm.[246]
This offence is punishable by a maximum penalty of ten
years imprisonment.
Government Amendments 26 June 2018
Amendment 6: Schedule 1, item 8
This amendment proposes a definition of prejudice
in section 82.1 to clarifying that embarrassment alone is not sufficient to prejudice
Australia’s national security. Thus a person cannot be prosecuted for a
sabotage offence if that person intended that,
or was reckless as to whether, his or her conduct would cause embarrassment
alone.
Preparing for or planning sabotage
Proposed section 82.9 creates a new offence of
engaging in conduct with the intention of preparing for, or planning an offence
against Division 82 (Sabotage).[247]
The offence is punishable by a maximum penalty of seven
years imprisonment.
The Explanatory Memorandum states that the terms ‘planning’
and ‘preparing ‘are taken to have 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).[248]
The Law Council has questioned the necessity of this
provision, arguing that it should be removed from the Bill, because:
Incitement, conspiracy and attempt provisions in Part 2.4 of
the Criminal Code are sufficient to deal with preparatory conduct which
has indicated a real intention to carry out the act.[249]
The Law Council has stated that if the Government does not
accept this suggestion, then it would recommend:
... that there be a public review conducted by the
Attorney-General’s Department which clearly identifies the appropriate criteria
which should be used for determining the kinds of criminal conduct that warrant
preparatory offences.[250]
The Australian Lawyers Alliance raised concern generally
with the introduction of the Bill’s preparatory offences, mindful that this would
significantly:
... expand the preliminary activities that would be
criminalised, including circumstances in which the accused could reasonably
change their mind before the offence was committed.[251]
The Attorney-General’s Department has responded that the
provisions in Part 2.4 of the Criminal Code are insufficient for the
purposes of such offences, reasoning that preparatory offences are not
uncommonly reserved for serious criminal conduct. The Department noted that
the:
Guide to Framing Commonwealth Offences, Infringement
Notices and Enforcement Powers provides general guidance on the matters to
be considered when developing or amending criminal offences and enforcement
powers. The Guide does not reflect a binding policy position but provides
principles and precedents to assist the framing of criminal offences and
related matters. The Guide draws its principles and precedents from Senate
Committees and other sources, such as the Australian Law Reform Commission.
Should the Committees express particular views regarding preparatory offences,
consideration would be given to including guidance on these as well.[252]
In its report, the PJCIS recommended:
... that the Government amend the Guide to Framing
Commonwealth Offences, Infringement Notices and Enforcement Powers to
identify criteria to be used for determining the kinds of criminal conduct that
warrant preparatory offences.[253]
Defence - accessing or using a computer or electronic
system in capacity as a public official
Proposed section 82.10 was included in the
Bill as originally introduced, but has been reconfigured by the Government
Amendments. It would now create two specific ‘good faith’ defences for an
offence against Division 82 (Sabotage).
The first defence (at proposed subsection 82.10(1))
would apply if:
- at
the time of the offence the person was a public official[254]
- the
person engaged in the conduct in good faith in the course of performing duties
as a public official and
- the
conduct is reasonable in the circumstances in performing those duties.
The second defence (at proposed subsection 82.10(2))
would apply if:
- at
the time of the offence the person is an owner or operator of public
infrastructure, or a person acting with the consent of the owner or operator
- the
person engaged in the conduct in good faith
- the
conduct is within the lawful authority of the owner or operator and is
reasonable in the circumstances.
The second defence has been proposed in response to
recommendation 45 of the PJCIS report, which recommended:
... the defence at proposed section 82.10, in relation to the
Bill’s sabotage offences, be broadened to include conduct engaged in on behalf
of a private owner or operator of infrastructure, in addition to public
officials.[255]
The Explanatory Memorandum states that ‘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’.[256]
Section 82.11 – Geographical jurisdiction
This provision states that section 15.4 of the Criminal
Code, which deals with extended jurisdiction (Category D) will apply to an
offence against Division 82 (Sabotage). The Commonwealth Criminal Code
creates four types of extended geographic jurisdiction. Category D extended
geographic jurisdiction applies the broadest jurisdictional reach by providing
that an offence can be committed whether or not the conduct occurs in Australia
and whether or not the results of the conduct occur in Australia.
Alternative verdicts
Proposed subsection 82.12(1) provides that if the
trier of fact is not satisfied that the person is guilty of an offence listed
in column 1, but is satisfied beyond reasonable doubt that the person is guilty
of an offence against a provision specified in column 2 of that item, it may
find the person not guilty of the offence specified in column 1, but
guilty of an offence specified in column 2.
However, this 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.
Consent of Attorney-General required for prosecutions
Proposed subsection 82.13(1) makes it a requirement
that the written consent of the Attorney-General is obtained before committing
a person to trial for sabotage. In deciding whether to consent, the
Attorney-General must consider whether the conduct of the accused might be
authorised by section 82.10 (proposed subsection 82.13(4)). However, proposed
subsection 82.13(2) provides the following steps may be taken against a
person without the Attorney-General’s consent having been given:
- they
may be arrested for the offence and a warrant for such an arrest may be issued
and executed
- they
may be charged with the offence
- they
may be remanded in custody or on bail.
The Explanatory Memorandum reasons that the seriousness of
the offences justify permitting some measures towards commencing proceedings to
be taken without the prior consent of the Attorney-General. In particular, the
steps listed in proposed 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.[257]
A check on abuse of proceedings
Proposed subsection 82.13(3) expressly provides
that nothing in proposed subsection 82.13(2) prevents the discharge of
the accused if proceedings are not continued within a reasonable time.
This provision may be seen as representing a recognition
of the concept of abuse of process, as an actionable wrong and a basis for a
stay of proceedings, which has been developed by the courts of the common law
world over an extended period. The purpose of the doctrine is to prevent the
judicial system being used in a way that is contrary to the underlying values,
purposes and principles of the rule of law.
Comment on content capture of offences
It seems that thrown into and captured by these
definitions of sabotage and espionage are what would have previously been known
as acts of subversion. This places political subversives into the same category
of wrongdoers as enemy spies and saboteurs. This is arguably not an
insignificant shift as it has the practical effect of undermining and stifling
the ability of law abiding citizens who wish to exercise their constitutional
right to politically disagree with, or offer an opinion on government policies
and actions.
Division 83—Other threats to
Security
Advocating Mutiny
Proposed section 83.1 establishes a new offence of
advocating mutiny. This supersedes and replaces the existing offence of
inciting mutiny, currently contained in section 25 of the Crimes Act and which has a potential
life sentence of imprisonment. The repeal of section 25 is effected by item
43 of Schedule 1 of the Bill. The wording of the existing provision (‘to
seduce any person ... from his duty and allegiance’) is archaic, and appears to
be based on the United Kingdom’s Incitement to
Mutiny Act 1797, which was repealed in 1998.
For a person to be convicted of the offence of advocating
mutiny the person has to engage in conduct which involves advocating mutiny.
The person has to be reckless as to whether a result of their conduct will be
that a mutiny occurs. For a person to be convicted of this offence they have to
be an Australian citizen or resident, or a person who knows that they are under
Australia’s protection. The offender can also be a body corporate—for example,
a media organisation. The conduct leading to the offence does not have to be
committed in Australia. The offence has a maximum penalty of seven years
imprisonment.
Proposed section 83.1 in the Bill as introduced did
not define ‘advocating’. Recommendation 46 of the PJCIS report recommended that
the Bill be amended to define the term for the purposes of the section.[258]
This recommendation has been given effect in the Government Amendments to the
Bill, which introduce proposed subsection 83.1(1A), providing that, for
the purposes of the section a person ‘advocates’ mutiny if the person counsels,
promotes, encourages or urges mutiny.[259]
The Supplementary Explanatory Memorandum to the Bill explains that this
definition is ‘consistent with the existing definitions of advocates for
the purpose of the advocating terrorism offence in subsection 80.2C(3) and the
advocating genocide offence in subsection 80.2D(3) of the Criminal Code’.[260]
Proposed paragraph 83.1(1A)(b) specifies that a
reference to ‘advocating mutiny’ includes advocating for a specific mutiny,
more than one mutiny and advocating for a mutiny that does not occur.
‘Mutiny’ for the purposes of the advocating mutiny offence
is defined in the Bill. It involves two or more members of the Australian
Defence Force (ADF) combining to overthrow lawful ADF authority or resisting
such authority in a manner that would substantially prejudice the ADF’s
operational efficiency. This also applies to the authority or operational
efficiency of the force of another country that is acting in cooperation with
the ADF. Mutiny itself is not made an offence by this Bill. It is an existing
offence against the Defence
Force Discipline Act 1982 (DFDA).[261]
While offences under the DFDA are generally pursued through the military
justice system rather than the criminal courts, mutiny, as with other offences
under the DFDA, is classified as a criminal offence.[262]
Under proposed section 83.5, a prosecution cannot
be instituted under any of the provisions of Division 83, including an advocating
mutiny offence, without the written consent of the Attorney-General. However,
preliminary steps such as arrest, charging and remand can occur prior to the
Attorney-General’s written consent being obtained.
Comment
The offence of advocating mutiny sits alongside the
general criminal offence of incitement,[263]
which involves a person, the inciter, inciting another person to commit a
criminal offence. It is an essential element of an incitement offence that the
inciter intends that the incited offence be actually committed.[264]
In most cases however, a person is only likely to be charged with incitement
when the offence is not in fact committed. This may not apply to incitement to
mutiny — as only ADF members can be charged with mutiny, a civilian could only be
charged with incitement, whether or not the mutiny occurred.
Oddly, the maximum penalty for advocating mutiny, seven
years imprisonment, would in many circumstances be higher than the maximum
penalty if a person was charged with inciting mutiny under section 11.4 of the Criminal
Code. As the general penalty in the DFDA for mutiny is ten years
imprisonment,[265]
the term for inciting such a mutiny, which outwardly seems a more serious
offence than advocating a mutiny, would be five years imprisonment.[266]
The Bill provides that the offending conduct must
‘involve’ advocating mutiny. The use of the word involve would appear to mean
that advocacy of mutiny has to be an element of the conduct but does not have
to be the primary object of that conduct. This, and the requirement that the conduct
only needs to be reckless rather than intentional, makes advocating mutiny
potentially a broad offence.
An example of the conduct envisaged is provided in the
Explanatory Memorandum – in this example the partner of an ADF member
encourages the member to convince other members to resist orders.[267]
This example alternatively seems to raise questions as to whether the
advocating offence can be viewed as an ‘incitement to incite’ offence, which is
not otherwise punishable under criminal law.
The Explanatory Memorandum to the Bill notes the rationale
for the new provision as being:
... the term ‘advocates’ includes promoting and encouraging an offence.... 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.[268]
However the new offence does not demand any proven nexus
between the advocate’s conduct and a real chance of a mutiny occurring.[269]
It appears to criminalise conduct which was not previously criminal, and it
would be surprising if there were no objections to this provision on the
grounds of free speech. For example, a blogger who wrote in reaction to some
news item, about alleged sexual harassment or bullying or the like in the ADF,
that ‘soldiers should go on strike’,[270]
without any real expectation that this would occur and reckless as to whether
anyone would act on their words, may prima facie commit an offence against this
provision punishable by a maximum of seven years imprisonment.
The need for the Attorney-General to give written consent
for a prosecution to occur could be seen, in such circumstances, as a safeguard
against minor matters being prosecuted. However, it could also be painted by
opponents of the Bill as potentially adding a political element to prosecutions
under this provision.
The situation overseas
USA
The USA has a general law relating
to insurrection or rebellion in the following terms:
Whoever incites, sets on foot, assists, or
engages in any rebellion or insurrection against the authority of the United
States or the laws thereof, or gives aid or comfort thereto, shall be fined
under this title or imprisoned not more than ten years, or both; and shall be
incapable of holding any office under the United States.
As can be seen, this uses the word ‘incites’, which, as in
the current Australian context, implies that the person engaging in the conduct
actually wishes the insurrection or rebellion to occur. It is arguable that in
the USA an advocating mutiny offence, where the advocate was reckless as to the
effect of their conduct, would face legal hurdles because of the First
Amendment (free speech) to the US Constitution.
Canada
Persons covered by the National
Defence Act 1985 (that is, Canadian persons equivalent to ADF members)
are guilty of an offence under section 72 if they ‘counsel or procure’ someone
to commit an offence (including mutiny).
In regard to Canadians in general, section 53 of the Criminal
Code 1985 applies:
Everyone who
(a) attempts, for a traitorous or mutinous
purpose, to seduce a member of the Canadian Forces from his duty and allegiance
to Her Majesty, or
(b) attempts to incite or to induce a member of
the Canadian Forces to commit a traitorous or mutinous act,
is guilty of an indictable offence and liable
to imprisonment for a term not exceeding fourteen years.
In terminology, this provision is similar to the current
Australian provision, which the Bill intends to replace. The maximum penalty
(14 years) falls below the current Australian maximum penalty (life), but above
the proposed penalty in the Bill (seven years).
Government Amendments 26 June 2018
Amendment 12: Schedule 1, item 8
The Government Amendments insert a Note in the Bill under
subsection 83.1(1) clarifying that the existing defence in section 80.3 of the Criminal
Code for acts done in good faith is available in relation to the advocating
mutiny offence at section 83.1.
Assisting prisoners of war to
escape
Proposed section 83.2 provides that a person who
assists a prisoner of war to escape commits an offence. A similar offence
currently exists under section 26 of the Crimes
Act. Section 26 will be repealed by item 43 of Schedule 1
to the Bill. While the new provision is drafted with more clarity and in more
modern language than the existing provision, it covers similar conduct. One
major difference of the proposed provision relates to the maximum penalty,
which will be 15 years imprisonment rather than the current life imprisonment.
As noted in the Explanatory Memorandum, this better reflects modern sentencing
practices and represents a penalty comparable to those for offences related to
escaping criminal detention.[271]
An offence of assisting a prisoner of war to escape is
committed if a person engages in conduct (which includes omitting to do
something) which assists a prisoner or prisoners of war to escape from custody
wholly or partly controlled by the Commonwealth or the Australian Defence
Force, and where the conduct occurs within the context of an international
armed conflict.
The fault element for ‘engaging in conduct’ is that the
conduct was intentional. The fault element for the fact that this conduct
assisted prisoners to escape is recklessness – for example if a person
intentionally left a door unlocked which allowed prisoners to escape, that
behaviour would probably be sufficient to sustain a prosecution, regardless of
the person’s apparent motivation.
For the purposes of this provision prisoner of war has a
fixed meaning, being the meaning of that term in Article 4 of the Third Geneva
Convention. This is basically a member of the armed forces of one of the
parties to a conflict who falls into the hands of an adverse party.[272]
There is no strict definition of what circumstances
demonstrate that a person is in custody. The provision is not intended to
relate solely to prison-type situations, but to any situation where a prisoner
of war is in custody; for example from the very moment that they are first
taken by an opposing force.
Finally, the conduct giving rise to an offence must take
place in the context of an international armed conflict. This element of the
offence is one of absolute liability; which is to say that the understanding of
the nature of the conflict by the person engaging in the conduct is not a
relevant consideration.
As with other proposed Division 83 offences, a
prosecution in this matter requires the written approval of the
Attorney-General; although preliminary steps such as arrest and charging can
take place in advance of that consent.
Comment
This provision is unexceptional and unlikely to attract
significant, if any, criticism. The Law Council has noted that, while assisting
a prisoner of war to escape attracts a severe penalty, the actual act of
escaping carries no penalty (for the escaped prisoner).[273]
However, this is not viewed as a determining factor in setting the penalty for
assisting. There appears to be an obvious distinction between being an enemy
combatant and assisting that enemy combatant.
Military-style training involving
foreign government principal
Proposed section 83.3(1) provides that a person
commits an offence under this section if s/he provides, receives or
participates in training of a military nature, where that training is either
provided on behalf of a foreign government principal (as defined in proposed
section 90.3) or is directed, funded or supervised by a foreign government
principal, a foreign political organisation (the definition of which is added
to subsection 90.1(1) by item 10 of Schedule 1 to the Bill) or a
person working on behalf of such a foreign body. ‘Foreign government principal’
is defined to include the government of a foreign country (or part of a foreign
country), but also covers corporations that are majority foreign government
controlled and bodies or associations that are controlled by, or accustomed to
act in accordance with the preferences of, a foreign government. The definition
of ‘foreign political organisation’ has been expanded by the Government
Amendments to the Bill (Amendment 24), such that the term will now
cover:
- foreign
political parties
- foreign
organisations that exist primarily to pursue political objectives and
- Foreign
organisations that exists to purse militant, extremist or revolutionary
objectives.
The revised definition of foreign political party responds
to recommendation 6 of the PJCIS Advisory Report, which recommended that the
definition be clarified.[274]
Proposed section 83.3(1) is a broad provision and
intentionally so. Most of the words in the provision are undefined and thus
take their normal meaning. For example, ‘training’ does not have an allotted
meaning; it could refer to anything from reading an instruction manual to
performing practice military manoeuvres. ‘Directed’ and ‘supervised’ must also
be broadly construed. A foreign government is unlikely to be giving specific
orders – the Explanatory Memorandum notes that partial direction or general
oversight is sufficient.[275]
In regard to a person being directed, funded or supervised
by a foreign government principal or a foreign political organisation, the
standard of conduct of the person prescribed by the legislation is
recklessness. While the person being trained may not positively know that they
are being trained by or are working for a foreign government principal or a
foreign political organisation, the fact that the person was aware of a
substantial risk that that was the case and in the circumstances it was
unjustifiable to take the risk will be sufficient to prove that element of the
offence. Certainly wilful blindness to the real line of command is not a
defence.
Section 15.2 of the Criminal Code, which deals with
extended jurisdiction (Category B) will apply to this offence. Category B
extended geographic jurisdiction provides that an offence can be committed:
- if
the conduct occurs wholly or partly in Australia
- if
the conduct occurs wholly outside Australia and a result of the conduct occurs
wholly or partly in Australia or
- if
the conduct occurs wholly outside Australia and is undertaken by an Australian
citizen or resident or by an Australian corporation.[276]
The maximum penalty for an offence against proposed
section 83.3(1) is 20 years imprisonment. This is consistent with the range
of penalties provided for similar offences in anti-terrorist legislation.[277]
There are a number of scenarios that are not intended to
be covered by these provisions, and which form specific exceptions in the
legislation. For the purposes of a prosecution under this provision the
defendant would have to raise one of the exceptions that follow and point to
evidence that suggests a reasonable possibility that the exception applies. The
prosecution would then have to refute that defence beyond reasonable doubt.
As an obvious example of an exemption, an Australian who
provides training to an allied force which was engaged with Australia in a
joint training exercise would not be committing an offence.[278]
An Australian who trains with the forces of a foreign country – such as where,
for example, a dual citizen of certain countries is required to perform
military service in the armed forces of that other country – is also not
committing an offence, except in the unusual circumstance that the armed force
in question is a listed terrorist organisation.
The Government Amendments introduced an additional defence
that applies where the relevant conduct is engaged in by a person solely or
primarily for the purpose of providing humanitarian aid or performing an
official duty for the UN or the International Committee of the Red Cross (Amendment
17).[279]
This responds to recommendation 49 of the PJCIS Advisory Report.[280]
The provision also is not intended to capture training in
a terrorist organisation. That conduct is not lawful but is rather covered by
specific legislation.[281]
As with other proposed Division 83 offences, a
prosecution in this matter requires the written approval of the
Attorney-General; although preliminary steps such as arrest and charging can
take place in advance of that consent.
Comments
While the provision is intended to cover a wide range of
activities, the use of the term ‘evolutions’ in section 83.3(1)(b) is noted.
This appears to be a military term rather than a word in common usage and
arguably diminishes the clarity of the provision, particularly as these are
provisions likely to be overseen by civilian courts. While its military meaning
appears in some dictionaries, it is not present in the Macquarie Dictionary,
which is favoured by some Australian courts. The Explanatory Memorandum states
that the term ‘evolutions’:
Is intended to capture military manoeuvres involving planned
and regulated movements of troops or tactical exercises carried out in the
field.[282]
It is questionable whether a court would find that this
term added anything to the terms military exercises or movements.
Other than this, this proposed provision appears
unexceptional. It may attract limited unfavourable comment from persons who
believe that Australians have the right to assist secessionist movements, at
least in some circumstances.
Interference with political
rights and duties
Item 43 repeals the existing offence of interfering with
political liberty at section 28 of the Crimes Act. Replacing this
offence is proposed section 83.4(1) (interference with political
rights and duties) of the Criminal Code. Section 28 of the Crimes
Act currently makes it an offence for any person to use violence, threats
or intimidation of any kind, so as to hinder or interfere with the free
exercise or performance, by any other person, of any political right or duty.
The offence is punishable by a maximum penalty of three years imprisonment.
Proposed section 83.4(1) creates an
offence of interference with political rights and duties, where a person
engages in conduct involving the use of force or violence, or intimidation, or
making threats of any kind and the conduct results in interference with the
exercise or performance, of an ‘Australian democratic or political right’ or
duty, where that right or duty arises under the Constitution or a law of
the Commonwealth. In the Bill as originally introduced, this offence was
punishable by a maximum penalty of ten years imprisonment, thus increasing the
current penalty by seven years, but with no stated justification for this
increase. Responding to Recommendation 50 of the PJCIS Advisory Report, the
Government Amendments to the Bill reduce the maximum penalty for this offence
to three years imprisonment, reflecting the current provision (Amendment 19).[283]
The Explanatory Memorandum states:
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. [284]
An offence committed under section 83.4(1) in relation to
electoral matters would include relevant conduct impacting ‘the right to vote,
the right to stand as a candidate and the right to support or oppose a
candidate, group of candidates or party’.[285]
The stipulation that the right or duty arise ‘under the Constitution
or a law of the Commonwealth,’ is used to provide a connexion between the
offence and the Commonwealth’s jurisdiction.[286]
The Explanatory Memorandum acknowledges that the terms
force, violence, intimidation and threat are not defined in the Bill as they
are intended to take their ordinary meanings.[287]
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.[288]
If particular conduct constituted an act of violence,
without actually being a violent act, then this may be sufficient to satisfy
this element of the crime.[289]
The term intimidation is intended to include conduct
that makes a person timid or fearful.[290]
The term threat includes ‘a threat made by any conduct,
whether express or implied and whether conditional or unconditional.’[291]
The Law Council of Australia has considered the elements
and operation of this offence, and has suggested that the ‘making of threats’
in relation to interference with political rights and duties offence should be
more appropriately confined to ‘threats made in relation to the use of force or
violence rather than ‘threats of any kind’’.[292]
It has also suggested:
... the offence be amended to make clear that the availability
of the offence does not affect the power of Parliament to deal with such
conduct as contempt of Parliament, provided that a person may not be punished
twice for the one act or omission.[293]
Item 5 amends subsection 80.3(1) of the Criminal
Code (defence for acts done in good faith) to insert reference to proposed
section 83.4. The effect of this is to make the defence for acts done in
good faith apply to the new offence of ‘Interference with political rights and
duties’ in proposed section 83.4.
Section 327(1) of the Commonwealth
Electoral Act 1918 has a similar but more specific and confined offence
compared to proposed section 83.4(1).[294] Section 327(1) of the Commonwealth Electoral Act provides that a person shall not hinder or
interfere with the free exercise or performance, by any other person, of any
political right or duty that is relevant to an election under the Commonwealth
Electoral Act. The penalty for a contravention of section 327(1) is ten
penalty units (currently $2,100) or imprisonment for six months or both.[295]
In addition, section 327(2) of the Commonwealth Electoral
Act makes it an offence to discriminate against another person on the
ground of the other person making a donation to a political party or group by
denying the person access to membership of certain groups; by not allowing the
person to work or continue to work; or by subjecting the person to any form
of intimidation or coercion or any other detriment. The penalty for
contravention of this subsection is a pecuniary penalty of 50 penalty units ($10,500)
or imprisonment for two years (or both) if the offender is a natural person, or
a pecuniary penalty of 200 penalty units ($42,000) if the offender is a body
corporate.
It is difficult to reconcile the impetus for the proposed
scope and capture of the offence created by proposed section 83.4(1)
with for example, the part of the reasoning of the Federal Court of Australia in
Hudson v Entsch.[296] In that case, it was alleged that Mr Entsch (a
political candidate) had incited another person to knock down an electoral sign
by Mr Hudson, opposing Mr Entsch’s candidature. It was argued that this
knocking down of signs constituted an interference with the free exercise of Mr
Hudson’s political right or duty, in contravention of section 327(1). In that
case, Justice Dowsett found that the factual circumstances of the case did not
amount to a breach of section 327(1). Furthermore, his Honour stated that that
political right or duty is restricted:
In my view, a political right, for the purposes
of subs 327(1) is the right to vote (including the allocation of preferences),
the right to stand for election and the right to support or oppose a candidate,
group of candidates or party.[297]
Furthermore, Justice Dowsett stated that to
knock down a sign might be legitimately thought of an exercise of another
person's political right. The knocking down of signs did not interfere with Mr
Hudson’s political right, as he was free to erect more signs. Justice Dowsett
explained that having exercised one’s right to support or oppose a candidate,
one must accept that any lawful response to it may also be valid support for,
or opposition to, the candidate in question.[298]
The logic underlying this type of
restriction on a political right or duty, which is practically necessitated by
a balancing of rights of opposing participants in the political process, is
neither acknowledged nor discussed in the Explanatory Memorandum, nor is the
new broader offence drafted in consideration of this unavoidable reality.
Item 35 in Part 2 of Schedule 1 of the Bill amends
subsection 352(1) (definition of ‘undue influence’) in the Commonwealth
Electoral Act, removing the reference to ‘section 28 of the Crimes Act’
and substituting it with a reference to ‘section 83.4 of the Criminal Code’.
The Explanatory Memorandum states that convictions under section 83.4 that
relate to electoral matters ‘would be relevant for the purposes of the
definition of “undue influence”’.[299]
Part 5.2—Espionage and related offence
The following definitions which support the offences
contained in Part 5.2 and elsewhere in the Bill are discussed below.
Deal: 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
- makes
it available.[300]
The Replacement Explanatory Memorandum provides examples
as guidance as to what conduct may be captured by these terms.[301]
Foreign principal: each of the following is
a foreign principal
- foreign government principal
- a
foreign political organisation
- a
public international organisation
- a
terrorist organisation within the meaning of Division 102 (see section 102.1)
- an
entity or organisation owned, directed or controlled by:
- a
foreign political organisation
- a
public international organisation or
- 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.[302]
Foreign government principal
Each of the following is a foreign government principal:
a)
the government of a foreign country or of part of a foreign country
b)
an authority of the government of a foreign country
c)
an authority of the government of part of a foreign country
d)
a foreign local government body or foreign regional government body
e)
a company to which any of the subparagraphs of paragraph (a) of the
definition of foreign public enterprise in section 70.1
applies
f)
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
h) an entity or organisation owned, directed or controlled:
- by a foreign government
principal within the meaning of any other paragraph of this definition;
or
- by two or more such foreign government principals that are foreign
government principals in relation to the same foreign country.[303]
This definition of foreign government principal appears to
be sufficiently flexible in accommodating the different ways in which foreign
power may be exercised, recognising the power of companies within some state
structures and the complex governance models.
Foreign political organisation
includes:
(a) a foreign political party
(b) a foreign organisation
that exists primarily to pursue political objectives and
(c) a foreign organisation
that exists to pursue militant, extremist or revolutionary objectives.[304]
The concept of national security is discussed above.[305]
Proposed section 90.4 of the Criminal Code (at item 16 of
Schedule 1 to the Bill) 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 espionage, sabotage, terrorism, political violence,
foreign interference and activities that hider or interfere with the
performance of the country’s defence force
- 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 that country’s territory and borders from
serious threats; or in relation to the protection of that from espionage,
sabotage, terrorism, political violence, foreign interference and interference
with the performance of the country’s defence force
- the
country’s political, military or economic relations with another country or
other countries.
Security classification: in the Bill as
originally introduced, ‘security classification’ was to be defined in
regulations. The PJCIS recommended that the Bill be amended:
... to define each ‘security classification’ to which criminal
liability attaches. Each definition should include harm-based statutory
criteria for determining the proper classification to apply to that information.
Any material incorporated by reference into the regulations should be required
to be publicly available.[306]
Responding to this recommendation, the Government
Amendments provide that security classification means:
- a
classification of secret or top secret that is applied in accordance with the
policy framework developed by the Commonwealth for the purpose of identifying
information:
- for
a classification of secret—that, if disclosed in an unauthorised manner, could
be expected to cause serious damage to the national interest, organisations or
individuals; or
- for
a classification of top secret—that, if disclosed in an unauthorised manner,
could be expected to cause exceptionally grave damage to the national interest;
or
- any
equivalent classification or marking prescribed by the regulations.[307]
Item 17 repeals Division 91 of the Criminal Code
which has a title indicating that it deals with ‘Offences relating to espionage
and similar activities’. The proposed title for proposed Division 91 is
simply ‘Espionage’.
Division 91—Espionage
Proposed Division 91 is comprised of three
subdivisions:
- Subdivision
A –Espionage
- Subdivision
B –Espionage on behalf of a foreign principal
- Subdivision
C –Espionage-related offences
Subdivision
A—Espionage
Proposed Subdivision A replaces the existing section
91.1 of the Criminal Code espionage offence with new and gradated
espionage offences (proposed subsections 91.1(1), 91.2(1)
and 91.3(1)) whose penalties are intended to reflect the gravity of the
outcome of those offences.
However, the drafting of these offences and their
penalties outlined below, have attracted concern from various members of the
legal profession. The Law Council has expressed significant reservation about
the espionage offences and does not support their passage.[308]
However, if the Government is committed to enacting new espionages offences,
the Law Council proposes the following changes to the drafting:
- the
offences should require (as a minimum for ‘outsiders’) that the dealing with
information did, or was reasonably likely to, or intended to prejudice
Australia’s national security or advantage the national security of a foreign
country[309]
- in
the absence of an express harm requirement, the offences should cascade in
penalty and require that a person knew, or as a lesser offence, was reckless as
to whether, the protected information falls within a particular category (that
is, security classification or concerns Australia’s national security), and
should not provide that strict liability applies to that circumstance[310]
- defences
should be introduced to capture bona fide business dealings and persons acting
in good faith.[311]
Espionage—dealing with
information etc. concerning national security which is or will be made
available to foreign principal
Denotation of being ‘made available’
Both the existing and proposed espionage offences seek to
capture and criminalise conduct which results in information being ‘made
available’ to foreign entities. However, the Bill as introduced did not
comprehensively define the meaning of ‘made available’. The Explanatory
Memorandum was also silent as to what its potential operative meaning may be
within the context of the proposed espionage offences. However, section 90.1 defines
the term ‘deal’ to include ‘make available’. The original Explanatory Memorandum
stated:
‘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.[312]
Government Amendment – 26 June 2018
The Government Amendments to the Bill will define ‘make
available’ in relation to dealing with information or an article to
include:
(a) placing
it somewhere it can be accessed by another person; and
(b) giving it to an
intermediary to give to the intended recipient; and
(c) describing
how to obtain access to it, or describing methods that are likely to facilitate
access to it (for example, setting out the name of a website, an IP address, a
URL, a password, or the name of a newsgroup).[313]
Intention to prejudice national
security
Proposed subsection 91.1(1) criminalises dealing
with information or an article that has a security classification or concerns
Australia’s national security, and the person intends that their conduct will prejudice
Australia’s national security, or advantage the national security of a
foreign country and the conduct results or will result in the information or
article being communicated or made available to a foreign principal or a person
acting on behalf of a foreign principal.
The Explanatory Memorandum states that 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.’ It does not have to be
serious, but must be more than minor or trivial. The term advantage is
intended to refer to placing ‘another country’s national security in a
favourable or superior position compared to Australia’s position or to benefit
or profit another country’s national security compared to Australia’s national
security.’ [314]
As set out above, information or an article will have a
‘security classification’ only if it is classified as secret, top secret, or an
equivalent classification. In addition to the new definition of ‘security
classification’, the Government Amendments to the Bill also introduced the
following provisions that are relevant to the offence in proposed subsection
91.1(1), as well as the other espionage offences in the Bill:
- responding
to recommendation 2 of the PJCIS Advisory Report, Amendment 26 inserts a
definition of ‘prejudice’ into subsection 90.1(1) of the Criminal Code,
which provides that embarrassment alone is not sufficient to prejudice
Australia’s national security. The AGD has advised, however, that severe
embarrassment could in itself be considered “actual harm”[315]
- responding
to recommendation 3 of the PJCIS Advisory Report, Amendment 22 inserts a
definition of ‘advantage’ into subsection 90.1(1) of the Criminal Code,
which provides that conduct will not advantage the national security of a
foreign country if the conduct will advantage Australia’s national security to
an equivalent extent[316]
- responding
to recommendation 35 of the PJCIS Advisory Report, Amendment 22 also inserts a
definition of ‘concerns’ into subsection 90.1(1) of the Criminal Code,
which provides that information or an article concerns Australia’s national
security if the information or article relates to, or is connected with, or is
of interest or importance to, or affects, Australia’s national security[317]
- in
the Bill as originally introduced, the offence captured relevant conduct that
made the information or article available to a foreign principal. As a result
of the Government Amendments, the offence now captures conduct that results in
the information or article being ‘communicated’ as well as ‘made available’.
This inclusion is necessary following the addition of a definition of ‘make
available’, as discussed above.
This offence is punishable by a maximum penalty of life
imprisonment.
Government Amendment–26 June 2018
As the Explanatory Memorandum suggests, to establish this
offence the prosecution needs to prove beyond reasonable doubt the following
elements as a result of express or default fault elements:
-
a person intentionally deals with information or an
article and either
- the information or article has a security classification, or
-
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 communicated to or made available to a foreign principal or a
person acting on behalf of a foreign principal and the person was reckless as
to this.[318]
Proposed subsection 91.1(4) provides that the
person does not need to have in mind a particular foreign country and may have
in mind more than one foreign country.
Matters affecting sentencing for offence against
subsection 91.1(1)
Proposed section 91.5 provides that in sentencing a
person convicted of an offence against subsection 91.1(1) (punishable by a
maximum sentence of life imprisonment), the court must consider the following
circumstances (set out in proposed paragraph 91.6(1)(b)), if relevant:
- the person dealt with information or an
article from a foreign intelligence agency
- the
person dealt with five or more records or articles each of which has a security
classification
- the
person altered a record or article to remove or conceal its security
classification
- at
the time the person dealt with the information or article, the person held an
Australian Government security clearance allowing access to information or
articles that have a security classification of at least secret.
Reckless
as to national security
Proposed subsection 91.1(2) creates the offence of
dealing with information or an article, which has a security classification or
concerns Australia’s national security, and 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 the conduct results or
will result in the information or article being communicated or made available
to a foreign principal or a person acting on behalf of a foreign principal.
This offence is punishable by a maximum penalty of 25
years imprisonment.
To establish this offence, the prosecution will need to
prove beyond reasonable doubt that:
- a
person intentionally dealt with information or an article and either
- the
information or article had a security classification, or
- the
information or article concerns Australia’s national security and the defendant
is 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
communicated or made available to a foreign principal or a person acting on
behalf of a foreign principal and the person was reckless as to this.
Proposed subsection 91.1(4) provides that the
person does not need to have in mind a particular foreign country and may have
in mind more than one foreign country.
Espionage—dealing with
information etc. which is or will be made available to foreign principal
Intention
as to national security
Proposed subsection 91.2(1) creates the offence of
dealing with information or an article, where the person intends that their
conduct will prejudice Australia’s national security and the conduct results or
will result in the information or article being communicated or made available
to a foreign principal or a person acting on behalf of a foreign principal. The
Explanatory Memorandum clarifies that this is a second tier offence and
... can be committed even if the information the person deals
with does not relate to national security, [however] the offences only apply
where the person intends to prejudice Australia’s national security.[319]
This offence is punishable by a maximum penalty of 25
years imprisonment.
As proposed subsection 91.2(1) is currently framed,
it would appear to have the potential to rather easily and unfortunately
capture persons who have a significant following on social media, make postings
about particular issues and provide commentary on those issues, disagreeing
perhaps with the stance of the Australian government. Examples of this are
active campaigners for refugees’ rights, or those who support Timor-Leste on
the Timor Gap issue. At the very least, this provision has the potential to
capture a number of journalists and academics. In short, the offence appears to
be framed too broadly and given its potential capture, it may have a chilling
effect on freedom of political communication and does not appear to sit
comfortably with High Court rulings in this space. The High Court has held:
Freedom of communication in relation to public affairs and
political discussion cannot be confined to communications between elected
representatives and candidates for election on the one hand and the electorate
on the other. The efficacy of representative government depends also upon free
communication on such matters between all persons, groups and other bodies in
the community.[320]
The High Court has also elaborated on this and placed
certain parameters around freedom of political communication. In Lange,
the Court held that the freedom is ‘limited to what is necessary for the
effective operation of that system of representative and responsible government
provided for by the Constitution’.[321]
The Court went further and articulated a two-limbed test (modified in Coleman
v Power)[322]
for when a law might interfere with the freedom of political communication:
- Does
the law, in its terms, operation or effect, effectively burden freedom of
communication about government or political matters?
- If
the law effectively burdens that freedom, is the law nevertheless reasonably
appropriate and adapted to serve a legitimate end in a manner which is
compatible with the maintenance of the constitutionally prescribed system of
representative and responsible government [...][323]
In McCloy v New South Wales, the High Court applied
a proportionality test to gauge the purpose of the law and the means of
achieving it, basically inquiring as to whether the law was suitable, necessary
and adequate in its balance.[324]
The offence seems disproportionate to its rather broadly
stated objective, and the content-based nature of the speech affected is
potentially very broad and arguably difficult to justify. The defences in s 91.4
(discussed below) would not assist the average journalist, academic or
politically interested citizen.
Reckless
as to national security
Proposed subsection 91.2(2) creates the offence of
dealing with information or an article (that does not have to be subject to a
security clearance), when the person is reckless as to whether their conduct
will prejudice Australia’s national security and the conduct results or will
result in the information or article being communicated or made available to a
foreign principal or a person acting on behalf of a foreign principal.
This offence is punishable by a maximum penalty of 20
years imprisonment.
Proposed subsection 91.2(3) provides that for the
purposes of paragraphs 91.1(c) and 91.2(c) the person does not need to have in
mind a particular foreign principal and may have in mind more than one foreign
principal. This has raised serious concern among media organisations and social
activist groups, pointing out among other things, that it is unclear as to ‘how
strong the causative link needs to be between a person’s conduct and
information becoming available to a foreign principal.’[325]
The Attorney-General’s Department has clarified that
section 91.2 could operate to capture information ‘communicated to a foreign
principal through publication of news’, but made clear that the offence in
section 91.2 is only made out:
... if the person was aware ‘of a substantial risk that his or
her conduct would 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.[326]
Proposed subsection 91.2(2) which deals with
unclassified information, somewhat resembles the offence set out in section
70(1) of the Crimes Act, which makes it an offence for a Commonwealth
officer to unlawfully publish or communicate any fact or document which
comes to his or her knowledge, or into his or her possession, by virtue of
being a Commonwealth officer, and which it is his or her duty not to disclose.[327]
In this case, the penalty for the offence is two years imprisonment. Apart from
the recklessness element, the other distinction between section 70(1) of the Crimes
Act and proposed subsection 91.2(2) is that the latter applies to
Commonwealth Officers and non-Commonwealth officers (‘persons’); and it
deals explicitly with the circumstance of providing that information to a foreign
principal (or someone acting on behalf of a foreign principal) as opposed
to providing that information to someone who is not a foreign principal. It is
not necessarily the case that the foreign principal is going to do more harm
(if any) with that publicly available information than an ordinary local who
receives such information. It is also difficult to understand the significant
difference in penalty, with section 70 of the Crimes Act having a
maximum penalty of two years imprisonment, as opposed to 25 years maximum
imprisonment when possibly that very same ’information’ is given to a foreign principal.
Espionage—security
classified information et cetera
Proposed section 91.3 creates the offence of
dealing with information or an article that has a security classification, for
the primary purpose of communicating or making the information or article
available to a foreign principal, where the conduct results or will result in
the information or article being communicated or made available to a foreign
principal or a person acting on behalf of a foreign principal.
This offence is punishable by a maximum penalty of 20
years imprisonment.
Penalties
The Explanatory Memorandum states:
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.[328]
Defences
In addition to the general defences available under Part
2.3 of the Criminal Code, proposed section 91.4 also creates
specific defences so as to maintain the intention of the application of the
offences to circumstances ‘where a person’s dealing with information is not a
proper or legitimate part of their work.’[329]
It is a defence that the person dealt with the information
or article:
- in
accordance with a law of the Commonwealth
- in
accordance with an arrangement or agreement to which the Commonwealth is party
and which allows for the exchange of information or articles or
- in
the person’s capacity as a ‘public official’.[330]
It is also a defence for a prosecution for an offence
under sections 91.1 to 91.3 if the relevant information or article has already
been communicated or made available to the public with the authority of the
Commonwealth (proposed subsection 91.4(2)).
In addition, in response to recommendation 37 of the PJCIS
Advisory Report, the Government Amendments insert a further defence at proposed
subsection 91.4(3) of the Criminal Code.[331]
This defence is available for an offence by a person against:
- section
91.1, in which the prosecution relies on the argument that the person intends
or is reckless as to whether their conduct will advantage the security of a
foreign country or
- section
91.3
in the following circumstances:
- the
person did not make or obtain the relevant information or article as a result
of being a Commonwealth officer or contractor, or as a result of an arrangement
or agreement that allows for exchange of information and to which the
Commonwealth is a party
- the
relevant information or article has already been communicated or made available
to the public
- the
person was not directly or indirectly involved in the prior publication
- at
the time they deal with the information or article the person believes that
doing so will not prejudice national security and
- having
regard to the nature, extent and place of the prior publication, the person has
reasonable grounds for the belief.
The person will bear an evidential burden in relation to
these matters.
Aggravated
espionage offence
Proposed subsection 91.6 creates the aggravated
offence of espionage, where the person has committed an underlying offence in
sections 91.1 (other than the offence in subsection 91.1(1)), 91.2 or 91.3 and
any of the following circumstances exist in relation to the commission of the
underlying offence:
- the
person dealt with information or an article from a foreign intelligence agency
- the
person dealt with five or more records or articles each of which has a security
classification
- the
person altered a record or article to remove or conceal its security
classification or
- at
the time the person dealt with the information or article, the person held an
Australian Government security clearance allowing access to information or
articles that have a security classification of at least secret.
Penalty
- if
the penalty for the underlying offence is imprisonment for 25 years, then the
penalty becomes imprisonment for life or
- if
the penalty for the underlying offence is imprisonment for 20 years, then the
penalty becomes imprisonment for 25 years.
For the offences in subsections 91.2 or 91.3 it is notable
that the provisions do not require proof that the disclosure was damaging or
caused damage. This may be because the offence is intended to criminalise the
behaviour that is potentially damaging but was detected/interrupted before the
damage actually occurred; this is similar to many terrorism offences.
What appears to be absent from this list of aggravating circumstances,
is where the person who committed the underlying offence in sections 91.1, 91.2
or 91.3, is a current or former staffer for a member or senator, or is a
current or former member or senator. It is arguable that members and senators
should be held to a higher standard of behaviour because there is an
expectation that they will use their position to serve and act in the interest
of Australia and Australians. As part of that duty and those roles, it may not
be unreasonable to expect that these roles carry with them a particular higher
duty of secrecy and discretion. As such, disclosures by such persons may reduce
public confidence in their ability to carry out their duties effectively and
loyally.
Geographical
jurisdiction
Proposed section 91.7 states that section 15.4 of
the Criminal Code, which deals with extended jurisdiction (Category D)
will apply to an offence against Subdivision A (Espionage). The Commonwealth Criminal
Code creates four types of extended geographic jurisdiction. Category D
extended geographic jurisdiction provides that an offence can be committed
whether or not the conduct occurs in Australia and whether or not the results
of the conduct occur in Australia.
Subdivision B—Espionage on behalf of foreign principal
Intention
as to National Security
Proposed subsection 91.8(1) creates the offence of
dealing with information or an article, and the person intends that their
conduct will prejudice Australia’s national security, or advantage
the national security of a foreign country and the person is reckless as
to whether the conduct involves the commission by the person or another person,
of an offence under Subdivision A (Espionage). The person’s conduct must have
been done on behalf of or in collaboration with a foreign principal or a person
acting on behalf of a foreign principal, or the person is being directed by, funded
or supervised by a foreign principal or a person acting on behalf of a foreign
principal. The person does not need to have in mind a particular foreign
country and may have in mind more than one foreign country.
This offence is punishable by a maximum penalty of 25
years imprisonment.
Reckless as
to National Security
Proposed subsection 91.8(2) creates the offence of
dealing with information or an article, 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 the person is
reckless as to whether the conduct involves the commission by the person or another
person, of an offence under Subdivision A (Espionage). The person’s conduct
must have been done on behalf of or in collaboration with a foreign principal
or a person acting on behalf of a foreign principal, or the person is being
directed by, funded or supervised by a foreign principal or a person acting on
behalf of a foreign principal. The person will not need to have in mind a
particular foreign principal and may have in mind more than one foreign
principal.
This offence is punishable by a maximum penalty of 20
years imprisonment.
The Explanatory Memorandum clarifies that the person
committing the offence must intend to advantage the national security of a
‘foreign country’, not a ‘foreign principal’.[332]
Conduct on
behalf of a foreign principal
Proposed subsection 91.8(3) creates the offence of
dealing with information or an article, and the person reckless as to whether
their conduct involves the commission by another person, of an offence under
Subdivision A (Espionage) and, the conduct is engaged in on behalf of or in
collaboration with a foreign principal or a person acting on behalf of a foreign
principal, or the person is being directed by, funded or supervised by a
foreign principal or a person acting on behalf of a foreign principal.
This offence is punishable by a maximum penalty of 15
years imprisonment.
Defences
As well as defences provided for in 2.3 of the Criminal
Code, defences are provided in proposed section 91.9 where the
person deals with that information or article:
- in
accordance with a law of the Commonwealth
- in
accordance with an arrangement or agreement to which the Commonwealth is party
and which allows for the exchange of information or articles or
- in
the person’s capacity as a public official.
Basically, the defences may apply where a person is
dealing with that information or article as a legitimate part of their work.[333]
The Note to this provision states that under the defence at subsection 91.9(1)
the defendant will bear an evidentiary burden in relation to this defence.
Proposed 91.9(2) provides a defence based on
existing section 91.2 of the Criminal Code which currently provides a defence
to the existing espionage offences in current section 91.2 (1) and (2) of the Criminal
Code, where the information or an article has already been communicated or
made available to the public with the authority of the Commonwealth. The Note
to this provision in the Bill states the defendant will bear an evidentiary
burden in relation to this defence.
Geographical jurisdiction
Proposed section 91.10 states that section 15.4 of
the Criminal Code, which deals with extended jurisdiction (Category D)
will apply to an offence against Subdivision B (Espionage on behalf of a
foreign principal). The Commonwealth Criminal Code creates four types of
extended geographic jurisdiction. Category D extended geographic jurisdiction
provides that an offence can be committed whether or not the conduct occurs in
Australia and whether or not the results of the conduct occur in Australia.
The Explanatory Memorandum states:
Category D geographical jurisdiction is appropriate because
intelligence agencies may undertake key facets of espionage activities against
Australia in foreign countries to conceal these activities from relevant
authorities seeking to prevent these activities.[334]
Subdivision C—Espionage-related offences
Offence of soliciting or
procuring an espionage offence or making it easier to do so
Proposed section 91.11(1) creates the offence of
‘engaging in conduct’[335]
with the intention of soliciting or procuring[336]
an espionage offence, or make it easier to solicit or procure a target to deal
with information or an article in a way that would constitute espionage under
Subdivision A, or Subdivision B (espionage on behalf of foreign principals).
The person will not need to have in mind a particular foreign principal and may
have in mind more than one foreign principal (proposed section 91.11(2)).
This offence is punishable by a maximum penalty of 15
years imprisonment.
The Explanatory Memorandum states that there is currently
a gap in the law such that soliciting or procuring espionage is not an offence.
Proposed section 91.11(1) is intended to fill that gap and this
make it possible for law enforcement to deal with such conduct ‘at the time it
occurs, without the need to wait until an espionage offence is committed or
sensitive information is actually passed to a foreign principal.’[337]
Proposed section 91.11(3) provides that a person
may still commit an offence against section 91.11(1):
- even
if an offence against Subdivisions A or B is not committed
- ven
if it was in fact impossible for the target to deal with the information or
thing in a way that would constitute an offence against Subdivision A or B
- even
if the person does not have in mind particular information or a particular
thing, or a particular dealing or kind of dealing with the information or
thing, at the time the person engages in conduct in relation to the charge and
- whether
or not it is a single dealing, or multiple dealings that the person intends to
solicit or procure or make it easier to procure.
The rationale provided by the Explanatory Memorandum for
this approach, is that it is consistent with the ‘fundamental intention of the
offence – to criminalise the person’s intention to procure or solicit
the target to engage in an espionage offence.’[338] [Emphasis
added]
Offence of
preparing for an espionage offence
Proposed section 91.12(1) creates the offence of
engaging in conduct with the intention of preparing for, or planning an offence
against Subdivisions A or B.
This offence is punishable by a maximum penalty of 15
years imprisonment.
Proposed section 91.12(3) provides that a person
may still commit an offence against section 91.12(1):
- even
if an offence against Subdivisions A or B is not committed
- whether
or not the person engages in the conduct in preparation for, or planning of a
specific offence against Subdivision A or B and
- whether
or not the person engages in the conduct in preparation for, or planning of
more than one offence against Subdivision A or B.
The Explanatory Memorandum provides guidance around the
meaning of two key terms in relation to this offence:
The term ‘preparation’ could include acts to conceive,
formulate, make ready, arrange, and assemble an idea, plan, thing, or person
for an offence.
The term ‘planning’ could include acts to organise, arrange,
design, draft, or setup an idea, plan, thing, or person for an offence.[339]
Given the offences are directed at behaviour at the
planning or planning stage, it is appropriate to impose the fault element of
intention to both of the elements of the offence, so that a person can only be found
guilty of the offence ‘where there is sufficient evidence that the person
intended to prepare for, or plan, an espionage offence.’[340]
Defences
As well as defences provided for in 2.3 of the Criminal
Code, defences are provided for in proposed section 91.13 where the
person deals with that information or article:
- in
accordance with a law of the Commonwealth
- in
accordance with an arrangement or agreement to which the Commonwealth is party
and which allows for the exchange of information or articles or
- in
the person’s capacity as a public official.
Basically, the defences may apply where a person is
dealing with that information or article as a legitimate part of their work.[341]
The Note to this provision in the Bill states that the defendant will bear an
evidentiary burden in relation to this defence.
Geographical
jurisdiction
Proposed section 91.14 states that section 15.4 of
the Criminal Code, which deals with extended jurisdiction (Category D)
will apply to an offence against Subdivision C (Espionage-related offences).
The Commonwealth Criminal Code creates four types of extended geographic
jurisdiction. Category D extended geographic jurisdiction provides that an
offence can be committed whether or not the conduct occurs in Australia and
whether or not the results of the conduct occur in Australia.
Division 92—Foreign Interference
The Explanatory Memorandum states that there is a lacuna
in current Commonwealth criminal law, in terms of offences targeting conduct
undertaken by a foreign government that ‘falls short of espionage but is
intended to harm Australia’s national security or influence Australia’s
political or governmental processes.’[342]
In response to this gap and its implications for the effective, transparent and
robust operation of Australia’s democratic and political processes, the
Explanatory Memorandum states:
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[343]
Subdivision
A –Preliminary: Definitions
Proposed section 92.1 inserts definitions which
appear in and are relevant to the offences relating to foreign interference.
Deception refers to an intentional or
reckless deception, whether by words or conduct, and whether as to fact or as
to law, and includes:
- a
deception as to the intentions of the person using the deception or any other
person, and
- conduct
by a person that causes a computer, a machine or an electronic device to make a
response that the person is not authorised to cause it to do.
The Explanatory Memorandum points out that this definition
is in alignment with the definition relevant to the fraud offences in the Criminal
Code.[344]
It is notable that the deception can also be mediated by electronic devices.
Menaces has the same meaning as in Part 7.5 of
the Criminal Code (which deals with unwarranted demands) and basically
refers to an express or implied threat of any action detrimental or unpleasant
to another person (blackmail) or a general threat of detrimental or unpleasant
action that is implied because the person making the unwarranted demand holds a
position of relative power. A threat against an individual is taken not to be
menaces unless the threat would be likely to cause the individual to act
unwillingly, and the maker of the threat is aware of the vulnerability of the
person to the threat (subsection 138.2 of the Criminal Code).
Subdivision
B –Foreign Interference
Offence of
intentional foreign interference
Interference generally
Proposed section 92.2(1) creates the offence of
intentional foreign interference. A person will commit this offence if:
- they
engage in conduct on behalf of or in collaboration with a foreign principal or
a person acting on behalf of a foreign principal, or that is directed by,
funded or supervised by a foreign principal or a person acting on behalf of a
foreign principal
- the
person intends that their conduct will
- influence
a political or governmental process of the Commonwealth or a state or a territory
- influence
the exercise of an Australian democratic or political right
- support
intelligence activities of a foreign principal, or
- prejudice
Australia’s national security And
- any
part of the conduct:
- is
covert or involves deception
- involves
the person making a threat to cause serious harm to a person or involves the
person making a demand with menaces.
This offence is punishable by a maximum penalty of 20
years imprisonment.
Interference involving targeted
person
Proposed section 92.2(2) creates the offence of
intentional foreign interference involving a targeted person. A person will
commit this offence if:
- they
engage in conduct on behalf of or in collaboration with a foreign principal or
a person acting on behalf of a foreign principal, or that is directed by,
funded or supervised by a foreign principal or a person acting on behalf of a
foreign principal
- the
person intends that the conduct will influence another person (the target) in
relation to a political or governmental process of the Commonwealth or a
state or territory, or in the target’s exercise of any Australian
democratic or political right or duty and
- the
person conceals from or fails to disclose to the target, their relationship
with a foreign principal or a person acting on behalf of a foreign principal.
This offence is punishable by a maximum penalty of 20
years imprisonment.
Offence of
reckless foreign interference
Interference generally
Proposed section 92.3(1) creates the offence of
reckless foreign interference. A person will commit this offence if:
- they
engage in conduct on behalf of , or in collaboration with, a foreign principal
or a person acting on behalf of a foreign principal, or that is directed,
funded or supervised by a foreign principal or a person acting on behalf of a
foreign principal
- the
person is reckless as to whether the conduct will:
- influence
a political or governmental process of the Commonwealth or a state or territory
- influence
the exercise of an Australian democratic or political right or duty
- support
intelligence activities of a foreign principal, or
- prejudice
Australia’s national security and
- any
part of the conduct is:
- covert
or involves deception
- involves
the person making a threat to cause serious harm, whether to the person to whom
the threat is being made or to another person or
- involves
the person making a demand with menaces.
For the purpose of this offence, the person does not need
to have in mind a particular foreign principal and the person may have in mind
more than one foreign principal (proposed subsection 92.2(3)).
This offence is punishable by a maximum penalty of 15
years imprisonment.
Interference involving targeted
person
Proposed section 92.3(2) creates the offence of
intentional foreign interference involving a targeted person. A person will
commit this offence if:
- they
engage in conduct on behalf of , or in collaboration with, a foreign principal
or a person acting on behalf of a foreign principal, or that is directed,
funded or supervised by a foreign principal or a person acting on behalf of a
foreign principal, and
- the
person is reckless as to whether the conduct will influence another person (the
target)in relation to a political or governmental process of the
Commonwealth or a state or territory, or in the target’s exercise of any
Australian democratic or political right or duty and
- the
person conceals from or fails to disclose to the target, their relationship
with a foreign principal or a person acting on behalf of a foreign principal.
For the purpose of this offence, the person does not need
to have in mind a particular foreign principal and the person may have in mind
more than one foreign principal (proposed 92.3(3)).
This offence is punishable by a maximum penalty of 15
years imprisonment.
An
‘Australian democratic or political right’
Australian Lawyers for Human Rights have pointed out that
the use of the phrase ‘Australian democratic or political right’ in the
context of offences in proposed sections 92.2 and 92.3 lacks what
might be useful clarity as to whether it is intended to be construed and
operate as an individual or collective right. They note that by way of
contrast, the use of the same phrase in proposed section 83.4 (interference
with political rights and duties) in the context of conduct using force,
intimidation or threats, operates with some clarification that the ‘the right
or duty arises under the Constitution or a law of the Commonwealth’ (proposed
subparagraph 83.4(1)(d)). In the absence of such parameter in
the drafting of proposed sections 92.2 and 92.3, it is arguable
that the phrase may have a wider meaning and thus operate more broadly.[345]
Political or governmental process of the Commonwealth or a
state or territory.
The phrase ‘political or governmental process of the
Commonwealth or a state or territory’ is also not defined or clarified in the
Bill. However, the Explanatory Memorandum states that phrase would cover:
... matters within political parties (such as which candidate
is pre-selected or the manner in which preferences are to be allocated at an
election) as well as political matters within the parliamentary process (such
as decisions by shadow Cabinet or decisions by political parties about
policies).[346]
A similar phrase is used and defined in proposed
section 12 of the Foreign
Influence Transparency Scheme Bill 2017 (FITS Bill), namely, ‘activity for
the purpose of political or governmental influence’.[347]
The Attorney-General’s Department has stated:
If the Committee’s view is that a definition is desirable,
the definition in section 12 of the Foreign Influence Transparency Scheme Bill
could provide a useful starting point.[348]
Interference involving targeted person
offences
In relation to the targeted person offences (proposed
subsections 92.2(2) and 92.3(2)) Australian Lawyers for Human
Rights (ALHR) raises concerns that there is no requirement for covert
behaviour, deception, threats or menacing demands.[349]
The influence intended could be entirely kindly and benign.
But unless the perpetrator notifies the intended ‘target’ as to the foreign
connection involved in the perpetrator’s influence attempt, the perpetrator is
still liable to jail for up to 20 years (if intentional) or 15 years (if
reckless)for attempting an influential communication – or even, under section
92.4, for preparing to make an influential communication![350]
To avoid such an outcome, ALHR considers that the
following issues require clarification: who the perpetrator would need
to notify about their attempt to influence a political or government
process and in which forum, or by what means that notice might be
given.[351]
Offence of
preparing for a foreign interference offence
Proposed section 92.4 creates the offence of
engaging in conduct with the intention of preparing for, or planning,
an offence against another provision of Subdivision B (Foreign Interference).
This offence is punishable by a maximum penalty of 10
years imprisonment.
Proposed section 92.4(3) provides that an offence
is committed against section 92.4(1) whether or not an offence against
Subdivision B is actually committed and whether or not the act is done in
preparation for or planning for a specific offence or more than one offence again
Subdivision B.
The Explanatory Memorandum states:
The purpose of this offence is to give law enforcement means
to deal with preparatory conduct and enable intervention before foreign
interference occurs.[352]
‘Preparing for, or planning’
The terms preparation or planning do not receive further
articulation in the Bill itself. However the Explanatory Memorandum states that
these terms are intended to take their ordinary meaning:
The term ’preparing’ could include acts to conceive,
formulate, make ready, arrange, and assemble an idea, plan, thing, or person
for an offence against another provision in [the] Subdivision.
The term ‘planning’ could include acts to organise, arrange,
design, draft, or setup an idea, plan, thing, or person for an offence against
another provision in [the] Subdivision.[353]
The Law Council does not support this offence and
considers it unnecessary, arguing that ‘instead, the ancillary provisions of
the Criminal Code for incitement, conspiracy and attempt should be
relied upon.’[354]
Geographical
jurisdiction
Proposed section 92.6 states that section 15.4 of
the Criminal Code, which deals with extended jurisdiction (Category B)
will apply to an offence against Subdivision B (Foreign Interference). The
Commonwealth Criminal Code creates four types of extended geographic
jurisdiction. Category B geographic jurisdiction provides 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.
Subdivision
C – Foreign Interference involving intelligence agencies
‘Providing support or resources’
The Explanatory Memorandum to the Bill as originally
introduced acknowledged the terms ‘support’ and ‘resources’ are not defined in
the Bill. It states that they:
... will be given their ordinary meaning. What constitutes
providing support or resources to an organisation will depend on the facts of
each case but it is intended to cover assistance in the form of providing a
benefit or other practical goods and materials, as well as engaging in conduct
intended to aid, assist or enhance an organisations activities, operations, or
objectives.[355]
The Joint Media Organisations raised concerns about the
breadth of the term ‘support’ in proposed sections 92.7 and 92.8,
pointing out that it was possible:
... any communication—online, in print or by broadcast—that
positively reports about a foreign intelligence agency would breach these
sections.[356]
The Attorney-General’s Department has provided some
further clarification around the term ‘support’ stating:
The explanatory memorandum ... clarifies that support in that
context covers the provision of a benefit or other practical goods or aid. I
would also say that that language is consistent with, and mirrors, the language
used in the terrorism offences of providing support to a terrorist
organisation.[357]
The PJCIS Advisory Report recommended that the Bill be
amended:
... to explicitly provide that the term ‘support’ refers to
‘material support’, and that the Explanatory Memorandum provide examples of
conduct that will not constitute material support, for example, news reporting,
editorial or opinion writing and humanitarian assistance.[358]
The Government Amendments to the Bill amend sections 92.7
and 92.8 to implement this recommendation.[359]
The Law Council proposed that the foreign interference
offences should provide a defence for persons acting in the public interest.
This would provide protection to investigative journalists or ordinary
citizens.[360]
WWF-Australia made a similar suggestion.[361]
The Attorney-General’s Department provided what may be
interpreted as an equivocal response:
It is not clear that conduct constituting a foreign
interference offence [can] be excused from criminal liability on the basis that
it is ‘in the public interest’. Conversely, conduct that [is] ‘in the public
interest’ is unlikely to fall within the scope of the foreign interference
offences in the Bill.[362]
Knowingly
supporting foreign intelligence agency
Proposed section 92.7 establishes the offence of
knowingly resources or material support to an organisation or a
person acting on behalf of an organisation, with knowledge that the
organisation is a foreign intelligence agency.
This offence is punishable by a maximum penalty of 15
years imprisonment.
Recklessly
supporting foreign intelligence agency
Proposed section 92.8 establishes the offence of resources
or material support to an organisation or a person acting on behalf of an
organisation, reckless as to whether the organisation is a foreign intelligence
agency.
This offence is punishable by a maximum penalty of ten
years imprisonment.
The Law Council seems to consider the proposed offences in
sections 92.7 and 92.8 to be insufficiently linked to and reflective of the
severity of the offences. It has proposed that offences should:
... cascade in penalty and require that the person knew, or as
a lesser offence, was reckless as to whether the support or resources would
help the organisation to directly or indirectly engage in, preparing, planning,
assisting in or fostering an act prejudicial to Australia’s security.[363]
The drafting of proposed section 92.8 is
interesting as the fault element ‘recklessly’ appears in the title of the
section creating the offence but not in the drafted provision. It attaches, by
default under section 5.6of the Criminal Code due to the fact that proposed
section 92.8(b) is a circumstance as there is no statement that either
strict or absolute liability attaches to proposed section 92.8(b).[364]
Paragraph 1070 of the Explanatory Memorandum seems incorrect as it suggests knowledge
is the fault element and this would be inconsistent with the elements analysis
in paragraph 1074 of the Explanatory Memorandum which makes reference to recklessness.
Knowingly
funding or being funded by foreign intelligence agency
Proposed section 92.9 makes it an offence for a
person to directly or indirectly receive, obtain or collect funds from, or
directly or indirectly make funds available to an organisation or person acting
on behalf of an organisation, knowing that the organisation is a foreign
intelligence agency.
This offence is punishable by a maximum penalty of 15
years imprisonment.
Recklessly
funding or being funded by foreign intelligence agency
Proposed section 92.10 makes it an offence for a
person to directly or indirectly receive, obtain or collect funds from, or
directly or indirectly make funds available to an organisation or person acting
on behalf of an organisation, reckless as to whether the organisation is a
foreign intelligence agency.
This offence is punishable by a maximum penalty of ten
years imprisonment.
The recurring theme of concern with the offences is not
only the breadth of their capture, but also the proposed penalties. The Law
Council has stated:
... the proposed offences in sections 92.9 and 92.10 (relating
to funding or being funded by a foreign intelligence agency) should require
that the person is reckless as to whether the funds will be used to facilitate
or engage in activities prejudicial to Australia’s national security or, in the
case of obtaining funds, involve undue influence.[365]
Furthermore, it has been suggested that in proposing the
maximum penalties for the espionage offences which range between 15 years to
life imprisonment, and represent a significant increase from existing
penalties, that the Government consider providing a more transparent and
detailed rationale for these increases, demonstrating them to be necessary and
proportionate.[366]
In relation to proposed section 92.8, the term
‘recklessly’ appears in the title and there is no fault element in proposed
subparagraph 92.10(b). However, in paragraph 1093 of the Explanatory
Memorandum it is suggested that knowledge attaches to this circumstance
by default, however this is not possible under subsection 5.6(2) of the Criminal
Code and is inconsistent with the use of recklessly in the heading of the
offence.[367]
Division
92A— Theft of trade secrets involving foreign government principal
The Explanatory Memorandum rationalises the creation of
this offence by stating that the ‘theft of trade secrets amounts to economic
espionage and can severely damage Australia’s national security and economic
interests.’[368]
It is arguable that this offence conflates traditional notions of homeland
security with corporate security; whereas the former is meant to deal with
public interests, the latter is concerned with private interests.
The Law Council ‘notes that other comparable
jurisdictions, such as the United Kingdom, do not have a trade secrets criminal
offence.’[369]
It considers that theft of trade secrets is appropriately a private and civil
matter, it does not consider that criminal sanctions will act as a deterrent
and certainly will not remedy the loss suffered by the aggrieved individual.[370]
The Law Council of Australia does not support the offences of theft of trade
secrets.[371]
Theft of
trade secrets involving foreign government principal
Proposed section 92A.1 makes it an offence for a
person to dishonestly[372]
receive, obtain, copy or duplicate, sell, buy or disclose information, in the
following context:
- the
information is generally unknown in (a particular) trade or business
- the
information has a commercial value the would be reasonably expected to be
diminished if the information were inappropriately communicated
- the
owner of the information has made reasonable efforts to prevent the information
from becoming generally known, and one of the following circumstances exists:
- the
person engaged in the relevant conduct (that is, receiving, obtaining etc.) on
behalf of, or in collaboration with, a foreign government principal, or a
person acting on behalf of a foreign government principal or
- the
conduct was directed, funded or supervised by a foreign government principal,
or by a person who was directed, funded or supervised by a person acting on
behalf of a foreign government principal.
This offence is punishable by a maximum penalty of 15
years imprisonment.
Geographical
jurisdiction
Proposed section 92A.2 states that section 15.2 of
the Criminal Code, which deals with extended jurisdiction (Category B)
will apply to an offence against section 92A.1. The Commonwealth Criminal
Code creates four types of extended geographic jurisdiction. Category B
geographic jurisdiction provides 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.
In general, a Category B offence will not be committed by
an Australian resident if the conduct constituting the offence occurs wholly in
a foreign country which does not criminalise the relevant conduct.[373]
However, proposed subsection 92A.2(2) provides that this does not apply
in relation to an offence against section 92A.1. That means that an Australian
resident will commit the offence even in circumstances where the conduct occurs
in a country that does not have a corresponding offence.
Consent of
Attorney-General required for prosecutions
Proposed subsection 93.1(1) makes it a requirement
that the written consent of the
Attorney-General is obtained before committing a person to trial for any
offence under Part 5.2 of the Criminal Code. In deciding whether to
consent, the Attorney-General must consider whether the conduct of the accused
might be authorised by the defences in sections 91.4, 91.92.5 or 92.11.
In addition, the Government Amendments to the Bill require
that if the proceedings relate to information or an article that has a security
classification, the Attorney-General must certify that it was appropriate for
the information or article to be classified at the time of the alleged offence
(proposed paragraph 93.1(1)(b)).[374]
This amendment implements recommendation 10 of the PJCIS Advisory Report, but vests
authority to issue certification with the Attorney-General rather than the
‘head of the originating agency’ as set out in the recommendation.[375]
Proposed subsection 93.1(2) provides the following
steps (but no further steps in proceedings) may be taken without the
Attorney-General’s required written consent:
- 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
- the
person charged may be remanded in custody or on bail.
Presumption
Against Bail
The Explanatory Memorandum states:
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.[376]
For offences subject to a presumption against bail the
accused will nevertheless be afforded to opportunity to rebut the presumption.
Proposed Amendment 73 amends section 15AA of the Crimes
Act so that a presumption against bail applies for an offence against
subsections 92.2(1) or 92.3(1) (intentional or reckless offence of foreign
interference) if:
- the
death of a person is alleged to have been caused by conduct that is a physical
element of the offence or
- conduct
that is a physical element of the offence carried a substantial risk of causing
the death of a person.
The drafting of the Bill as introduced had the effect of
applying the presumption against bail if the conduct of the defendant involved
making a threat to cause serious harm or a demand with menaces.
The Law Council of Australia has argued in its submission
that ‘[t]he presumption against bail under section 15AA Crimes Act
should not be extended to treason, treachery, espionage and foreign
interference cases as is proposed by the Bill, as it generally goes against the
presumption of innocence.’[377]
Furthermore, the presumption in favour of bail can be rebutted where there is
demonstrated unacceptable risk, which cannot be mitigated by the imposition of
conditions.[378]
However, it is notable that it has become the norm to have a presumption
against bail in other national security offences like terrorism and, sometimes,
bail is secured by defendants arguing successfully against presumptions against
bail as Bilal Khazal did in: R
v Khazal [2004] NSWSC 548.
The Law Council has pointed out:
Article 9(3) of the ICCPR provides, in part, that: ‘It shall
not be the general rule that persons awaiting trial shall be detained in
custody’. This ‘properly places the burden upon the State to establish the need
for the detention of an accused person to continue.[379]
Non-parole
periods
Proposed Amendment 74: removes the reference to
Division 91 (espionage) from paragraph 19AG(1)(c) of the Crimes Act,
which deals with minimum non-parole periods, and inserts a new paragraph
19AG(1)(d) which applies the minimum non-parole period to an offence against
new subsections 91.1(1) or 91.2(1) of the Criminal Code. This implements
recommendation 58 of the PJCIS.
Part 3—Review by Independent National Security Legislation
Monitor
Item 51 of the Bill (proposed by Amendment 77 of
the Government Amendments to the Bill) repeals existing subsection 6(1B) of the
Independent
National Security Legislation Monitor Act 2010, and replaces it with proposed
subsection 6(1B), which imposes a requirement on the Monitor to
begin a review of the operation, effectiveness and implications of Division 82
(sabotage), Part 5.2 (espionage and related offences) and Part 5.6 (secrecy of
information) in Chapter 5 of the Criminal Code, three years after the
day of Royal Assent.
Schedule 2—Secrecy
Background
Part of the review of Australia’s espionage and foreign
interference legislation requested by Prime Minister Turnbull included the
adequacy and effectiveness of the official secrecy offences contained in the Crimes Act 1914
(Crimes Act).[380]
The key amendments in Schedule 2 of the Bill repeal ‘Part
VI—Offences by and against public officers’ and ‘Part VII—Official secrets and
unlawful soundings’ from the Crimes Act and insert proposed ‘Part 5.6—Secrecy
of information’ into the Criminal Code Act
1995 (Criminal Code). The
Explanatory Memorandum states:
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.[381]
Previous consideration of
reform
A version of section 70 (disclosure of information by
Commonwealth officers) was included in the original Crimes Act, but was
amended in 1960 to extend the secrecy obligation to former Commonwealth
officers. A version of section 79 was also included in the original Crimes
Act based on a similar provision in the Official Secrets Act 1911
(UK).[382]
Only minor amendments have been made to sections 70 and 79 of the Crimes Act
since 1960.[383]
The Explanatory Memorandum states that ‘there have been calls for significant
reforms to Parts VI and VII for many years’.[384]
In 1979, the Senate Legal and Constitutional Affairs
Committee, in considering the Freedom of Information Bill 1978, recommended:
Urgent consideration should be given by the Government to the
question of reforming section 70 of the Crimes Act so as to limit the
categories of information that it is an offence to disclose and to establish procedural
safeguards for any person who may face prosecution under that section. Any such
reform of section 70 should preferably be enacted either before or
simultaneously with the enactment of the Freedom of Information Bill.[385]
In 1983, the Human Rights Commission reviewed the Crimes
Act and found that section 70 could operate in a manner inconsistent with
the right to freedom of expression contained in article 19 of the International
Covenant on Civil and Political Rights (ICCPR). It stated:
Article 19 [of the ICCPR] protects the right to
freedom of expression, which includes the right to impart information. The
exercise of such a right is, however, subject to certain restrictions, as set
out in Article 19.3. These restrictions may only be such as are provided by law
and are necessary for the respect of the rights or reputations of others and
for the protection of national security or of public order or of public health
or morals. Section 70 proscribes the disclosure of any information acquired by
virtue of office and, therefore, may restrict a person's right to impart
information that has no bearing on the matters in respect of which restrictions
may, under Article 19.3, be imposed. The Commission recommends that section 70
be amended to limit its operation to the kinds of information in respect of
which restrictions may be imposed under Article 19.3.[386]
Gibbs Review Committee
The secrecy offences in section 70 and section 79 (official
secrets) of the Crimes Act were assessed as part of the Review of
Commonwealth Criminal Law chaired by Sir Harry Gibbs in 1991 (Gibbs Review
Committee).[387]
The Committee recognised that ‘there are some descriptions of official
information that should be protected by the criminal law from unauthorised
disclosure’ but considered that ‘it is undesirable that the sanctions and
machinery of the criminal law should be applied in relation to the unauthorised
disclosure of all forms of official information’.[388]
The Gibbs Review Committee recommended that ‘the present catch-all provisions
of section 70 and subsection 79(3) of the Crimes Act 1914 should be
repealed and replaced with provisions under which the application of penal
sanctions to unauthorised disclosure of official information is limited, with
the exception of special circumstances ... to specific categories of information
no more widely stated than is required for the effective functioning of
Government’.[389]
It also recommended section 79 be repealed and other
specific secrecy offences be introduced, together with a general secrecy offence
that provided that a person must not:
(a)
disclose, without lawful authority, any official information to another
person in circumstances where the persons knows that the disclosure is likely
to damage the safety or defence of the Commonwealth; or
(b)
unlawfully obtain official information with a view to disclosing it to
another person in circumstances where the person knows that the disclosure
would be likely to damage the safety or defence of the Commonwealth.
The proposed penalty would be imprisonment for seven
years.[390]
Australian Law Reform
Commission reports
The ALRC in Keeping
Secrets: The Protection of Classified and Security Sensitive Information
(2004) considered that ‘it would be appropriate to clarify the scope of the
duty not to disclose official information for the purposes of the criminal
law’. Its view was ‘there should be a certain amount of flexibility in the
scope of the duty imposed on officers of certain agencies; for example, it may
be appropriate to impose a more extensive duty on officers employed by the
intelligence and security agencies than on other public servants’.[391]
The ALRC recommended:
The Australian Government should review all legislative and
regulatory provisions giving rise to a duty not to disclose official
information—including in particular regulation 2.1 of the Public Service
Regulations [1999 (Cth)]—to ensure the duty of secrecy is imposed only in
relation to information that genuinely requires protection and where
unauthorised disclosure is likely to harm the public interest.[392]
In conducting this review the ALRC recommended that ‘a
clear distinction is drawn between conduct that gives rise to administrative
sanctions under the Public Service Act 1999 (Cth) and conduct that gives
rise to criminal sanctions, including those under section 70 of the Crimes
Act 1914 (Cth)’.
In relation to section 79, the ALRC recognised the need
for reform noting that the ‘language and structure of s 79 is complex and in
some instances archaic’ and the ‘source of the duty in certain sections is
unclear particularly in relation to people who are not Commonwealth officers’.
It stated:
... s 79 imposes criminal sanctions on any person or
organisation, including the media. Because of this, any reform of this
provision raises special difficulties. It is essential that a provision of this
kind is clear on its face and draws an appropriate balance between the need to
protect sensitive government information and other public interests such as
appropriate public access to government information[393]
The ALRC recommended:
The Australian Government should undertake a comprehensive
review of s 79 of the Crimes Act in order to clarify and modernise the language
and intent of the provision and to ensure that an appropriate public policy
balance is found across the range of offences created by the provision. Such a
review should consider, among other things:
(a) the
possible need for a new summary offence of strict liability dealing with the
unauthorised disclosure of classified information and attracting a maximum
penalty of no more than 12 months’ imprisonment—and including certain
safeguards, such as defences of due diligence and reasonable mistake;
(b) the need
to limit certain offences to circumstances in which disclosure of the
information is likely to, or did in fact, harm the public interest; and
(c) the
relationship of s 79 with s 70 of the Crimes Act and s 91.1 of the Criminal
Code Act.[394]
The ALRC also reviewed Commonwealth secrecy laws in its
2009 report Secrecy
Laws and Open Government in Australia. The ALRC report observed that
since 2000 ‘the majority of prosecutions for the breach of secrecy provisions
have been brought under s 70 of the Crimes Act, even where specific
secrecy offences would have been available’.[395]
However, there have been few prosecutions under section 79.[396]
The ALRC recommended a harm-based approach be taken to the
reform of secrecy offences. It considered ‘most secrecy offences, and the
general secrecy offence in particular, should include an express requirement to
establish that an unauthorised disclosure of Commonwealth information caused,
or was likely or intended to cause, harm to specified public interests’. The
ALRC considered this approach ‘balances the need to protect some information by
means of the criminal law, with the public interest in open government and the
fostering of a pro-disclosure culture in the Australian public sector’.[397]
Key recommendations of the ALRC report included:
Recommendation 4–1 Sections 70 and 79(3) of the Crimes
Act 1914 (Cth) should be repealed and replaced by new offences in the Criminal
Code (Cth)—the ‘general secrecy offence’ and the ‘subsequent disclosure
offences’.
Recommendation 5–1 The general secrecy offence should
require that the disclosure of Commonwealth information did, or was reasonably
likely to, or intended to:
(a) damage the security, defence or international relations
of the Commonwealth;
(b) prejudice the prevention, detection, investigation,
prosecution or punishment of criminal offences;
(c) endanger the life or physical safety of any person; or
(d) prejudice the protection of public safety.
Related reform to the ASIO Act
On 21 October 2015, the former Independent National
Security Legislation Monitor (INSLM), Roger Gyles, completed a report
on the impact on journalists of section 35P of the Australian Security
Intelligence Organisation Act 1979 (ASIO Act). This concerned disclosures
made in relation to ‘security intelligence operations’ (SIO). The INSLM report
found:
The basic problem with section 35P is that it does not
distinguish between journalists and others (outsiders) and ASIO insiders. The
application in this manner of broad secrecy prohibitions to outsiders is not
satisfactorily justified, including by precedents in Australia or elsewhere ...[398]
It also identified ‘the absence of an express harm
requirement for breach (of the basic offence) by a journalist or other third
party’ as one of the basic flaws of the section.[399]
Recommendations made by the INSLM report were accepted
by the Australian Government and legislative amendments to section 35P were
made in the Counter‑Terrorism Legislation Amendment
Act (No. 1) 2016.[400]
In particular, the amendments to section 35P divided the offences concerning
disclosures concerning SIOs into those committed by ‘entrusted persons’
(essentially insiders—ASIO officers etc.) and those committed by others.
Australian Border Force Act secrecy offence
In 2015, the Australian Border
Force Act 2015 included secrecy and disclosure provisions which have
some similarities to the offences in the Bill. Section 42 provides that an
‘entrusted person’ must not make an record of or disclosure of ‘Immigration and
Border Protection information’ unless it is in the course of the person’s
employment or service as an entrusted person or is required or authorised by
law or by an order or direction of a court or tribunal. The maximum penalty for
the offence is imprisonment for two years.
Recent
events
Recent disclosures of national security information
(particularly large scale disclosures originating in the United States) have
had implications for the Australian Government and have contributed to
reconsideration of the legislative protections of official information. These
disclosures have also put renewed emphasis on the tension between public
interest disclosures, the reporting of news and national security interests.
For example, the disclosures made by former National Security
Agency contractor Edward Snowden in 2013 have had a range of consequences for
the Australian Government. The Attorney-General George Brandis has reportedly
described the ‘Snowden revelations’ as ‘the most serious setback for Western
intelligence since the Second World War’.[401]
Disclosures concerning surveillance activities undertaken by Australian
agencies against foreign nationals have also had implications for Australia’s
international relations.[402]
Concerns about releases of official information are on-going.
For example, in August 2017, it was reported that overseas intelligence
partners had raised concerns that sensitive information provided to Australian Government
agencies concerning a terrorist bomb plot were appearing in Australian
newspapers.[403]
Recently, the Australian Broadcasting Corporation (ABC) released a series of
news stories based on classified documents recovered from filing cabinets
inadvertently sold at an ex-government furniture store in Canberra. This
included a document that revealed ‘Australian Federal Police (AFP) lost nearly
400 national security files in five years, according to a secret government
stocktake ...’.[404]
In explaining its reasons for publishing some of the documents, the ABC stated
the documents ‘expose repeated security breaches of Australia's most sensitive
and classified documents and a seemingly casual attitude of some of those
charged with keeping the documents safe’.[405]
Part
1—Secrecy of information
Existing secrecy offences repealed—Crimes Act
Item 5 of Schedule 2 repeals Part VI and Part VII
of the Crimes Act which contains provisions for the offences by public
officers and official secrets. In particular, section 70 sets out penalties for
the unauthorised disclosure of information by current and former Commonwealth officers
and section 79 contains offences relating to official secrets.
Section 70 —Disclosure of information by Commonwealth
officers
Section 70 is the only section in ‘Part VI—Offences by and
against public officer’ in the Crimes Act. Under section 70,
criminal sanctions apply to a breach of a ‘duty not to disclose’ of
Commonwealth officers. ‘Commonwealth officer’ is broadly defined in section 3
of the Crimes Act. In particular, for the purposes of section 70, the
definition includes those who perform services on behalf of the Commonwealth
despite not holding office or being employed by the Commonwealth.[406]
Subsection 70(1) makes it an offence for a Commonwealth
officer to publish or communicate, without authorisation, any fact or document
which comes into their knowledge or possession by virtue of being a
Commonwealth officer and which they have duty not to disclose.
Subsection 70(2) makes it an offence for any former
Commonwealth officer to publish or communicate without lawful authority or
excuse (‘proof whereof shall lie on him or her’) any fact or document which
comes into their knowledge or possession by virtue of having been a
Commonwealth officer and which it was their duty not to disclose.
The penalty for both offences is imprisonment for two years.
Section 70 applies to information acquired by a
Commonwealth officer in the course of the officer’s duties and which the
officer has a duty not to disclose. This may include, but is not limited to,
classified and security sensitive information. The ALRC report Secrecy Laws
and Open Government in Australia observed:
Section 70 does not create a duty to keep information secret
or confidential. Rather, the source of such a duty must be found elsewhere—most
commonly in a specific secrecy provision. In R v Goreng Goreng, for
example, the duty was found in reg 2.1(3) of the Public Service Regulations,
which provides that [Australian Public Service] employees must not disclose
information obtained or generated in connection with their employment if it is
reasonably foreseeable that the disclosure could be prejudicial to the
effective working of government.[407]
Section 79—Official secrets
Section 79 of the Crimes Act deals with the
protection of official secrets. The section contains a number of offences
relating to the communication, retention and granting access to official
secrets to any person. A Commonwealth officer, or another person in receipt of
prescribed items or information from a Commonwealth officer, may be guilty of
an offence. The five offences in section 79 are summarised below.
Subsection 79(1) outlines the meaning of a ‘prescribed
sketch, plan, photograph, model, cipher, note, document, article’ (for
convenience ‘prescribed items’) and ‘prescribed information’ for the purposes
of the offences in the section.[408]
For the purposes of the section an item or information is ‘prescribed’ in
relation to a person if the person has it in his or her possession or control
and:
(a)
it has been made or obtained in
contravention of this Part VII of the Crimes Act (Official secrets and
unlawful sounding) or in contravention of section 91.1 of the Criminal Code (espionage
and similar activities offences); or
(b)
it has been ‘entrusted to the
person by a Commonwealth officer or a person holding office under the Queen or
he or she has made or obtained it owing to his or her position as a person’:
(i)
who is or has been a Commonwealth
officer;
(ii) who holds or has held office under the
Queen;
(iii) who holds or has held a contract made
on behalf of the Queen or the Commonwealth;
(iv) who is or has been employed by or
under a person to whom a preceding subparagraph applies; or
(v) acting with the permission of a
Minister;
and,
by reason of its nature or the circumstances under which it was entrusted to
him or her or it was made or obtained by him or her or for any other reason, it
is his or her duty to treat it as secret; or
(c)
it relates to a prohibited place
or anything in a prohibited place and:
(i) he or she knows; or
(ii) by reason of its nature or the circumstances
under which it came into his or her possession or control or for any other
reason, he or she ought to know;
that it should not be communicated to a person not
authorized to receive it.
Subsection 79(2) provides that a person commits an offence
if they communicate or permit another person to have access to a prescribed
item or information without authorisation, or retain prescribed item without
authorisation or fail to comply with a direction with respect to retention or
disposal of a prescribed item with ‘the intention of prejudicing the security
or defence of the Commonwealth or a part of the Queen’s dominions’. The maximum
penalty is seven years imprisonment.
Subsection 79(3) provides that a person commits an offence
if they communicate or allow a person to have access to a prescribed item or
information without authorisation. The maximum penalty is two years
imprisonment.
Subsection 79(4) provides that a person commits an offence
if they retain a prescribed item when they have no right or duty to retain it,
fail to comply with a direction regarding the retention or disposal of
prescribed item, or fail to take reasonable care of a prescribed item or
prescribed information to ensure it is not communicated to an unauthorised
person or if they conduct themselves ‘as to endanger its safety’. The maximum
penalty is six months imprisonment.
Subsection 79(5) provides that a person commits an offence
if they receive any item or information ‘knowing or having reasonable grounds
to believe’ that it is communicated in contravention of section 91.1 of the Criminal
Code or subsection 79(2) ‘unless he or she proves the communication was
contrary to his or her desire’. The maximum penalty is seven years
imprisonment.
Subsection 79(6) provides that a person commits an offence
if they received any prescribed item or information knowing or having
reasonable grounds to believe the communication is in contravention of
subsection 79(6) ‘unless he or she proves the communication was contrary to his
or her desire’. The maximum penalty is two years imprisonment.
The offences in section 79 have a broader application
beyond Commonwealth officers. The ALRC report
on the secrecy offences noted:
Section 79 covers the unauthorised disclosure of information
obtained and generated by Commonwealth officers and information ‘entrusted’ to
other persons by Commonwealth officers. The offence therefore covers both
initial disclosures by Commonwealth officers and subsequent disclosures by
third parties. In addition, the offences relating to the receipt and handling
of an official secret apply to any person, regardless of whether the person was
aware that he or she had a duty not to disclose information.[409]
Other
repealed sections
The Explanatory Memorandum notes that ‘Part VII— Official
secrets and unlawful soundings’ contains a range of offences relating to
official secrets, prohibited places and unlawful soundings and some procedural
provisions.[410]
Other sections which will be repealed with ‘Part VII—Official secrets and
unlawful soundings’ include:
- section
80 which designates prohibited places
- section
83 which makes it an offence to take, make or communicate ‘unlawful soundings’
(punishable by imprisonment for two years)
- section
85 which deals with the role of the Attorney-General in the institution of
prosecutions under Part VII (in particular a prosecution under Part VII ‘shall
be instituted only by or with the consent of the Attorney-General or of a
person acting under his or her direction’)
- section
85B which deals with the capacity of judge or magistrate hold hearings in
camera, order that no report relating to application or proceedings be
published and make orders and give directions concerning access to ‘any
affidavit, exhibit, information or other document used in the application or
the proceedings that is on the file in the court or in the records of the court’.
It provides a person who contravenes an order or direction pursuance of this
section commits an offence punishable by imprisonment for five years.
Part
5.6—Secrecy of information
Proposed Part 5.6 of the Criminal Code
contains eight secrecy offences for current and former Commonwealth officers.
Four of these new secrecy offences relate to ‘inherently harmful information’
and four relate to ‘conduct causing harm to Australia’s interests’. The
Government’s amendments have added two secrecy offences for non-Commonwealth
officers.
There is also a provision for aggravated offences with
increased penalties if specific circumstances exist with the underlying
offences and a replacement offence for unauthorised disclosures by current and
former Commonwealth officers. Key definitions relating to these offences are
contained in Part 5.6 as well as specific defences, including a defence for
‘persons engaged in business of reporting the news’.
Following the PJCIS report into the Bill, the Government Amendments
have reduced the penalties for the proposed secrecy offences. The PJCIS report
noted that the maximum penalties of the proposed offences are greater than the
penalties for the existing offences and contrast Australian Law Reform
Commission recommendations the maximum penalty for the general secrecy offence
be ‘seven years imprisonment, a pecuniary penalty not exceeding 420 penalty
units, or both’.[411]
Proposed offences—Communication
and other dealing with inherently harmful information by current and former
Commonwealth officers
Proposed section 122.1 contains four offences in
relation to communication and other dealing with ‘inherently harmful
information’. Previously, these offences had broader coverage but in the
amended Bill have been directed to current and former Commonwealth officers. Proposed
section 121.1 (definitions for Part 5.6) provides that ‘inherently harmful
information’ means information[412]
which is any of the following:
- security
classified information
- information
that was obtained by, or made by or on behalf of, a domestic intelligence
agency[413]
or a foreign intelligence agency in connection with the agency’s functions
- information
relating to the operations, capabilities or technologies of, or methods or
sources used by, a domestic or foreign law enforcement agency.
The proposed section 121.1 definition of
‘Commonwealth officer’ for Part 5.6 is similar in scope to the definition in
the Crimes Act and extends to individuals who are contracted service
providers for a Commonwealth contract and individuals who are officers or
employees of ‘a contracted service provider for a Commonwealth contract and who
provide services for the purposes (whether direct or indirect) of the
Commonwealth contract’. The new definition of ‘Commonwealth officer’ in proposed
section 121.1 means:
(a) an APS employee;
(b) an individual appointed or
employed by the Commonwealth otherwise than under the Public Service Act
1999;
(c) a member of the Australian
Defence Force;
(d) a member or special member
of the Australian Federal Police;
(e) an officer or employee of a
Commonwealth authority;
(f) an individual who is a
contracted service provider for a Commonwealth contract;
(g) an individual who is an officer
or employee of a contracted service provider for a Commonwealth contract and
who provides services for the purposes (whether direct or indirect) of the
Commonwealth contract.
The Government’s amendments have amended this definition
to exclude an ‘officer or employee of, or a person engaged by, the Australian
Broadcasting Corporation or the Special Broadcasting Service Corporation’. This
was originally a proposed amendment by the Attorney-General to the PJCIS
inquiry. The Attorney-General stated that this would appropriately recognise
‘that members of these organisations, while being public employees, are engaged
primarily in journalism and communications activities’.[414]
The AGD submission to the PJCIS stated the existing
definition of ‘Commonwealth officer’ in the Crimes Act is unclear as to whether
ministers and their staff fall within this definition:
Unlike the Public Service Act and its supporting regulations,
the Members of Parliament (Staff) Act 1984 contains no clear duty not to
disclose information. While there is a provision in the Code of Conduct for
Ministerial Staff regarding the appropriate use of information, this only
applies to personal and electorate staff of Ministers and Parliamentary
Secretaries.[415]
The Law Council submission notes that the Bill’s
definition of ‘Commonwealth officer’ does not include the Governor-General or
parliamentarians who are not appointed to roles of Minister of State or
Parliament secretaries. It suggested consideration should be given to whether
the Governor-General should be included in the definition of ‘Commonwealth
officer’.[416]
Communication of inherently harmful
information
Proposed subsection 122.1(1) provides that a person
commits an offence if a person communicates information, the information was
inherently harmful information and the information was made or obtained by that
person by reason of being , or having been a Commonwealth officer ‘or otherwise
engaged to perform work for a Commonwealth entity’. The Government’s amendments
changed the penalty for this offence from 15 years to seven years
imprisonment.
Other dealing with inherently
harmful information
Proposed subsection 122.1(2) provides that a person
commits an offence if the person deals[417]
with information (other than by communicating it), the information is
inherently harmful information and the information was made or obtained by that
person by reason of being, or having been a Commonwealth officer ‘or otherwise
engaged to perform work for a Commonwealth entity’. The penalty for this
offence is imprisonment for three years.[418]
Information removed from, or held outside,
proper place of custody
Proposed subsection 122.1(3) provides that a person
commits an offence if the person removes information from a proper place of
custody of the information or holds information outside of a proper place of
custody, the information is inherently harmful information and the information
was made or obtained by that person by reason of being, or having been a
Commonwealth officer ‘or otherwise engaged to perform work for a Commonwealth
entity’. The penalty for this offence is imprisonment for three years.[419]
The definition of ‘proper place of custody’ in proposed
section 121.2 provides that the meaning will be prescribed by regulation.
The Government’s amendments have changed this definition to reflect the PJCIS
recommendation that the Bill be amended to ‘require that any material
incorporated into regulations for the purpose of the definition of ‘proper
place of custody’ at proposed section 121.2 be publically available’
(recommendation 18).[420]
Failure to comply with direction
regarding information
Proposed subsection 122.1(4) provides that a
person commits an offence if the person is given a lawful direction regarding
the retention, use or disposal of information, the person fails to comply with
the direction, the information is inherently harmful information and the information
was made or obtained by that person by reason of being, or having been a
Commonwealth officer ‘or otherwise engaged to perform work for a Commonwealth
entity’. The Government amendments have inserted another element to this
offence. Proposed paragraph 122.1(4)(ca) provide that the failure to
comply with the direction must result ‘in a risk to the security of the
information’ for this offence to apply. The penalty for this offence is
imprisonment for three years.[421]
Fault
elements
Under Part 2.2 of the Criminal Code, an offence
consists of physical elements and fault elements, and the law may provide
different fault elements for different physical elements. Section 5.6 of the Criminal
Code states that if the law creating an offence does not does not specify a
fault element for a physical element that consists only of conduct, intention
is the fault element for that physical element. If the law creating the offence
does not specify a fault element for a physical element that consists of a
circumstance or a result, recklessness is the fault element for that physical
element. This means, for example, that for the offence of communicating
inherently harmful information (proposed subsection 122.1(1)) the
prosecution would need to prove beyond reasonable doubt that:
- the
person intentionally communicated information
- the
person was reckless as to whether the information was inherently harmful
information
- the
person was reckless as to whether the information was made or obtained by that
or any other person by reason of being , or having been a Commonwealth officer
‘or otherwise engaged to perform work for a Commonwealth entity’.[422]
The Government’s amendments have inserted notes under the
offences in subsections 122.1(1), 122.1(2), 122.1(4) to clarify the fault
elements of those offences in accordance with a recommendation from the PJCIS
report (recommendation 14).
The definition of ‘inherently harmful information’
includes ‘security classified information’. The Government’s amendments to the
secrecy offences in Schedule 2 have removed the application of strict liability
to the physical element that information has a security classification.
However, the Supplementary Explanatory Memorandum notes that strict liability
will apply ‘to other aspects of the definition of security classification,
which are technical matters and not relevant to the defendant’s culpability’.[423]
The new definition of ‘security classification’ in proposed
section 90.5, includes proposed subsection 90.5(1A) which provides
that where an element of an offence refers to ‘security classification’ strict
liability applies to the element that:
- a
classification is applied in accordance with the policy framework developed by
the Commonwealth or
- a
classification or marking is prescribed by the regulations.
Strict liability is set out in section 6.1 of the Criminal
Code. It states that if a law that creates an offence provides that it is
an offence of strict liability then there are no fault elements for any of the
physical elements of the offence. However, the defence of mistake of fact is
available (set out in section 9.2 of the Criminal Code). The
Supplementary Explanatory Memorandum states:
The effect of subsection 90.5(1A) in applying strict
liability to this element of the definition of security classification is that
the prosecution will not need to prove that the person who dealt with the
information knew or was reckless as to whether the security classification was
applied in accordance with the policy framework developed by the Commonwealth.
Strict liability is appropriate for this element because the
person’s state of mind about the fact that the classification was applied under
an appropriate Commonwealth policy framework for the purpose of identifying
such information is not relevant to their culpability.[424]
Proposed offences—Conduct by
current and former Commonwealth officers causing harm to Australia’s interests
Proposed section 122.2 contains four offences in
relation to ‘conduct causing harm to Australia’s interests’. Previously, these
offences had broader coverage, but in the amended Bill have been directed to
current and former Commonwealth officers.
The definition of ‘cause harm to Australia’s interests’ in proposed
section 121.1 has been substantially changed by the Government’s amendments
to the Bill (reflecting the recommendations in the PJCIS report). In the
amended Bill, ‘cause harm to Australia’s interests’ means:
- interfere
with or prejudice the prevention, detection, investigation, prosecution or
punishment of a criminal offence against a law of the Commonwealth
- interfere
with or prejudice the performance of functions of the Australian Federal Police
under:
- paragraph
8(1)(be) of the Australian Federal Police Act 1979 (protective and
custodial functions); or
- the
Proceeds of Crime Act 2002
- harm
or prejudice Australia’s international relations in relation to information
that was communicated in confidence:
- by,
or on behalf of, the government of a foreign country, an authority of the
government of a foreign country or an international organisation and
- to
the Government of the Commonwealth, to an authority of the Commonwealth, or to
a person receiving the communication on behalf of the Commonwealth or an
authority of the Commonwealth or
- harm
or prejudice the health or safety of the Australian public or a section of the
Australian public or
- harm
or prejudice the security or defence of Australia.
Communication causing harm to Australia’s interests
Proposed subsection 122.2(1) provides that a person
commits an offence if the person communicates information and the communication
‘will or is likely to’ or ‘causes harm to Australia’s interests’ and the information
was made or obtained by that person by reason of being, or having been a
Commonwealth officer ‘or otherwise engaged to perform work for a Commonwealth
entity’. The Government’s amendments have changed the penalty for this offence
from 15 years to seven years imprisonment.
Other conduct causing harm to
Australia’s interests
Proposed subsection 122(2) provides that a person
commits an offence if the person deals with information (other than by
communicating it) and the dealing ‘will or is likely to’ or ‘causes harm to
Australia’s interests’ and the information was made or obtained by that person
by reason of being or having been, a Commonwealth officer ‘or otherwise engaged
to perform work for a Commonwealth entity’. The penalty for this offence is
imprisonment for three years.[425]
Information removed from, or held
outside, proper place of custody
Proposed subsection 122.2(3) provides that a person
commits an offence if the person removes information from a proper place of
custody or holds information outside a proper place of custody, and this
removal or holding ‘will or is likely to’ or ‘causes harm to Australia’s
interests’ and the information was made or obtained by that person by reason of
being, or having been, a Commonwealth officer ‘or otherwise engaged to perform
work for a Commonwealth entity’. The penalty for this offence is imprisonment
for three years.[426]
Failure to comply with direction
regarding information
Proposed subsection 122.2(4) provides that a
person commits an offence if the person fails to comply with a lawful direction
regarding the retention, use or disposal of information and failure to comply
cause harm, or will or is likely to cause harm to Australia’s interests and the
information was made or obtained by that person by reason of being, or having
been, a Commonwealth officer ‘or otherwise engaged to perform work for a
Commonwealth entity’. The penalty for this offence is imprisonment for three
years.[427]
Proposed aggravated offences
Proposed section 122.3 provides circumstances where
the offences in proposed section 122.1 concerning inherently harmful
information and proposed section 122.2 concerning conduct that causes
harms to Australia’s interests (the ‘underlying offences’) are treated as
aggravated offences. If a person commits an underlying offence and one of the
listed circumstances exists then an increased penalty will apply to the
aggravated offence.
As with other offences in Schedule 2, the Government’s
amendments have reduced the penalties which will apply.[428]
If the penalty for the underlying offence is seven years, the penalty for the
aggravated offence will be ten years. If the penalty for the underlying offence
is three years, the penalty for the aggravated offence will be five years.
The four circumstances for aggravated offences are:
- if
the commission of the underlying offence involves a record—the record is marked
with a code word, ‘for Australian eyes only’ or as prescribed by the
regulations for the purposes of this subparagraph
- the
commission of the underlying offence involves five or more records each of
which has a security classification
- the
commission of the underlying offence involves the person altering a record to
remove or conceal its security classification
- at
the time the person committed the underlying offence, the person held an
Australian Government security clearance allowing the person to access information
that has a security classification of at least secret.
The Government’s amendments to the Bill have inserted a
definition of ‘Australian Government security clearance’ into the Dictionary of
the Criminal Code. This term means a ‘security clearance given by the
Australian Government Security Vetting Agency or by another Commonwealth, state
or territory agency that is authorised or approved by the Commonwealth to issue
security clearances’.[429]
Unauthorised disclosure of
information by current and former Commonwealth officers
Proposed subsection 122.4(1) replaces the existing
offence in the Crimes Act (section 70) for current and former
Commonwealth officers who disclose information they have a duty to not to
disclose. It provides that a person commits an offence if:
- the
person communicates information
- the
person made or obtained the information by reason of being or having been, a
Commonwealth officer ‘or otherwise engaged to perform work for a Commonwealth
entity’
- the
person is under a duty not to disclose the information and
- the
duty arises under a law of the Commonwealth.
Reflecting section 70 of the Crimes Act, the
penalty for this offence is two years imprisonment. However, unlike section 70
of the Crimes Act, proposed subsection 122.4(2) provides that
absolute liability applies to ‘(d) the duty arises under a law of the
Commonwealth’. Absolute liability means there is no fault element and (unlike
strict liability) the defence of mistake of fact is not available under section
9.2 of the Criminal Code.[430]
The Explanatory Memorandum states:
[T]here are legitimate grounds for penalising persons lacking
‘fault’ in respect of this element ... A person can only be criminally liable for
the offence against section 122.4 if they are reckless as to whether they are
subject to a duty to not disclose the information in question. The question of
whether that duty arises under the law of the Commonwealth is, effectively, a
question of law. The general position, set out in sections 9.3 and 9.4 of the
Criminal Code, is that a person can be criminally responsible for an offence
even if, at the time of the conduct constituting the offence, he or she is
mistaken about, or ignorant of, the existence or content of an Act or
subordinate legislation. Consistent with those general principles of the
criminal law, a person should not be excused from criminal liability where they
are reckless as to whether they are subject to a duty of non-disclosure, merely
because they are mistaken or ignorant about whether that duty arises under a
law of the Commonwealth, or under some other source.[431]
However, beyond this point of principle, it is not clear
if there are specific practical reasons, such as issues with prosecutions under
section 70 of the Crimes Act which have prompted this change. Notably,
the ALRC report on secrecy offences does not appear to have recommended the
introduction of absolute liability for this element of secrecy offences.
Proposed subsection 122.4(3) implements the
recommendation of the PJCIS report for a sunset provision in relation to this
offence (recommendation 23). It provides that the section ‘does not apply in
relation to any communication of information that occurs after the end of 5
years after this section commences’. The Supplementary Explanatory Memorandum
notes that this period ‘will allow for review of the duties to determine
whether there is an ongoing need to enforce them with specific criminal
sanctions’.[432]
Communicating
and dealing with information by non-Commonwealth officers
Proposed section 122.4A provides two offences for
non-Commonwealth officers. These offences were not part of the Bill as
introduced and reflect discussion (including in the PJCIS inquiry) concerning
the appropriateness of the secrecy offences treating ‘insiders’(such as ASIO
officers) and ‘outsiders’ (such as journalists) in the same way. For example,
the Human Rights Law Centre submission to the PJCIS inquiry stated:
Outsiders should not be subject to the same offences and
penalties as government insiders, given the distinct duties owed by
Commonwealth officers. This accords with the view of the ALRC, the Gibbs
Committee review of Commonwealth criminal law, and, in the ASIO Act context,
the INSLM.[433]
Similarly, the Law Council suggested the proportionality
of the measures could be improved by treating insiders and outsiders
separately.[434]
The Attorney-General’s proposed amendments to the PJCIS inquiry inserted proposed
section 122.4A and removed the phase ‘or any other’ from offences in proposed
sections 122.1 and 122.2 restricting their application to Commonwealth
officers.
The PJCIS report strongly supported ‘the
Attorney-General’s proposal for separate secrecy offences, narrower in their
range of conduct captured, to be established for non-Commonwealth officers’.[435]
The first new offence in proposed subsection 122.4A(1)
‘Communication of information’ would apply where:
- a
person intentionally communicates information
- the
information was not made or obtained by the person by reason of the person
being or having been, a Commonwealth officer or otherwise engaged to perform
work for a Commonwealth entity and the person is reckless as to this element
- the
information was made or obtained by another person by reason of that other
person being, or having been, a Commonwealth officer or otherwise engaged to
perform work for a Commonwealth entity and the person is reckless as to this
element; and
- any
one or more of the following applies:
- the
information has a security classification of secret or top secret
- the
communication of the information damages the security or defence of Australia
- the
communication of the information interferes with or prejudices the prevention,
detection, investigation, prosecution or punishment of a criminal offence
against a law of the Commonwealth
- the
communication of the information harms or prejudices the health or safety of
the Australian public or a section of the Australian public.
The maximum penalty for this offence would is five years
imprisonment.[436]
The second offence, in proposed subsection 122.4A(2) Other
dealing with information, would apply where:
- a
person intentionally deals with information (other than by communicating it)
- the
information was not made or obtained by the person by reason of the person
being or having been, a Commonwealth officer or otherwise engaged to perform
work for a Commonwealth entity
- the
information was made or obtained by another person by reason of that other
person being, or having been, a Commonwealth officer or otherwise engaged to
perform work for a Commonwealth entity and the person is reckless as to this
element
- any
one or more of the following applies:
- the
information has a security classification of secret or top secret
- the
dealing damages the security or defence of Australia
- the
dealing interferes with or prejudices the prevention, detection, investigation,
prosecution or punishment of a criminal offence against a law of the
Commonwealth
- the
dealing harms or prejudices the health or safety of the Australian public or a
section of the Australian public.
The maximum penalty for this offence would is two years
imprisonment.[437]
For both proposed offences, subsection 122.4A(3)
provides that the prosecution is not required to prove the identity of the
‘other person’ in relation to paragraphs 122.4A(1)(c) and 122.4A(2)(c). This is
the element that the information ‘was made or obtained by another person by
reason of that other person being, or having been, a Commonwealth officer or
otherwise engaged to perform work for a Commonwealth entity’.
Proposed defences
Proposed section 122.5 contains the defences to
prosecution for an offence in Division 122. The defences have been expanded by
the Government’s amendments. This includes by inserting new defences and
broadening the scope of existing defences beyond the communication of information
by using the term ‘communicated, removed, held or otherwise dealt’. The
previous defence for ‘fair and accurate reporting’ has been amended to a
defence for ‘persons engaged in the business of reporting news’.
In most cases, the defendant will bear an evidentiary
burden in relation to the defence. The Supplementary and Replacement
Explanatory Memorandums repeatedly note that the Guide to Framing Commonwealth
Offences provides that it is ‘appropriate for a matter to be included in an
offence-specific defence where it is peculiarly within the knowledge of the
defendant and it would be significantly more difficult and costly for the
prosecution to disprove than for the defendant to establish the matter’. However,
the Government amendments have made some changes to the evidential burdens for
integrity agency officials and employees.
Powers, functions and duties in a
person’s capacity as a public officer etc. or under arrangement
Proposed subsection 122.5(1) provides it is a defence
to prosecution for an offence if:
- the
person was exercising a power, or performing a function or duty, in the
person’s capacity as a public officer or a person who is otherwise engaged to
perform work for a Commonwealth entity or
- the
person communicated, removed, held or otherwise dealt with the information in
accordance with an arrangement or agreement to which the Commonwealth or a
Commonwealth entity is party and which allows for the exchange of information.
In the Bill as introduced, this defence was directed to
Commonwealth officers. However, the reference to ‘Commonwealth officer’ in this
defence has been changed in the Government amendments to ‘public official’. The
Supplementary Explanatory Memorandum states that the definition of Commonwealth
officer is ‘inappropriately narrow in relation to the defence at subsection
122.5(1) which should be available to all public officials who interact with
information covered by the new secrecy offences’. It notes that the term
‘public official’ is defined in the Dictionary to the Criminal Code and
‘covers a broader range of officials, including members of either House of the
Parliament and state or territory officers’.[438]
A note under the subsection indicates the defendant may
bear an evidentiary burden in relation to elements of this defence. It
references proposed subsection 122.5(12) (which deals with integrity
agency officials and employees) and subsection 13.3.[439]
Information that is already public
Proposed subsection 122.5(2) provides it is a defence
if the relevant information has already been communicated or made available to
the public ‘with the authority of the Commonwealth’. The final component of the
defence ‘with the authority of the Commonwealth’ considerably narrows its
scope.
A note under the subsection states that the defendant bears
an evidential burden in relation to the matters in this subsection.
Information communicated etc. to
integrity agency
Proposed paragraph 122.5(3)(a) provides a defence to
an offence if the person ‘communicated the relevant information, or removed,
held or otherwise dealt with the relevant information for the purpose of
communicating it’ to:
The Government’s amendments have added the Australian Information Commissioner, a
member of the staff of the Office of the Australian Information Commissioner,
or a consultant engaged under the Australian Information Commissioner Act
2010.
Paragraph 122.5(3)(b) provides a defence to an
offence if the person ‘communicated the relevant information, or removed, held
or otherwise dealt with the relevant information for the purpose of
communicating it’ for the purposes of the Inspector-General, the Ombudsman, the
Australian Information Commissioner or LEI Commissioner (as the case requires)
exercising a power, or performing a function or duty.
A note provides that persons mentioned in paragraph 3(a)
do not bear an evidential burden in relation to the matters in this subsection
(see subsection 122.5(12) below).
Information communicated etc. in accordance with the
Public Interest Disclosure Act 2013 or the Freedom of Information Act 1982.
Proposed subsection 122.5(4) provides a defence to
an offence if the person communicated the relevant information, or removed,
held or otherwise dealt with the relevant information for the purpose of
communicating it, in accordance with:
- the
Public Interest Disclosure Act 2013
- the
Freedom of Information Act 1982.
In the Bill as introduced, this section only dealt with
the Public Interest Disclosure Act, however the PJCIS report recommended
that the Bill be amended to make clear the effect of the defences in relation
to the Freedom of Information Act (recommendation 21). The Supplementary
Explanatory Memorandum states this amendment ‘puts beyond doubt that
requesting, disclosing or receiving information under Freedom of Information
Act processes is subject to a defence from the secrecy offences’.[440]
A note under the subsection indicates the defendant may
bear an evidentiary burden in relation the matters in this defence.[441]
Information communicated etc. for
the purpose of reporting offences and maladministration
Proposed subsection 122.5(4A) is a new defence
inserted by the Government’s amendments. It provides a defence where the person
communicated, removed, held or otherwise dealt with the relevant information
for ‘the primary purpose of reporting, to an appropriate agency of the
Commonwealth, a state or a territory’ an offence or maladministration.
Specifically:
- a
criminal offence, or alleged criminal offence, against a law of the
Commonwealth
- maladministration
relating to the prevention, detection, investigation, prosecution or punishment
of a criminal offence against a law of the Commonwealth or
- maladministration
relating to the performance of functions of the Australian Federal Police
under:
- the Australian Federal Police Act 1979 or
- the
Proceeds of Crime Act 2002.
This addition of this defence responds to a recommendation
in the PJCIS report (recommendation 29). The PJCIS considered a stronger
defence was necessary to cover reporting to ‘the full range of organisations
that may be involved in the prevention, detection, investigation, prosecution
and punishment of Commonwealth criminal offences’.[442]
The PJCIS intended this defence to apply where ‘for example, a member of the
public reporting misconduct by a police officer to a more senior officer in the
same police force; or reporting to a state oversight body maladministration in
the use of information shared by the Commonwealth to a state police force’.[443]
A note under the subsection indicates the defendant may
bear an evidentiary burden in relation the matters in this defence.[444]
Information communicated to a court
or tribunal etc.
Proposed subsection 122.5(5) provides that it is a
defence if the person communicated the relevant information, or removed, held
or otherwise dealt with the relevant information for the purpose of
communicating it to a court or tribunal (whether or not as a result of a
requirement).
A note under the subsection indicates that a defendant
bears an evidential burden in relation to the matters in this subsection.[445]
Information communicated etc. for
the purposes of obtaining or providing legal advice
Proposed subsection 122.5(5A) is another defence
added by the Government’s amendments to the Bill. It provides a defence if the
person ‘communicated, removed, held or otherwise dealt’ with the relevant
information for the primary purpose of obtaining or providing, in good faith,
legal advice in relation to:
- an
offence against this Part or
- the
application of any right, privilege, immunity or defence (whether or not in
this Part) in relation to such an offence.
This defence would apply ‘whether that advice was obtained
or provided before or after the person engaged in the conduct constituting the
offence’. The addition of this defence responds to PJCIS recommendation
(recommendation 30).
A note under the subsection indicates that a defendant
bears an evidential burden in relation to the matters in this subsection.[446]
Information communicated etc. by
persons engaged in business of reporting news etc.
Proposed subsection 122.5(6) has been substantially
changed by the Government’s amendments to the Bill. Previously the defence was
directed to information dealt with or held by in the public interest by journalists
‘engaged in fair and accurate reporting’.
As amended the defence covers where a person ‘communicated,
removed, held or otherwise dealt with the relevant information’ in the person’s
capacity as a person engaged in ‘the business of reporting news, presenting
current affairs or expressing editorial or other content in news media’ and:
- at
that time, the person reasonably believed that engaging in that conduct was in
the public interest or
- the
person:
- was,
at that time, a member of the administrative staff of an entity that was
engaged in the business of reporting news, presenting current affairs or
expressing editorial or other content in news media and
- acted
under the direction of a journalist, editor or lawyer who was also a member of
the staff of the entity, and who reasonably believed that engaging in that
conduct was in the public interest.
This appears to substantially implement the PJCIS’s
recommendation that Government consider further refinements to the proposed
defence to:
- make
explicit that editorial support staff are covered by the defence, including
legal advisors and administrative staff
- ensure
editorial staff and lawyers, who are engaging with the substance of the information,
be required to hold a reasonable belief that their conduct is in the public
interest and
- allow
administrative support staff working at the direction of a journalist, editor
or lawyer who holds the reasonable belief, to benefit from the defence.[447]
However, the defence in subsection 122.5(6) is
limited by proposed subsection 122.5(7) which specifies that communicating,
removing, holding or otherwise dealing with information is not in the
public interest if it:
- would
be an offence under section 92 of the Australian
Security Intelligence Organisation Act 1979 (involving publication of
identity an ASIO employee or ASIO affiliate)
- would
be an offence under section 41 of the Intelligence
Services Act 2001 (identification or making public the identity of an agent
or staff member of ASIS)
- would
be an offence under sections 22, 22A or 22B the Witness Protection
Act 1994 (unauthorised disclosures concerning participants in
the National Witness Protection Program) or
- that
conduct was engaged in for the purpose of directly or indirectly assisting a
foreign intelligence agency or a foreign military organisation.[448]
A note under proposed subsection 122.5(6) indicates
that a defendant bears an evidential burden in relation to the matters in this
subsection.[449]
The amended defence is broader than the earlier version,
which was limited to a ‘journalist engaged in a fair and accurate reporting’,
and extends the defence to where a person ‘reasonably believed’ dealing or
holding the information was in the public interest. Nonetheless, the amended
subsection 122.5(7) maintains and extends categories where a person may not
reasonably believe dealing with or holding information is in the public
interest. In his submission to the PJCIS discussing the proposed amendments,
the Attorney-General stated:
Subsection 122.5(7) is being amended to provide that a person
may not reasonably believe that dealing with or holding information is in the
public interest if the person is dealing with or holding the information for
the purpose of directly or indirectly assisting a foreign intelligence agency
or a foreign military organisation. Section 121.1 will be amended to define foreign
military organisation as the armed forces of the government of a foreign
country or the civilian component of the Department of State of a foreign
country or a government agency in a foreign country that is responsible for the
defence of the country.[450]
This definition of ‘foreign military organisation’ has
been inserted into proposed section 121.1. The Supplementary Explanatory
Memorandum states:
The definition of a foreign military organisation will
include the armed forces of a foreign country as well as the civilian
components of its military organisation. For example, in the Australian context
this would include the Australian Defence Force, the civilian element of the
Department of Defence, Reserves and any civilians who are accompanying the ADF
overseas.[451]
The Attorney-General’s proposed amendments included paragraph
122.5(7)(d) which would have restricted the operation of the defence if:
If a person's communication or dealing with the information
harms or prejudices the health or safety of the Australian public or a section
of the public ... and, at that time, the dealing with or holding the information
will or is likely to result in the death of, or serious harm to, a person, the
person will not be able to reasonably believe that his or her conduct is in the
public interest.[452]
However, the PJCIS report also did not agree with this
proposed amendment. The PJCIS considered it would give rise to ‘technical
difficulties’ and recommended that it be removed.[453]
Information that has been
previously communicated
Proposed subsection 122.5(8) provides it is a
defence for an offence if:
- the
person did not make or obtain the relevant information by reason of being a
Commonwealth officer or an engagement or agreement with the Commonwealth or
Commonwealth entity
- the
information has already been communicated or made available to the public
(prior publication)
- the
person was not involved in the prior publication (whether directly or indirectly)
- at
the time of the communication, removal, holding or dealing, the person believes
that engaging in that conduct will not cause harm to Australia’s interests or
the security or defence of Australia and
- having
regard to the nature, extent and place of the prior publication, the person has
reasonable grounds for that belief.
The multiple conditions which comprise this defence
suggest that there will be limited circumstances where it may apply. However,
the PJCIS recommendations which have been implemented in the Government’s
amendments include changing this defence from being limited to ‘communication’
to the wider ‘communication, removal, holding or dealing’.[454]
Given the broad scope of the definition of ‘deal’ in the Bill this will expand
the scope of conduct which will fall outside the proposed secrecy offences. In
particular, in the defence in proposed section 122.5(8) will be extended
as the circumstances where this defence may apply are not limited to specific
circumstances (such as information provided to a court or tribunal).
The Explanatory Memorandum notes that this defence is
drafted in similar terms to the prior publication in subsection 35P(3A) of the ASIO
Act. This subsection was inserted following the Independent National
Security Legislation Monitor’s report on the impact on journalists of the
operation of section 35P of the ASIO Act.[455]
The Replacement Explanatory Memorandum states:
The defence under subsection 122.5(8) seeks to strike a
balance between freedom of expression on the one hand, and recognition that
further dissemination of harmful information could cause additional harm on the
other hand. Before disclosing information that has already been published, a
person must believe on reasonable grounds that the subsequent disclosure will
not cause harm. This is because in some cases, even where information is
considered to have been published and in the public domain, subsequent
disclosure will still result in harm.[456]
A note under proposed subsection 122.5(8) indicates
that a defendant bears an evidential burden in relation to the matters in this
subsection.[457]
Information relating to a person
etc
Proposed subsection 122.5(9) provides it is a
defence if:
- the
person did not make or obtain the relevant information by reason of being a Commonwealth
officer or an engagement or agreement with the Commonwealth or Commonwealth
entity
- at
the time of the communication, removal, holding or dealing, the person believed
the making or obtaining of the information was required or authorised by law and
- having
regarding to the circumstances of the making or obtaining of the information,
the person has reasonable grounds for that belief and
- any
of the following apply:
- the
person communicates the information to the person whom the information relates
- the
person is the person to whom the information relates
- the
communication, removal, holding or dealing is in accordance with the express or
implied consent of the person to whom the information relates.
The Explanatory Memorandum notes that the new offences are
not intended to ‘prevent a person from dealing in information that relates to
them, or to limit the ability of a person to consent to another person dealing
information that relates to them’.[458]
A note under proposed subsection 122.5(9) indicates
that a defendant bears an evidential burden in relation to the matters in this
subsection.[459]
Proposed subsection 122.5(10) clarifies ‘to avoid
doubt’ that a defence to an offence may constitute an authorisation for the
purposes of paragraph 122.5(9)(b). This is ‘at the time of the
communication, removal, holding or dealing, the person believes that the making
or obtaining of the information by the person was required or authorised by law’.
Proposed subsection 122.5(11) provides that for the
purpose of the defences in subsections 122.5(3), (4), (5) or (5A) ‘it is not
necessary to prove in relation to information that was held, removed, or
otherwise dealt with for the purposes of communicating the information that the
information was actually communicated’. These are the defences that:
- information
was communicated etc. to integrity agency
- information
communicated etc. in accordance with the Public Interest Disclosure Act 2013
or the Freedom of Information Act 1982
- information
communicated to a court or tribunal and
- information
communicated etc. for the purposes of obtaining or providing legal advice
The Supplementary Explanatory Memorandum states that a
defendant seeking to rely on these defences ‘is not required to prove the
ultimate communication’.[460]
Burden of
proof for integrity agency officials
Proposed subsection 122.5(12) provides that the
integrity agency officials and employees outlined in the defence in proposed
subsection 122.3 do not bear an evidential burden in relation to certain
defences:
- that
the relevant conduct was an exercise of a power, or the performance of a
function or duty, in the integrity official’s capacity as a Commonwealth
officer or in accordance with a Commonwealth agreement or arrangement
(subsection 122.5(1))
- that
the person to whom the information was, or intended to be, communicated was an
integrity official or that the relevant conduct was undertaken for the purpose
of the integrity agency exercising a power, or performing a function or duty
(subsection 122.5(3)) and
- that
the relevant conduct was in accordance with the Public Interest Disclosure
Act 2013 (122.5(4)).
The Supplementary Explanatory Memorandum states this is
because ‘each of these integrity agencies are generally prohibited from
disclosing to a court any information acquired by reason of holding that
office, as outlined in the following legislation’.[461]
Miscellaneous—
injunctions, forfeiture and geographic jurisdiction
Proposed Division 123 includes provisions creating
further avenues to restrict disclosure of information and clarifies the
geographic jurisdiction for the offences in Division 122.
In particular proposed section 123.1 provides that
the offences created in Division 122 are enforceable under Part 7 of the Regulatory
(Standard Provisions) Powers Act 2014. This creates a legal framework
for the Minister, an ‘authorised person’, to seek injunctions and interim
injunctions from listed ‘relevant courts’ to restrain persons from committing
an offence under Division 122.
Proposed section 123.2 provides that ‘a sketch,
article, record or document which is made, obtained, recorded, retained,
possessed or otherwise dealt with in contravention of this Part is forfeited to
the Commonwealth’. The Explanatory Memorandum states this is ‘intended to
prevent or minimise the further communication or dealing with information
contained in such sketches, articles, records or documents’.[462]
It notes that this replicates existing section 85D of the Crimes Act,
however that section covers a broader range of items for forfeiture.[463]
Proposed section 123.3 provides that extended
geographic jurisdiction—category D applies to offences in the Part 5.6. This is
the broadest category of extended geographic jurisdiction set out in the Criminal
Code (section 15.4) and means the offences in Part 5.6 apply whether or not
the conduct, or the result of the conduct, constituting the offence occurs in
Australia.
Part 2—Consequential
amendments
A number of consequential amendments will be made to a
variety of legislation by Schedule 2. Frequently, these amendments repeal
references to the definition of ‘Commonwealth officer’ and sections 70 and 79
of Crimes Act and insert references to the proposed definition and
offences.
Agricultural and Veterinary
Chemicals (Administration) Act 1992
The consequential amendment (item 8) to section 69F
of the Agricultural and Veterinary Chemicals (Administration) Act 1992 means
that inspectors appointed by the Australian Pesticides and Veterinary Medicines
Authority (APVMA) are Commonwealth officers for the purposes of ‘Part 5.6
(secrecy of information) of the Criminal Code’ instead of ‘section 70 of
the Crimes Act’. This appears to make these APVMA inspectors subject to
all of the secrecy offences in the new Part 5.6 rather than just proposed
section 122.4 of the Criminal Code (which replaces section 70 of the
Crimes Act).
Archives Act 1983
Section 30A of the Archives Act 1983 provides
Archives officers must not disclose census information and includes a note that
section 70 of the Crimes Act creates an offence in relation to the
disclosure of information by Commonwealth officers. Item 9 substitutes section
122.4 of the Criminal Code in the note to this section.
Australian Citizenship Act
2007
The amendments in items 10 and 11 in the Bill as
introduced made amendments to the definition of ‘national security offence’ in
section 3 of the Australian Citizenship Act 2007.
Item 10 repeals paragraph (a) of the definition of
‘national security offence’ in the Australian Citizenship Act. This
provides that a national security offence means ‘(a) an offence against Part II
or VII of the Crimes Act’.
The Government’s amendments have removed the amendment in item
11. This would have amended paragraph (cb) of the definition of
‘national security offence’ in the Australian Citizenship Act to
add a reference to ‘Part 5.6 (secrecy of information)’. The Supplementary
Explanatory Memorandum states:
This inclusion would require the Minister of Home Affairs to
refuse a citizenship application if the person has been convicted of a Part 5.6
secrecy offence. That amendment will no longer be pursued to minimise any risk
of inconsistency with Australia’s obligations under the 1961 Convention on
the Reduction of Statelessness, which provides that member states shall
grant nationality to a person who would otherwise be stateless if, among other
conditions, the person has not been convicted of an offence against national
security.
There is a risk that some of the secrecy offences in Part 5.6
of the Criminal Code may not be sufficiently connected to national
security and therefore risk inconsistency with Australia’s obligations under
the Statelessness Convention.[464]
Australian Crime Commission Act 2002
Item 12 repeals a reference to section 85B of the Crimes
Act which relates to in camera hearings (being repealed by the Bill) from
the Australian Crime Commission Act 2002.
Australian Federal Police Act
1979
The definition of ‘protective service offence’ in section
4(1) of the Australian Federal Police Act 1979 refers to section 79 of
the Crimes Act, which is repealed by the Bill. Items 13 and 14
remove this reference and build on the consequential amendments in Part 2 of
Schedule 1 of the Bill to insert reference to ‘Part 5.6 of the Criminal Code’.
Chemical Weapons (Prohibition)
Act 1994
Section 102 of the Chemical Weapons (Prohibition) Act
1994 deals with secrecy and imposes non-disclosure duties on a list of
eligible persons which includes ‘any other Commonwealth officer’. Subsection
102(5) provides that the term ‘Commonwealth officer’ has the same meaning as in
section 70 of the Crimes Act. Item 15 repeals this reference and
substitutes a reference to proposed section 121.1 of the Criminal
Code, which includes the new definition of ‘Commonwealth officer’.
Comprehensive Nuclear-Test-Ban
Treaty Act 1998
Similarly, section 74 of the Comprehensive
Nuclear-Test-Ban Treaty Act 1998 imposes non-disclosure obligations on
specified persons including ‘any other Commonwealth officer (within the meaning
of section 70 of the Crimes Act)’.[465]
Item 16 omits ’70 of the Crimes Act’ and substitutes ‘section
121.1 of the Criminal Code’.
Defence Home Ownership
Assistance Scheme Act 2008
Item 17 repeals subsection 81(5) of the Defence
Home Ownership Assistance Scheme Act 2008 which refers to the
definition of Commonwealth officer and section 70 of the Crimes Act.
While the subsection is repealed, it is not replaced by the sections in the
Bill which include the definition of Commonwealth officer or the proposed offence.
Freedom of Information Act
1982
Item 18 repeals paragraph 78(1)(a) of the Freedom
of Information Act 1982. This paragraph refers to paragraph 80(c) of the Crimes
Act which allows places to be declared as ‘prohibited places’ by the
Governor-General. Section 80 of the Crimes Act will be repealed by the
Bill with the rest of Part VII.
The Explanatory Memorandum observes that ‘[d]eclarations
were made by the Governor-General under section 80(c) between 1959 and 1986’
and that these ‘declarations, which mainly relate to Defence premises, are
archaic and have not been updated or used for many years’.[466]
Law Enforcement Integrity Commissioner Act 2006
Similarly, item 19 also removes a reference to
paragraph 80(c) of the Crimes Act from the Law Enforcement Integrity
Commissioner Act 2006.
Liquid Fuel Emergency Act 1984
Section 29 allows the Minister to appoint authorised
persons for the purpose of enforcement. Item 20 repeals subsection 29(3)
which provides that these authorised persons are to the treated as Commonwealth
officers for the purposes of Part VI of the Crimes Act. While the
Explanatory Memorandum states the new definition of ‘Commonwealth officer’ in proposed
section 121.1 of the Criminal Code will apply to these authorised
persons it does not articulate why an explicit reference to this definition is
not inserted into section 29 of the Liquid Fuel Emergency Act 1984.
Migration Act 1958
Section 503A of the Migration Act deals with the
protection of information supplied by law enforcement agencies or intelligence
agencies. Subsection 503A(9) contains definitions for the section including a
definition of ‘Commonwealth officer’ as having the same meaning as in section
70 of the Crimes Act. Item 21 omits ’70 of the Crimes Act’
and substitutes ‘section 121.1 of the Criminal Code’.
National Greenhouse and Energy Reporting Act 2007
Subsection 23(1) of the NGAER Act provides a
secrecy offence for certain persons making unauthorised disclosures of
greenhouse and energy information. The note to subsection 23(1) clarifies that
the same conduct may be an offence against section 23 and section 70 of the Crimes
Act. Item 22 omits ’70 of the Crimes Act’ and substitutes
‘section 122.4 of the Criminal Code’. This is the proposed offence which
replaces section 70 of the Crimes Act in dealing with unauthorised
disclosures by current and former Commonwealth officers.
Similarly, item 23 amends the note of subsection
57(2) of the NGAER Act (which provides for the appointment of authorised
officers by the Regulator) by omitting ’70 of the Crimes Act’ and
substitutes ‘section 122.4 of the Criminal Code’.
Native Title Act 1993
Section 203DF of the Native Title Act 1993 provides
for the appointment of a person to perform inspections and audits or undertake
investigations under the Act. Subsection 203DF(8) clarifies that, to avoid
doubt, a person appointed under subsection 203DF(1) is taken to be a
‘Commonwealth officer’, for the purposes of section 70 of the Crimes Act.
Item 24 repeals subsection 203DF(8). The Explanatory Memorandum states
that the new definition of ‘Commonwealth officer’ in proposed section 121.1
will apply to persons appointed under the Native Title Act 1993.
Offshore Minerals Act 1994
Item 25 repeals a note referring to section 70 of
the Crimes Act and replaces it with a note referring to proposed
Part 5.6 of the Criminal Code.
Ombudsman Act 1976
Item 26 repeals paragraph 14(2)(a) of the Ombudsman
Act 1976. This paragraph refers to paragraph 80(c) of the Crimes Act
which allows places to be declared as ‘prohibited places’ by the
Governor-General. Section 80 of the Crimes Act will be repealed by the
Bill with the rest of Part VII.[467]
Parliamentary Service Act 1999
Items 27 and 28 amend notes to sections in the Parliamentary
Service Act 1999 which refer to section 70 of the Crimes Act, to
change these references to the new offence in proposed section 122.4 in
the Criminal Code.
Public Service Act 1999
Similarly, items 29 and 30 amend notes to sections
in the Public Service Act 1999 which refer to section 70 of the Crimes
Act, to change these references to the new offence in proposed section
122.4 in the Criminal Code.
Renewable Energy (Electricity) Act 2000
Item 31 repeals subsection 156(4) of the Renewable
Energy (Electricity) Act 2000 which applies the definition of ‘Commonwealth
officer’ and section 70 of the Crimes Act to persons delegated functions
or powers by the Clean Energy Regulator under that section. However, the new
definition of ‘Commonwealth officer’ and the new proposed offence are not
substituted.
Textile, Clothing and Footwear Investment and Innovation
Programs Act 1999
The Explanatory Memorandum notes that ‘[s]ubsections
37R(6), 37ZZA(6) and 52(5) of the Textile, Clothing and Footwear Investment
and Innovation Programs Act 1999 all refer to the definition of
‘Commonwealth officer’ in section 70 of the Crimes Act in relation to
persons authorised to perform functions, or exercise powers under each of the
respective subsections of the Act’.[468]
Items 32, 33 and 34 repeal these subsections. However, the new
definition of ‘Commonwealth officer’ and the new proposed offence are not
substituted.
Schedule 3—Aggravated offence for giving false or
misleading information
What is proposed
Schedule 3 introduces proposed section 137.1A into
the Criminal Code (the Code), which comprises Schedule 1 of the Criminal
Code Act 1995. The new section follows and builds on the existing section
137.1 of the Code, which has been in place since 2000.
The current section 137.1 ‘False or misleading
information’ makes it an offence to provide false or misleading information to
a Commonwealth entity, a person exercising powers or performing functions under
or in connection with a Commonwealth law, or where the information is given in
compliance or purported compliance with a law of the Commonwealth. A person
convicted of such an offence is liable to imprisonment for 12 months. An
offence against section 137.1 is referred to as the underlying offence for the
purposes of the Bill.
The new section in the Bill creates an aggravated offence,
where the provision of the false or misleading information comprising the
underlying offence occurs in relation to an application for the grant of a
security clearance or for maintaining an existing security clearance. An
offence under proposed section 137.1A would incur a maximum penalty of
five years imprisonment instead of the 12 months for the underlying offence.
The five years’ imprisonment is equivalent to the penalty for a number of other
information offences proposed in other Schedules to the Bill.[469]
Notably, the PJCIS report on the Bill recommended that the
Bill be amended to define the meaning of ‘Australian Government security
clearance’.[470]
If this recommendation is implemented it would be applied to the use of this
term in the proposed offence.
How the existing provision
works
The Explanatory Memorandum to the Bill which introduced
section 137.1 stated:
Proposed section 137.1 requires proof that the person knows
the information provided or omitted is false and misleading. The information
must be given to a Commonwealth entity, given to a person exercising powers or
performing functions under or in connection with a law of the Commonwealth or
in compliance or purported compliance with a law of the Commonwealth.[471]
The Explanatory Memorandum also noted that this provision
replaced a number of similar provisions in various Acts, thus ‘centralising the
offences and slimming down the statute book’.[472]
The provision regarding to whom the information was
provided was later made an absolute liability provision. It is no defence for a
person who gave false or misleading information to claim that they did not give
the information to a person exercising Commonwealth powers, but rather, for
example, to a third party who then passed it on. The fact that false or
misleading information emanating from a person is used for Commonwealth
purposes is sufficient to prove that the person gave it to them for the
purposes of this provision.
Section 137.1 also covers omissions as potentially being
the provision of misleading information—including where an omission can make
otherwise accurate information misleading. However it is a defence for the
person to demonstrate that the omitted information was not important or
material to the decision being made.
How the new provision will
work
An offence against section 137.1A will be established by
proving all of the elements of an offence against section 137.1, and
additionally proving that the false or misleading information ‘was given in
relation to an application for, or the maintenance of, an Australian Government
security clearance’.[473]
While the elements of a section 137.1 offence need to be proved for an offence
against section 137.1A to be established, the person does not need to be
charged with an offence against 137.1— simply charging them with an offence
against section 137.1A will suffice.
If the person is charged with an offence against section
137.1A only, the relevant court can still find the person guilty of a section
137.1 offence rather than a section 137.1A offence, on the facts of the case.
This might occur for example where the person charged with providing false or
misleading information in relation to a security clearance was found to have
provided false or misleading information for another purpose, and the link to a
security clearance could not be proven to the satisfaction of the court.
Defences
The aggravated offence will be subject to the same
defences provided for by the underlying offence. The defences apply where the
information is not false or misleading in a material particular, or where the
Commonwealth does not take reasonable steps to inform the person providing the
information of the existence of the offence, before that information was
provided.
Comment on the provisions
The description of section 137.1A as an aggravated offence
is unusual. At criminal law an aggravated offence is typically an underlying
offence with some additional (aggravating) element or factor. For example an
aggravated people smuggling offence under the Criminal Code is where the people
smuggler not only acts to facilitate the unlawful entry of a person into a
foreign country, but also in so doing acts with disregard for the smuggled
person’s safety (among other things).[474]
In section 137.1A, the aggravated offence is simply the commission of the
underlying offence in defined circumstances.
Notwithstanding the description of the offence, the higher
penalty, compared to other section 137.1 offences, ‘reflects the higher level
of culpability associated with the provision of false or misleading information
in security clearance processes’.[475]
It also reflects the capacity for false or misleading information given in such
a process to compromise both national security generally and the security of
the public. The Explanatory Memorandum also notes that it can be extremely
difficult, if possible at all, for an Australian vetting agency to discover,
for instance, information about relationships that a security clearance
applicant may have formed overseas.[476]
Full disclosure by the applicant is essential for the Australian Government to
be properly informed of the risk factors and vulnerabilities that it may need
to manage.
One other point relates to subsection 137.1A(6) in the
Bill. This says that ‘a reference in any law to section 137.1 is taken to
include a reference to this section’. This subsection, which relates primarily
to the application of section 137.1, may be easy for a reader to miss situated
where it is. It may be preferable for an amendment to be made to section 137.1
by including subsection 137.1(7), saying ‘a reference in any law to section
137.1 is taken to include a reference to section 137.1A’.
In its submission to the Joint Committee, the Law Council
of Australia questioned whether the aggravated offence was too broadly pitched,
and suggested the offence should be limited to information concerning
activities linked to a foreign country or principal in relation to an
application for a security clearance.[477]
Otherwise there is a danger that conduct would be captured that was beyond the
policy intent of the new provision.
Comparable law in other
countries
United States
The US Criminal Code (title 18, section 1001)
provides that knowingly falsifying or concealing a material fact ‘in any matter
within the jurisdiction of the executive, legislative or judicial branch of the
Government’ is a felony which may result in fines and/or up to five (5) years
imprisonment. If the offense involves international or domestic terrorism (as
defined in section 2331), the potential term of imprisonment is a maximum eight
years.[478]
A description of a section 1001 offence, as set out in the
subsections to section 1001 are:
1) falsify, conceal, or cover up by any trick, scheme,
or device a material fact;
2) make any materially false, fictitious, or fraudulent
statement or representation; or
3) make or use any false writing or document knowing
that it contains any materially false, fictitious or fraudulent entry, in any
matter within the jurisdiction of one of the three branches of the federal
government.
The false statements statute is extremely broad. While the
false statement has to be ‘material’, the provision itself of the false
statement represents the offence, without the government having needed to be
harmed or to have relied on your statement in any way. The false statement can
be written (as on a Standard Form SF-86) or verbal.[479]
The process for gaining a US security clearance mainly
comprises an inquiry called a Personnel Security Investigation (PSI). A PSI
examines an individual's loyalty, character, trustworthiness, and reliability
to ensure that he or she is eligible to access classified information or for an
appointment to a sensitive position or position of trust.
US employment website the balance notes, in regard
to security clearances, that:
PSIs and security clearances are key elements in protecting
the security of the United States. These tools are meant to counter the threats
that may stem from:
Foreign intelligence services
Organizations or people who wish to overthrow or undermine
the United States government through unconstitutional means, violent acts, or
other terrorist group activities
Individuals who may be susceptible to pressure or improper
influence or have been dishonest or demonstrated a lack of integrity that has
caused others to doubt their reliability.[480]
The website goes on to note that a person who knowingly
and wilfully makes material false statements during a PSI may be subject to
prosecution for violating Title 18, section 1001 of the US Code.
United Kingdom
The United Kingdom does not appear
to have a centralised false statements-type provision. Instead a number of
separate Acts contain provisions relating to making false statements in
particular circumstances, such as:
It is also noted that forms for
completion in regard to a UK security clearance do not state that the provision
of false information is a criminal offence. Rather they say that ‘failure to
disclose relevant circumstances or information is likely in itself to be
regarded as evidence of unreliability and will be taken into account when
assessing your suitability for security clearance’.[481]
Schedule 4—Telecommunications serious offences
Background
Schedule 4 amends the Telecommunications
(Interception and Access) Act 1979 (TIA Act) to bring most of
the Bill’s proposed offences within the scope of the TIA Act’s interception
warrant regime.[482]
The changes follow recent amendments to the TIA Act
which were aimed at better managing national security risks to Australia’s
telecommunications services and infrastructure. The Telecommunications
and Other Legislation Amendment Act 2017 created new security obligations
for telecommunications companies to protect their networks and facilities from
unauthorised interference or access. In imposing these obligations on carriers,
carriage service providers and intermediaries, the Government stated that such
services, which carry and hold sensitive information, ‘are attractive targets
for espionage, sabotage and foreign interference activity by state and
non-state actors’.[483]
It noted that the security framework established by the amending legislation
would:
.... formalise the relationship between Australian Government
agencies and C/CSPs to achieve more effective collaboration on the management
of national security risks. The aim is to encourage early engagement on
proposed changes to networks and services that could give rise to a national
security risk and collaboration on the management of those risks. While a more
formal relationship is necessary to ensure appropriate management of national
security risks, the regulatory objective is to achieve national security outcomes
on a cooperative basis rather than through the formal exercise of regulatory
powers.[484]
A twelve month implementation period is currently
underway, with the new security obligations to commence in September 2018.[485]
In comparison with these recent changes, the amendments to
the TIA Act made by the present Bill are not focused only on threats
directly to Australia’s telecommunications networks, but rather seek to
better utilise telecommunications interception in the investigation of offences
which may involve threats to national security.
Interception warrants under the TIA Act
Schedule 4 amends the definition of serious
offence in the TIA Act. The term is relevant to the issuing of
two types of interception warrants under the TIA Act:
- a
telecommunications service warrant, which allows an agency to intercept
communications made to or from a particular telecommunications service[486]
and
- a
named person warrant, which allows an agency to intercept communications
made to or from any telecommunications service, or made by a particular
communications device, that a particular person is using or likely to use.[487]
To obtain either warrant, the agency making the
application[488]
must show that information likely to be obtained under the warrant would be
likely to assist in connection with the investigation by the agency of a
serious offence, or serious offences.[489]
In issuing a warrant, an eligible Judge or nominated member of the
Administrative Appeals Tribunal must have regard to a number of specified
matters, including: the extent of the interference with the privacy of any
person; the gravity of the conduct constituting the offence (or offences) being
investigated; how much the information obtained would be likely to assist in
the investigation; and to what extent alternative methods of investigation are
available to—and would be likely to assist—the relevant agency.[490]
Definition of serious offence
An extensive and complex definition of serious
offence is provided under existing section 5D of the TIA Act. It
includes a broad range of offences relating to murder, kidnapping, terrorism,
money laundering, cybercrime and market misconduct. Subsection 5D(2) states
that it also includes offences punishable by at least seven years imprisonment
where the conduct involves loss of life or serious personal injury (or serious
risk of life or serious personal injury), serious property damage in
circumstances endangering the safety of a person, serious arson, trafficking in
prescribed substances, serious fraud, or loss to government revenue, bribery or
corruption.
Currently, the definition expressly covers the treason
offences under Subdivision B of Division 80 of the Criminal Code, but
may not capture the other types of national security offences to which the
present Bill relates, except where they fall within the scope of subsection
5D(2).
Proposed amendments
Items 1 to 3 insert seven new classes of offences
into the definition of serious offence in paragraph 5D(1)(e) of
the TIA Act. Item 1 provides that the five groups of offences
included in Schedule 1 of the Bill will fall within the meaning of serious
offence:
- sabotage
(Division 82 of the Criminal Code)
- other
threats to security (Division 83)
- espionage
(Division 91)
- foreign
interference (Division 92) and
- theft
of trade secrets involving foreign government principle (Division 92A).
Item 2 inserts the aggravated offence for giving
false or misleading information, as proposed by Schedule 3 of the Bill. Item
3 inserts the secrecy offences under Division 122 of the Criminal Code,
as proposed in Schedule 2.
The Explanatory Memorandum states that a number of the
proposed offences in the Bill involve conduct which may be conducted largely or
exclusively online, or information which may be created, communicated and
stored online, and which may only be detected through the use of
telecommunications interception powers. For example, in relation to the
proposed espionage offences, the Explanatory Memorandum notes:
In the modern context, electronic means present the most
common and convenient method of passing information to a foreign principal,
making it necessary for investigators to have the option to intercept such
communications to present harm.[491]
The amendments will also allow agencies to use
interception powers to gather evidence as to whether an offence has occurred,
even if the conduct constituting the offence has not taken place online. An
example is in relation to the aggravated offence for giving false or misleading
information under proposed section 137.1A of the Criminal Code.
In explaining the inclusion of this offence within the TIA Act’s
definition of serious offence, the Explanatory Memorandum states:
‘interception of telecommunications provides a critical mechanism to determine
a person’s intention in omitting or lying about certain details in the security
clearance process’.[492]
Comment
The amendments will allow the use of interception warrants
in the investigation of the majority of the Bill’s proposed offences.[493]
The Explanatory Memorandum points to the need for reform in this area, arguing
that:
The current lack of law enforcement and intelligence powers
with respect to these activities [which threaten Australia’s national security]
has resulted in a permissive operating environment for malicious foreign
actors, which Australian agencies are unable to effectively disrupt and
mitigate. Amendments to the TIA Act will ensure declared agencies have
access to telecommunications interception powers to investigate the offences
provided for in the Bill.[494]
To some extent, the existing definition of serious
offence will already capture these activities—it expressly includes
treason offences, and will also cover offences where, for example, the relevant
conduct involves a serious risk of loss of life or personal injury, serious
damage to property in circumstances endangering a person’s safety, or a serious
loss to government revenue.[495]
However, the proposed amendments in Schedule 4 will create a clearer
basis on which law enforcement and intelligence agencies can apply for warrants
to investigate potential national security threats, including those threats
which are carried out exclusively online.
Some of the offences inserted into the TIA Act do
not fall within the scope of subsection 5D(2). In particular, certain secrecy
offences under proposed sections 122.1, 122.2 and 122.4 of the Criminal
Code, and the proposed aggravated offence for giving false or misleading
information, which have a penalty of less than seven years, would not be
captured by the existing definition. The proposed amendments therefore broaden
the reach of the interception warrant regime. More generally, the broad scope
of a number of the proposed offences also has the effect of extending the
grounds on which telecommunications services and devices can be subject to an
interception warrant.
Some stakeholders have raised particular concerns with the
inclusion of the aggravated offence of giving false or misleading information,
as proposed under Schedule 3 of the Bill. The Law Council has noted that
there is no requirement in the offence for the conduct to be linked to a
foreign country or principal, and that consequently:
... this may mean that an interception warrant could be
obtained to assist in determining false or misleading information which would
not pose a threat to Australia’s national security. A broad range of
circumstances may be captured by this offence provision and the proposed
expansion of the TIA Act would be considerable and does not appear
justified.[496]
The Law Council recommended that proposed subparagraph
5D(1)(e)(viii) of the TIA Act, which would include the
offence under the definition of serious offence, be removed from
the Bill. Alternatively, it suggested that the proposed offence be redrafted in
line with its recommendation that it be limited to failure to disclose activities
linked to a foreign country/principle.[497]
A similar point was made by the OAIC, which noted that the
TIA Act amendments will increase the circumstances in which personal
information may be collected, accessed and disclosed.[498]
It drew attention to the Explanatory Memorandum, which acknowledged that the Schedule
4 amendments limit the right to privacy but argued that this limitation was
reasonable, necessary and proportionate to the objective of protecting
Australia’s national security.[499]
The OAIC raised concerns that privacy issues were considered largely in the
context of the Schedule 1 offences, and the Explanatory Memorandum did
not justify expanding the TIA Act’s interception and access regime to
include the secrecy or aggravated false or misleading information offences,
which may not always have a national security element. In light of this, the
OAIC suggested:
If it is the intent that the interception and access regime
would only be used in connection to these offences where there was a national
security objective, then this should be prescribed in the Bill or explained in
the EM.[500]
The PJCIS supported the amendments in Schedule 4 noting
‘the important role that telecommunications interception could play in
investigating the proposed new and amended secrecy offences’. In recognition of
concerns expressed during the inquiry, the PJCIS recommended that the
Explanatory Memorandum be amended so that the Statement of Compatibility
with Human Rights explicitly addresses the necessity, reasonableness, and
proportionality of the expansion of telecommunications interceptions powers to
all of the offences specified in Schedule 4 of the Bill.[501]
Schedule 5—Foreign influence transparency scheme
Schedule 5 of the Bill will make amendments that
expand the scope of the scheme established by the proposed Foreign Influence
Transparency Scheme Bill 2017 (FITS Bill) and provide for transitional
arrangements.
Commencement
As noted above, clause 2 of the Bill provides that Part
1 of Schedule 5 will commence at the same time the Foreign Influence
Transparency Scheme Act 2017. However, if that Act does not commence, then
the provisions will not commence at all.
Similarly, Part 2 of Schedule 5 will commence
immediately after the commencement of the Foreign Influence Transparency
Scheme Act 2017 (FITS Act) or immediately after Part 1 of Schedule 1 of the
Electoral Legislation Amendment (Electoral Funding and Disclosure Reform)
Act 2017 (Electoral Act) whichever is the later to occur. If either does
not commence, then Part 2 of Schedule 5 will not commence.
Transitional arrangements
Part 1 of Schedule 5 outlines transitional
provisions for registration where ‘a registrable arrangement is in existence
between a person and a foreign principal’. In this case registration would be
required six months after the commencement of the FITS Act. The Explanatory
Memorandum suggests that the provisions of clause 16 of the FITS Bill (the
requirement to register) would not be imposed and a person registering would be
required to apply for register within 14 days after the end of the six
month period. It states this transitional arrangement is intended to allow
persons with existing arrangements with foreign principals ‘time to arrange
their affairs and ensure they comply with the scheme’.[502]
Amendments related to
Electoral Legislation Amendment (Electoral Funding and Disclosure and Reform)
Act 2017
The amendments to the FITS Act in Schedule 5,
Part 2 relate to the proposed Electoral Legislation Amendment (Electoral
Funding and Disclosure and Reform) Act 2017.
Item 2 amends the definition of ‘electoral
donations threshold’ set out in section 10 of the FITS Act to omit ‘$13,500’
and substitute ‘the disclosure threshold within the meaning of Part XX of the
Commonwealth Electoral Act 1918’. The Explanatory Memorandum notes this
amendment ensures that the thresholds regarding ‘disbursements of money and
other things of value regulated by the Foreign Influence Transparency Scheme
Act and the Commonwealth Electoral Act are aligned’.
Item 3 of Schedule 5 will expand the definition of
‘general political lobbying’ (in clause 10 of the FITS Bill) to include ‘a
person or entity that is registered under the Commonwealth Electoral Act 1918
as a political campaigner’.
Under the Electoral Bill (proposed subsection 287F)
a person or entity will be required to register as a ‘political campaigner’ if
their political expenditure during the current, or in any of the previous three
financial years was $100,000 or more. A person or entity will also be required
to register as a political campaigner if their political expenditure during a
financial year is $50,000 or more and during the previous financial year was at
least 50 per cent of their allowable amount for that year. The Explanatory
Memorandum suggests that registered political campaigners have been included in
the definition of ‘general political lobbying’ because ‘lobbying such persons
or entities is an inherently political activity’.[503]
A person would only be required to register under the FITS Bill if the
political campaigner was lobbying on behalf of a foreign principal.
Item 4 of Schedule 5 amends subsection 12(1)
of the FITS Act to insert proposed paragraph 12(1)(g). This would expand
the definition of activity for the ‘purpose of political or governmental
influence’ to include activities for the purpose of influencing ‘processes in
relation to a person or entity registered under the Commonwealth Electoral Act
1918 as a political campaigner’. The Explanatory Memorandum states the effect
of the amendment is that ‘if a person undertakes an activity for the purpose of
influencing a process in relation to a registered political campaigner, that
activity will be taken to have been done for a purpose of ‘political or
governmental influence’, and may attract a requirement to register under the
scheme’.[504]
Item 5 of Schedule 5 will insert proposed
subsection 12(7) into the FITS Act to provide examples of such
processes for the purposes of paragraph 12(1)(g). The Government’s amendments
will change the reference in proposed paragraph 12(7)(a)(vi) from
‘relationship with foreign principals within the meaning of paragraph (a), (b)
or (c) of the definition of foreign principal in section 10, or with bodies
controlled by such foreign principals’ to ‘relationships with foreign principals’.
The Supplementary Explanatory Memorandum states:
Item 5 of Schedule 5 currently applies to processes in
relation to a political campaigner’s relationship with foreign principals that
were foreign governments, foreign public enterprises or foreign political
organisations, or with bodies controlled by such foreign principals.
The effect of this amendment is that subparagraph
12(7)(a)(vi) will now apply to each of the foreign principals listed in the
definition of foreign principal at section 10 of the Foreign Influence
Transparency Scheme Act, making it unnecessary to specify specific subsections
of the definition of foreign principal in this subparagraph.[505]
Schedule 6—Protection
for persons providing information voluntarily to the Inspector-General
Item 1 of Schedule 6 will insert proposed
section 34B into the Inspector General of Intelligence and Security Act.
Proposed subsection 34B(1) provides this section
will apply where a person voluntarily provides, or makes available, information
or documents to the Inspector-General for certain purposes. These purposes are:
- the
making of complaints to the IGIS
- the
conduct by the IGIS of inspections of intelligence agencies
- the
conduct by the IGIS of preliminary inquiries into complaints to determine
whether to conduct an inquiry into those matters and
- the
conduct by the IGIS of inquiries.
Proposed subsection 34B(2) provides that a person
is not liable to a penalty under any law of the Commonwealth for providing or
making available the information or documents for these purposes.
The Supplementary Explanatory Memorandum notes that the
amendment ‘will confer immunity from liability to penalty on people who
voluntarily provide or make available information or documents to the IGIS, for
the purpose of the IGIS performing oversight functions under the IGIS Act’:
New section 34B of the IGIS Act is directed at ensuring that
the secrecy offences in Schedule 2 do not create a disincentive for people
coming forward to the IGIS with information about suspected or perceived wrongdoing
by an intelligence agency, as a result of their being wholly reliant on a
defence. It will ensure that people who voluntarily provide information to the
IGIS will have equal legal protection to those who do so under compulsion in an
inquiry and are covered by the immunity in existing subsection 18(9) [of the
IGIS Act].[506]
This amendment is intended to implement recommendation 32
of the PJCIS report which stated the Inspector-General of Intelligence and
Security Act should be ‘amended to extend statutory immunity to persons who
voluntarily provide information to the Inspector-General or her office’.[507]
However, proposed subsection 34B(3) lists two main
exceptions to this immunity:
- proposed
paragraph 34B(3)(a) provides that the protection is ‘not available in
relation to proceedings for an offence under certain provisions of the Criminal
Code and Crimes Act that relate to the provision of false or misleading
information and use of fraudulent documents, the obstruction of Commonwealth
officials, offences relating to evidence and witnesses, and preparatory and
ancillary offences to the above’ and
- proposed
paragraph 34B(3)(b) provides the protection is not available in relation to
proceedings for an offence against a provision that is:
- enacted
after the commencement of this section and
- expressed
to have effect despite this section.
The Supplementary Explanatory Memorandum states this is ‘intended
to make clear that the protection given in subsection 34B(2) should not be
affected unless there is a clear expression of legislative intention to do so’.[508]
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
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