8.1
This chapter discusses the Bill’s proposed new offences relating to sabotage.
8.2
The Bill replaces the two current sabotage offences in the Crimes Act 1914 (Crimes Act) with seven new offences in the Criminal Code (Division 82). While the existing offences are limited to defence property, the proposed new sabotage offences are premised on damage or vulnerabilities to ‘public infrastructure’.
8.3
The seven new offences, the relevant section and proposed penalties are set out below.
Table 8.1: Sabotage Offences
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Sabotage – involving foreign principal with intention as to national security
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82.3
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25 years
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Sabotage – involving foreign principal reckless as to national security
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82.4
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20 years
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Sabotage – with intention as to national security
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82.5
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20 years
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Sabotage – reckless as to national security
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82.6
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15 years
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Introducing vulnerability – with intention as to national security
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82.7
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15 years
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Introducing vulnerability – reckless as to national security
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82.8
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10 years
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Preparing for or planning sabotage
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82.9
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7 years
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8.4
The Department explained the intention behind the broadening of the sabotage offences beyond conduct against defence property:
[T]he broadening of the sabotage offences is really to recognise the importance of protecting Australia's critical infrastructure and our heavy reliance on that infrastructure to maintain a prosperous society. Effectively, the existing offence that protects only defence facilities recognises a time when defence was of peak interest, but really we rely on a much broader range of infrastructure. The offences will criminalise the acts of interfering with a broader range of critical infrastructure—of acting to directly sabotage that infrastructure. It's intended to act as a deterrent but also to provide a mechanism for prosecution where there are acts to sabotage or introduce vulnerabilities into Australia's critical infrastructure.
8.5
The general requirements for the offences in sections 82.3 to 82.6 are that a person engages in conduct and the conduct results in ‘damage to public infrastructure’; and the person intends that, or is reckless as to whether, the conduct will
prejudice Australia’s national security, or
advantage the national security of a foreign country.
8.6
The offences in 82.3 and 82.4 also require that any of the following circumstances exists:
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,
the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.
Definitions of ‘damage to public infrastructure’ and ‘public infrastructure’
8.7
Underpinning the new sabotage offences are the definitions of ‘damage to public infrastructure’ and ‘public infrastructure’.
8.8
Proposed section 82.1 of the Criminal Code provides that conduct results in damage to public infrastructure if any of the following applies in relation to public infrastructure:
a.
the conduct destroys it or results in its destruction,
b.
the conduct involves interfering with it, or abandoning it, resulting in it being lost or rendered unserviceable,
c.
the conduct results in it suffering a loss of function or becoming unsafe or unfit for its purpose,
d.
the conduct limits or prevents access to it or any part of it by persons who are ordinarily entitled to access it or that part of it,
e.
the conduct results in it or any part of it becoming defective or being contaminated,
f.
the conduct significantly degrades its quality,
g.
if it is an electronic system—the conduct seriously disrupts it.
8.9
Noting in particular paragraph (d) of this definition, the Committee enquired as to whether otherwise lawful dissent and protest could be captured under the sabotage offences (for example, protest action, such as blockades, sit-ins or pickets, that is specifically designed to limit people’s access to their places or work). The Attorney-General’s Department responded:
The sabotage offences only apply where a person intended to prejudice Australia’s national security or advantage the national security of a foreign country (or, in relation to sections 82.7 and 82.8, to harm or prejudice Australia’s economic interests, disrupt the functions of government or damage public infrastructure). The burden will be on the prosecution to prove these elements beyond a reasonable doubt.
8.10
‘Public infrastructure’ is broadly defined in section 82.2(1) as follows:
a.
any infrastructure, facility, premises, network or electronic system that belongs to the Commonwealth;
b.
defence premises within the meaning of Part VIA of the 24 Defence Act 1903;
c.
service property, and service land, within the meaning of the Defence Force Discipline Act 1982;
d.
any part of the infrastructure of a telecommunications network within the meaning of the Telecommunications Act 1997;
e.
any infrastructure, facility, premises, network or electronic system (including an information, telecommunications or financial system) that:
i.
provides or relates to providing the public with utilities or services (including transport of people or goods) of any kind; and
ii.
is located in Australia; and
iii.
belongs to or is operated by a constitutional corporation or is used to facilitate constitutional trade and commerce.
8.11
The Explanatory Memorandum explains the importance of the definition of public infrastructure as follows:
The definition of public infrastructure covers infrastructure and services that are essential to everyday life in Australia. A disruption to public infrastructure due to sabotage could have a range of serious implications for business, governments and the community.
8.12
The proposed definition includes telecommunications networks and other networks and electronic systems (see paragraphs a, d, and e). The Attorney-General’s Department confirmed that, for the purpose of the offences in proposed sections 82.7 and 82.8 (introducing vulnerability), individual mobile phones, laptops and tablets would fall within the scope of ‘articles’ and/or ‘things’ that may be part of public infrastructure.
8.13
For the purpose of subparagraph (e)(i) of the definition, ‘constitution corporation’ means a corporation to which paragraph 51(xx) of the Constitution applies. This would include most businesses that have ‘Pty Ltd’ or ‘Ltd’ within its business name, and other entities considered to be ‘trading corporations’. ‘Constitutional trade and commerce’ is defined in the Bill to mean trade and commerce with other countries, among the States, between a State and a Territory, or between two Territories.
8.14
The Explanatory Memorandum provides the following explanation as to why the definition of ‘public infrastructure’ also includes privately-owned infrastructure:
It is essential to cover privately owned infrastructure within the definition of public infrastructure because the consequences flowing from damage to these types of infrastructure could be as damaging as damage to infrastructure owned by the Commonwealth.
8.15
The joint councils for civil liberties considered that the combination of the definition of public infrastructure and that of damage to public infrastructure
… could capture conduct of minor significance in terms of actual harm done to the infrastructure or harm to infrastructure that has no significant relationship with an appropriately defined ‘national security’.
Critical infrastructure versus public infrastructure
8.16
The Explanatory Memorandum states that the Bill ‘introduces comprehensive new sabotage offences that effectively protect critical infrastructure in the modern environment’.
8.17
Whilst the Explanatory Memorandum refers to critical infrastructure, the Bill refers to ‘public infrastructure’. This is a broader term than critical infrastructure as defined in the Security of Critical Infrastructure Bill 2017 (recently reviewed by this Committee) which defines critical infrastructure as:
a critical electricity asset; or
a critical water asset; or
an asset declared under section 51 to be a critical infrastructure asset; or
an asset prescribed by the rules.
8.18
The Committee raised this discrepancy with the Attorney-General’s Department, which stated that:
The Explanatory Memorandum uses the term ‘critical infrastructure’ because this is a commonly used and understood term in public discourse. The term ‘public infrastructure’ was adopted in the Bill as the best technical description for the matters covered by the definition. This was a drafting matter.
8.19
The Committee also asked the Department why the Bill is not constrained to critical infrastructure as defined in the Security of Critical Infrastructure Bill 2017. The Department stated:
The purpose of the Bills is quite different and it is not necessary for the definitions to completely align. The harm that comes from damage to public infrastructure due to sabotage is deserving of criminalisation on its own merits.
The Security of Critical Infrastructure Bill is targeted at specific assets and sectors where the risk from espionage, sabotage and coercion is highest. It is designed to ensure that Government has all the necessary information to conduct risk assessments and the powers to enforce mitigations if they are not implemented through collaboration. Given it is imposing a regulatory burden, it is drafted with a narrower focus.
Intention and recklessness as to national security
8.20
The offences in proposed sections 82.3 and 82.5 require that a person intends to
prejudice Australia’s national security; or
advantage the national security of a foreign country.
8.21
The offences in proposed sections 82.4 and 82.6, however, only require that a person is reckless to these elements.
8.22
Similarly, the offences in proposed sections 8.28 and 82.8 (introducing vulnerability offences) require a person to intend, or be reckless as to whether the following will occur:
prejudice to Australia’s national security,
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,
damage to public infrastructure.
8.23
Proposed section 90.4 defines the term ‘national security’ to include a country’s political, military or economic relations with another country or other countries. The breadth of this term, and the meaning of the words ‘prejudice’ and ‘advantage’, is discussed in detail in Chapter 3.
8.24
As also discussed in Chapter 3, section 5.4 of the Criminal Code provides that a person is reckless with respect to:
a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and
a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
8.25
The Committee noted that private contractors or Commonwealth officials may be aware of substantial risks when carrying out work, such as repairs, to critical infrastructure (or, in the case of information and communications technology, when carrying out updates and upgrades to a network) but be required to carry out that work anyway. The Committee asked the Attorney-General’s Department whether a person carrying out dangerous and difficult repairs to a large piece of infrastructure could be considered to be reckless. The Department responded:
In the context of essential repairs to public infrastructure, the risk is likely to be justified.
The elements of the sabotage offences also require a person to have intended to, or be reckless as to whether his or her conduct would, prejudice Australia’s national security or advantage the national security of a foreign country.
Harm or prejudice to Australia’s economic interests, and other matters
8.26
Proposed sections 82.7 and 82.8 establish new offences for introducing a vulnerability with the intention that the following will occur:
prejudice Australia’s national security,
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, or
damage to public infrastructure.
8.27
The Explanatory Memorandum explains 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. The prejudice to Australia’s national security is not required to be serious or substantial but is intended to be more than a minor or trivial prejudice that has no long-lasting effect, nor embarrassment to an Australian person or Australia’s people.
8.28
The Law Council of Australia was concerned that the intention expressed in the Explanatory Memorandum is not borne out in the text of the Bill, namely that prejudice is not required to be serious or substantial but is intended to be more than a minor or trivial prejudice.
8.29
Unlike other sabotage offences, proposed sections 82.7 and 82.8 do not necessarily require the person to intend or be reckless as to whether their conduct will prejudice Australia’s national security, or advantage another country’s national security. The offence could be made out if the person intended or was reckless as to whether their conduct will:
harm or prejudice Australia’s economic interests,
disrupt government functions, or
damage public infrastructure.
8.30
The Committee asked the Department if the drafting of the offence in a way that takes it outside of the national security context was deliberate. The Department provided the following answer:
The sabotage offences in sections 82.7 and section 82.8 will apply if a person engages in the conduct with the intention to prejudice Australia’s national security (subparagraph 82.7(d)(i)) or is reckless as to whether his or her conduct would prejudice Australia’s national security (subparagraph 82.8(d)(i)). They will also apply in the circumstances listed [in the above paragraph].
8.31
When asked why the additional element of ‘harm or prejudice to Australia’s economic interests’ was included for the introducing vulnerability offences, the Department responded:
The sabotage offences in sections 82.3 to 82.6 require a person to have actually damaged public infrastructure. The prosecution will have proved that the person was reckless as to this element when proving the damage to public infrastructure. Therefore, it is not necessary to also prove that the person intended to disrupt government services or harm Australia’s economic interests.
This is not the case with the offences in sections 82.7 and 82.8 where damage has not necessarily yet occurred, but a vulnerability has been created. Therefore, these offences have a broader range of matters listed in relation to the person’s intention at the point that he or she introduced the vulnerability.
Preparing for or planning a sabotage offence
8.32
Proposed section 82.9 provides that person commits an offence if they engage in conduct with the intention of preparing for, or planning, an offence against Division 82. Separately, Part 2.4 of the Criminal Code already contains incitement, conspiracy and attempt provisions.
8.33
General issues concerning the Bill’s inclusion of preparatory offences are discussed in Chapter 3.
8.34
The Law Council of Australia raised the following specific concern about the preparatory sabotage offence:
[T]he extension of criminal responsibility to cover preparatory acts requires law enforcement and prosecutorial authorities to exercise a considerable degree of discretion when determining whether an otherwise innocuous act should be subject to the charge and prosecution. In the Law Council’s view, an unacceptable element of arbitrariness and unpredictability may arise in determining whether or not a person is charged with the preparatory offence under proposed section 82.9.
Penalties
8.35
The existing penalty for sabotage is imprisonment for 15 years whilst the penalties proposed for the expanded sabotage offences are as high as 25 years imprisonment.
8.36
Sections 82.7 and 82.8 establish offences which include introducing vulnerability with the intention to harm or prejudice to Australia’s economic interests. That prejudice is ‘not required to be serious or substantial’. The Committee sought clarification from the Attorney-General’s Department as to whether such conduct is proportionate to the proposed penalties of ten to 15 years imprisonment. The Department answered that:
Consistent with Commonwealth criminal law policy, the maximum penalty for an offence should be set appropriately for the worst case scenario.
8.37
Additionally, the Department pointed to the Explanatory Memorandum’s justification for the penalty for the offence at section 82.7 (offence of introducing vulnerability with intention as to national security):
The offence will be punishable by a maximum penalty of 15 years imprisonment. The commission of this offence would have serious consequences for Australia’s national security and economic interests. It is unacceptable for persons to enable the misuse, impairment or unauthorised access or modification of an article, thing or software that is or is part of public infrastructure. In the worst case scenario, Australians could be killed or seriously harmed as a result of the modification or impairment of public infrastructure by a person intending to harm Australia’s national security. This justifies the serious maximum penalty for the offence.
8.38
With respect to the penalty for the offence at section 82.8 (offence of introducing vulnerability reckless as to national security), the Explanatory Memorandum reasoned:
The offence will be punishable by a maximum penalty of 10 years imprisonment. The commission of this offence would have serious consequences for Australia’s national security and economic interests. It is unacceptable for persons to enable the misuse, impairment or unauthorised access or modification of an article, thing or software that is or is part of public infrastructure. In the worst case scenario, Australians could be killed or seriously harmed as a result of the modification or impairment of public infrastructure by a person who is reckless as to the harm that may result. This justifies the serious maximum penalty for the offence.
Defences
8.39
Section 82.10 of the Bill provides a defence for conduct where a person is engaged in accessing or using a computer or other electronic system and the person engaged in the conduct in the person’s capacity as a public official. The Law Council’s submission noted that this defence is ‘far more limited than the current defence which applies to acts done in good faith’.
8.40
In addition, the Law Council submitted that a defence for where the person engaged in conduct in the person’s capacity as a public official should not be available for sabotage offences:
The Law Council considers that a person acting in their capacity as a public official should not be permitted to act with the intention of, or be reckless as to, prejudicing Australia’s national security. Such a defence for public officials appears antithetical to the very intent of the Bill, namely, to protect Australia against acts of sabotage, espionage and foreign interference. Furthermore, such a defence would in practice be unnecessary in circumstances where a court may consider that the requisite fault elements once proven by the prosecution are inconsistent with a public official acting in their capacity.
8.41
The Law Council gave a specific example to demonstrate its position that the defence is unnecessary:
Proposed section 82.3 would provide an offence for where a person engages in conduct resulting in damage to public infrastructure intending that the conduct will prejudice Australia’s national security. The conduct must be engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal. Alternatively, the conduct must be directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal. Proposed section 82.10 would provide a defence for a person who accessed or used a computer or other electronic system and they engaged in the conduct in their capacity as a public official. However, the Law Council submits that a person acting in their capacity as a public official would not intend to prejudice Australia’s national security. The defence is unnecessary.
8.42
In response, the Department stated that ‘there are a range of scenarios in which these defences are appropriate, including where public officials are working with Australia’s allies and partners for mutually beneficial outcomes’.
8.43
The Committee asked the Department, given that the Bill’s definition of ‘public infrastructure’ extends to infrastructure that is privately operated, whether there should be a defence available for conduct undertaken on behalf of the private company (in addition to conduct in a person’s capacity as a public official). The Department agreed that the existing defence ‘could be broadened to cover conduct undertaken on behalf of a private owner’.
8.44
Under the existing ‘good faith’ defence in section 24F of the Crimes Act, it is a defence to a charge of treachery or sabotage if a person has:
(a) endeavoured in good faith to show that the Sovereign, the Governor-General, the Governor of a State, the Administrator of a Territory, or the advisers of any of them, or the persons responsible for the government of another country, has or have been, or is or are, mistaken in any of his, her or their counsels, policies or actions;
(b) pointed out in good faith errors or defects in the government, the constitution, the legislation or the administration of justice of or in the Commonwealth, a State, a Territory or another country, with a view to the reformation of those errors or defects;
(c) excited in good faith another person to attempt to procure by lawful means the alteration of any matter established by law in the Commonwealth, a State, a Territory or another country;
(d) pointed out in good faith, in order to bring about their removal, any matters that are producing, or have a tendency to produce, feelings of ill-will or hostility between different classes of persons; or
(e) done anything in good faith in connexion with an industrial dispute or an industrial matter.
8.45
Subsection 24F(2) of the Crimes Act then outlines several situations where it cannot be said that an act or thing is done in good faith.
8.46
The Law Council submitted that:
The physical elements of the sabotage offences are broad and an important safeguard in relation to these offences is the availability of adequate defences. The Law Council considers that there should be a good faith defence appropriately adapted to the new sabotage offences in the absence of sufficient justification to the contrary.
8.47
The Department advised that a good faith defence was ‘not considered appropriate’ and stated that:
The sabotage offences include elements requiring proof that the defendant intended (or was reckless as to whether his or conduct would) prejudice Australia’s national security or advantage the national security of a foreign country. The department does not believe that these elements can be properly juxtaposed with a good faith defence. That is, the Department has been unable to identify circumstances in which sabotage of critical infrastructure being reckless as to the harm to Australia’s interests could properly be said to be in good faith.
8.48
In addition, the Department identified:
The sabotage offences only apply where a person intended to, or was reckless as to whether his or her conduct would, prejudice Australia’s national security or advantage the national security of a foreign country (or, in relation to sections 82.7 and 82.8, to harm or prejudice Australia’s economic interests, disrupt the functions of government or damage public infrastructure). A good faith defence is not appropriate.
Consequential amendments
Telecommunications interception
8.49
Under Schedule 4 to the Bill, discussed in Chapter 10, enforcement agencies will be able to apply for a telecommunications interception warrant for the purposes of investigating any of the proposed offences in Division 82.
Citizenship
8.50
As discussed in Chapter 10, the Bill proposes expanding the current citizenship cessation regime to include all of the new sabotage offences proposed by the Bill, including the ‘introducing vulnerability’ offences in proposed sections 82.7 and 82.8. The Bill also proposes that a conviction for any of these offences will be grounds to refuse the citizenship application of a stateless person.
Deportation
8.51
Consequential amendments in Schedule 1 to the Bill, discussed in Chapter 10, affect the Minister’s powers to deport a person convicted of a sabotage offence.
Committee comment
8.52
The Committee did not receive a large amount of evidence on the sabotage offences.
8.53
The Committee expressed initial concerns regarding the breadth of the definition of ‘public infrastructure’ in the Bill. Rather than being limited to ‘critical’ infrastructure, the definition may extend to almost any publicly or privately owned infrastructure, facility, premises, network or electronic system. However, the Committee accepts that infrastructure of importance to Australia’s national security extends to some private infrastructure.
8.54
The Committee also acknowledges concerns that the term ‘damage to public infrastructure’ is defined very broadly. However, the Committee notes that the sabotage offences in proposed sections 82.3 to 82.6 contain the additional element that the person must intend, or be reckless to whether, their conduct prejudices Australia’s national security or advantages the national security of a foreign country. The Committee considers that this additional element means that the offences at proposed sections 82.3 to 82.6 are proportional and appropriately targeted to the threat. The definition of ‘national security’ is considered at Chapter 3 of this report.
8.55
Unlike the other sabotage offences, proposed sections 82.7 and 82.8 do not only apply to circumstances where a person intends that, or is reckless as to whether, their conduct will prejudice Australia’s national security, or advantage another country’s national security. These offences will also apply if the person intends that, or is reckless as to whether, their conduct will
harm or prejudice Australia’s economic interests,
disrupt the functions of the Government of the Commonwealth, of a State or of a Territory, or
damage public infrastructure.
8.56
To ensure that the offences in the Bill are proportional and appropriately targeted, the Committee considers that proposed sections 8.27 and 82.8 should be limited to circumstances where a person intends that, or is reckless as to whether, their conduct will prejudice Australia’s national security or advantage the national security of a foreign country.
8.57
Consistent with the other sabotage offences in the Bill, the Committee recommends that proposed sections 82.7 and 82.8 (introducing vulnerability with intention, or recklessness, as to national security) be amended to remove the following elements:
harm or prejudice to Australia’s economic interests,
disruption to the functions of the Government of the Commonwealth, or a State or of a Territory, and
damage to public infrastructure.
8.58
The Committee notes the Law Council of Australia’s concerns that the ‘preparing or planning sabotage’ offence in proposed section 82.9 is not necessary in light of the existing incitement, conspiracy and attempt provisions in the Criminal Code. The inclusion of preparatory offences in the Bill is discussed in general terms in Chapter 3. In the case of section 82.9, however, the Committee accepts the need for an offence that captures actions preparatory to a sabotage offence beyond the existing provisions in the Criminal Code.
8.59
The Committee notes that the defence at proposed section 82.10 currently only covers people acting in their capacity as a public official. Given that the Bill’s definition of public infrastructure includes a range of privately-owned infrastructure, the Committee considers it important that this defence be broadened to include conduct undertaken on behalf of a private owner or operator of infrastructure.
8.60
The Committee recommends that the defence at proposed section 82.10, in relation to the Bill’s sabotage offences, be broadened to include conduct engaged in on behalf of a private owner or operator of infrastructure, in addition to public officials.