In addition to commenting on the individual components of the Bill (discussed in subsequent chapters), certain issues were raised in the Committee’s inquiry that concern more than one of the Bill’s components. These include:
the scope of key definitions, including ‘national security’, ‘foreign principal’, ‘foreign intelligence agency’ and ‘Australian Government security clearance’,
issues concerning the incorporation of ‘security classifications’ into some offences,
the provision for evidentiary certificates to be issued by the Attorney-General in relation to whether information is security classified or concerns national security,
the inclusion of preparatory offences in relation to sabotage, espionage and foreign interference offences,
the inclusion of reckless elements in some offences,
the Bill’s approach to placing evidentiary burden on the defendant, and
protections for the rights to freedom of expression and freedom of political communication.
Scope of key definitions
Definition of ‘national security’
The Bill proposes to introduce the term ‘national security’, which the Bill relies upon to determine the scope of a number of provisions, including the new espionage, sabotage and foreign interference offences. Proposed subsection 90.4(1) of the Criminal Code defines national security of Australia or a foreign country as:
the defence of the country,
the protection of the country, the people of the country or any Part of it, from certain activities covered by subsection (2),
the protection of the integrity of the country’s territory and borders from serious threats,
the carrying out of the country’s responsibilities to any other country in relation to the matter mentioned in paragraph (c) or activities covered by subsection (2),
the country’s political, military or economic relations with another country or other countries.
Subsection 90.4(2) outlines the activities referred to in paragraphs (b) and (d) above, namely:
foreign interference, and
activities intended and likely to obstruct, hinder or interfere with the performance by the country’s defence force of its functions or with the carrying out of other activities by or for the country for the purposes of its defence or safety.
The Explanatory Memorandum states that the purpose of the definition of ‘national security’ is
to exhaustively cover the matters relevant to the security and defence of a country. The definition needs to cover matters relevant to Australia’s national security as well as the national security of a foreign country.
Breadth of definition
A number of participants in the inquiry expressed concern about the breadth of the definition. For example, the Australian Lawyers Alliance (ALA) considered that elements of the definition would:
expand national security beyond the traditional confines of the work of intelligence and security agencies to cover matters that are usually considered squarely within standard government. The ALA questions why the government is seeking to expand this concept so significantly, and is concerned that such an expansion could obscure damaging government practices, including illegal activities and corruption.
Similarly, the Law Council of Australia argued:
The breadth of the expression ‘national security’ extending to the country’s political or economic relations with another country or countries may have a stifling effect on freedom of expression.
GetUp considered that, due to the broad definition of national security, the offences in the Bill would ‘impact upon GetUp’s campaigning on issues such as the Trans-Pacific Partnership, refugees and climate change’.
The Australian Lawyers for Human Rights also submitted that
to include economic relations or interests as national security matters is unworkably vague and will have an unreasonably chilling impact on freedom of speech and discourse regarding matters of genuine public interest. This is inconsistent with democratic principles. Although in practice a number of non-intelligence and non-military issues may have an impact on a country’s national security—such as food security, climatic conditions, economic inequality and energy security, for example—this is no reason to criminalise holding or dealing with information about such matters.
In response to such concerns, the Attorney-General’s Department noted that the reference to ‘political, military and economic relations’ in section 90.4 of the Bill aligns with the definition of ‘international relations’ in the National Security Information (Criminal and Civil Proceedings) Act 2004 (the NSI Act). The Department noted that the NSI Act ‘substantially implemented’ the recommendations of the 2004 report of the Australian Law Reform Commission (ALRC), Keeping Secrets: The Protection of Classified and Security Sensitive Information, which recommended that ‘national security information’ be defined by reference to the Commonwealth Protective Security Manual that existed at that time and included reference to ‘international relations’. The Department added:
The term is intended to have the same effect as it has in the definition in the NSI Act and to apply broadly to all aspects of a country’s relationships with another country in relation to political, military and economic matters.
This covers foreign relations and foreign policy, including a country’s strategies for dealing with other nations. It would cover the issues, strategies and methods by which a country seeks to advance its national interests, including with allies, or to protect itself from threats. It would extend to matters involving the country’s economic interests, including international negotiations or agreements that may advance a country’s economic interests.
The Department explained that the reference to political and economic relationships could include such matters as:
information-sharing between governments, including in relation to negotiating positions, strategic outlooks and agency information,
the confidence or trust held by one government in another government,
the ability of a government to maintain good working relations with a foreign government, [and]
a government’s reputation or relationships with a foreign government, or between officials.
The Department added at a subsequent hearing that it was ‘entirely possible’ that the existing espionage offences, which use the term ‘security and defence’, already cover political and economic relations and that the Bill ‘doesn’t necessarily narrow or broaden’ the offences but rather makes their scope clear.
At a public hearing, Dr David Neal SC of the Law Council of Australia argued that it was unclear how a court would determine whether or not Australia’s political or economic interests have been prejudiced:
What is it about our political relations with other countries that might be harmed or damaged? And how would a jury conclude beyond a reasonable doubt that publishing an article about the things that he mentioned did or did not prejudice those political relationships, to say nothing of our discussion in public about the economic relations we have with other countries and whether I as a citizen or anyone else as a citizen has the view, ‘I think Australia’s trade policy with respect to this or that issue is damaging to our economic relationship.’? And then some jury is going to make a conclusion: ‘It was,’ or ‘No, it wasn’t’.
The Law Council noted that it is a ‘key component of the rule of law that criminal offences be drafted in a way that’s readily known and available, certain and clear’. The Law Council described the concept of national security in the Bill as ‘vague’, particularly where it extends to preparatory offences and offences involving recklessness. Dr Neal considered that
parliament really has a responsibility to think whether or not that is an unacceptably broad concept to include as the central concept in an offence that carries a life sentence.
In a supplementary submission, the Law Council noted that the ALRC’s 2004 recommendation for ‘national security’ to include international relations was in the context of the NSI Act, which is ‘largely procedural in nature’. The object of the NSI Act is to
prevent the disclosure of information in federal criminal proceedings and civil proceedings where the disclosure is likely to prejudice national security, except to the extent that preventing the disclosure would seriously interfere with the administration of justice.
The Law Council also noted that the breadth of the term ‘national security’ in the NSI Act is ‘balanced by a judicial discretion regarding the administration of justice’ and that ‘[t]here is no such balancing proposed for the espionage, sabotage and foreign interference offences in the [Espionage and Foreign Interference] Bill’.
The Attorney-General’s Department, on the other hand, drew attention to the ALRC’s 2009 report Secrecy Laws and Open Government in Australia, in which the Commission recommended that the terms ‘security’ and ‘international relations’, in the context of secrecy offences, should be defined by reference to the relevant provisions of the Australian Security Intelligence Organisation Act 1979 (ASIO Act) and the NSI Act. The Commission noted that international relations ‘has the potential to be interpreted quite broadly’, and considered a range of mechanisms for restricting the scope of the provision. However, the ALRC did not recommend such restrictions be implemented and concluded that
intentional unauthorised disclosure of information that is reasonably likely to damage the international relations of the Commonwealth should be regulated by the criminal law.
the protection of Australia’s international relations is necessary to ensure that Australian society continues to function in the global environment, but a disclosure that merely embarrasses the Australian Government, without threatening real damage to international relations, is unlikely to meet the requirements of article 19 of the [International Covenant on Civil and Political Rights].
The Director-General of Security considered that it was ‘very, very defendable’ to include political and economic relationships as part of national security, and noted that the definition of national security would change over time:
One needs to be careful. You can’t just sort of lay it down and say, ‘That is national security’. It’s a very elusive definition. It depends on what is actually a threat to the nation at any given time. And if something is a threat, then I consider that to be part of national security, and it’s part of my remit to identify those threats and reflect them to the government, to provide early advice on the threat as it presents.
In response to a question from the Committee, the Director-General of Security confirmed that, in his view, it is ‘absolutely’ the case that there is a connection between Australia’s diplomatic and economic relations, and its national security, and that harm to diplomatic relations with a foreign country can harm national security.
Meaning of key terms
The Bill does not define the terms ‘espionage’, ‘sabotage’, ‘terrorism’, ‘political violence’ or ‘foreign interference’ for the purpose of the definition of national security in proposed section 90.4. However, the ASIO Act contains similar terms. The definition of ‘security’ at section 4 of the ASIO Act includes the protection of the Commonwealth, its states and territories and its people from sabotage, espionage, acts of foreign interference and politically motivated violence; and the protection of Australia’s territorial and border integrity from serious threats. The ASIO Act:
does not define sabotage or espionage,
defines politically motivated violence, and
defines acts of foreign interference, which appears similar, but not identical, to the conduct captured by the offences proposed in the Bill.
The existing sabotage and espionage offences in the Crimes Act and Criminal Code, which will be repealed by the Bill, contain definitions for sabotage and espionage as follows:
‘an act of sabotage’ is defined as the ‘destruction, damage or impairment, with the intention of prejudicing the safety or defence of the Commonwealth’ or certain defence-related articles.
current espionage offences concern information regarding a country’s ‘security or defence’, which is defined as ‘the operations, capabilities and technologies of, and methods and sources used by, the country’s intelligence or security agencies’.
The Attorney-General’s Department submitted:
The definition of national security expands the definition of ‘security and defence’ provided by existing espionage offences, to more comprehensively cover the matters relevant to the security of a country.
The Explanatory Memorandum provides:
Because the definition of national security also covers foreign countries, the terms espionage, sabotage, terrorism, political violence and foreign interference are not further defined. This ensures that the terms are not limited by Australian concepts of these matters and are flexible to accommodate the meaning of these terms in foreign countries.
The Law Council noted that there is an ‘element of circularity’ in the proposed definition of national security that is likely to make the operation of the sabotage and espionage offence provisions ‘unclear and potentially unworkable’. The Law Council recommended that the Bill contain statutory definitions for the terms ‘espionage’, ‘sabotage’, ‘terrorism’, ‘political violence’ and ‘foreign interference’. The Law Council also recommended that the terms ‘political violence’ and ‘foreign interference’ be defined in a manner consistent with section 4 of the ASIO Act.
The Attorney-General’s Department, however, considered that the terms should not be defined:
The department is concerned that defining the terms ‘espionage’, ‘sabotage’, ‘terrorism’, ‘political violence’ and ‘foreign interference’ by reference to the meaning of these concepts in the Criminal Code and other relevant Commonwealth legislation could limit the utility of the definition when considering the meaning of the national security of a foreign country.
… In the context of Australia’s national security, it is possible that a court would interpret the terms [‘sabotage’, ‘espionage’ and ‘foreign interference’] as being limited to the meaning of the terms as implemented in the offences of the Criminal Code. However, a court may wish to consider a broader interpretation if the ordinary or dictionary meaning is more expansive than the scope of the offences in the Criminal Code.
The department considers that it should be open to a court to find that these terms should be interpreted as broadly as is appropriate, based on the admissible evidence.
The Department disagreed with a suggestion that the use of the terms ‘sabotage’, ‘espionage’ and ‘foreign interference’ in the definition of national security, which is referred to in the Bill’s proposed sabotage, espionage and foreign interference offences, amounted to circular references ‘when taken in the context of the whole definition of “national security” and its use in the offences’.
At a public hearing, the Attorney-General’s Department acknowledged that the definition of national security was ‘slightly more complex’ because of the need for the definition to work in relation to both the national security of Australia and the national security of a foreign country. The Department provided the following explanation as to how the term flows through the Bill:
The term ‘national security’ wherever it appears through the act is coupled with something else. It’s information concerning national security or where there is a prejudice to national security or an advantage to the national security of a foreign country. So those terms always qualify it in bringing the harm element. It sits in the context of whichever paragraph of the offence it appears in and has meaning in that context, and this is just intended to be that definitive statement of how it flows through. We recognise that it does need some working through, but we do believe it works as a definition for national security with the other acts that seek to in any way grapple with that concept.
The Inspector-General of Intelligence and Security (IGIS) raised concerns about the lack of statutory definitions of the terms ‘sabotage’, ‘espionage’ and ‘foreign interference’, due to the use of similar terms in the ASIO Act. The IGIS noted that the definition of ‘security’ in the ASIO Act, which contains the terms sabotage, espionage and foreign interference, is ‘pivotal to the exercise of all of ASIOs powers’. The IGIS suggested that this replication could cause confusion:
Inconsistencies may lead to uncertainty about the scope of ASIO’s remit and powers. Such uncertainty is undesirable from a transparency and accountability perspective. If the Parliament’s intention is that ASIO’s powers in relation to espionage, sabotage and foreign interference should cover matters beyond those criminalised by the proposed provisions, then it would be beneficial for this to be made explicit.
The IGIS suggested that linking, and limiting, the terms ‘espionage’ and ‘sabotage’ in the ASIO Act to conduct covered by the relevant offences in the Bill ‘could provide greater certainty and transparency about ASIO’s role and the boundaries of its powers’.
The Attorney-General’s Department responded:
The department does not consider it appropriate for the scope of ASIO’s functions to be limited by reference to the meaning of certain terms in the criminal law. This is not consistent with ASIO’s functions as a security intelligence service.
… To link the definitions to the ASIO Act may have the unintended consequence of limiting the scope of ASIO’s powers.
‘Prejudice’ and ‘advantage’ of national security
A number of the proposed espionage, sabotage and foreign interference offences require a person to engage in conduct either with recklessness as to whether their conduct will ‘prejudice Australia’s national security’, or an intention to ‘prejudice Australia’s national security’. Similarly, a number of the proposed espionage and sabotage offences criminalise conduct undertaken with an intention or recklessness as to whether the person’s conduct will ‘advantage the national security of a foreign country’. Both of these expressions need to be considered alongside the definition of ‘national security’, discussed above.
Prejudice to Australia’s national security
The Explanatory Memorandum states that the intention behind using the word ‘prejudice’ in the Bill is
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.
GetUp expressed concerns about criminalising conduct that results in ‘harm’ that is
likely to lead another country or international organisation to lose confidence in the Australian Government, or have a ‘detrimental impact’ on its working relationship with other countries, or cause reputational damage to the Government.
The Australian Lawyers Alliance submitted:
It should not be possible for our government or elected representatives to protect themselves from embarrassment by hiding behind expansive national security provisions. Ultimately, our national security can be enhanced only by ensuring that government is accountable, and that any government misconduct is not hidden from public view.
Human Rights Watch expressed similar concerns:
The lack of specificity in what exactly constitutes national security, what ‘concerns’ national security and how it may be prejudiced, and the very broad definition of what constitutes ‘dealing with’ information, could mean that any person who receives or communicates political[ly] sensitive information in a public manner could be guilty of one or more espionage offences. Human rights activists and journalists advocating or reporting on politically sensitive arenas would be particularly exposed.
Such standards could easily be used to deter important investigating reporting, since a report or activist will have to guess whether information could be deemed to endanger state security in some undefined way and self-censor, or may even be made liable at a later date for risks the reporter or activist could not possibly be in a position to foresee.
The Committee sought clarification from the Attorney-General’s Department as to whether embarrassment to the Australian government could constitute prejudice to, for example, Australia’s political economic or military relations. The Department referred the Committee to the 2009 report of the Australian Law Reform Commission (ALRC), Secrecy Laws and Open Government in Australia:
A disclosure that embarrasses the Australian Government may also cause damage to Australia’s international relations. For example, where a disclosure damaged Australia’s reputation, as well as being ‘embarrassing’, it may lead to a loss of confidence or trust in Australia. A loss of confidence in the Australian Government’s capacity to protect information is likely to result in a restricted flow of information from foreign governments. This, in turn, may impact on Australia’s capacity to protect national security or on Australia’s capacity to function in the global political, military and economic environment.
In a supplementary submission, the Department clarified that
mere embarrassment is not expected to be sufficient to amount to prejudice to Australia’s national security. However, there will also be circumstances where embarrassment will lead to the additional consequence of harm being caused to Australia’s international relations, for example. If this occurred, it may be possible to prove, beyond a reasonable doubt, that there was prejudice to Australia’s national security.
Advantage the national security of a foreign country
The Bill does not define the term ‘advantage’ and as such the term will be given its ordinary meaning. The Macquarie dictionary defines ‘advantage’ as ‘to be of service to; yield profit or gain to; benefit’.
In some instances, the Explanatory Memorandum appears to indicate that ‘advantage’ requires there to be a benefit to the foreign country’s national security relative to Australia’s national security:
The term ‘advantage’ is intended to capture an intention to put another country’s national security in a favourable or superior position compared to Australia’s position or to benefit or profit another’s country’s national security compared to Australia’s national security.
In other instances, the Explanatory Memorandum describes the intention of the term ‘advantage’ without any reference to Australia’s security:
The term ‘advantage’ is intended to capture an intention to put another country’s national security in a favourable or superior position than it would have been without the communication of this information.
The Committee asked the Department if it could be possible to ‘advantage the national security of a foreign country’, for example one of Australia’s allies, without detrimentally affecting Australia’s national security, suggesting that the conduct the Bill should seek to deter only be that conduct that detrimentally affects Australia’s national security. The Department answered by reference to the proposed espionage offences (discussed in Chapter 6):
If a person is advantaging the national security of one of Australia’s allies, the defence at subsection 91.4(1) would apply.
The department notes that, to [the] extent this is an issue, it would also be an issue with the existing espionage offences. The structure of the existing offence at subsection 91.1(2) of the Criminal Code has been replicated, with the exception of casting the matter of ‘lawful authority’ as a defence rather than as an element of the offence.
Definition of ‘foreign principal’
The term ‘foreign principal’ is defined in proposed section 90.2 of the Criminal Code. The Bill’s definition of ‘foreign principal’ differs from the definition in the Foreign Influence Transparency Scheme Bill 2017 (FITS Bill), in that it does not include private businesses or individuals. However, the term does include:
a foreign government principal,
a public international organisation,
a terrorist organisation, and
an entity or organisation owned, directed or controlled by one or more foreign government principals, public international organisations or terrorist organisations.
The definition of ‘foreign principal’ underpins many of the proposed sabotage, espionage and foreign interference offences. A consistent element of these offences is undertaking certain activities on behalf of, in support of, in collaboration with, or as directed by a foreign principal. Furthermore, the theft of trade secrets offence is limited to conduct undertaken on behalf of, in support of, in collaboration with, or as directed by a ‘foreign government principal’.
The term ‘foreign government principal’ is defined at proposed section 90.3 to include foreign governments and their authorities; foreign local government and regional government bodies; foreign public enterprises; foreign political organisations; and other entities owned, directed or controlled by one or more foreign government principals.
The term ‘public international organisation’ is defined at existing section 70.1 of the Criminal Code and includes multi-lateral organisations such as the World Bank, the Word Trade Organisation and the International Monetary Fund. The Explanatory Memorandum states that the provision of information to such organisations could prejudice Australia’s national security and constitute espionage in some situations:
For example, Person I is an official of International Organisation Z and obtains confidential information concerning a significant impending change in Australia’s economic policies from Person J, an Australian official who intends to harm Australian interests for ideological reasons. International Organisation Z uses this information to undermine Australia’s position in multilateral trade negotiations, causing significant damage to Australia’s international relationships.
The term ‘terrorist organisation’ is defined at existing section 102.1 of the Criminal Code as ‘an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act’ or an organisation that is specified by the regulations.
The Attorney-General’s Department explained the reasoning behind the difference in definition of foreign principal between this Bill and the FITS Bill:
It would not be appropriate for the definition of ‘foreign principal’ for the purposes of the serious criminal offences in this Bill to be as broad as the definition for the FITS Bill, which aims to bring transparency to foreign influence in Australia’s political and governmental processes.
It would be inappropriate, for example, to extend espionage offences to conduct undertaken on behalf of a foreign business or foreign individual. These offences are limited to conduct undertaken on behalf of foreign countries and a limited range of non-state actors.
Some participants raised concerns that the definition of foreign principal would extend the Bill’s offences to information provided to the United Nations and its subsidiary bodies, or other international organisations that work independently of governments.
GetUp argued that the Bill should be revised to ‘narrow the definition of ‘foreign principal’ to include only foreign governments and their agents’.
These concerns appear to also arise in relation to Australia’s existing espionage laws, which apply where a person communicates or makes available information to either ‘another country’ or a ‘foreign organisation’, or to ‘a person acting on behalf of such a country or organisation’.
The Australian Lawyers Alliance was concerned about the lack of specificity in the definition of ‘foreign political organisation’, which, as part of the definition of foreign government principal, it considered was ‘fundamental in determining whether offences under the proposed reforms have been committed’. The term ‘foreign political organisation’ is defined at proposed subsection 90.1(1) as being ‘a foreign political party or a foreign political organisation’. No further explanation is included in the Explanatory Memorandum, other than to say that it ‘will include political parties of foreign countries’.
There are many international organisations, such as companies, news outlets and international non-government organisations, which engage in research, reporting and advocacy around specific themes. Facebook and Google, for example, made submissions to the ongoing inquiry into public interest journalism. The Guardian (a UK-based news outlet) and the New York Times (a USA-based news outlet) each have Australian bureaux that regularly report on Australian domestic politics and Australia’s place in the world. International human rights organisations, such as Amnesty International and Human Rights Watch, each have an Australian presence and seek to influence Australian government policy, despite operating global funding models independent of governments. The United Nations also regularly comments on Australia’s implementation of its obligations under international law.
… These organisations can be based, or receive funding from, abroad but do not represent the interests of any foreign government or political party. Despite this, however, it is possible for them to be caught up in the offences created by the Bill, due to the broad nature of the definitions.
The Alliance recommended that definition be ‘more closely aligned with the need to protect Australia’s national security’ by
limiting the definition of foreign political organisations to foreign governments, foreign political parties and organisations aligned with such governments or parties. Alternatively, drafters could consider adding a clarification that the provisions are not designed to capture the United Nations, media organisations, companies or NGOs that work independently of governments.
In relation to the application of the Bill to entities that are ‘owned, directed or controlled’ by foreign public enterprises, local or regional government bodies and foreign political organisations, the Attorney-General’s Department stated:
If the definition did not cover these entities, it would be very easy for a foreign principal to avoid the application of the offences by simply, for example, running their espionage activities through another company that the entity owns or controls.
Definition of ‘foreign intelligence agency’
The Bill defines ‘foreign intelligence agency’ as ‘an intelligence or security service (however described) of a foreign country’. The Dictionary to the Criminal Code defines foreign country to include:
a colony or overseas territory,
a territory outside Australia, where a foreign country is to any extent responsible for the international relations of the territory, and
a territory outside Australia that is, to some extent self-governing, but that is not recognised as an independent sovereign state by Australia.
The Explanatory Memorandum states:
The definition of ‘foreign intelligence agency’ is intentionally broad to capture the range of intelligence agencies that exist in various countries. Such agencies will generally, but not always, have comparable functions to agencies in the Australian Intelligence Community, as set out at the definition of domestic intelligence agency in section 121.1 of Schedule 2 of this Bill.
Proposed section 121.1 in the Bill defines domestic intelligence agency as:
the Australian Secret Intelligence Service,
the Australian Security Intelligence Organisation,
the Australian Geospatial-Intelligence Organisation,
the Defence Intelligence Organisation,
the Australian Signals Directorate, or
the Office of National Assessments.
The Law Council raised concerns with the proposed definition of ‘foreign intelligence agency’:
The Law Council is concerned that the proposed definition of a ‘foreign intelligence agency’ does not sufficiently define by criteria what may amount to an intelligence or security service of a foreign country. For example, it is not clear whether a foreign trade or economics agency may be considered an intelligence or security service (however described) of a foreign country.
The Law Council suggested that the Bill could provide a criteria to determine whether a service is a ‘foreign intelligence agency’ by drawing on existing Commonwealth laws:
[T]he Law Council considers that a ‘foreign intelligence agency’ should be defined to mean (for example) an entity that is directed or controlled by a foreign government or governments that has responsibility for: intelligence about the capabilities, intentions or activities of people or organisations outside Australia; or the security of a foreign country. If it is thought necessary to extend this definition to non-State actors, a reference could be made to a foreign political organisation. However, there must also be a link to harm or prejudice to Australia’s national security in the offence provisions.
The Attorney-General’s Department did not consider it necessary for the definition to align with other Commonwealth legislation, ‘as the terms properly take different meaning in different contexts’. Further, the Department argued:
A definition along the lines of an ‘entity that is directed or controlled by a foreign government or governments that has responsibility for gathering security or defence intelligence about the capabilities, intentions or activities of people or organisations outside its own territory’ would be more challenging to prove than the definition set out in the Bill and undermine the efficacy of the offences.
There is no intention to cover non-State actors in this definition. It is limited to agencies of foreign countries.
Definition of ‘Australian Government security clearance’
A number of the aggravated offences proposed by the Bill will arise in connection to an ‘Australian Government security clearance’:
aggravated espionage offences;
aggravated secrecy offences; and
the aggravated offence for giving false or misleading information.
The proposed aggravated espionage and secrecy offences arise where a person holds an Australian Government security clearance at the time of committing the underlying offence. The aggravated offence for giving false or misleading information will arise where a person gives false or misleading information in connection with the application for, or the maintenance of, an Australian Government security clearance (regardless of whether the person is the holder or applicant for a security clearance, or is some other person providing information as part of that process).
The term ‘Australian Government security clearance’ is not defined in the Bill. The Explanatory Memorandum states that the term ‘Australian Government security clearance’:
… is intended to capture security clearances granted by the Australian Government Security Vetting Agency or another government agency conducting and issuing security clearances under the Protective Security Policy Framework. It would capture, for example, security clearances from Baseline to Top Secret Positive Vetting level.
The Australian Government’s Protective Security Policy Framework includes four security clearance levels:
Baseline: enabling the clearance holder to access information up to and including PROTECTED information,
Negative Vetting Level 1: enabling the clearance holder to access up to and including SECRET information;
Negative Vetting Level 2: enabling the clearance holder to access up to and including TOP SECRET information; and
Positive Vetting: enabling the clearance holder to access TOP SECRET information and certain sensitive, caveated, compartmented and code-word information’.
A number of state, territory and federal government employees, as well as certain other persons working with government, require a security clearance.
Concerns were raised during the inquiry about the definitions of the terms ‘inherently harmful information’ and ‘causing harm to Australia’s interests’ in relation to the secrecy offences in Schedule 2. These issues are discussed in Chapter 4.
The Committee notes concerns raised by participants in the inquiry about the breadth of the definition of ‘national security’ in proposed section 90.4. In particular, participants expressed concerns about national security including political or economic relations with other countries, and the potential for offences that rely on these terms to impact on freedom of expression. Concerns have also been raised about the level of ambiguity in the definition.
Many of the proposed new offences in the Bill include ‘prejudice Australia’s national security’ and/or ‘advantage the national security of a foreign country’ as a key element in determining whether a person is culpable under the offence. This includes a range of proposed offences for espionage, foreign interference and sabotage that are discussed later in this report. The Committee therefore considers it essential that the term ‘national security’ is clear, unambiguous and appropriately targeted.
The Committee notes that the inclusion of a country’s ‘political, military or economic relations’ in the Bill’s definition of national security is intended to align with the National Security Information (Criminal and Civil Proceedings) Act 2004, which defines national security as ‘Australia’s defence, security, international relations or law enforcement interests’. The Committee also notes that the ALRC recommended that these matters be included in the general secrecy offence in the Criminal Code, considered whether the scope of these matters should be restricted in any way in light of their ‘potential to be interpreted quite broadly’, and concluded that they should not be so restricted. The ALRC considered that the protection of Australia’s international relations at criminal law was consistent with Australia’s international obligations under the International Covenant on Civil and Political Rights (ICCPR) on the basis that it was necessary to ensure that Australian society continues to function in the global environment.
The Committee considers that there are some circumstances in which it is would be appropriate to include an impact on international relations as an element of a criminal offence. For example, it may be appropriate that certain foreign interference offences capture instances where a foreign power engages in covert or deceptive conduct, or makes threats of serious harm, in order to prejudice Australia’s economic or political relationships.
The Committee notes some concerns about the threshold of the expression ‘prejudice Australia’s national security’ that is proposed in the Bill. In particular, witnesses expressed concern that embarrassment to government could be sufficient to satisfy prejudice to national security—and in particular to international relations.
The Committee recognises that, in some circumstances, embarrassment to the Australian Government could result in harm to Australia’s political, military or economic relationships. However, the Committee considers that greater clarity is required to ensure that prejudice cannot consist of embarrassment to the Australian Government or other Australian entity alone, but must also include a degree of damage or harm.
The Committee recommends that the Bill be amended to clarify that, for the purpose of the Bill’s espionage, foreign interference and sabotage offences, the expression ‘prejudice to national security’ cannot consist of
must also include a degree of damage or harm.
Similarly, the Committee considers that further legislative clarity is required to reduce the likelihood of non-malicious conduct falling under the term ‘advantage the national security of a foreign country’ for the purposes of the proposed sabotage and espionage offences.
The explanation of this term currently varies within the Explanatory Memorandum. However, the Committee considers it would be inappropriate to criminalise activity that is undertaken for the mutual benefit of both Australia and a foreign country.
The Committee recommends 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.
The Committee notes concerns about the need for clarity with respect to certain key terms within the definition of national security, including ‘sabotage’, ‘espionage’, ‘foreign interference’ and ‘political violence’. Clarity in the criminal law is of great importance.
The Committee also notes the evidence of the Attorney-General’s Department that including statutory definitions of these terms could limit the applicability of the offences in relation to persons engaging in conduct, such as espionage, to advantage the national security of a foreign country. In this respect, the Committee recognises that a key imperative underpinning this Bill is that foreign countries have very different conceptions of the ‘appropriate’ role for espionage and their intelligence services, for example extending to the use of their intelligence services to interfere with democratic elections, or to coerce diaspora communities in Australia and other countries. It would, therefore, be important that the offences in the Bill not be limited in their application to what Australia or other Western countries might traditionally regard as ‘espionage’ or ‘foreign interference’.
The Committee also received evidence from the Director-General of Security that foreign intelligence services seek to structure their activities to exploit gaps in Australia’s legislative framework.
Accordingly, the Committee considers that it would be beneficial to amend the Explanatory Memorandum to include more, and more specific, detail about what is meant by the terms ‘sabotage’, ‘espionage’, ‘foreign interference’ and ‘political violence’. However, it should be a matter for the courts to interpret these terms, in light of all of the admissible evidence.
The Committee recommends that the Explanatory Memorandum be amended to provide greater clarity about the intended meaning of the terms ‘espionage’, ‘sabotage’, ‘political violence’ and ‘foreign interference’ for the purposes of the definition of national security at proposed section 90.4.
The Committee notes the intent of the Bill is not to affect the operation of any existing provisions in the ASIO Act. However, due to Bill’s use of similar or identical terms to those existing in the ASIO Act, the Committee considers that the Bill should be amended to make this intention clear.
The Committee recommends that the Bill be amended to clarify that the Bill does not affect the operation of existing provisions in the Australian Security Intelligence Organisation Act 1979, unless explicitly stated.
The Committee notes concerns raised by some participants in the inquiry about the potential breath of the definition of ‘foreign principal’. The definition of this term is important for the proposed offences of espionage (which involve making information available to a foreign principal), foreign interference (which involves conduct on behalf of a foreign principal) and sabotage (which may involve conduct on behalf of a foreign principal). Additionally, the proposed ‘theft of trade secrets’ offence includes conduct undertaken on behalf of a ‘foreign government principal’.
The Committee considers it appropriate that the term ‘foreign principal’ is more narrowly defined in the Bill than the equivalent term in the Foreign Influence Transparency Scheme Bill 2017.
However, the Committee notes that there remains some ambiguity about the scope of the term. In particular, the Committee notes the lack of clarity in relation to ‘foreign political organisation’ as part of the definition of ‘foreign government principal’. While the Bill and its Explanatory Memorandum make clear that foreign political parties are part of the definition of foreign political organisations, it is unclear what other organisations may be considered to be foreign political organisations. The Committee considers that this ambiguity should be rectified.
The Committee considers that it would be inappropriate for organisations that have no connection to a foreign government or foreign political party to be included as part of the definition of ‘foreign government principal’. Accordingly, the Committee recommends that the Bill be amended to provide greater clarity about what kinds of foreign political organisations may be covered.
The Committee recommends that the Bill be amended to define what foreign political organisations may be covered by the term ‘foreign political organisation’.
The Committee also notes that ‘foreign principal’ is proposed to include ‘foreign international organisations’, such as the World Bank, the World Trade Organisation and the International Monetary Fund. The Committee notes that this would include a range of multilateral organisations of which Australia is a member, including the United Nations and its subsidiary bodies. The Explanatory Memorandum includes a hypothetical example of a person providing confidential information to an international organisation in order to undermine Australia’s position in multilateral trade negotiations.
The Committee is conscious of concerns raised by some submitters about the potential for offences in the Bill to capture information reported to international bodies, such as the United Nations Human Rights Committee. It is important that members of civil society be able to engage with public international organisations on matters of public importance.
However, the Committee notes the Attorney-General’s Department’s evidence that the offences that involve the communication of information about Australia’s national security, including its political or economic relations, are also ‘coupled’ with additional elements that qualify their scope to apply to harmful conduct. The Committee is also conscious of the evidence of the Director-General of Security and the Department as to the risks in introducing significant gaps into the legislative framework that would be open to exploitation by foreign intelligence services. Additionally, as noted above, the current espionage offences in the Criminal Code apply to persons who communicate information to foreign organisations, and the Department has given evidence that these offences may well apply to persons who communicate information that prejudices Australia’s international relations.
In the Committee’s view, it would not be desirable to narrow the existing espionage offences to exclude public international organisations. To do so would incentivise foreign intelligence services to channel their espionage activities through such organisations, undermining the efficacy of the legislative framework.
Australian Government security clearance
The Committee notes that the term ‘Australian Government security clearance’ is not currently defined in the Bill. Although the intention of the term is made clear in the Explanatory Memorandum, to provide greater certainty the Committee considers that the meaning of an ‘Australian Government security clearance’ should be defined within the Bill.
The Committee recommends that the Bill be amended to define the meaning of ‘Australian Government security clearance’.
The Bill proposes a number of secrecy and espionage offences that are premised on dealings with information or an article that ‘has a security classification’. The Bill also creates a number of aggravated espionage and secrecy offences connected to security classifications. For all of these offences, criminal liability is triggered by the existence of the security classification itself, rather than the substance or quality of the underlying information. The offences and aggravated offences do not require that the dealing with the information caused any harm, only that the information possessed the requisite security classification. The relevant offences attract penalties ranging from five years’ imprisonment up to life imprisonment.
The Bill does not define the term ‘security classification’, but proposes prescribing the meaning of this phrase in regulations. The regulations are yet to be developed.
Submitters raised concerns with the use of security classifications as the basis for criminal offences. Submitters identified the key difficulties as:
the proposal to define the term ‘security classification’ in regulations,
the use of an administrative system for document management as the basis of criminal liability, and
the use of strict liability and evidentiary certificates.
Various submitters raised concerns about the proposal for the meaning of ‘security classification’ to be prescribed in regulations. The Bill does not provide guidance as to what classification categories will be included, or what types of information the regulations could prescribe as classified, other than a requirement that ‘the Minister must be satisfied that the regulations are not inconsistent with the policies of the Government of the Commonwealth in relation to protective security’.
Although the Bill does not provide this detail, the Explanatory Memorandum states:
It is anticipated that the regulations will prescribe the relevant protective markings that will denote information as being classified for the purpose of these offences. At this time, these markings are listed in the Australian Government information security management guidelines – Australian Government security classification system … and include:
The Australian Government information security management guidelines – Australian Government security classification system (the Guidelines) provide that when information is created, the originator should assess the consequences of unauthorised compromise or misuse of the information and classify the information accordingly. Where compromise of the confidentiality of information could be expected to cause damage to the ‘national interest’, organisations or individuals the originator should classify the information PROTECTED. The information should be classified CONFIDENTIAL where that damage would be ‘significant’ and SECRET where that damage would be ‘serious’.
Information should be classified TOP SECRET only where compromise of the confidentiality of information could be expected to cause exceptionally grave damage to the ‘national interest’.
The phrase ‘national interest’ has broader scope than ‘national security’—the Guidelines provide that national security is a subset of ‘national interest’. National security is the protection from espionage, sabotage, politically motivated violence, promotion of communal violence, attacks on Australia’s defence system, acts of foreign interference and the protection of Australia’s territorial and border integrity from serious threats and defence capability. ‘National interest information’ also captures any ‘official resource’ concerning Australia’s:
international relations, significant political and economic relations with international organisations and foreign governments
law and governance, including:
interstate/ territory relations
law enforcement operations where compromise could hamper or make useless national crime prevention strategies or particular investigations, or endanger personal safety
economic, scientific or technological matters vital to Australia’s stability, integrity and wellbeing
Although the Attorney-General’s Department indicated its intention that the term ‘security classification’ would take its meaning from the Guidelines outlined above, submitters were concerned that this content is not prescribed in the Bill itself. The joint councils for civil liberties submitted that this approach would allow very low level security classified information to be criminalised, even though the communication of this information would cause no harm to Australia’s interests.
The Human Rights Law Centre submitted that the government’s current document classification framework is ‘supplemented and may in some instances be overridden by policies developed by each governmental agency’, which would not necessarily be made publicly available. The Human Rights Law Centre described this as
a certainty-of-law issue, which comes to the sort of precision that we want to see in our criminal law. If we are creating offences with such severe penalties, we need to be confident that the way in which those laws are drafted captures circumstances where those penalties are appropriate. … if this is going to be an offence introduced into our Criminal Code on an enduring basis, parliament needs to be satisfied that those documents will continue to be classified in a way that is appropriate, such that disclosure of them or handling of them gives rise to this sort of criminal offence. It’s very hard to do that if the administrative classification is itself not governed by law in any way.
The Australian Human Rights Commission was similarly concerned, submitting that:
… to the extent that a person (or category of persons) is unable to inform themselves prospectively of the specific conduct that is prohibited in order to avoid falling foul of [an offence], the Bill violates a core principle of the rule of law.
The Human Rights Commissioner noted that ‘what’s considered classified can change via regulation with, obviously, less transparency and without full parliamentary oversight’.
The Attorney-General’s Department advised that there ‘is no intention to allow for documents that are not publicly available to be incorporated into the definition’ and that the Bill could be amended to make this a requirement.
The IGIS suggested that consideration could be given to including parameters for the term ‘security classification’ in the primary legislation, noting that:
The lack of transparency about the basis for classifications and the absence of any requirement as to the purpose of classification leaves open the risk, or at least the perception, that documents may be classified or over-classified for purposes such as avoiding public disclosure of politically inconvenient information or information about illegal or improper activities of intelligence agencies.
The Law Council similarly recommended:
The type of information which may be prescribed as ‘security classified information’ should be clearly defined and circumscribed in the Bill, for example, through appropriate criteria to assist in ensuring that the matter would, or would be reasonably likely to, cause harm to or prejudice Australia’s national security.
Appropriateness as a threshold for criminality
Participants in the inquiry raised concerns regarding the use of administrative document management guidelines as the basis for criminal liability. Submitters raised concerns that:
documents are routinely ‘over-classified’ or classified incorrectly;
classification decisions are not re-evaluated over time;
the approach is not harm-based; and
the Bill does not implement a mechanism to test the appropriateness of document classifications.
The Human Rights Law Centre submitted that the process of classifying information is guided by non-mandatory guidelines, which allow individual departments to take different approaches. The Centre submitted:
This intuitively makes sense given that they face different situations, but the consequence of that is that security classification is not law governed.
Security classification does not exist in legislation and there is no situation by which an individual officer giving a particular security classification to a document will necessarily have anyone sign off on that. So, given that security classification exists for a particular purpose, taking it and putting it in criminal law has real difficulties because it doesn’t have the checks and balances that you would have around something that would give rise to criminal responsibility. Just to make it really simple, you could have the consequence where a single public servant at a junior level could make a call about a security classification of a document and thereby create something that triggers a criminal offence under the Criminal Code. In terms of the way in which our legal system operates, that’s not good law.
In contrast, the Explanatory Memorandum states:
The Commonwealth has well-established processes for determining whether particular information has been properly security classified, or remains appropriately security classified.
The Attorney-General’s Department submitted:
Assessments about the appropriate security classification are made by officers with the relevant knowledge and expertise in the subject-matter and context. For example, a classification of TOP SECRET should be applied if the compromise of the confidentiality of information could be expected to cause exceptionally grave damage to the national interest. The application of a security classification therefore indicates that an appropriately qualified person has made an assessment of the harmfulness of the information.
In contrast, a number of participants expressed concern that the practical reality of governmental document classification is that documents are routinely ‘over-classified’. The IGIS similarly submitted that the process of governmental document classification is ‘not a precise science’. She advised:
As Inspector-General, I frequently see documents that appear to be over-classified or documents that may have been correctly classified when created but would now warrant a lower classification because of the passage of time or authorised public disclosure of related information.
The IGIS considered that the ‘tendency to over-classify documents “to be safe” is understandable’, noting that the ‘main things’ presently hinging on security classifications are the procedures that need to be applied to store, transport, destroy and disseminate the information.
One submission stated that it would be disingenuous to suggest that the Commonwealth has a consistent, robust or reliable methodology that it applies in classifying information:
While some classification guides exist pertaining to particular types of information, and some agencies have more mature processes than others, security classifications are for the most part assigned arbitrarily by the creator of a piece of information.
… It is very common in the intelligence agencies to over classify even the most trivial of information. Reports derived almost entirely from unclassified, open source material, which are not the result of any novel or sensitive analytical techniques, and which if disclosed would have no impact to Australia’s security or defence are routinely assigned very high level classifications, for no discernible reason.
Even an email invitation to a social event, such as a trip to the pub after work, or to a farewell party for a departing colleague will often be classified at the TOP SECRET codeword level. This is because it is a common habit to assign the maximum possible classification to everything by default, rather than because disclosure of the information in question actually presents any risk to the security or defence of Australia.
The submission added that due to the ‘serious personal consequences’ that could result from an individual under-classifying information, including loss of employment in extreme cases, the ‘safe and most prudent option is to always over classify’. The joint councils for civil liberties similarly noted that there ‘are no repercussions for over-classification in the guidelines or legislation’.
The United Nations Special Rapporteurs noted that the Guidelines published by the Attorney-General’s Department are ‘implemented and enforced without judicial review or oversight’.
At a public hearing, the Attorney-General’s Department outlined the rationale for premising criminality on the existence of a security classification, rather than the substance of the underlying material:
What we’ve been trying to achieve with the security classification is that it’s not up to the individual to decide whether that classification is right or wrong. It’s not for me to decide whether a document I receive from an intelligence agency has been correctly classified or if I believe it’s been overclassified to release it to somebody else. It’s essential, particularly when you are talking about malicious insiders, that it is not up to the individual to decide whether that security classification is right or wrong. The fact that it was classified by the originating agency is what matters, because that is the agency that has the access to all of the contextual information that must be taken into account in deciding whether that classification should be applied.
Submitters were also concerned that there is no mandatory process for declassifying documents. This means that, even where a document is correctly classified at the time that it is authored, by the time it is dealt with, that classification may no longer be appropriate. The Attorney-General’s Department stated:
If a person wishes to disclose information that has that classification—say, if it’s a historical document and they hold a genuine view that it does not still carry that harm—they should be speaking to the originating agency about declassifying it. If the originating agency doesn’t agree with that, they should not be disclosing that document.
Noting their objection to the use of security classifications as a basis for criminal liability, the Human Rights Law Centre suggested that if the offences were to proceed
there would need to be a process to confirm that security classification is correct, not just that it existed, before prosecution were commenced.
The Law Council of Australia recommended that the Bill should, at a minimum, contain a provision similar to that which exists in section 50A of the Australian Border Force Act 2015. Section 50A provides that
proceedings for the offence must not be initiated unless the Secretary has certified that it is appropriate that the information had a security classification at the time of the conduct that is alleged to constitute the offence’.
At the time section 50A was introduced, the accompanying Explanatory Memorandum provided that the section’s purpose was to ensure ‘that a person cannot be prosecuted where, at the time of disclosure, it was not appropriate that the information had a security classification’. The IGIS supported the inclusion of such a requirement, noting that section 50A operates as a condition precedent to the initiation of a prosecution and does not serve as prima facie evidence of that matter in the prosecution.
The Attorney-General’s Department did not initially support the inclusion of a requirement similar to section 50A of the Australian Border Force Act. The Department referred to the ‘evidentiary certificates’ provisions in the Bill (discussed below) and advised that it would be inappropriate to require the Attorney-General to issue an evidentiary certificate in every matter on the basis that ‘this is not an objective fact but rather a statement of opinion, which would not properly belong in an evidentiary certificate’. The Attorney-General’s Department did not consider whether a certificate of the kind issued under section 50A of the Australian Border Force Act could be issued, rather than an evidentiary certificate.
The Inspector-General responded to the Attorney-General Department’s advice as follows:
I note the views expressed on section 50A of the [Australian Border Force Act] in the supplementary submission of the Attorney-General’s Department. It was suggested that the accuracy or appropriateness of a classification at the time of the conduct constituting the offence is a matter of opinion that would be unsuitable for inclusion in an evidentiary certificate issued by the Attorney-General. A certificate of the kind specified in section 50A of the ABF Act is not an evidentiary certificate (in the sense of being prima facie evidence of a matter in a prosecution or any other proceedings). Rather, it is a condition precedent to the commencement of a prosecution. The reasons that a matter of opinion could not properly form the basis for such a condition are not readily apparent.
The Inspector-General noted that the Australian Border Force Act offence carries a maximum penalty of imprisonment for two years, considerably less than those offences proposed by the Bill. The Inspector-General noted that an unauthorised disclosure of ‘security classified information’ could potentially constitute an offence under both acts, however, the more serious offences in the Code would not contain an equivalent condition to the commencement of a prosecution to that applying to the less serious offence in the Australian Border Force Act.
Following the Inspector-General’s response, the Department indicated that it had ‘noted’ the Inspector-General’s suggestion and discussed it with her. The Department indicated that if such an amendment were to be made, it would, ‘as a condition precedent to a prosecution’, require ‘somebody’ to assess and certify that the classification was accurate:
So somebody other than the originating agency would therefore have undertaken an assessment that, even if it was a historical document, for a prosecution to proceed, the classification of secret or top secret remained accurate at the time the offence was committed.
As outlined above, a number of offences in the Bill require the prosecution to prove that the information or article in question possessed a security classification. For the majority of offences, the Bill proposes that strict liability will apply to these elements.
Table 3.1: Offences with a ‘security classification’ strict liability component
Espionage—dealing with information etc. concerning national security which is or will be made available to foreign principal - intention as to national security
Penalty: life imprisonment
Espionage—dealing with information etc. concerning national security which is or will be made available to foreign principal - reckless as to national security
Penalty: imprisonment for 25 years
Espionage—security classified information etc.
Penalty: imprisonment for 20 years
Aggravated espionage offence
Penalty: if the penalty for the underlying offence is 20 years – imprisonment for 25 years; if the penalty for the underlying offence is 25 years - imprisonment for life.
Inherently harmful information - Communication of inherently harmful information
Penalty: imprisonment for 15 years
Inherently harmful information - Other dealings with inherently harmful information
Penalty: imprisonment for 5 years
Inherently harmful information - Information removed from, or held outside, proper place of custody
Penalty: imprisonment for 5 years
Inherently harmful information - Failure to comply with direction regarding information
Penalty: imprisonment for 5 years
Aggravated offence (secrecy)
Penalty: adds five years to the penalty for the underlying offence
The effect of applying strict liability is that no fault element needs to be proved. For example, for an espionage offence, the prosecution will be required to prove that the information has a security classification but will not need to prove that the person who dealt with the information knew of or was reckless as to the classification.
The only defence available to this element will be the defence of mistake of fact. This defence would require a defendant to prove that they actively turned their mind to the question of whether the information had a security classification (or a particular classification), but acted upon the mistaken, but reasonable belief, that the information did not have a security classification.
A number of submitters opposed the application of strict liability in these circumstances. Mr Paul Murphy, Chief Executive of the Media, Entertainment and Arts Alliance, described the imposition of strict liability upon journalists who receive documents as ‘extraordinary and intolerable’.
The Explanatory Memorandum recognises that the proposed imposition of strict liability upon these elements may limit the presumption of innocence. The Explanatory Memorandum states:
The application of strict liability may limit the presumption of innocence to the extent that it allows for the imposition of criminal liability without requiring the prosecution to prove fault in the defendant for that particular element. Strict liability provisions will not violate the presumption of innocence so long as they are reasonable in the circumstances, and maintain rights of defence.
The Explanatory Memorandum states that applying strict liability is appropriate because
information or articles carrying a security classification are clearly marked with the security classification and any person who has access to security classified information should easily be able to identify as such.
This explanation was repeated by the Attorney-General’s Department, which advised:
Given the security classifications are prominently marked on documents, it is unnecessary to require proof of the fact of the classification.
In contrast, the Australian Human Rights Commission submitted:
The fact that the material is classified may well be unknown (and unknowable) by the discloser – particularly if they are an ‘outsider’. … Applying strict liability to a matter about which a person cannot inform themselves in advance does not allow the person to be aware of their obligations and to regulate their conduct accordingly.
The Law Council of Australia raised concerns that a document may be altered by a person to remove the security classification, such that any subsequent person dealing with the altered document may not be aware that the classification had been removed.
The Department noted that the effect of removing strict liability would be that the prosecution would need to prove that the defendant was reckless as to whether the information or article had a security classification.
Proposed sections 93.3 and 121.3 in the Bill provides that the Attorney-General may sign an evidentiary certificate for the purposes of espionage and secrecy proceedings. The certificates will operate as prima facie evidence that:
the information or article in question has or had a security classification, or a specific security classification, at a certain point in time; or
the information or article in question ‘concerns’ Australia’s national security or concerns a particular aspect of Australia’s national security (espionage proceedings only).
The evidentiary certificate will create an evidentiary presumption, which the defendant will be required to disprove. The Explanatory Memorandum states:
Evidentiary certificates … will be used to settle formal matters of fact (that the information or article concerns national security or is security classified) which may otherwise be difficult to prove under the normal rules of evidence.
This is because matters concerning Australia’s national security and security classified information can be said to be peculiarly within the knowledge of the Commonwealth. Further, allowing evidentiary certificates to be issued will protect sensitive information and technical capabilities without having a detrimental effect of the defendant’s right to a fair trial.
As noted above, the Explanatory Memorandum states that ‘information or articles carrying a security classification are clearly marked with the security classification and any person who has access to security classified information should easily be able to identify as such’. However, the Explanatory Memorandum also states:
The evidentiary certificate framework in new section 121.3 is intended to facilitate the settling the formal question of whether particular information has, or had [at] a particular time, a security classification or a specified level of security classification, in limited cases where a security classification is not clearly marked on a particular document or piece of information. This may include cases where, for example:
a person has communicated information orally, and that information is, or was at the relevant time, security classified
a person has modified a document to remove any labels denoting its security classification
a person has communicated an excerpt from a security classified document, and that excerpt does not include a label denoting a security classification
a person has removed security classified information from a database, and the form in which it was removed does not include a label denoting a security classification, or
the information or document contains paragraph markings that are an abbreviated or shorthand reference to a security classification.
Several submitters raised concerns regarding the proposed introduction of evidentiary certificates, in particular, how these certificates would operate to reverse the burden of proof.
The Explanatory Memorandum concedes that the provision of evidentiary certificates will limit the presumption of innocence. Commenting on this concession, Australian Lawyers for Human Rights submitted that:
… given the seriousness of the offences involved, [evidentiary certificates] are inconsistent with the principles that form the bedrock of Australia’s criminal justice system as well as international human rights standards.
Similarly, the Australian Lawyers Alliance recommended that:
Evidentiary certificates should not be available to allow prosecutors to avoid having to prove all elements of a crime. Where national security requires that evidence should not be presented in court, the court’s discretion in how proceedings are run should be relied on.
The Australian Lawyers Alliance submitted that, given the severity of applicable penalties, it is more appropriate for the Court to determine these matters.
The Attorney-General’s Department’s Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide) states that ‘limits should be placed on the use of evidentiary certificate provisions’:
Evidentiary certificates should generally only be used to settle formal or technical matters of fact that would be difficult to prove by adducing admissible evidence. It is generally unacceptable to use evidentiary certificates to cover questions of law, which are for the courts to determine.
The Explanatory Memorandum states:
[I]t may be difficult to settle the question of whether the particular information has a security classification, or had a security classification at a particular time, by adducing admissible evidence. It would often be necessary to adduce the original document or information from which the information was drawn into evidence. The admission into evidence of additional security classified information may risk compounding the harm to essential public interests by providing the defendant with additional security classified information that they have no need to know, as well as risking the further exposure of that information.
It would often be necessary to put in place additional controls to protect the security classified information, such as those available under the National Security Information (Criminal and Civil Proceedings) Act 2004, which may impose additional burdens on the prosecution, defendant and court. In cases where the question of whether the information is, or was at a particular time, security classified information is essentially formal in nature, the use of a prima facie evidentiary certificate would facilitate the settling of that question by avoiding the difficulty of adducing additional classified evidence and the resultant imposition of potentially burdensome obligations on the parties and court.
As discussed above, a number of submitters raised concerns that national security information is routinely over-classified or incorrectly classified. In this context, the Centre for Media Transition raised concerns that the Bill empowers the Attorney-General to issue an evidentiary certificate ‘without any requirement to actively consider whether the security classification was appropriate or whether the material might actually be harmful’.
The Inspector-General similarly pointed to this issue:
As a practical matter, it is very difficult to see how a person could mount an effective challenge to such a certificate, given that they may not have access to the information or thing that is the subject of the certificate, or to the documents incorporated into the definition of a ‘security classification’ by the regulations.
Submitters raised concerns that the difficulties associated with the use of security classifications as the basis for criminality would be exacerbated by the proposed application of strict liability and evidentiary certificates. For example, Dr Lawrence McNamara of the York Law School, University of York submitted:
… strict liability offences, combined with an AG certificate, appears to mean that prosecution would be able to proceed very substantially on the basis of assertion by the state of the significance of information (which though only prima facie evidence would be difficult to contest—perhaps so difficult that fair trial and equality of arms concerns might be invoked), and without proof of damage.
Dr McNamara submitted that these provisions could result in circumstances where:
… individuals are successfully prosecuted but without any transparency around what, exactly, the substance of the offence was and whether it really did pose any risk.
Government proposed amendments
On 13 February 2018, the Attorney-General’s Department advised the Committee that the Attorney-General had instructed the Department to progress a number of changes to the Bill. The Committee received draft amendments to this effect from the Attorney-General on 5 March 2018. The proposed amendments included amending the definition of ‘security classification’ in section 90.5 to mean a classification of TOP SECRET or SECRET, or any other equivalent classification or marking prescribed by the regulations. The Attorney-General explained:
Consistent with the Australian Government’s Information Security Management Guidelines (available at www.protectivesecurity.gov.au), information should be classified as TOP SECRET if the unauthorised release of the information could cause exceptionally grave damage to the national interest. Information should be classified as SECRET if the unauthorised release of the information could cause serious damage to the national interest, organisations or individuals.
The new definition will not allow for lower protective markings to be prescribed in the regulations and will only allow equivalent classifications or markings to be prescribed. This will allow flexibility to ensure the definition can be kept up to date if new protective markings of equivalent seriousness are introduced, or to ensure information bearing former protective markings of equivalent seriousness can continue to be protected.
The proposed amendments also remove the provisions that apply strict liability to the elements of the secrecy and espionage offences that rely on security classifications. The Attorney-General explained:
The effect of these amendments is that, in addition to proving that information or article had a security classification, the prosecution will also have to prove that the defendant was reckless as to the fact that the information or article had a security classification. Consistent with section 5.4 of the Criminal Code Act 1995, this will require proof that the person was aware of a substantial risk that the information had a security classification and, having regard to the circumstances known to him or her, it was unjustified to take the risk.
Supplementary submissions to the Committee generally expressed support for the proposed amendments, subject to certain continuing reservations. The joint councils for civil liberties, for example, noted that the amendments were ‘positive’ but that they ‘retain some uncertainty as to the robustness and reliability of the classification system even at this level’.
The Human Rights Law Centre described the amendments as a ‘definite improvement’, but reiterated its concern that security classification is ‘an administrative systems that is not suitable for inclusion as an element in a serious criminal offence’. The Centre recommended the following safeguards to be implemented in addition to the proposed amendments:
(a) mandatory guidelines be set out, for instance, in regulations, for the use of these higher-level classifications, setting out the criteria to be met and the oversight applied to classification decisions,
(b) a legislative requirement be introduced that the security classification be confirmed prior to the institution of any criminal proceedings,
(c) procedures be instituted for timely declassification, and
(d) measures be introduced to address the documented practice of over‑classification.
The IGIS noted that the terms SECRET and TOP SECRET would ‘take their meaning exclusively from policy as in force from time-to-time’. The IGIS expressed her continued support for:
further statutory parameters for the regulation-making power in proposed section 90.5,
a legislative requirement that any material incorporated by reference into the regulations must be publicly available, and
a legislative requirement that a security classification within the meaning of section 90.5 must be a classification that is assigned for the purpose of protecting national security.
As discussed in Chapter 1, the Committee has reviewed the Bill with a view to ensuring that each measure is clear and unambiguous in its terms; proportional and appropriately targeted to the threat; and enforceable.
The Committee supports the Attorney-General’s proposal to amend the Bill to define ‘security classification’ to mean SECRET and TOP SECRET (or equivalent) classifications. These are the two highest levels of security classification, and denote that the official who created the information considers that its disclosure would cause serious or grave harm. The Committee notes the department’s evidence that the classification of information at these levels, in particular, will often depend on contextual information that only the originating agency has access to. The Committee is regularly briefed on information classified at these levels and understands that the reasons for which a particular classification is applied may not always be obvious to a person who is not intimately familiar with the matter. Accordingly, the Committee accepts both that the unauthorised disclosure of highly classified information has the potential to cause very serious harm and that, in principle, a person who is aware of a substantial risk that they may be dealing with such information and who elects to disclose it irrespective of what harm may follow may properly be considered culpable. However, the Committee considers that a number of amendments are required to ensure that the use of security classifications as a basis for criminal liability results in a legal framework that is clear and unambiguous; proportionate and appropriately targeted; and enforceable.
The proposed amendments enable the secrecy and espionage offences in the Bill to be more narrowly targeted, and go some way to addressing concerns that the term ‘security classification’ is not defined and therefore lacks clarity. However, the Committee is of the view that for greater certainty, the Bill should both list the classifications to which liability attaches, and prescribe the characteristics and qualities of that security classification. Any material incorporated by reference into the regulations should also be required to be publicly available.
The Committee also recognises submitters’ concerns that the government’s classification system is essentially administrative in nature. The Committee notes evidence suggesting a tendency for officers to err on the side of caution by ‘over-classifying’ information; and that correctly classified information may become incorrectly classified due to the passage of time. In those instances, the nexus between the information and harm to national security is not apparent.
The Committee also notes a number of practical matters concerning the enforceability of the standard ‘has a security classification’. The Explanatory Memorandum and the Attorney-General’s Department’s submission indicate that information and articles will be clearly and/or prominently marked with their security classification, and so any person with access to the information will be aware of its classification. For example, if a person removed a TOP SECRET report from their workplace, this would most likely be marked with its classification TOP SECRET in the header and footer of each page. If that person provided the primary document, or a full copy of it, to another person, that second person could easily identify what classification the document possessed. If the second person passed the primary document in full to a third person, this third person would be equally able to identify its classification.
However, not all information which could be the subject of a secrecy or espionage offence will be ‘marked’ with a security classification. The secrecy and espionage offences are not limited to original primary documents. ‘Information’ is defined to include information of any kind, whether true or false, whether in material form or not, and including an opinion or a report of a conversation. An ‘article’ includes any thing, substance or material. ‘Dealing with information or an article’ will be defined to include dealing with part of the information or article; or the substance, effect or description of the information or article.
An offence can therefore arise in circumstances where a person dealt with information in a non-documentary form, such as a conversation. Similarly, documents other than exact copies will also be captured, for example, a record of a conversation, a description of material, a part of a document, content copied and pasted from an original document into another form, or information appearing in a media article. In these circumstances it is either unlikely, or in some cases not possible for the information to be ‘prominently marked’ with a security classification. Given the broad spectrum of information and conduct captured by these provisions, the Committee supports the Attorney-General’s proposal to remove strict liability from the relevant offences, which would have the effect of requiring the prosecution to prove beyond reasonable doubt that the person was aware of a substantial risk that the information had a security classification and that in all the circumstances it was unreasonable for the person to take that risk, and further considers that evidentiary certificates should be removed from the Bill.
Additionally, the Committee understands that a document’s classification denotes the classification level of the most sensitive information contained in the document, or the classification of the sum total of the opinion and information expressed in the document. The document may also contain a range of paragraphs, sentences, ideas, quotes, names and facts which are unclassified, publicly available or possess a lower classification level than that appearing in the header and footer of a document. Thus, a person describing the substance of a paragraph of a TOP SECRET document, may in fact only be referring to publicly available material. The same would be true of non-documentary forms of information. In these circumstances the harm caused could be negligible or non-existent. Similarly, there may be situations in which information warrants a SECRET or TOP SECRET classification at the time it is authored, but loses that quality with the passage of time. In these circumstances, no damage would arise.
For these reasons, the Committee considers that, for offences relying on the security classified nature of a document or piece of information, safeguards should be implemented to ensure that it was appropriate for the particular classification to applied to that document or piece of information.
The Committee considers that the introduction of an administrative process to confirm the appropriateness of a classification prior to trial (akin to section 50A of the Border Force Act) is an important and necessary safeguard. This is particularly necessary in light of the serious penalties which are proposed (ranging up to life imprisonment) and other serious consequences which will flow from being charged with some secrecy or espionage offences, including being denied bail, minimum non-parole periods, deportation and citizenship loss (see Chapter 10). As noted above, the Committee appreciates that the reasons for which a document or piece of information was originally classified—and for which it should or should not remain classified—will often only be known by the originating agency. Where information is classified TOP SECRET, in particular, those reasons will often be exceptionally sensitive, going to the identities of delicate human sources or highly sensitive technical capabilities, and would often be known only to a limited range of people inside the relevant agency. Accordingly, the Committee considers that it is appropriate that the head of the originating agency should be required to certify the appropriateness of the classification.
The administrative process of confirming the appropriateness of the security classification should operate as a condition precedent to prosecution, rather than acting as prima facie evidence of the fact in question. To uphold the accused’s right to a fair trial, the Crown should be required to prove that as at the time the alleged offence was committed:
the information ‘had a security classification’; and
the accused knew or was reckless as to this; and
at that time the information necessitated a SECRET or TOP SECRET security classification.
The Committee recommends that the Bill be amended to define each ‘security classification’ to which criminal liability attaches. Each definition should include harm-based statutory criteria 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.
The Committee recommends implementing 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
remove strict liability from espionage and secrecy offences.
The Committee recommends that the Bill be amended to require that, prior to initiating proceedings for an espionage or secrecy offence that relies on the fact that information is security classified, the head of the originating agency must certify that it is appropriate that the information had a security classification at the time of the conduct that is alleged to constitute the offence.
This certificate should operate as a condition precedent to the initiation of proceedings. The certificate should not have any evidentiary effect.
The Committee recommends that the Bill be amended to remove the evidentiary certificate regimes in proposed sections 93.3(1)(a)‑(b) and 121.3, in relation to security classified information.
Evidentiary certificates - ‘concerns national security’
Proposed section 93.3 would enable the Attorney-General to issue an evidentiary certificate for espionage proceedings, which will be prima facie evidence that the information or article in question ‘concerns Australia’s national security’ or concerns a particular aspect of Australia’s national security.
In addition to the general arguments against evidentiary certificates, discussed above, submitters also raised specific concerns regarding the availability of an evidentiary certificate to provide prima facie evidence that a matter ‘concerns’ national security. The Australian Lawyers Alliance submitted:
… if an evidentiary certificate were issued by the Attorney-General to say that a particular matter is related to national security, it would then be up to the defendant to disprove that contention. This places an impossible burden on defendants. … While the Explanatory Memorandum states that the use of evidentiary certificates will not have ‘a detrimental effect on the defendant’s right to a fair trial’, the ALA questions how such an effect could be avoided …
Given the severe penalties that stem from an item being found to concern Australia’s national security, we believe that it is more appropriate for a court, rather than the Attorney-General, to be empowered to rule on this matter.
The Law Council of Australia noted that proposed section 93.3 would ‘give discretion to the Attorney-General as to when to certify information or an article’ and would ‘in effect allow information or a thing to be certified after the time of the conduct that is alleged to constitute the offence’:
That is, an element of retrospectivity would potentially occur in relation to the espionage and foreign interference offence provisions. The Law Council considers that a prosecution should not be initiated unless it has been certified that it is appropriate that the information concerned Australia’s national security (or Part thereof) at the time of the conduct that is alleged to constitute the offence. This would limit potential for retrospective application.
In response to this concern, the Attorney-General’s Department submitted:
The department does not agree the Attorney-General should certify that it was ‘appropriate’ for the information to ‘concern national security’ at the time of the conduct constituting the offence. This is not an objective fact but rather a statement of opinion, which would not properly belong in an evidentiary certificate. The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers states that evidentiary certificates are generally only suitable when they relate to formal or technical matters of fact that would be difficult to prove by adducing admissible evidence.
The Law Council also submitted that it was unclear whether there was scope in proposed subsection 93.3(1) for the Attorney-General to ‘expand the meaning of “national security” beyond the confines of the proposed statutory definition’. It recommended that the subsection be amended ‘to require the Attorney-General to only certify information or an article as concerning Australia’s national security subject to the statutory criteria for “national security”‘.
The Attorney-General’s Department responded:
The Bill already achieves this effect. The definition of ‘national security’ will be inserted into Division 90, which sets out the definitions for Part 5.2 of the Criminal Code. Section 93.3 will be located in Part 5.2. Therefore, for the purposes of section 93.3, the Attorney-General will only be able to certify that information concerns ‘national security’ within the definition of the term in section 90.4.
The Committee does not consider that the use of evidentiary certificates is appropriate in these circumstances. The Committee considers that the question of whether a matter ‘concerns’ national security may be contestable, and is therefore not a ‘formal or technical matter of fact’ that is appropriate to include in an evidentiary certificate. Accordingly, the Committee recommends removing these provisions from the Bill.
The Committee recommends that the Bill be amended to remove the evidentiary certificate regimes in proposed sections 93.3(1)(c)‑(d), in relation to information that ‘concerns Australia’s national security’.
Several of the proposed offences in the Bill criminalise preparatory conduct. These are:
82.9 – Preparing for or planning sabotage offence,
91.12 – Offence of preparing for an espionage offence, and
92.4 – Offence of preparing for a foreign interference offence.
Some submitters were of the view that the preparatory offences were not required, given the availability of the offence of attempt, which would ordinarily apply under section 11.1 of the Criminal Code.
Sections 11.1, 11.4 and 11.5 of the Criminal Code outline existing offences for
attempt—a person who attempts to commit an offence commits the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed,
incitement—a person who urges the commission of an offence commits the offence of incitement, and
conspiracy—a person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months commits the offence of conspiracy to commit that offence is punishable as if the offence to which the conspiracy relates had been committed.
The Australian Lawyers Alliance objected to the introduction of the Bill’s preparatory offences on the basis that
this change would dramatically expand the preliminary activities that would be criminalised, including circumstances in which the accused could reasonably change their mind before the offence was committed.
The Law Council raised a general concern around ‘the increasing number of preparatory offences that are being introduced into the Criminal Code’. Since 2002, preparatory offences have been introduced in relation to terrorism and child sex offences.
The Law Council suggested that, if the Committee does not agree that incitement, conspiracy and attempt provisions in Part 2.4 of the Criminal Code are sufficient to deal with preparatory conduct:
[T]he Law Council recommends 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. The review should allow for a public submissions process and the outcomes be used to inform the [Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers].
The Law Council contrasted the introduction of preparatory offences to the process undertaken in developing the Criminal Code:
The committee met and prepared discussion papers on specific topics which eventually became chapters of the Criminal Code. The first one that was done was the principles of criminal responsibility, and then we went through various other things … That then was put out by way of discussion papers, and the committee did road shows all over the country, talking to all sorts of vested and non-vested interests about the proposals. Those proposals were then revised, and we ultimately then would provide a report in each of these areas. We submitted that to the government, it went through the processes and in 1995 the legislation was passed. That to me was a model of careful policymaking. The detailed consultation process and discussions with public defenders offices, DPPs, police, victims groups and so on made enormous improvements in refining that body of work.
The Law Council argued that the preparatory offences proposed in the Bill ‘really need to be carefully thought through and not to deal with such broad and vague concepts’:
I remember that in the course of discussions of terrorism legislation with Senator Brandis there was discussion of why there is a need for a preparation offence. Why not attempt or conspiracy? He said, ‘Look, that’s only meant to capture the lone wolf attack.’ The act of preparation was meant for lone wolves. I had the misfortune some years later to be doing an appeal involving five accused charged with conspiring to do an act of preparation, and that was the case where we had a 500-page charge to the jury, because conspiracy and the act of preparation are really complicated things. In the context of multiple trials, it’s just making trouble.
The Attorney-General’s Department disagreed with the Law Council that that the extensions of criminal responsibility in Part 2.4 are sufficient, and noted that preparatory offences are generally reserved for serious criminal conduct warranting criminalisation at the preparation stage:
This offence will give law enforcement authorities the means to deal with preparatory conduct, without the need to, for example, wait until a foreign interference offence is committed or an Australian process is put at risk of interference.
Liability for attempt arises from conduct that is ‘more than merely preparatory’ (subsection 11.1(2) of the Criminal Code). The proposed offence targets conduct that occurs before liability for attempt would arise. The preparatory offence criminalises conduct that would not yet amount to an attempt to commit a sabotage offence.
The Department added:
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.
The Attorney-General’s Department noted that the preparatory offences in the Bill are similar to those adopted in relation to terrorism and child sex offences, and argued that
preparatory offences, although newer, are not unknown to the statute books and have been used in terrorism offences and in offences in relation to online harm against children. So we have, where appropriate, adopted and built on existing concepts which are known to the Commonwealth Criminal Code. Again, there is that body of jurisprudence and knowledge around the operation of the Commonwealth Criminal Code.
The Committee notes that the Criminal Code already contains offences for incitement, conspiracy and attempt. The proposed preparatory offences in the Bill will extend beyond these concepts to the point of preparation or planning of a sabotage, espionage or foreign interference offence. The Committee will consider the appropriateness of these specific offences later in this report.
While the Committee notes that preparatory offences already exist in the Criminal Code in relation to terrorism and child sex offences, there does not appear to be any underlying principles or guidance as to the circumstances in which preparatory offences are justified. It is beyond the scope of this inquiry, or the functions of this Committee, to consider the appropriate role for preparatory offences in Commonwealth criminal law. However, to the extent that preparatory offences are used more commonly in relation to terrorism and, as proposed in this Bill, espionage and foreign interference, than in other parts of the statute book, it would assist the Committee if there were greater public guidance on this matter. Accordingly, the Committee recommends that the Government amend the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers to identify criteria to be used for determining the kinds of criminal conduct that warrant preparatory offences.
The Committee recommends that the Government amend the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers to identify criteria to be used for determining the kinds of criminal conduct that warrant preparatory offences.
The Committee received evidence expressing a general concern with the number of offences in the Bill that have a fault element of recklessness rather than intent.
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.
The Criminal Code provides that the question whether taking a risk is unjustifiable is one of fact. If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.
Australian Lawyers for Human Rights voiced its concern that
the Bill continues this government’s concerning and very undesirable pattern of criminalising ‘reckless’ behaviour that is in no way intended to cause harm, and quite irrespective of whether or not harm has actually been caused.
In its submission, Human Rights Watch recommend removing reckless as a level of culpability. The Australian Lawyers Alliance, in discussing espionage offences, saw the inclusion of the mental element of recklessness coupled with broader physical elements such as ‘receiving, collecting or possessing information or an article’ as a ‘cause for concern’.
The Attorney-General’s Department explained that
the effect of section 5.6 of the Criminal Code is that recklessness is the fault element if a physical element that is a circumstance does not specify a fault element … This is consistent with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement powers, which states (at paragraph 2.2.4 on page 20) that the default elements supplied by section 5.6 of the Criminal Code should apply unless there is a sound reason to depart from them.
The Attorney-General’s Department explained the purpose of including recklessness elements in the espionage offences as follows:
The benefit of adding offences that have recklessness as a fault element is that it provides a range of options to law enforcement and prosecutorial agencies when investigating espionage offences. It also allows for tiered penalties to be applied, with the highest penalties applying to the most serious offences where intention is established, and lower penalties applying where recklessness is established.
The Committee notes that recklessness applies as the default mental element to many of the physical elements of the espionage offences, consistent with section 5.6 of the Criminal Code and the policy position set out in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement powers. Where recklessness is included as a specific mental element, in subsections 91.1(2), 91.2(2) and 91.8(2), it attaches to physical elements that are results or circumstances. As noted above, recklessness is the default mental element for a physical element that is a circumstance. Similarly, recklessness is also the default mental element for a physical element that is a result. Accordingly, these offences do not appear to depart from the default approach to mental elements in the Criminal Code or for Commonwealth criminal law policy as set out in the Guide. Instead, these offences appear to exist as part of a tiered framework of offences—subsections 91.1(1), 91.2(1) and 91.8(1) contain offences attracting higher maximum penalties that require the prosecution to prove beyond reasonable doubt that the person intends a particular result, which is a higher threshold than is ordinarily required to establish criminal liability under the Code.
Evidential burden on the defendant
Many of the Bill’s proposed new offences—including in relation to secrecy, espionage, foreign interference and sabotage—provide defences for legitimate conduct, rather than excluding this conduct in the elements of the offence.
A number of submitters on the Bill expressed concerns about the offence-specific defences ‘that reverse the burden of proof by providing that a defendant bears the evidential burden in proving the elements of the defence’. For example, the IGIS noted the possibility that such a reversal of the onus of proof may deter individuals from bringing information to the IGIS’s attention:
As a general observation, it 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.
The IGIS also pointed out that the ‘interaction of section 34 of the IGIS Act and the proposed offences and defences in the Bill may have been overlooked’. The IGIS explained that, whilst the Explanatory Memorandum states
in relation to the defence in proposed s 122.5(1), that ‘the imposition of the evidential burden on the defendant is appropriate because the defendant should be readily able to point to evidence that their conduct was … done in their official capacity as a Commonwealth official’
the Explanatory Memorandum
does not appear to acknowledge the possibility that a Commonwealth official may be subject to secrecy obligations under other laws, such as s 34 of the IGIS Act, which could prevent them from adducing the evidence that is necessary to discharge the evidential burden.
The Australian Lawyers for Human Rights noted confirmation by the Explanatory Memorandum that the Bill does limit the presumption of innocence and that such limitation includes the reversal of the onus of proof by providing that a defendant bears the evidential burden in proving the elements of the defence:
The Explanatory Memorandum concedes (par 69) that the Bill limits the presumption of innocence by:
imposing strict liability and absolute liability for certain offence elements;
placing an evidentiary burden on the defendant with respect to defences; and
providing for evidentiary certificates which are prima facie evidence as to the existence of certain facts.
ALHR opposes these provisions which, given the seriousness of the offences involved, are inconsistent with the principles that form the bedrock of Australia’s criminal justice system as well as international human rights standards.
In relation to the secrecy of information offences in Schedule 2 to the Bill, the Australian Lawyers Alliance criticised the reliance on a defence of ‘previously communicated information’ at proposed section 122.5(8):
This is an extraordinarily high bar for a defendant to reach in seeking to defend their actions. Usually, it would be expected that the prosecution would be required to show that the communication would cause harm, or there was reason to believe that harm would be caused. In this Bill, however, the onus is shifted to the defendant to show that (a) they had considered whether harm would come to Australia’s interests; (b) they had come to the view that no harm would arise; and (c) this view was reasonable.
This reversal of the onus of proof effectively shifts too much of the prosecutor’s role of proving a crime beyond a reasonable doubt on to the defendant. The ALA believes that, rather than requiring defendants to show that they had considered the impact of a communication on Australia’s interests, security or defence, it must be up to the prosecution to show that the defendant had intended to cause harm.
In contrast, the Law Council of Australia’s submission was critical of the certain defences proposed to be available to public officials. It stated 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.
This difficulty does not arise for those offences where it may reasonably be envisaged that a public official may be requested to engage in certain conduct such as intending to advantage the national security of a foreign country (such as an ally).
The Attorney-General’s Department’s Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide) states that:
It is a fundamental and long-standing principle of criminal law that a defendant is presumed to be innocent until proven guilty, and that the prosecution must prove every element of an offence beyond a reasonable doubt.
The Guide states that:
Offence-specific defences reverse the fundamental principle of criminal law that the prosecution must prove every element of the offence. Therefore, a matter should only be included in an offence-specific defence, as opposed to being specified as an element of the offence, where:
it is peculiarly within the knowledge of the defendant, and
it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.
The Guide further explains:
The fact that it is difficult for the prosecution to prove a particular matter has not traditionally been considered in itself to be a sound justification for placing the burden of proof on a defendant. If an element of the offence is difficult for the prosecution to prove, imposing a burden of proof on the defendant in respect of that element may place the defendant in a position in which he or she would also find it difficult to produce the information needed to avoid conviction. This would generally be unjust. However, where a matter is peculiarly within the defendant’s knowledge and not available to the prosecution, it may be legitimate to cast the matter as a defence.
In addition the Guide states that creating a defence is also more readily justified if:
the matter in question is not central to the question of culpability for the offence,
the offence carries a relatively low penalty, or
the conduct proscribed by the offence poses a grave danger to public health or safety.
The Australian Law Reform Commission’s 2009 report, Secrecy Laws and Open Government in Australia, considered which exemptions and defences should be explicitly included in a general secrecy offence. The report drew a distinction between an ‘exception’, which limits the scope of conduct prohibited by a secrecy offence, and a ‘defence’, which may be relied on to excuse conduct that is prohibited by a secrecy offence. The report concluded:
In the ALRC’s view, it is essential to include an exception in the general secrecy offence for disclosure in the course of an officer’s functions or duties.
The ALRC’s 2016 report, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws, notes the Criminal Code distinction between a ‘legal burden’—which is the burden of proving the existence of a matter—and an ‘evidential burden’—which is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. Although the Commission focused its inquiry on laws that reverse the legal burden of proof, it cited concerns expressed by some submitters about the reversal of the evidential burden, ‘especially where the reversal applies to a key culpability element of a serious criminal offence’.
The Explanatory Memorandum to the Bill discusses the reasonableness and proportionality of placing the burden of proof on the defendant:
It is reasonable and necessary for the burden of proof to be placed on the defendant where the facts in relation to the defence are peculiarly within the knowledge of the defendant. For example, for a defence at section 91.4(2) (espionage) a defendant should be readily able to point to evidence that they acquired the relevant information or article indirectly from a publically available source. For a defence at subsection 83.3(2) (military-style training involving foreign government principal) the defendant is best placed to know of the existence of the type of agreement therein and to provide evidence in relation to that agreement. Similarly, for a defence at section 80.3 the defendant is best placed to explain their motivations when engaging in the relevant conduct as it is peculiarly within their knowledge as to how and why they should be considered to be acting in good faith.
Reversal of proof provisions are proportionate … as the prosecution will still be required to prove each element of the offence beyond reasonable doubt. Further, if the defendant discharges an evidential burden, the prosecution will also be required to disprove those matters beyond reasonable doubt, consistent with section 13.1 of the Criminal Code.
The Department explained its position on the reversal of the onus of proof as follows:
Subsection 13.3(6) of the Criminal Code defines ‘evidential burden’ to mean ‘the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.’ In R v Khazaal (2012) 246 CLR 601, the High Court at  accepted that it was right to contend that the words ‘adducing or pointing to evidence that suggests a reasonable possibility’ which appear [in] subsection 13.3(6) of the Criminal Code, required no more than ‘slender evidence’ in relation to the issue of the relevant negative state of affairs that arose in that case. The High Court also held that, in determining whether the burden created by subsection 13.3(6) had been discharged, ‘the evidence may be taken at its most favourable to the accused’.
It is also noted that in practice, the prosecution will have regard to any lines of defence which are plainly open on the evidence or have been indicated by an alleged accused when making a determination that there are reasonable prospects of conviction and that the matter should proceed.
Rights to freedom of expression and political communication
A number of submitters on the Bill expressed their concern that the offences in the Bill may impinge on rights to freedom of expression and political communication.
The right to freedom of expression is enshrined in article 19 of the ICCPR, which provides:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
For respect of the rights or reputations of others;
For the protection of national security or of public order (ordre public), or of public health or morals.
In relation to laws for the protection of national security, a joint submission by three United Nations Special Rapporteurs stated that
national security considerations should be ‘limited in application to situations in which the interest of the whole nation is at stake, which would thereby exclude restrictions in the sole interest of a Government, regime, or power group.’ Additionally, States should ‘demonstrate the risk that specific expression poses to a definite interest in national security or public order, that the measure chosen complies with necessity and proportionality and is the least restrictive means to protect the interest, and that any restriction is subject to independent oversight.’
The Australian Human Rights Commission, whilst acknowledging the ‘legitimacy of the Bill’s overarching objective’ considered that
this objective could be achieved without impinging so significantly on human rights. Specifically, the Commission is concerned that the secrecy provisions in the Bill may limit the right to freedom of expression to a degree that has not been demonstrated to be necessary and proportionate to a legitimate objective.
The Australian Constitution does not explicitly protect freedom of expression. However, the High Court has held that an implied freedom of political communication exists as an indispensable part of the system of representative and responsible government created by the Constitution. It operates as a freedom from government restraint, rather than a right conferred directly on individuals. This was recently reaffirmed by the High Court in the decision Brown v State of Tasmania:
The implied freedom protects the free expression of political opinion, including peaceful protest, which is indispensable to the exercise of political sovereignty by the people of the Commonwealth. It operates as a limit on the exercise of legislative power to impede that freedom of expression.
Noting the lack of an explicit protection for freedom of expression the Australian Lawyers Alliance raised a concern that the Bill, as drafted, could be found by the High Court to impinge on the implied freedom of political communication:
It is entirely possible that the court would find that the provisions contained in this Bill that relate to inhibiting communication or dealing with information conflict with the freedom of political communication. However, for such a finding to be made, a challenge would be required. Establishing standing in constitutional cases can be complicated and, as far as the ALA is aware, is yet to be explored by the High Court with respect to counter-terrorism and other security-related matters. To this end, the Australian Law Reform Commission has noted the risk posed to freedom of expression by counter-terrorism legislation, and has recommended a review of such laws be conducted. As such, it is entirely possible that, if enacted, the reforms contained in this Bill may conflict with constitutional requirements, but continue to have a chilling effect on communications in the absence of any challenge.
The Law Council states that:
Laws that engage the freedom of expression must be necessary and proportionate to the protection of specific public interests. The proposed secrecy provisions in the Bill, due to their breadth, are arguably inconsistent with article 19 of the ICCPR and not in accordance with Australia’s international obligations. They may also arguably be invalid on the basis that they infringe the constitutional protection of freedom of political communication.
The Law Council urged the Committee to
await the [Parliamentary Joint Committee on Human Rights (PJCHR)’s] assessment of the Bill for its impact on freedom of speech before completing its inquiry and if necessary, extend the opportunity to make submissions in response to the information obtained. Any issues identified by the PJCHR should be addressed prior to enactment.
The Department addressed this suggestion as follows:
The department has no comment to make on the timing of the Committee’s inquiry. The department is happy to consider any issues raised by PJCHR in its consideration of the Bill.
The Parliamentary Joint Committee on Human Rights’ report Human rights scrutiny report; Report 2 of 2018 examined the Bill and raised many issues in relation to the following rights:
right to an effective remedy;
privacy; freedom of association;
presumption of innocence;
right to take Part in public affairs.
The PJCHR have listed the Bill as requiring a response.
In addition to areas where the offences in the Bill may limit the right to freedom of expression, 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, and
replacing the offence of ‘interference with political liberty’ with the offence of ‘interference with political rights and duties’.