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1998-1999-2000
THE
PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
CRIMINAL CODE AMENDMENT (ESPIONAGE AND
RELATED OFFENCES) BILL 2001
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the Attorney-General,
the Honourable Daryl Williams AM QC
MP)
CRIMINAL CODE AMENDMENT
(ESPIONAGE AND
RELATED OFFENCES)
GENERAL OUTLINE
This Bill amends the Criminal Code Act 1995 by inserting a new chapter, Chapter 5 – The integrity and security of the Commonwealth, into the Criminal Code.
The purpose of Chapter 5 is to protect national security by prescribing serious penalties for those people who choose to compromise Australia’s security and defence resources.
The main effect of the Bill is to repeal Part VII of the Crimes Act 1914 and establish new offences dealing with the protection of security, defence and official information in the Criminal Code. The offences set out in Chapter 5 cover:
• Espionage and similar activities;
• Communicating or retaining certain information to prejudice the Commonwealth’s security or defence;
• Communicating or retaining certain information;
• Receiving certain information; and
• Unlawful soundings.
The Bill substantially replicates provisions in Part VII of the Crimes Act with respect to unlawful soundings offences (formerly section 83 of the Crimes Act) and the creation of prohibited places (formerly section 80).
Prosecutions under Chapter 5 of the Criminal Code will require the consent of the Attorney-General. This substantially replicates section 85 of the Crimes Act. Under the Bill, the option will remain for all or part of a prosecution or hearing of an offence under Chapter 5 to be heard in closed court. The question of whether a hearing will be held in closed court will continue to be decided by the court.
In the process of repealing Part VII of the Crimes Act and transferring a number of similar or equivalent provisions into the Criminal Code, some provisions in the Crimes Act will be left out because they are no longer relevant or appropriate. These are:
• Section 81 – Harbouring Spies
• Section 83A – Illegal Use of Uniforms
• Section 83B – Special Powers of Arrest without Warrant
• Section 84 – Arrest of Persons In or About Prohibited Places
• Section 84A – Search of Suspects
• Section 85A – Offences by Directors or Officers of Companies
Financial Impact
It is not expected that the Bill will have a direct financial impact. In the event that a person commits an offence under the new provisions, any subsequent criminal prosecution would be undertaken in the normal way. The costs associated with any criminal proceedings in respect of the Commonwealth offences created by this Bill would be absorbed within existing budgets.
NOTES ON CLAUSES
1. This clause is a formal provision specifying the short title of the Bill.
2. The Bill will commence on the 28th day after the day on which it receives the Royal Assent.
3. This clause provides that the Acts specified in each Schedule of the Bill are amended or repealed in accordance with the Schedules. This means that, under Schedule 1, Part VII of the Crimes Act 1914 is repealed and a new chapter, Chapter 5 – The integrity and security of the Commonwealth, is inserted in the Criminal Code Act 1995.
4. Under Schedule 2 various provisions in the Australian Protective Service Act 1987, the Complaints (Australian Federal Police) Act 1981, the Crimes Act and the Ombudsman Act 1976 are amended to remove references to Part VII of the Crimes Act. Where appropriate, new references to equivalent provisions in the Criminal Code are inserted.
5. Subclause 4(1) provides that the Bill is not intended to operate retrospectively. Relevant offence provisions in Part VII of the Crimes Act will apply to offences that take place before the Bill commences, proceedings in relation to an offence alleged to have been committed before the commencement of this section and any matter arising from the proceedings.
6. Subclause 4(2) provides that subsection 4(1) does not limit the operation
of
section 8 of the Acts Interpretation Act 1901. Section 8 of the
Acts Interpretation Act provides that, where an Act repeals all or part of a
former Act, the repeal shall not revive anything not in force or existing at the
time at which the repeal takes effect or affect the previous operation of the
repealed Act. This includes any rights or liabilities incurred, any punishment
or penalty owing, or any investigation or legal proceeding that has arisen as a
consequence of the repealed Act.
7. In relation to separate offences committed as part of an ongoing operation, if it can be shown that some offences occurred before the commencement of the Bill and some after, then both the old and new offence provisions will apply.
8. Part VII of the Crimes Act – Espionage and Official Secrets – is repealed in its entirety. Some of the provisions in Part VII of the Crimes Act are substantially replicated in the Criminal Code. Provisions in relation to espionage offences (formerly section 78 of the Crimes Act) are substantially re-written to reflect the changing nature of the security and defence environment.
9. In the process of repealing Part VII of the Crimes Act and transferring similar or equivalent provisions to the Criminal Code, some provisions in Part VII of the Crimes Act are omitted because they are no longer necessary or relevant. These are:
• Section 81 – Harbouring Spies
• Section 83A – Illegal Use of Uniforms
• Section 83B – Special Powers of Arrest without Warrant
• Section 84 – Arrest of Persons In or About Prohibited Places
• Section 84A – Search of Suspects
• Section 85A – Offences by Directors or Officers of Companies
10. A new chapter, Chapter 5 – The integrity and security of the Commonwealth, is inserted in the Criminal Code. Many of the provisions formerly located in Part VII of the Crimes Act are replicated in Chapter 5 of the Criminal Code. The new espionage offences created by the Bill are inserted in Chapter 5 of the Criminal Code.
11. Chapter 5 of the Criminal Code comprises 4 parts. Each part consists of divisions, within which there are a number of sections. This is consistent with the Criminal Code structure. In the future, new parts and divisions can be inserted in Chapter 5 as required.
12. These amendments define certain terms for the purposes of Chapter 5 of the Criminal Code. Other definitions as contained in the Criminal Code Dictionary continue to apply to Chapter 5 except where terms are otherwise defined in section 80.1.
13. Subsection 81.1(1) – (4) establishes four espionage offences. The maximum penalty for each type of espionage offence is 25 years imprisonment.
14. For the purposes of section 81.1, ‘intention’ has the meaning given in section 5.2 of the Criminal Code.
15. All four offences relate to the unlawful use or disclosure of information concerning the Commonwealth’s security or defence or information concerning the security or defence of another country, being information that is, or has been, in the possession or control of the Commonwealth. These provisions provide protection to information generated by the Commonwealth as well as information generated by other countries in Australia’s possession or control.
16. Section 78 of the Crimes Act referred to a person communicating information with the intention of prejudicing the safety or defence of the Commonwealth. The new espionage offences refer to security or defence. The change to the term ‘security or defence’ in the Bill reflects the modern intelligence environment. The term ‘security’ is intended to capture information about the operations, capabilities and technologies, methods and sources of Australian intelligence and security agencies. The term ‘safety’ is unlikely to include such information. The term ‘security or defence’ is broadly defined in section 80.1 of the Bill.
17. Paragraph 81.1(1) provides that a person commits an offence if that person communicates or makes available information concerning the Commonwealth’s security or defence or information concerning the security or defence of another country in the possession or control of the Commonwealth, intending to prejudice the Commonwealth’s security or defence. An additional element of the offence is that the person’s act results in, or is likely to result in, the information being disclosed to another country or a foreign organisation, or to a person acting on behalf of such a country or organisation.
18. Paragraph 81.1(2) provides that a person commits an offence if the person communicates or makes available information concerning the Commonwealth’s security or defence or information concerning the security or defence of another country that is or has been in the possession or control of the Commonwealth and the person does so without lawful authority intending to give an advantage to another country’s security or defence. An additional element of the offence is that the person’s act results in, or is likely to result in, the information being disclosed to another country or a foreign organisation, or to a person acting on behalf of such a country or organisation. This offence is not intended to capture situations where information is communicated as part of an authorised information exchange arrangement between the Commonwealth and its allies.
19. Paragraph 81.1(3) creates an offence that has the same elements as an offence under paragraph 81.1(1) except that it relates to situations where a person makes, obtains or copies a record in any form of information concerning the Commonwealth’s security or defence or information concerning the security or defence of another country that is, or has been, in the possession or control of the Commonwealth.
20. Paragraph 81.1(4) creates an offence that has the same elements as an offence under paragraph 81.1(2) except that it relates to situations where a person makes, obtains or copies a record in any form of information concerning the Commonwealth’s security or defence or information concerning the security or defence of another country that is, or has been, in the possession or control of the Commonwealth.
21. Subsection 81.1(5) provides that a person does not need to have a particular country, foreign organisation or person in mind at the time when he or she makes, obtains or copies the record under the offence provisions in paragraph 81.1(3) and 81.1(4).
22. A person charged with an espionage offence may apply for bail. Any application for bail will be decided under the appropriate bail legislation of the State or Territory in which the charges are brought except to the extent that subsection 81.1(6) operates. Subsection 81.1(6) specifically provides that a person charged with an espionage offence under section 81.1 will only be remanded on bail by a judge of the Supreme Court of a State or Territory.
23. Subsection 81.1(6) has effect despite anything in section 85.1. Section 85.1 deals with the institution of proceedings with the consent of the Attorney-General.
24. Under subsection 81.1(7) an extended geographical jurisdiction will apply to offences under section 81.1. Section 15.4 provides that, where a law of the Commonwealth provides that this section applies to a particular offence, the offence applies whether or not the conduct constituting the alleged offence occurs in Australia; and whether or not a result of the conduct constituting the alleged offence occurs in Australia. This means that the espionage offence provisions in this Bill will potentially apply to all possible circumstances, within and outside Australia, in which espionage might threaten Australian interests. The offences will apply to conduct anywhere and by any person that violates the offence provisions in section 81.1. Consequently, in addition to covering conduct within Australia, section 81.1 would extend to a foreign national who obtains relevant Australian information in another country, for example by breaking into an Australian mission.
Proposed section 82.1 Meaning of official record of information and official information
25. Division 82 establishes offences relating to official secrets. It substantially replicates section 79 of the Crimes Act except to the extent that Division 82 has been re-drafted to be consistent with rest of the Criminal Code.
26. ‘Official secrets’ are official records of information and official information in relation to a person. Official information or official records of information are not necessarily designated with a security classification.
27. Section 82.1 defines official records of information and official information to mean, in effect, information in the possession or control of a person, which that person is under a duty to keep secret. Paragraphs 82.1(1)(a) – (d) list the circumstances under which a person will obtain information that they have a duty to protect. These include situations where information has been made, obtained or copied in contravention of Chapter 5 of the Criminal Code including information obtained in the course of committing an espionage offence, information relating to unlawfully made or obtained soundings and information regarding prohibited places. Section 82.1 also defines official information and official record of information to include information that has been lawfully obtained, such as information entrusted to or by a Commonwealth public official.
28. ‘Commonwealth public official’ is defined in the Criminal Code dictionary to mean:
(a) the Governor-General; or
(b) a person appointed to administer the Government of the Commonwealth under section 4 of the Constitution; or
(c) a Minister; or
(d) a Parliamentary Secretary; or
(e) a member of either House of the Parliament; or
(f) an individual who holds an appointment under section 67 of the Constitution; or
(g) the Administrator, an Acting Administrator, or a Deputy Administrator, of the Northern Territory; or
(h) the Administrator, an Acting Administrator, or a Deputy Administrator, of Norfolk Island; or
(i) a Commonwealth judicial officer; or
(j) an APS employee; or
(k) an individual employed by the Commonwealth otherwise than under the Public Service Act 1999; or
(l) a member of the Australian Defence Force; or
(m) a member or special member of the Australian Federal Police; or
(n) an individual who holds or performs the duties of an office established by or under a law of the Commonwealth, other than:
(i) the Aboriginal Councils and Associations Act 1976; or
(ii) the Australian Capital Territory (Self-Government) Act 1988; or
(iii) the Corporations Act 2001; or
(iv) the Norfolk Island Act 1979; or
(v) the Northern Territory (Self-Government) Act 1978; or
(vi) Part IX of the Workplace Relations Act 1996; or
(o) an officer or employee of a Commonwealth authority; or
(p) an individual who is a contracted service provider for a Commonwealth contract; or
(q) an individual who is an officer or employee of a contracted service provider for a Commonwealth contract and who provides services for the purposes (whether direct or indirect) of the Commonwealth contract; or
(r) an individual who exercises powers, or performs functions, conferred on the person by or under a law of the Commonwealth, other than:
(i) the Aboriginal Councils and Associations Act 1976; or
(ii) the Australian Capital Territory (Self-Government) Act 1988; or
(iii) the Corporations Act 2001; or
(iv) the Norfolk Island Act 1979; or
(v) the Northern Territory (Self-Government) Act 1978; or
(vi) Part IX of the Workplace Relations Act 1996; or
(vii) a provision specified in the regulations; or
(s) an individual who exercises powers, or performs functions, conferred on the person under a law in force in the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands (whether the law is a law of the Commonwealth or a law of the Territory concerned); or
(t) the Registrar, or a Deputy Registrar, of Aboriginal Corporations.
29. For the purposes of subparagraph 82.1(1)(e)(ii), ‘reckless’ has the meaning given in section 5.4 of the Criminal Code.
30. Subsection 82.1(3) provides that Division 82 applies to a person doing a thing with official information or an official record of information where that information is official, or an official record, in relation to that person.
Proposed section 82.2 Communicating or retaining certain information to prejudice the Commonwealth’s security or defence
31. Subsection 82.2(1) establishes the offence of communicating or retaining official information or an official record of information, without authorisation, for the purposes of prejudicing the Commonwealth’s security or defence. A person also commits an offence if they communicate or make available such information to a person whom they are duty bound not to communicate or make available such information in the interests of the Commonwealth.
32. A person who commits an offence against subsection 82.2(1) will face a maximum penalty of 7 years imprisonment.
33. The subsection 82.2(1) offence is similar to the espionage offences except to the extent that the person’s actions do not result in, or are not likely to result in, the information being disclosed to another country or a foreign organisation or to a person acting on behalf of such a country or organisation. For this reason a lesser maximum penalty applies. A person may be simultaneously charged with offences under both the official secrets provisions and the espionage provisions.
34. A person also commits an offence against section 82.2 if that person permits a person mentioned in subparagraph 82.2(1)(a)(i) or (ii) to have access to official information or an official record of information, retains such information where it is contrary to his or her duty to retain it or fails to comply with a direction regarding the retention or disposal of information. A person who does any of these things with an intention to prejudice the Commonwealth’s security or defence faces a maximum penalty of 7 years imprisonment.
35. The term ‘security or defence’ in relation to the official secrets offences is intended to apply in the same way as it applies to the espionage offences.
36. For the purpose of this section, ‘intention’ has the meaning given in section 5.2 of the Criminal Code.
Proposed section 82.3 - Communicating or retaining certain information
37. Section 82.3 substantially replicates section 82.2 except that the person who communicates or makes available official information or an official record of information does not do so intending to prejudice the security or defence of the Commonwealth. Consequently the penalties for offences under section 82.3 are less than those imposed on a person who commits an offence against section 82.2. The maximum penalties range from 6 months imprisonment to 2 years imprisonment.
38. The purpose of section 82.3 is to protect official information and official records of information from misuse or compromise as a result of deliberate, reckless or negligent treatment of the information.
Proposed section 82.4 - Receiving certain information
39. Subsection 82.4(1) establishes the offence of receiving any information or record of information that is communicated or made available in contravention of section 81.1 or 82.2.
40. It is a defence to a charge against section 82.4(1) if the defendant can prove that the information was communicated or made available to them contrary to their wishes. The defendant bears the legal burden of disproving the assumption that he or she acceded to the information being communicated or made available. Section 13.4 of the Criminal Code provides that a burden of proof that a law imposes on the defendant is a legal burden if and only if the law expressly specifies that the burden of proof in relation to the matter in question is a legal burden as it does in subsection 82.4(2).
41. Subsection 82.4(3) establishes the offence of receiving any information or record of information that is communicated or made available in contravention of subsections 82.3(1) or (2) (communicating, making available or permitting access to official information or an official record of information).
42. Subsection 82.4(4) provides that it is a defence to a charge against section 82.4(3) if the defendant can prove that the information was communicated or made available to them contrary to their wishes. The defendant bears the legal burden of disproving the assumption that he or she acceded to the information being communicated or made available. Section 13.4 of the Criminal Code provides that a burden of proof that a law imposes on the defendant is a legal burden if and only if the law expressly specifies that the burden of proof in relation to the matter in question is a legal burden as it does in subsection 82.4(4).
Division 83 – Offences relating to soundings
43. Section 83.1 substantially replicates section 83 of the Crimes Act, which prohibits unlawful soundings.
44. The maximum penalty for unlawfully taking, recording, intentionally possessing or communicating a sounding is 2 years imprisonment.
45. Under subsection 83.1(5), for the purposes of this section, a reference to a sounding includes a reference to a hydrographic survey.
46. Paragraphs 83.1(1)(a) – (e) set out the separate elements of each possible offence under this section. A person’s actions may constitute an offence under one or more of these offence provisions.
47. There are significant security, safety and defence risks associated with soundings being unlawfully communicated to any person outside the Commonwealth particularly where, as a consequence of the communication, the Commonwealth does not exclusively retain the best possible information about the hydrographic characteristics of its territorial waters. For this reason, all records of unlawful soundings are forfeited to the Commonwealth under subsection 83.1(4).
48. Subsection 83.1(1) provides that taking, making a record of, possession or communicating any sounding is an offence. Under subsection 83.1(2), the defendant bears the legal burden of proving that any soundings were not unlawfully taken because they were made under the authority of the Commonwealth Government, a State Government or the Government of a Territory. It is also open to the defendant to prove that the soundings were taken, made or communicated because they were reasonably necessary for the navigation purposes of the vessel from which they were taken or for any purpose in which the vessel from which they were taken was lawfully engaged. Section 83.1 is not intended to capture situations where vessels obtain soundings to safely navigate their course.
49. Subsection 83.1(2) reverses the onus of proof so that the defendant bears the onus of proving that any figure or word or sign on any map or sketch of any portion of the coast or territorial waters of Australia is not an unlawful record of a sounding. Unlawfully making a record of a sounding is an offence under paragraph 83.1(1)(b) of the Bill.
50. Under subsection 83.1(6), a sounding means a sounding taken in the territorial waters of the Commonwealth. The limits of the Commonwealth territorial waters are determined pursuant to the Commonwealth Seas and Submerged Lands Act 1973.
51. Section 84.1 substantially replicates section 80 of the Crimes Act. It provides a comprehensive list of places described as ‘prohibited places’. ‘Prohibited places’ are also referred to in section 82.1 of the Bill.
52. Prohibited places are those places that are used or owned by, or on behalf of, the Commonwealth as described in paragraphs (a) – (c) or any place declared (paragraph (d)) or proclaimed (paragraph (e)) to be a prohibited place by the Governor-General. In most cases, a place will be declared or proclaimed to be a prohibited place by the Governor-General on the basis of advice from the Department of Defence.
53. Under the saving provision at item 3 of Schedule 1 to the Bill, a declaration that is in force under paragraph 80(c) of the Crimes Act immediately before the commencement of the Bill continues to have effect after commencement. Under these provisions, a proclamation already in place under paragraph 80(d) will also continue to have effect after the commencement of the Bill as if it were a proclamation under paragraph 84.1(d) of the Bill.
54. Section 85.1 substantially replicates section 85 of the Crimes Act.
55. Under subsection 85.1(1), a prosecution of an offence under Part 5 of the Criminal Code will only be instituted with the consent of the Attorney-General or a person acting under the Attorney-General’s direction. This provision applies to the espionage offences (Division 81), the official secrets offences (Division 82), the soundings offence (section 83.1) and the contravention of an order made, or direction given, under the hearing in camera provisions (section 85.2).
56. Prosecutions of offences against Chapter 5 are likely to raise issues regarding matters of national security or sensitive international relations that require government to government contact. The Attorney-General’s consent is required with respect to prosecutions of offences under other security and counter-terrorism legislation. The Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (section 20), Crimes (Foreign Incursions and Recruitment) 1978 (section 10), Crimes (Internationally Protected Persons) Act 1976 (subsection 12(3)) and the Crimes (Biological Weapons) Act 1976 (subsection 10(3)) all contain consent provisions similar to the consent provision in subsection 85.1(1).
57. Under subsection 85.1(2) a person charged with an offence against Chapter 5 of the Criminal Code may be arrested and remanded in custody or bail in the normal way even before the consent of the Attorney-General, or a person acting under his or her direction, is obtained. Paragraph 85.1(2)(b) is subject to the condition in subsection 81.1(6) with regard to bail for a person charged with an espionage offence under section 81.1 (ie. bail can only be granted by a judge of the Supreme Court of a State or Territory)
58. Section 85.2 provides that members of the public may be excluded from all or part of a hearing of an application or other proceeding before a federal court, a court exercising federal jurisdiction or a court of a Territory (paragraph 85.2(2)(a)). A court may also restrict the publication of, and access to, evidence (paragraphs 85.2(2)(b) – (c)).
59. This section substantially replicates section 85B of the Crimes Act except to the extent that subsection 85.2(2) refers to ‘security or defence’ interests rather then only defence interests. By extending the application of this provision to take account of security interests, section 85.2 responds to the changing nature of the security and defence environment, which has also influenced other provisions in the Bill.
60. Under section 85.2 the presiding judge retains the discretion with regard to the question of whether court proceedings remain open or are closed in the interests of the Commonwealth’s security or defence.
61. Subsection 85.2(3) provides that a person who violates an order made or direction given under this section commits an offence and prescribes a maximum penalty of five years imprisonment.
62. Section 86.1 substantially replicates section 85D of the Crimes Act and provides, in effect, that the product of any contravention of Chapter 5 is forfeited to the Commonwealth. This includes documents and other forms of information collected for the purposes of committing an offence under Division 81 or 82, soundings obtained in contravention of section 83.1 and reports produced contrary to an order made under section 85.2.
Item 3 of Schedule 1 – Saving Provision
63. This item ensures that declarations made under paragraph 80(c) of the Crimes Act and proclamations made under paragraph 80(d) of the Crimes Act prior to the commencement of the Bill remain in force after the commencement of the Bill as if the declaration and proclamation were made under paragraphs 84.1(d) and 84.1(e) of the Criminal Code respectively.
64. Schedule 2 makes consequential amendments to legislation that refer to provisions in Part VII of the Crimes Act. As a result of the Bill, Part VII of the Crimes Act will be deleted and provisions contained in that Part will be relocated to the Criminal Code subject to some amendments. Therefore, the Australian Protective Service Act 1987, the Complaints (Australian Federal Police) Act 1981, the Crimes Act and the Ombudsman Act 1976 will be amended to ensure that incorrect references to the Crimes Act are deleted and, whata appropriate, replaced with correct references to the Criminal Code.
65. Item 1 amends the Australian Protective Service Act 1987 to omit references to sections of the Crimes Act that will be deleted under the Bill.
66. Item 2 amends the Australian Protective Service Act 1987 to replace existing references to the Crimes Act with new references to the equivalent provisions in the Criminal Code.
67. Item 3 amends the Australian Protective Service Act 1987 to omit references to sections of the Crimes Act that will be deleted under the Bill.
68. Item 4 amends the Complaints (Australian Federal Police) Act 1981 to replace an existing reference to the Crimes Act with a new reference to the equivalent provision in the Criminal Code.
69. Items 5 amends the Crimes Act to replace existing references to the Crimes Act with new references to the equivalent provisions in the Criminal Code.
70. Items 6 amends the Crimes Act to replace existing references to the Crimes Act with new references to the equivalent provisions in the Criminal Code.
71. Item 7 amends the Ombudsman Act 1976 to replace existing references to the Crimes Act with new references to the equivalent provisions in the Criminal Code.