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2002
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF REPRESENTATIVES
SUPPLEMENTARY EXPLANATORY
MEMORANDUM
Amendments to be Moved on Behalf of the
Government
(Circulated by authority of the
Attorney-General,
the Honourable Daryl Williams AM QC MP)
CRIMINAL CODE AMENDMENT (ESPIONAGE AND RELATED OFFENCES) BILL 2002
The main effect of the Bill as originally introduced into the House of Representatives is to establish new offences dealing with the protection of security and defence in Part 5.2 of the Criminal Code Act 1995.
The new espionage offences are intended to strengthen Australia’s espionage laws by:
• referring to conduct that may prejudice Australia’s security and defence, rather than safety and defence;
• expanding the range of activity that may constitute espionage to capture situations where a person communicated or made available information concerning the Commonwealth's security or defence with the intention of prejudicing the Commonwealth’s security or defence or to advantage the security or defence of another country;
• affording the same protection to foreign sourced information belonging to Australia as Australian-generated information; and
• increasing the maximum penalty for a person convicted of espionage from seven years imprisonment to 25 years imprisonment
The proposed Government amendments to the Bill respond to the recommendations of the Senate Legal and Constitutional Legislation Committee.
The amendments will:
• ensure that information previously made available to the public with the authority of the Commonwealth is not information the communication of which may result in an espionage offence;
• replace references to information 'disclosed' with 'communicated or made available';
• add an additional element to each offence that a person communicates or makes available, or makes, obtains or copies a record of information concerning the security or defence of another country, being information the person acquired (whether directly or indirectly) from the Commonwealth; and
• Remove the soundings provision from the Bill (Division 92).
The amendments will have no financial impact.
NOTES ON ITEMS
Item 1
This item amends clause 1 of the Bill to substitute
the word ‘Offences’ with the word ‘Matters’ in the short
title. As a result of these amendments, the only offence provision other than
the espionage offence in the Bill – the soundings offence – will be
omitted. It is therefore not appropriate that the Bill refer to
‘Espionage and Related Offences’. The Bill does, however,
refer to matters relating to the prosecution of espionage
offences.
Item 2
This item amends item 2 in the commencement table to the Bill so that new
item 1A, commences on the 28th day after the day on which the Bill
receives Royal Assent. Item 1A of the Bill amends the heading to Part VII of
the Crimes Act to refer to ‘Official secrets and unlawful soundings’
Item 3
This item amends the heading to Part VII of the
Crimes Act to refer to ‘Official secrets and unlawful soundings’,
which are the two offences that will remain in Part VII of the Crimes Act as a
result of the Bill and these amendments.
This item amends item 3 to Schedule 1 to the Bill to omit the reference
to section 83 of the Crimes Act. Section 83 of the Crimes Act – unlawful
soundings – was originally to be repealed by this Bill and re-drafted in
modern language for the purposes of insertion in the Criminal Code Act
1995. The amendments remove the modernised soundings offences from the
Bill. It is not appropriate that the existing unlawful soundings provision in
the Crimes Act be repealed until such time that the provision has been further
reviewed to assess its continuing utility in the current form.
Item
5
This item removes reference to ‘integrity and’ in the
title to Chapter 5 – The integrity and security of the Commonwealth. The
matters proposed to be included in Chapter 5 refer only to matters relevant to
the security of the Commonwealth.
Items 6, 8, 10 and 11
These items amend item 5 to Schedule 1 to
the Bill to replace the reference to ‘is, or has been, in the possession
or control of the Commonwealth’ to ‘the person acquired (whether
directly or indirectly) from the Commonwealth’.
Whether the
information is acquired directly or indirectly from the Commonwealth is a
circumstance of the offence. In the absence of a specific fault element, the
default element of recklessness applies in accordance with section 5.6 of the
Criminal Code. This means that a person must be reckless as to whether the
information has been acquired directly or indirectly from the Commonwealth in
order for the offence provision to apply.
Under the Bill, a person who
obtains (and subsequently communicates) information concerning the security or
defence of another country that happens to also be in the possession or control
of the Commonwealth may be liable for prosecution under the espionage offence
provisions if the other elements of the offences are established. This is an
unintended consequence of the Bill.
The amendments protect information
concerning the security or defence of another country that is, or has been, in
the possession or control of the Commonwealth by making it an element of the
offence that a person acquires information, whether directly or indirectly, from
the Commonwealth. The purpose of the provision is to protect foreign sourced
information that is actually, or has actually been, in the possession or control
of the Commonwealth.
The amendments mean that people who obtain
information through lawful means and subsequently communicate that information,
where the same information also coincidentally happens to be in the possession
or control of the Commonwealth, will not risk prosecution.
This would
extend to cover both written and verbal information.
Presumably, any
information regarding the security or defence of another country that is
acquired directly or indirectly from the Commonwealth will be compromised in the
first instance by someone who has legitimate reasons for accessing that
information. The compromise may be either intentional or accidental. That
person is likely to be prohibited from communicating that information either
directly or indirectly by virtue of the secrecy provisions of the Act under
which they are employed or section 70 of the Crimes Act.
Items 7 and
9
These items amend item 5 to Schedule 1 to the Bill to replace the
reference to ‘disclosed’ with ‘communicated or made
available’.
An unintended consequence of the Bill is that the use
of the word 'disclose' (the revelation of information previously unknown) means
that a person who communicates or makes available information to a foreign
country with the intention of prejudicing the security or defence of the
Commonwealth may not be liable for prosecution where that information is already
known to the foreign country.
The example cited in the report of the
Senate Legal and Constitutional Legislation Committee (dated 10 May 2002) that
considered the Bill is where Australia has already shared the information with
an ally as part of an information exchange agreement, but the person
'disclosing' the information is unaware of this.
Item
12
This item inserts a defence that will apply to subsection 91.1(1),
(2), (3) and (4) where the information has already been communicated or made
available to the public with the lawful authority of the
Commonwealth.
The defence only applies where information to which the
espionage offences may apply is in the public domain with the authority of the
Commonwealth. It will not be a defence to a charge of espionage if information
is communicated or made available to the public for the purpose of establishing
a defence to an espionage charge, where the information is initially
communicated or made available without the authority of the Commonwealth.
For example, a person who, without authority, places information
regarding the security or defence of the Commonwealth on an obscure Internet
website and subsequently communicates that information to a foreign organisation
for the purposes of giving an advantage to another country’s security or
defence will not be permitted to rely on this defence.
A person will have
acquired information indirectly, irrespective of the number of people through
whom the information was passed before it reached the person who subsequently
communicated or otherwise made available the information.
Item
13
This item deletes lines 13 to 17 of item 5 to Schedule 1 of the
Bill, which establishes the new Division 92 of the Bill that sets out the
‘Offences relating to soundings’. The effect of deleting these
lines is that the soundings provisions originally proposed by the Bill will not
be included in the Criminal Code.
The existing offences in section 83
relating to unlawful soundings will remain.
Item 14
This
item amends item 3 to Schedule 2 to remove the reference to section 92.1.
Division 92 will be removed in its entirety from the Bill consequential upon
item 13 above.