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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000-2001
The
Parliament of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Criminal Code
Amendment (Espionage and Related Offences) Bill
2001
No. ,
2001
(Attorney-General)
A
Bill for an Act to amend the Crimes Act 1914 and the Criminal Code Act
1995, and for related purposes
Contents
Crimes Act
1914 3
Criminal Code Act
1995 3
Australian Protective Service Act
1987 16
Complaints (Australian Federal Police) Act
1981 16
Crimes Act
1914 16
Ombudsman Act
1976 17
A Bill for an Act to amend the Crimes Act 1914 and
the Criminal Code Act 1995, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Criminal Code Amendment (Espionage and
Related Offences) Act 2001.
This Act commences on the 28th day after the day on which it receives the
Royal Assent.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
(1) Despite the amendment or repeal of a provision by a Schedule to this
Act, that provision continues to apply, after the commencement of this section,
in relation to:
(a) an offence committed before the commencement of this section;
or
(b) proceedings for an offence alleged to have been committed before the
commencement of this section; or
(c) any matter connected with, or arising out of, such
proceedings;
as if the amendment or repeal had not been made.
(2) Subsection (1) does not limit the operation of section 8 of
the Acts Interpretation Act 1901.
1 Part VII
Repeal the Part.
2 After Chapter 4
Insert:
(1) In this Chapter, unless the contrary intention appears:
article includes any thing, substance or material.
cipher includes:
(a) a code or cryptogram; and
(b) a system, method, device or machine by which a cipher, code or
cryptogram may be created; and
(c) a code word, password or identification signal.
information means information of any kind, whether true or
false and whether in a material form or not, and includes:
(a) an opinion; and
(b) a report of a conversation.
intelligence or security agency has the meaning given by
section 85ZL of the Crimes Act 1914.
model includes design, pattern and specimen.
official information has the meaning given by
section 82.1.
official record of information has the meaning given by
section 82.1.
plan includes a written record of a survey or of a bearing or
measurement taken for the purpose of fixing the position of a place.
prohibited place has the meaning given by
section 84.1.
record, in relation to information, means a record of
information in any form, including but not limited to, a document, paper,
database, software system or other article or system containing information or
from which information can be derived.
security or defence of a country includes the operations,
capabilities and technologies of, and methods and sources used by, the
country’s intelligence or security agencies.
sketch includes a representation of a place or
thing.
the Commonwealth includes the Territories.
(2) In this Chapter, unless the contrary intention appears:
(a) expressions referring to obtaining, collecting, recording, using,
having in possession, communicating, receiving or retaining include obtaining,
collecting, recording, using, having in possession, communicating, receiving or
retaining in whole or in part, and whether the thing or information itself, or
only the substance, effect or description of the thing or information, is
obtained, collected, recorded, used, possessed, communicated, received or
retained; and
(b) a reference to a sketch, plan, photograph, model, cipher, note,
document or article or to information is to be read as including a reference to
a copy of, a part of or a copy of a part of a sketch, plan, photograph, model,
cipher, note, document or article or information.
(3) For the purposes of this Chapter, a place that is occupied by, or a
thing that is under the control of, the Commonwealth is taken to belong to the
Commonwealth.
(4) This Chapter applies to and in relation to a sketch, plan, photograph,
model, cipher, note, document or article regardless of who made it and what
information it contains.
(1) A person commits an offence if:
(a) the person communicates, or makes available:
(i) information concerning the Commonwealth’s security or defence;
or
(ii) information concerning the security or defence of another country,
being information that is, or has been, in the possession or control of the
Commonwealth; and
(b) the person does so intending to prejudice the Commonwealth’s
security or defence; and
(c) 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.
Penalty: Imprisonment for 25 years.
(2) A person commits an offence if:
(a) the person communicates, or makes available:
(i) information concerning the Commonwealth’s security or defence;
or
(ii) information concerning the security or defence of another country,
being information that is, or has been, in the possession or control of the
Commonwealth; and
(b) the person does so:
(i) without lawful authority; and
(ii) intending to give an advantage to another country’s security or
defence; and
(c) 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.
Penalty: Imprisonment for 25 years.
(3) A person commits an offence if:
(a) the person makes, obtains or copies a record (in any form)
of:
(i) information concerning the Commonwealth’s security or defence;
or
(ii) information concerning the security or defence of another country,
being information that is, or has been, in the possession or control of the
Commonwealth; and
(b) the person does so:
(i) intending that the record will, or may, be delivered to another
country or a foreign organisation, or to a person acting on behalf of such a
country or organisation; and
(ii) intending to prejudice the Commonwealth’s security or
defence.
Penalty: Imprisonment for 25 years.
(4) A person commits an offence if:
(a) the person makes, obtains or copies a record (in any form)
of:
(i) information concerning the Commonwealth’s security or defence;
or
(ii) information concerning the security or defence of another country,
being information that is, or has been, in the possession or control of the
Commonwealth; and
(b) the person does so:
(i) without lawful authority; and
(ii) intending that the record will, or may, be delivered to another
country or a foreign organisation, or to a person acting on behalf of such a
country or organisation; and
(iii) intending to give an advantage to another country’s security
or defence.
Penalty: Imprisonment for 25 years.
(5) For the purposes of subparagraphs (3)(b)(i) and (4)(b)(ii), the
person concerned does not need to have a particular country, foreign
organisation or person in mind at the time when the person makes, obtains or
copies the record.
(6) A person charged with an offence under this section may only be
remanded on bail by a judge of the Supreme Court of a State or Territory. This
subsection has effect despite anything in section 85.1.
Note: Section 85.1 deals with how a prosecution is
instituted.
(7) Section 15.4 of the Criminal Code (extended geographical
jurisdiction—category D) applies to offences under this section.
(1) For the purposes of this Division, a record (in any form) of
information is an official record of information in relation to a
person, and information is official information in relation to a
person, if the person has it in his or her possession or control and:
(a) it has been made, obtained or copied (whether or not by the person) in
contravention of this Chapter; or
(b) a Commonwealth public official has entrusted it to the person and the
person is under a duty to keep it secret; or
(c) the person has made, obtained or copied it because of his or her
position as:
(i) a Commonwealth public official; or
(ii) a person who is, or has been, employed by a person mentioned in
subparagraph (i);
and the person is under a duty to keep it secret; or
(d) the person has made, obtained or copied it with the permission of a
Minister and the person is under a duty to keep it secret; or
(e) it relates to a prohibited place, and:
(i) the person knows that it should not be communicated, or made
available, to a person not authorised to receive it; or
(ii) the person is reckless as to the fact that it should not be
communicated, or made available, to a person not authorised to receive
it.
(2) For the purposes of subsection (1), the reasons why a person is
under a duty to keep something secret may relate to, but are not limited to, the
following:
(a) its nature; or
(b) the circumstances under which it was entrusted to the person;
or
(c) the circumstances under which the person made, obtained or copied
it.
(3) A reference in this Division to a person doing a thing with an
official record of information, or with official information, is taken to be a
reference to the person doing the thing with an official record of information
in relation to the person, or with official information in relation to the
person, as the case requires, within the meaning of
subsection (1).
(1) A person commits an offence if:
(a) the person communicates, or makes available, an official record of
information or official information:
(i) to a person to whom he or she is not authorised to communicate it or
make it available; or
(ii) to a person to whom it is, in the interest of the Commonwealth, his
or her duty not to communicate it or make it available; and
(b) the person does so intending to prejudice the Commonwealth’s
security or defence.
Penalty: Imprisonment for 7 years.
(2) A person commits an offence if:
(a) the person permits a person mentioned in subparagraph (1)(a)(i)
or (ii) to have access to an official record of information or official
information; and
(b) the person does so intending to prejudice the Commonwealth’s
security or defence.
Penalty: Imprisonment for 7 years.
(3) A person commits an offence if:
(a) the person retains an official record of information in his or her
possession or control; and
(b) the person has no right to retain it or it is contrary to his or her
duty to retain it; and
(c) the person does so intending to prejudice the Commonwealth’s
security or defence.
Penalty: Imprisonment for 7 years.
(4) A person commits an offence if:
(a) the person fails to comply with a direction with respect to the
retention or disposal of an official record of information; and
(b) the person does so:
(i) without lawful authority; and
(ii) intending to prejudice the Commonwealth’s security or
defence.
Penalty: Imprisonment for 7 years.
(1) A person commits an offence if the person communicates, or makes
available, an official record of information, or official information:
(a) to a person to whom he or she is not authorised to communicate it or
make it available; or
(b) to a person to whom it is, in the interest of the Commonwealth, his or
her duty not to communicate it or make it available.
Penalty: Imprisonment for 2 years.
(2) A person commits an offence if the person permits a person mentioned
in paragraph (1)(a) or (b) to have access to an official record of
information or official information.
Penalty: Imprisonment for 2 years.
(3) A person commits an offence if:
(a) the person retains an official record of information in his or her
possession or control; and
(b) the person has no right to retain it or it is contrary to his or her
duty to retain it.
Penalty: Imprisonment for 6 months.
(4) A person commits an offence if:
(a) the person fails to comply with a direction with respect to the
retention or disposal of an official record of information; and
(b) the person does so without lawful authority.
Penalty: Imprisonment for 6 months.
(5) A person commits an offence if:
(a) the person fails to take reasonable care of an official record of
information; or
(b) the person fails to ensure that an official record of information is
not communicated or made available to a person not authorised to receive it;
or
(c) the person so conducts himself or herself as to endanger the safety of
an official record of information.
Penalty: Imprisonment for 6 months.
(1) A person commits an offence if:
(a) the person receives any record of information, or information;
and
(b) the record of information, or information, is communicated or made
available in contravention of section 81.1 or 82.2.
Penalty: Imprisonment for 7 years.
(2) Subsection (1) does not apply if the defendant proves that the
record of information, or information, was communicated or made available
contrary to his or her wishes.
Note: The defendant bears a legal burden in relation to the
matter in subsection (2) (see section 13.4).
(3) A person commits an offence if:
(a) the person receives any record of information, or information;
and
(b) the record of information, or information, is communicated, or made
available, in contravention of subsection 82.3(1) or (2).
Penalty: Imprisonment for 2 years.
(4) Subsection (3) does not apply if the defendant proves that the
record of information, or information, was communicated or made available
contrary to his or her wishes.
Note: The defendant bears a legal burden in relation to the
matter in subsection (4) (see section 13.4).
(1) A person commits an offence if the person, in the
Commonwealth:
(a) takes any soundings; or
(b) makes any record of any soundings; or
(c) has in his or her possession any record of soundings; or
(d) communicates to any person outside the Commonwealth any record of, or
information concerning, soundings; or
(e) communicates to any other person any record of or information
concerning soundings, intending that the record or information be communicated
to any person outside the Commonwealth.
Penalty: Imprisonment for 2 years.
(2) It is a defence to a prosecution of a person for an offence under
subsection (1) if the person proves that the soundings concerned:
(a) were made under the authority of the Commonwealth Government, a State
Government or the Government of a Territory; or
(b) were reasonably necessary for the navigation of the vessel from which
they were taken or for any purpose in which the vessel from which they were
taken was lawfully engaged.
Note: The defendant bears a legal burden in relation to the
matter in subsection (2) (see section 13.4).
(3) Any figure or word or sign representing a figure (other than the
printed figures appearing on any official or recognised map or chart) appearing
on any map or sketch of any portion of the coast or territorial waters of the
Commonwealth is taken, in the absence of satisfactory proof to the contrary, to
be a record of a sounding. However, this subsection does not affect proof of
soundings in any other manner.
(4) All records of soundings, including all maps or charts containing any
record of soundings, are forfeited to the Commonwealth.
(5) A reference in this section to soundings includes a reference to a
hydrographic survey and a reference to the taking of soundings includes a
reference to the making of a hydrographic survey.
(6) In this section:
sounding means a sounding taken in the territorial waters of
the Commonwealth.
The following places are prohibited places:
(a) any of the following:
(i) any work of defence, arsenal, factory, dockyard, aerodrome, camp,
vessel, aircraft, telecommunications or signal station, or office, belonging to
the Commonwealth;
(ii) any other place belonging to the Commonwealth used for the purpose of
building, repairing, making, obtaining or storing any vessel, aircraft,
armaments, or materials or instruments for use in time of war, or any related
plans or documents;
(b) any camp, barracks or place where prisoners of war, internees or
members of the Defence Force are detained;
(c) any place not belonging to the Commonwealth where any vessel,
aircraft, armaments, or materials or instruments of use in time of war, or any
related plans or documents, are being made, repaired, obtained, tested or stored
under contract with, or with any person on behalf of, the
Commonwealth;
(d) any place belonging to the Commonwealth which is for the time being
declared by the Governor-General to be a prohibited place for the purposes of
this Chapter on the ground that information with respect to it, or damage to it,
would be useful to another country or a foreign organisation;
(e) any of the following:
(i) a network, railway, road, way, channel or other means of communication
by land or water (including any related works or structures);
(ii) a place used for gas, water, electricity works or other works for
purposes of a public character;
(iii) a place where any vessel, aircraft, armaments, or materials or
instruments of use in time of war, or any related plans or documents, are being
made, repaired, obtained, tested or stored otherwise than on behalf of the
Commonwealth;
that is for the time being declared by the Governor-General by
proclamation to be a prohibited place for the purposes of this Chapter, on the
ground that information with respect to it, its destruction or obstruction, or
interference with it, would be useful to another country or a foreign
organisation.
(1) A prosecution under this Chapter may be instituted only by, or with
the consent of, the Attorney-General or a person acting under the
Attorney-General’s direction.
(2) However:
(a) a person charged with an offence against this Chapter may be arrested,
or a warrant for his or her arrest may be issued and executed; and
(b) such a person may be remanded in custody or on bail;
even if the consent of the Attorney-General or a person acting under his or
her direction has not been obtained, but no further proceedings are to be taken
until that consent has been obtained.
(3) Nothing in this section prevents the discharging of the accused if
proceedings are not continued within a reasonable time.
(1) This section applies to a hearing of an application or other
proceedings before a federal court, a court exercising federal jurisdiction or a
court of a Territory, whether under this Act or otherwise.
(2) At any time before or during the hearing, the judge or magistrate, or
other person presiding or competent to preside over the proceedings, may, if
satisfied that it is in the interest of the security or defence of the
Commonwealth:
(a) order that some or all of the members of the public be excluded during
the whole or a part of the hearing; or
(b) order that no report of the whole or a specified part of, or relating
to, the application or proceedings be published; or
(c) make such order and give such directions as he or she thinks necessary
for ensuring that no person, without the approval of the court, has access
(whether before, during or after the hearing) to any affidavit, exhibit,
information or other document used in the application or the proceedings that is
on the file in the court or in the records of the court.
(3) A person commits an offence if the person contravenes an order made or
direction given under this section.
Penalty: Imprisonment for 5 years.
A photograph, sketch, plan, model, article, cipher, note, record,
document, die, key, device, seal, stamp or paper which is made, obtained,
collected, recorded, retained, forged, possessed or otherwise dealt with in
contravention of this Chapter is forfeited to the Commonwealth.
3 Saving provision
(1) A declaration that was in force under paragraph 80(c) of the Crimes
Act 1914 immediately before the commencement of this item has effect, after
that commencement, as if it were a declaration under paragraph 84.1(d) of the
Criminal Code.
(2) A proclamation that was in force under paragraph 80(d) of the Crimes
Act 1914 immediately before the commencement of this item has effect, after
that commencement, as if it were a declaration under paragraph 84.1(e) of the
Criminal Code.
Australian Protective
Service Act 1987
1 Subparagraph 13(2)(a)(i)
Repeal the subparagraph, substitute:
(i) section 24AB, 29, 46 (other than paragraph (b)), 47, 47A, 89
or 89A of the Crimes Act 1914;
2 At the end of paragraph
13(2)(a)
Add:
(vi) section 81.1, 82.2, 82.3 or 82.4 of the Criminal Code;
or
3 Subsection 21(3)
Repeal the subsection, substitute:
(3) Subsection (2) has effect subject to sections 37A, 38 and 39
of the Migration Act 1958.
Complaints (Australian
Federal Police) Act 1981
4 Paragraph 30(2)(a)
Repeal the paragraph, substitute:
(a) a place referred to in paragraph 84.1(d) of the Criminal Code;
or
5 Subsection 4J(7)
Repeal the subsection, substitute:
(7) This section does not apply to an offence against:
(a) section 24, 24AA or 24AB of this Act; or
(b) section 81.1 or 82.2 or subsection 82.4(1) or (2) of the
Criminal Code.
6 Paragraph 24AB(1)(d)
Omit “section 80”, substitute “section 84.1 of
the Criminal Code”.
7 Paragraph 14(2)(a)
Repeal the paragraph, substitute:
(a) a place referred to in paragraph 84.1(d) of the Criminal Code;
or