Commonwealth: National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth)

National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 No. 67, 2018 Compilation No. 1 Compilation date: 10 December 2018 Includes amendments up to: Act No. 152, 2018 Registered: 19 December 2018 About this compilation This compilation This is a compilation of the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 that shows the text of the law as amended and in force on 10 December 2018 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents 1 Short title 2 Commencement 3 Schedules Schedule 1—Treason, espionage, foreign interference and related offences Part 1—Main amendments Criminal Code Act 1995 Part 2—Consequential amendments Aboriginal and Torres Strait Islander Act 2005 Australian Citizenship Act 2007 Australian Federal Police Act 1979 Commonwealth Electoral Act 1918 Crimes Act 1914 Criminal Code Act 1995 Foreign Evidence Act 1994 Migration Act 1958 Surveillance Devices Act 2004 Part 3—Review by Independent National Security Legislation Monitor Independent National Security Legislation Monitor Act 2010 Schedule 2—Secrecy Part 1—Secrecy of information Crimes Act 1914 Criminal Code Act 1995 Part 2—Consequential amendments Agricultural and Veterinary Chemicals (Administration) Act 1992 Archives Act 1983 Australian Citizenship Act 2007 Australian Crime Commission Act 2002 Australian Federal Police Act 1979 Chemical Weapons (Prohibition) Act 1994 Comprehensive Nuclear‑Test‑Ban Treaty Act 1998 Defence Home Ownership Assistance Scheme Act 2008 Freedom of Information Act 1982 Law Enforcement Integrity Commissioner Act 2006 Liquid Fuel Emergency Act 1984 Migration Act 1958 National Greenhouse and Energy Reporting Act 2007 Native Title Act 1993 Offshore Minerals Act 1994 Ombudsman Act 1976 Parliamentary Service Act 1999 Public Service Act 1999 Renewable Energy (Electricity) Act 2000 Textile, Clothing and Footwear Investment and Innovation Programs Act 1999 Schedule 3—Aggravated offence for giving false or misleading information Criminal Code Act 1995 Schedule 4—Telecommunications serious offences Part 1—Amendments commencing at the same time as Schedules 1 and 3 to this Act Telecommunications (Interception and Access) Act 1979 Part 2—Amendments commencing at the same time as Schedule 2 to this Act Telecommunications (Interception and Access) Act 1979 Schedule 5—Foreign influence transparency scheme Part 1—Transitional provisions Part 2—Amendments relating to the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2018 Foreign Influence Transparency Scheme Act 2018 Schedule 6—Protection for persons providing information voluntarily to the Inspector‑General Inspector‑General of Intelligence and Security Act 1986 Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to amend the criminal law and to provide for certain matters in relation to the foreign influence transparency scheme, and for related purposes 1 Short title This Act is the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 29 June 2018 2. Schedule 1 The day after this Act receives the Royal Assent. 30 June 2018 3. Schedule 2 A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 4. Schedule 3 The day after this Act receives the Royal Assent. 30 June 2018 5. Schedule 4, Part 1 The day after this Act receives the Royal Assent. 30 June 2018 6. Schedule 4, Part 2 At the same time as the provisions covered by table item 3. 7. Schedule 5, Part 1 At the same time as the Foreign Influence Transparency Scheme Act 2018 commences. 10 December 2018 However, the provisions do not commence at all if that Act does not commence. 8. Schedule 5, Part 2 The later of: 10 December 2018 (a) immediately after the commencement of the Foreign Influence Transparency Scheme Act 2018; and (paragraph (a) applies) (b) immediately after the commencement of Part 1 of Schedule 1 to the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2018. However, the provisions do not commence at all unless both of the events mentioned in paragraphs (a) and (b) occur. 9. Schedule 6 The day after this Act receives the Royal Assent. 30 June 2018 Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedules Legislation 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. Schedule 1—Treason, espionage, foreign interference and related offences Part 1—Main amendments Criminal Code Act 1995 1 Part 5.1 of the Criminal Code (heading) Repeal the heading, substitute: Part 5.1—Treason and related offences 2 Section 80.1A of the Criminal Code (heading) Repeal the heading, substitute: 80.1A Definitions 3 Section 80.1A of the Criminal Code Insert: party includes a person, body or group of any kind. 3A At the end of Subdivision A of Division 80 of the Criminal Code Add: 80.1AAA Expressions also used in the Australian Security Intelligence Organisation Act 1979 The meaning of an expression in this Division does not affect the meaning of that expression in the Australian Security Intelligence Organisation Act 1979, unless that Act expressly provides otherwise. 4 Section 80.1AA of the Criminal Code Repeal the section, substitute: 80.1AA Treason—assisting enemy to engage in armed conflict (1) A person commits an offence if: (a) a party (the enemy) is engaged in armed conflict involving the Commonwealth or the Australian Defence Force; and (b) the enemy is declared in a Proclamation made under section 80.1AB; and (c) the person engages in conduct; and (d) the person intends that the conduct will materially assist the enemy to engage in armed conflict involving the Commonwealth or the Australian Defence Force; and (e) the conduct materially assists the enemy to engage in armed conflict involving the Commonwealth or the Australian Defence Force; and (f) at the time the person engages in the conduct: (i) the person knows that the person is an Australian citizen or a resident of Australia; or (ii) the person knows that the person has voluntarily put himself or herself under the protection of the Commonwealth; or (iii) the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory. Note 1: There is a defence in section 80.3 for acts done in good faith. Note 2: If a body corporate is convicted of an offence against subsection (1), subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 10,000 penalty units. Penalty: Imprisonment for life. (2) Strict liability applies to paragraph (1)(b) and subparagraph (1)(f)(iii). (3) Absolute liability applies to paragraph (1)(e). (4) Subsection (1) does not apply to engagement in conduct solely by way of, or for the purposes of, the provision of aid or assistance of a humanitarian nature. Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)). 80.1AB Proclamation of enemy engaged in armed conflict The Governor‑General may, by Proclamation, declare a party to be an enemy engaged in armed conflict involving the Commonwealth or the Australian Defence Force. Note: See subsection 80.1AA(1) for the effect of the Proclamation. 80.1AC Treachery A person commits an offence if: (a) the person engages in conduct; and (b) the conduct involves the use of force or violence; and (c) the person engages in the conduct with the intention of overthrowing: (i) the Constitution; or (ii) the Government of the Commonwealth, of a State or of a Territory; or (iii) the lawful authority of the Government of the Commonwealth. Note 1: There is a defence in section 80.3 for acts done in good faith. Note 2: If a body corporate is convicted of an offence against subsection (1), subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 10,000 penalty units. Penalty: Imprisonment for life. 5 Subsection 80.3(1) of the Criminal Code After "Subdivisions B and C", insert ", and sections 83.1 and 83.4,". 6 Paragraphs 80.3(2)(b), (c), (d) and (e) of the Criminal Code Repeal the paragraphs, substitute: (b) with the intention of assisting a party: (i) engaged in armed conflict involving the Commonwealth or the Australian Defence Force; and (ii) declared in a Proclamation made under section 80.1AB to be an enemy engaged in armed conflict involving the Commonwealth or the Australian Defence Force; or 7 Subsection 80.4(2) of the Criminal Code After "against", insert "section 80.1AC or". 8 At the end of Part 5.1 of the Criminal Code Add: Division 82—Sabotage Subdivision A—Preliminary 82.1 Definitions In this Division: advantage: conduct will not advantage the national security of a foreign country if the conduct will advantage Australia's national security to an equivalent extent. damage to public infrastructure: conduct results in damage to public infrastructure if any of the following paragraphs apply in relation to public infrastructure: (a) the conduct destroys it or results in its destruction; (b) the conduct involves interfering with it, or abandoning it, resulting in it being lost or rendered unserviceable; (c) the conduct results in it suffering a loss of function or becoming unsafe or unfit for its purpose; (d) the conduct limits or prevents access to it or any part of it by persons who are ordinarily entitled to access it or that part of it; (e) the conduct results in it or any part of it becoming defective or being contaminated; (f) the conduct significantly degrades its quality; (g) if it is an electronic system—the conduct seriously disrupts it. foreign principal has the meaning given by section 90.2. national security has the meaning given by section 90.4. prejudice: embarrassment alone is not sufficient to prejudice Australia's national security. public infrastructure: see section 82.2. 82.2 Public infrastructure Public infrastructure (1) Public infrastructure means any of the following: (a) any infrastructure, facility, premises, network or electronic system that belongs to the Commonwealth; (b) defence premises within the meaning of Part VIA of the Defence Act 1903; (c) service property, and service land, within the meaning of the Defence Force Discipline Act 1982; (d) any part of the infrastructure of a telecommunications network within the meaning of the Telecommunications Act 1997; (e) any infrastructure, facility, premises, network or electronic system (including an information, telecommunications or financial system) that: (i) provides or relates to providing the public with utilities or services (including transport of people or goods) of any kind; and (ii) is located in Australia; and (iii) belongs to or is operated by a constitutional corporation or is used to facilitate constitutional trade and commerce. (2) For the purposes of the application of paragraph (1)(a) or (e) in relation to property within the meaning of Chapter 7, whether the property belongs to the Commonwealth or a constitutional corporation is to be determined in the same way as it would be under Chapter 7 (see section 130.2). Fault element for offences in relation to public infrastructure (3) For the purposes of a reference, in an element of an offence, to public infrastructure within the meaning of this Division, absolute liability applies: (a) in relation to public infrastructure within the meaning of paragraph (1)(a)—to the element that the infrastructure, facility, premises, network or electronic system belongs to the Commonwealth; and (b) in relation to public infrastructure within the meaning of paragraph (1)(e)—to the element that the infrastructure, facility, premises, network or electronic system belongs to or is operated by a constitutional corporation or is used to facilitate constitutional trade or commerce. 82.2A Expressions also used in the Australian Security Intelligence Organisation Act 1979 The meaning of an expression in this Division does not affect the meaning of that expression in the Australian Security Intelligence Organisation Act 1979, unless that Act expressly provides otherwise. Subdivision B—Offences 82.3 Offence of sabotage involving foreign principal with intention as to national security (1) A person commits an offence if: (a) the person engages in conduct; and (b) the conduct results in damage to public infrastructure; and (c) the person intends that the conduct will: (i) prejudice Australia's national security; or (ii) advantage the national security of a foreign country; and (d) any of the following circumstances exists: (i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal; (ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal. Penalty: Imprisonment for 25 years. (2) For the purposes of subparagraph (1)(c)(ii), the person: (a) does not need to have in mind a particular foreign country; and (b) may have in mind more than one foreign country. (3) For the purposes of paragraph (1)(d), the person: (a) does not need to have in mind a particular foreign principal; and (b) may have in mind more than one foreign principal. Note: An alternative verdict may be available for an offence against this section (see section 82.12). 82.4 Offence of sabotage involving foreign principal reckless as to national security (1) A person commits an offence if: (a) the person engages in conduct; and (b) the conduct results in damage to public infrastructure; and (c) the person is reckless as to whether the conduct will: (i) prejudice Australia's national security; or (ii) advantage the national security of a foreign country; and (d) any of the following circumstances exists: (i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal; (ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal. Penalty: Imprisonment for 20 years. (2) For the purposes of subparagraph (1)(c)(ii), the person: (a) does not need to have in mind a particular foreign country; and (b) may have in mind more than one foreign country. (3) For the purposes of paragraph (1)(d), the person: (a) does not need to have in mind a particular foreign principal; and (b) may have in mind more than one foreign principal. Note: An alternative verdict may be available for an offence against this section (see section 82.12). 82.5 Offence of sabotage with intention as to national security (1) A person commits an offence if: (a) the person engages in conduct; and (b) the conduct results in damage to public infrastructure; and (c) the person intends that the conduct will: (i) prejudice Australia's national security; or (ii) advantage the national security of a foreign country. Penalty: Imprisonment for 20 years. (2) For the purposes of subparagraph (1)(c)(ii), the person: (a) does not need to have in mind a particular foreign country; and (b) may have in mind more than one foreign country. Note: An alternative verdict may be available for an offence against this section (see section 82.12). 82.6 Offence of sabotage reckless as to national security (1) A person commits an offence if: (a) the person engages in conduct; and (b) the conduct results in damage to public infrastructure; and (c) the person is reckless as to whether the conduct will: (i) prejudice Australia's national security; or (ii) advantage the national security of a foreign country. Penalty: Imprisonment for 15 years. (2) For the purposes of paragraph (1)(c), the person: (a) does not need to have in mind a particular foreign country; and (b) may have in mind more than one foreign country. 82.7 Offence of introducing vulnerability with intention as to national security A person commits an offence if: (a) the person engages in conduct; and (b) the conduct has the result that an article or thing, or software, becomes vulnerable: (i) to misuse or impairment; or (ii) to being accessed or modified by a person not entitled to access or modify it; and (c) the article or thing, or software, is or is part of public infrastructure; and (d) the person engages in the conduct with the intention that prejudice to Australia's national security will occur (whether at the time or at a future time). Note: An alternative verdict may be available for an offence against this section (see section 82.12). Penalty: Imprisonment for 15 years. 82.8 Offence of introducing vulnerability reckless as to national security A person commits an offence if: (a) the person engages in conduct; and (b) the conduct has the result that an article or thing, or software, becomes vulnerable: (i) to misuse or impairment; or (ii) to being accessed or modified by a person not entitled to access or modify it; and (c) the article or thing, or software, is or is part of public infrastructure; and (d) the person engages in the conduct reckless as to whether prejudice to Australia's national security will occur (whether at the time or at a future time). Penalty: Imprisonment for 10 years. 82.9 Preparing for or planning sabotage offence (1) A person commits an offence if: (a) the person engages in conduct; and (b) the person does so with the intention of preparing for, or planning, an offence against this Division (other than this section). Penalty: Imprisonment for 7 years. (2) Section 11.1 (attempt) does not apply to an offence against subsection (1). (3) Subsection (1) applies: (a) whether or not an offence against this Division is committed; and (b) whether or not the person engages in the conduct in preparation for, or planning, a specific offence against a provision of this Division; and (c) whether or not the person engages in the conduct in preparation for, or planning, more than one offence against this Division. 82.10 Defences (1) It is a defence to a prosecution for an offence by a person against this Division if: (a) the person is, at the time of the offence, a public official; and (b) the person engaged in the conduct in good faith in the course of performing duties as a public official; and (c) the conduct is reasonable in the circumstances for the purpose of performing those duties. Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)). (2) It is a defence to a prosecution for an offence by a person against this Division if: (a) the person is, at the time of the offence: (i) an owner or operator of the public infrastructure; or (ii) acting on behalf of, or with the consent of, an owner or operator of the public infrastructure; and (b) the person engaged in the conduct in good faith; and (c) the conduct is within the lawful authority of the owner or operator; and (d) the conduct is reasonable in the circumstances for the purpose of exercising that lawful authority. Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)). 82.11 Geographical jurisdiction Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Division. 82.12 Alternative verdicts (1) If, on a trial of a person for an offence specified in column 1 of an item in the following table, the trier of fact: (a) is not satisfied that the person is guilty of that offence; and (b) is satisfied beyond reasonable doubt that the person is guilty of an offence against a provision specified in column 2 of that item; it may find the person not guilty of the offence specified in column 1 but guilty of an offence specified in column 2. Alternative verdicts Item Column 1 Column 2 For an offence against: The alternative verdict is an offence against: 1 section 82.3 (sabotage involving foreign principal with intention as to national security) any of the following: (a) section 82.4 (sabotage involving foreign principal reckless as to national security); (b) section 82.5 (sabotage with intention as to national security); (c) section 82.6 (sabotage reckless as to national security) 2 section 82.4 (sabotage involving foreign principal reckless as to national security) section 82.6 (sabotage reckless as to national security) 3 section 82.5 (sabotage with intention as to national security) section 82.6 (sabotage reckless as to national security) 4 section 82.7 (introducing vulnerability with intention as to national security) section 82.8 (introducing vulnerability reckless as to national security) (2) Subsection (1) only applies if the person has been accorded procedural fairness in relation to the finding of guilt for the offence specified in column 2. 82.13 Consent of Attorney‑General required for prosecutions (1) Proceedings for the commitment of a person for trial for an offence against this Division must not be instituted without the written consent of the Attorney‑General. (2) However, the following steps may be taken (but no further steps in proceedings may be taken) without consent having been given: (a) a person may be arrested for the offence and a warrant for such an arrest may be issued and executed; (b) a person may be charged with the offence; (c) a person so charged may be remanded in custody or on bail. (3) Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time. (4) In deciding whether to consent, the Attorney‑General must consider whether the conduct might be authorised by section 82.10. Division 83—Other threats to security 83.1A Expressions also used in the Australian Security Intelligence Organisation Act 1979 The meaning of an expression in this Division does not affect the meaning of that expression in the Australian Security Intelligence Organisation Act 1979, unless that Act expressly provides otherwise. 83.1 Advocating mutiny (1) A person (the advocate) commits an offence if: (a) the advocate engages in conduct; and (b) the conduct involves advocating mutiny; and (c) the advocate engages in the conduct reckless as to whether the result will be that a defence member (within the meaning of the Defence Force Discipline Act 1982) will take part in a mutiny; and (d) at the time the advocate engages in the conduct: (i) the advocate knows that the advocate is an Australian citizen or a resident of Australia; or (ii) the advocate knows that the advocate has voluntarily put himself or herself under the protection of the Commonwealth; or (iii) the advocate is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory. Note: The defence in section 80.3 for acts done in good faith applies to this offence. Penalty: Imprisonment for 7 years. (1A) For the purposes of this section: (a) a person advocates mutiny if the person counsels, promotes, encourages or urges mutiny; and (b) a reference to advocating mutiny includes a reference to: (i) advocating mutiny even if mutiny does not occur; and (ii) advocating a specific mutiny; and (iii) advocating more than one mutiny. (2) A mutiny is a combination between persons who are, or at least 2 of whom are, members of the Australian Defence Force: (a) to overthrow lawful authority in the Australian Defence Force or in a force of another country that is acting in cooperation with the Australian Defence Force; or (b) to resist such lawful authority in such a manner as to substantially prejudice the operational efficiency of the Australian Defence Force or of, or of a part of, a force of another country that is acting in cooperation with the Australian Defence Force. (3) Strict liability applies to subparagraph (1)(d)(iii). (4) Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this section. 83.2 Assisting prisoners of war to escape (1) A person commits an offence if: (a) the person engages in conduct; and (b) the conduct assists one or more prisoners of war (within the meaning of Article 4 of the Third Geneva Convention) to escape from custody; and (c) the custody is controlled wholly or partly by the Commonwealth or the Australian Defence Force; and (d) the conduct takes place in the context of an international armed conflict. Penalty: Imprisonment for 15 years. (2) Absolute liability applies to paragraph (1)(d). (3) Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this section. 83.3 Military‑style training involving foreign government principal etc. Offence in relation to military‑style training (1) A person commits an offence if: (a) the person provides, receives, or participates in, training; and (b) the training involves using arms or practising military exercises, movements or evolutions; and (c) any of the following circumstances exists: (i) the training is provided on behalf of a foreign government principal within the meaning of Part 5.2 (see section 90.3) or a foreign political organisation within the meaning of that Part (see section 90.1); (ii) the training is directed, funded or supervised by a foreign government principal or foreign political organisation, or a person acting on behalf of a foreign government principal or foreign political organisation. Penalty: Imprisonment for 20 years. Defence—authorised by written agreement (2) Subsection (1) does not apply to a person in relation to conduct engaged in by the person that is authorised by a written agreement to which the Commonwealth is a party. Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)). Defence—solely for service with armed force other than terrorist organisation (3) Subsection (1) does not apply in relation to training a person provides, receives or participates in, if the provision, receipt or participation is solely in the course of, and as part of, the person's service in any capacity in or with: (a) the armed forces of the government of a foreign country; or (b) any other armed force, if a declaration under subsection 119.8(1) covers the person and the circumstances of the person's service in or with the force. Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)). (4) However, subsection (3) does not apply if: (a) at the time the person engages in the conduct: (i) the person is in or with an organisation; or (ii) the training is funded partly by an organisation; and (b) the organisation is: (i) a listed terrorist organisation within the meaning of Part 5.3 (see section 100.1); or (ii) a prescribed organisation within the meaning of Part 5.5 (see section 117.1). Defence—humanitarian assistance etc. (4A) Subsection (1) does not apply to a person in relation to conduct engaged in by the person solely or primarily for one or more of the following purposes: (a) providing aid of a humanitarian nature; (b) performing an official duty for: (i) the United Nations or an agency of the United Nations; or (ii) the International Committee of the Red Cross. Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)). Geographical jurisdiction (5) Section 15.2 (extended geographical jurisdiction—category B) applies to an offence against this section. 83.4 Interference with political rights and duties (1) A person commits an offence if: (a) the person engages in conduct; and (b) the conduct involves the use of force or violence, or intimidation, or the making of threats of any kind; and (c) the conduct results in interference with the exercise or performance, in Australia by any other person, of an Australian democratic or political right or duty; and (d) the right or duty arises under the Constitution or a law of the Commonwealth. Note: The defence in section 80.3 for acts done in good faith applies to this offence. Penalty: Imprisonment for 3 years. (2) Absolute liability applies to paragraph (1)(d). 83.5 Consent of Attorney‑General required for prosecutions (1) Proceedings for the commitment of a person for trial for an offence against this Division must not be instituted without the written consent of the Attorney‑General. (2) However, the following steps may be taken (but no further steps in proceedings may be taken) without consent having been given: (a) a person may be arrested for the offence and a warrant for such an arrest may be issued and executed; (b) a person may be charged with the offence; (c) a person so charged may be remanded in custody or on bail. (3) Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time. (4) In deciding whether to consent, the Attorney‑General must consider whether the conduct might be authorised in a way mentioned in: (a) for an offence against section 83.3—subsection 83.3(2), (3) or (4A); and (b) for an offence against section 83.1 or 83.4—section 80.3. 9 Part 5.2 of the Criminal Code (heading) Repeal the heading, substitute: Part 5.2—Espionage and related offences 10 Subsection 90.1(1) of the Criminal Code Insert: advantage: conduct will not advantage the national security of a foreign country if the conduct will advantage Australia's national security to an equivalent extent. concerns: information or an article concerns Australia's national security if the information or article relates to, or is connected with, or is of interest or importance to, or affects, Australia's national security. deal: a person deals with information or an article if the person does any of the following in relation to the information or article: (a) receives or obtains it; (b) collects it; (c) possesses it; (d) makes a record of it; (e) copies it; (f) alters it; (g) conceals it; (h) communicates it; (i) publishes it; (j) makes it available. Note: See also the definition of make available in this subsection and subsection (2). foreign government principal has the meaning given by section 90.3. foreign political organisation includes: (a) a foreign political party; and (b) a foreign organisation that exists primarily to pursue political objectives; and (c) a foreign organisation that exists to pursue militant, extremist or revolutionary objectives. foreign principal has the meaning given by section 90.2. 11 Subsection 90.1(1) of the Criminal Code (definition of intelligence or security agency) Repeal the definition. 12 Subsection 90.1(1) of the Criminal Code Insert: make available information or an article includes: (a) place it somewhere it can be accessed by another person; and (b) give it to an intermediary to give to the intended recipient; and (c) describe how to obtain access to it, or describe methods that are likely to facilitate access to it (for example, set out the name of a website, an IP address, a URL, a password, or the name of a newsgroup). national security has the meaning given by section 90.4. prejudice: embarrassment alone is not sufficient to prejudice Australia's national security. security classification has the meaning given by section 90.5. 13 Subsection 90.1(1) of the Criminal Code (definition of security or defence) Repeal the definition. 14 Subsection 90.1(1) of the Criminal Code (definition of the Commonwealth Repeal the definition. 15 Subsections 90.1(2) and (3) of the Criminal Code Repeal the subsections, substitute: (2) In this Part, dealing with information or an article includes: (a) dealing with all or part of the information or article; and (b) dealing only with the substance, effect or description of the information or article. 16 At the end of Division 90 of the Criminal Code Add: 90.2 Definition of foreign principal Each of the following is a foreign principal: (a) a foreign government principal; (aa) a foreign political organisation; (b) a public international organisation within the meaning of Division 70 (see section 70.1); (c) a terrorist organisation within the meaning of Division 102 (see section 102.1); (d) an entity or organisation owned, directed or controlled by a foreign principal within the meaning of paragraph (aa), (b) or (c); (e) an entity or organisation owned, directed or controlled by 2 or more foreign principals within the meaning of paragraph (a), (aa), (b) or (c). 90.3 Definition of foreign government principal Each of the following is a foreign government principal: (a) the government of a foreign country or of part of a foreign country; (b) an authority of the government of a foreign country; (c) an authority of the government of part of a foreign country; (d) a foreign local government body or foreign regional government body; (e) a company to which any of the subparagraphs of paragraph (a) of the definition of foreign public enterprise in section 70.1 applies; (f) a body or association to which either of the subparagraphs of paragraph (b) of the definition of foreign public enterprise in section 70.1 applies; (h) an entity or organisation owned, directed or controlled: (i) by a foreign government principal within the meaning of any other paragraph of this definition; or (ii) by 2 or more such foreign government principals that are foreign government principals in relation to the same foreign country. 90.4 Definition of national security (1) The national security of Australia or a foreign country means any of the following: (a) the defence of the country; (b) the protection of the country or any part of it, or the people of the country or any part of it, from activities covered by subsection (2); (c) the protection of the integrity of the country's territory and borders from serious threats; (d) the carrying out of the country's responsibilities to any other country in relation to the matter mentioned in paragraph (c) or an activity covered by subsection (2); (e) the country's political, military or economic relations with another country or other countries. (2) For the purposes of subsection (1), this subsection covers the following activities relating to a country, whether or not directed from, or committed within, the country: (a) espionage; (b) sabotage; (c) terrorism; (d) political violence; (e) 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; (f) foreign interference. 90.5 Definition of security classification (1) Security classification means: (a) a classification of secret or top secret that is applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying information: (i) for a classification of secret—that, if disclosed in an unauthorised manner, could be expected to cause serious damage to the national interest, organisations or individuals; or (ii) for a classification of top secret—that, if disclosed in an unauthorised manner, could be expected to cause exceptionally grave damage to the national interest; or (b) any equivalent classification or marking prescribed by the regulations. (1A) For the purposes of a reference, in an element of an offence in this Part, to security classification, strict liability applies to the element that: (a) a classification is applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying the information mentioned in subparagraph (1)(a)(i) or (ii); or (b) a classification or marking is prescribed by the regulations as mentioned in paragraph (1)(b). (2) Before the Governor‑General makes regulations for the purposes of subsection (1), the Minister must be satisfied that the regulations are not inconsistent with the policy framework mentioned in paragraph (1)(a). (3) Despite subsection 14(2) of the Legislation Act 2003, regulations made for the purposes of subsection (1) of this section may prescribe a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time, if the instrument or other writing is publicly available. 90.6 Expressions also used in the Australian Security Intelligence Organisation Act 1979 The meaning of an expression in this Part does not affect the meaning of that expression in the Australian Security Intelligence Organisation Act 1979, unless that Act expressly provides otherwise. 17 Division 91 of the Criminal Code Repeal the Division, substitute: Division 91—Espionage Subdivision A—Espionage 91.1 Espionage—dealing with information etc. concerning national security which is or will be communicated or made available to foreign principal Intention as to national security (1) A person commits an offence if: (a) the person deals with information or an article; and (b) the information or article: (i) has a security classification; or (ii) concerns Australia's national security; and (c) the person intends that the person's conduct will: (i) prejudice Australia's national security; or (ii) advantage the national security of a foreign country; and (d) the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal. Note: An alternative verdict may be available for an offence against this subsection (see section 93.5). Penalty: Imprisonment for life. Reckless as to national security (2) A person commits an offence if: (a) the person deals with information or an article; and (b) the information or article: (i) has a security classification; or (ii) concerns Australia's national security; and (c) the person is reckless as to whether the person's conduct will: (i) prejudice Australia's national security; or (ii) advantage the national security of a foreign country; and (d) the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal. Penalty: Imprisonment for 25 years. Other matters (4) For the purposes of subparagraphs (1)(c)(ii) and (2)(c)(ii), the person: (a) does not need to have in mind a particular foreign country; and (b) may have in mind more than one foreign country. (5) For the purposes of paragraphs (1)(d) and (2)(d), the person: (a) does not need to have in mind a particular foreign principal; and (b) may have in mind more than one foreign principal. 91.2 Espionage—dealing with information etc. which is or will be communicated or made available to foreign principal Intention as to national security (1) A person commits an offence if: (a) the person deals with information or an article; and (b) the person intends that the person's conduct will prejudice Australia's national security; and (c) the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal. Note: An alternative verdict may be available for an offence against this subsection (see section 93.5). Penalty: Imprisonment for 25 years. Reckless as to national security (2) A person commits an offence if: (a) the person deals with information or an article; and (b) the person is reckless as to whether the person's conduct will prejudice Australia's national security; and (c) the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal. Penalty: Imprisonment for 20 years. Other matters (3) For the purposes of paragraphs (1)(c) and (2)(c): (a) the person does not need to have in mind a particular foreign principal; and (b) the person may have in mind more than one foreign principal. 91.3 Espionage—security classified information etc. (1) A person commits an offence if: (a) the person deals with information or an article; and (aa) the person deals with the information or article for the primary purpose of communicating the information or article, or making it available, to a foreign principal or a person acting on behalf of a foreign principal; and (b) the person's conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal; and (c) the information or article has a security classification. Penalty: Imprisonment for 20 years. (2) For the purposes of paragraphs (1)(aa) and (b): (a) the person does not need to have in mind a particular foreign principal; and (b) the person may have in mind more than one foreign principal. (3) Strict liability applies to paragraph (1)(aa). 91.4 Defences (1) It is a defence to a prosecution for an offence by a person against this Subdivision that the person dealt with the information or article: (a) in accordance with a law of the Commonwealth; or (b) in accordance with an arrangement or agreement to which the Commonwealth is party and which allows for the exchange of information or articles; or (c) in the person's capacity as a public official. Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)). (2) It is a defence to a prosecution for an offence by a person against this Subdivision that the information or article the person deals with is information or an article that has already been communicated or made available to the public with the authority of the Commonwealth. Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)). (3) It is a defence to a prosecution for an offence by a person against section 91.1, in which the prosecution relies on subparagraph 91.1(1)(c)(ii) or (2)(c)(ii), or against section 91.3, if: (a) the person did not make or obtain the information or article by reason of any of the following: (i) the person being, or having been, a Commonwealth officer (within the meaning of Part 5.6); (ii) the person being otherwise engaged to perform work for a Commonwealth entity; (iii) an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information; and (b) the information or article has already been communicated, or made available, to the public (the prior publication); and (c) the person was not involved in the prior publication (whether directly or indirectly); and (d) at the time the person deals with the information or article, the person believes that doing so will not prejudice Australia's national security; and (e) having regard to the nature, extent and place of the prior publication, the person has reasonable grounds for that belief. Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)). 91.5 Matters affecting sentencing for offence against subsection 91.1(1) (1) In determining the sentence to be passed in respect of a person for an offence against subsection 91.1(1) (punishable by life imprisonment), the court must take into account any circumstances set out in paragraph 91.6(1)(b) that exist in relation to the commission of the offence. (2) However, the court need only take the circumstances into account so far as the circumstances are known to the court and relevant. (3) The circumstances are in addition to any other matters the court must take into account (for example, the matters mentioned in section 16A of the Crimes Act 1914). 91.6 Aggravated espionage offence (1) A person commits an offence against this section if: (a) the person commits an offence against section 91.1 (other than subsection 91.1(1)), 91.2 or 91.3 (the underlying offence); and (b) any of the following circumstances exist in relation to the commission of the underlying offence: (ii) the person dealt with information or an article from a foreign intelligence agency; (iii) the person dealt with 5 or more records or articles each of which has a security classification; (iv) the person altered a record or article to remove or conceal its security classification; (v) at the time the person dealt with the information or article, the person held an Australian Government security clearance allowing access to information that has, or articles that have, a security classification of at least secret. Penalty: (a) if the penalty for the underlying offence is imprisonment for 25 years—imprisonment for life; or (b) if the penalty for the underlying offence is imprisonment for 20 years—imprisonment for 25 years. (2) There is no fault element for the physical element in paragraph (1)(a) other than the fault elements (however described), if any, for the underlying offence. (4) To avoid doubt, a person does not commit an underlying offence for the purposes of paragraph (1)(a) if the person has a defence to the underlying offence. (5) To avoid doubt, the person may be convicted of an offence against this section even if the person has not been convicted of the underlying offence. Note: An alternative verdict may be available for an offence against this section (see section 93.5). 91.7 Geographical jurisdiction Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Subdivision. Subdivision B—Espionage on behalf of foreign principal 91.8 Espionage on behalf of foreign principal Intention as to national security (1) A person commits an offence if: (a) the person deals with information or an article; and (b) the person intends that the person's conduct will: (i) prejudice Australia's national security; or (ii) advantage the national security of a foreign country; and (c) the person is reckless as to whether the conduct involves the commission, by the person or any other person, of an offence against Subdivision A (espionage); and (d) any of the following circumstances exists: (i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal; (ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal. Note: An alternative verdict may be available for an offence against this subsection (see section 93.5). Penalty: Imprisonment for 25 years. Reckless as to national security (2) A person commits an offence if: (a) the person deals with information or an article; and (b) the person is reckless as to whether the person's conduct will: (i) prejudice Australia's national security; or (ii) advantage the national security of a foreign country; and (c) the person is reckless as to whether the conduct involves the commission, by the person or any other person, of an offence against Subdivision A (espionage); and (d) any of the following circumstances exists: (i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal; (ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal. Penalty: Imprisonment for 20 years. Conduct on behalf of foreign principal (3) A person commits an offence if: (a) the person deals with information or an article; and (b) the person is reckless as to whether the person's conduct involves the commission, by the person or any other person, of an offence against Subdivision A (espionage); and (c) any of the following circumstances exists: (i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal; (ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal. Penalty: Imprisonment for 15 years. Other matters (4) For the purposes of subparagraphs (1)(b)(ii) and (2)(b)(ii), the person: (a) does not need to have in mind a particular foreign country; and (b) may have in mind more than one foreign country. (5) For the purposes of paragraphs (1)(d), (2)(d) and (3)(c), the person: (a) does not need to have in mind a particular foreign principal; and (b) may have in mind more than one foreign principal. 91.9 Defences (1) It is a defence to a prosecution for an offence by a person against this Subdivision that the person dealt with the information or article: (a) in accordance with a law of the Commonwealth; or (b) in accordance with an arrangement or agreement to which the Commonwealth is party and which allows for the exchange of information or articles; or (c) in the person's capacity as a public official. Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)). (2) It is a defence to a prosecution for an offence by a person against this Subdivision that the information or article the person deals with is information or an article that has already been communicated or made available to the public with the authority of the Commonwealth. Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)). 91.10 Geographical jurisdiction Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Subdivision. Subdivision C—Espionage‑related offences 91.11 Offence of soliciting or procuring an espionage offence or making it easier to do so (1) A person commits an offence if: (a) the person engages in conduct in relation to another person (the target); and (b) the person engages in the conduct with the intention of soliciting or procuring, or making it easier to solicit or procure, the target to deal with information or an article in a way that would constitute an offence against Subdivision A (espionage) or B (espionage on behalf of foreign principal); and (c) any of the following circumstances exists: (i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal; (ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal. Penalty: Imprisonment for 15 years. (2) For the purposes of paragraph (1)(c): (a) the person does not need to have in mind a particular foreign principal; and (b) the person may have in mind more than one foreign principal. (3) A person may commit an offence against subsection (1): (a) even if an offence against Subdivision A or B is not committed; and (b) even if it is impossible for the target to deal with information or an article in a way that would constitute an offence against Subdivision A or B; and (c) even if the person does not have in mind particular information or a particular article, or a particular dealing or kind of dealing with information or an article, at the time the person engages in conduct in relation to the target; and (d) whether it is a single dealing, or multiple dealings, that the person intends to solicit or procure or make it easier to solicit or procure. (4) Section 11.1 (attempt) does not apply to an offence against subsection (1). 91.12 Offence of preparing for an espionage offence (1) A person commits an offence if: (a) the person engages in conduct; and (b) the person does so with the intention of preparing for, or planning, an offence against Subdivision A (espionage) or B (espionage on behalf of foreign principal). Penalty: Imprisonment for 15 years. (2) Section 11.1 (attempt) does not apply to an offence against subsection (1). (3) Subsection (1) applies: (a) whether or not an offence against Subdivision A or B is committed; and (b) whether or not the person engages in the conduct in preparation for, or planning, a specific offence against a provision of Subdivision A or B; and (c) whether or not the person engages in the conduct in preparation for, or planning, more than one offence against Subdivision A or B. 91.13 Defences It is a defence to a prosecution for an offence by a person against this Subdivision that the person dealt with the information or article: (a) in accordance with a law of the Commonwealth; or (b) in accordance with an arrangement or agreement to which the Commonwealth is party and which allows for the exchange of information or articles; or (c) in the person's capacity as a public official. Note: A defendant bears an evidential burden in relation to the matters in this section (see subsection 13.3(3)). 91.14 Geographical jurisdiction Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Subdivision. Division 92—Foreign interference Subdivision A—Preliminary 92.1 Definitions In this Division: deception means an intentional or reckless deception, whether by words or other conduct, and whether as to fact or as to law, and includes: (a) a deception as to the intentions of the person using the deception or any other person; and (b) conduct by a person that causes a computer, a machine or an electronic device to make a response that the person is not authorised to cause it to do. menaces has the same meaning as in Part 7.5 (see section 138.2). Subdivision B—Foreign interference 92.2 Offence of intentional foreign interference Interference generally (1) A person commits an offence if: (a) the person engages in conduct; and (b) any of the following circumstances exists: (i) the person engages in the conduct on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal; (ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal; and (c) the person intends that the conduct will: (i) influence a political or governmental process of the Commonwealth or a State or Territory; or (ii) influence the exercise (whether or not in Australia) of an Australian democratic or political right or duty; or (iii) support intelligence activities of a foreign principal; or (iv) prejudice Australia's national security; and (d) any part of the conduct: (i) is covert or involves deception; or (ii) involves the person making a threat to cause serious harm, whether to the person to whom the threat is made or any other person; or (iii) involves the person making a demand with menaces. Note: An alternative verdict may be available for an offence against this subsection (see section 93.5). Penalty: Imprisonment for 20 years. Interference involving targeted person (2) A person commits an offence if: (a) the person engages in conduct; and (b) any of the following circumstances exists: (i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal; (ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal; and (c) the person intends that the conduct will influence another person (the target): (i) in relation to a political or governmental process of the Commonwealth or a State or Territory; or (ii) in the target's exercise (whether or not in Australia) of any Australian democratic or political right or duty; and (d) the person conceals from, or fails to disclose to, the target the circumstance mentioned in paragraph (b). Note: An alternative verdict may be available for an offence against this subsection (see section 93.5). Penalty: Imprisonment for 20 years. Other matters (3) For the purposes of paragraphs (1)(b) and (2)(b): (a) the person does not need to have in mind a particular foreign principal; and (b) the person may have in mind more than one foreign principal. 92.3 Offence of reckless foreign interference Interference generally (1) A person commits an offence if: (a) the person engages in conduct; and (b) any of the following circumstances exists: (i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal; (ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal; and (c) the person is reckless as to whether the conduct will: (i) influence a political or governmental process of the Commonwealth or a State or Territory; or (ii) influence the exercise (whether or not in Australia) of an Australian democratic or political right or duty; or (iii) support intelligence activities of a foreign principal; or (iv) prejudice Australia's national security; and (d) any part of the conduct: (i) is covert or involves deception; or (ii) involves the person making a threat to cause serious harm, whether to the person to whom the threat is made or any other person; or (iii) involves the person making a demand with menaces. Penalty: Imprisonment for 15 years. Interference involving targeted person (2) A person commits an offence if: (a) the person engages in conduct; and (b) any of the following circumstances exists: (i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal; (ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal; and (c) the person is reckless as to whether the conduct will influence another person (the target): (i) in relation to a political or governmental process of the Commonwealth or a State or Territory; or (ii) in the target's exercise (whether or not in Australia) of any Australian democratic or political right or duty; and (d) the person conceals from, or fails to disclose to, the target the circumstance mentioned in paragraph (b). Penalty: Imprisonment for 15 years. Other matters (3) For the purposes of paragraphs (1)(b) and (2)(b): (a) the person does not need to have in mind a particular foreign principal; and (b) the person may have in mind more than