NATIONAL SECURITY LEGISLATION AMENDMENT (ESPIONAGE AND FOREIGN INTERFERENCE) BILL 2017

2016-2017

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

National Security Legislation

Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

(Attorney-General)

A Bill for 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

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

Contents

Short title ........................................................................................... 1

Commencement ................................................................................. 1

Schedules ........................................................................................... 3

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

Foreign Evidence Act 1994

Migration Act 1958

Surveillance Devices Act 2004

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

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

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 2017

Foreign Influence Transparency Scheme Act 2017

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

A Bill for 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

The Parliament of Australia enacts:

1 Short title

This Act is the National Security Legislation Amendment

(Espionage and Foreign Interference) Act 2017.

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

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

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.

2. Schedule 1

The day after this Act receives the Royal

Assent.

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.

5. Schedule 4,

Part 1

The day after this Act receives the Royal

Assent.

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 2017 commences.

However, the provisions do not commence

at all if that Act does not commence.

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

8. Schedule 5,

Part 2

The later of:

(a) immediately after the commencement of

the Foreign Influence Transparency

Scheme Act 2017; and

(b) immediately after the commencement of

Part 1 of Schedule 1 to the Electoral

Legislation Amendment (Electoral

Funding and Disclosure Reform) Act

2017.

However, the provisions do not commence

at all unless both of the events mentioned in

paragraphs (a) and (b) occur.

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

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

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.

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

(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

Treason, espionage, foreign interference and related offences Schedule 1

Main amendments Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

(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

Schedule 1 Treason, espionage, foreign interference and related offences

Part 1 Main amendments

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

(b) the conduct involves the use of force or violence; and

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 section 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

82.1 Definitions

In this Division:

Treason, espionage, foreign interference and related offences Schedule 1

Main amendments Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

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;

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.

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;

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:

Schedule 1 Treason, espionage, foreign interference and related offences

Part 1 Main amendments

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

(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.

82.3 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

(i) prejudice Australia's national security; or

(ii) advantage the national security of a foreign country; and

(d) any of the following circumstances exists:

Treason, espionage, foreign interference and related offences Schedule 1

Main amendments Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

(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

(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.

Schedule 1 Treason, espionage, foreign interference and related offences

Part 1 Main amendments

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

(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

(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

(i) prejudice Australia's national security; or

(ii) advantage the national security of a foreign country.

Treason, espionage, foreign interference and related offences Schedule 1

Main amendments Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

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

infrastructure; and

(d) the person engages in the conduct with the intention that any

of the following will occur (whether at the time or at a future

time):

(i) prejudice to Australia's national security;

(ii) harm or prejudice to Australia's economic interests;

(iii) disruption to the functions of the Government of the

Commonwealth, of a State or of a Territory;

(iv) damage to public infrastructure.

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:

Schedule 1 Treason, espionage, foreign interference and related offences

Part 1 Main amendments

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

(i) to misuse or impairment; or

(ii) to being accessed or modified by a person not entitled to

access or modify it; and

infrastructure; and

(d) the person engages in the conduct reckless as to whether any

of the following will occur (whether at the time or at a future

time):

(i) prejudice to Australia's national security;

(ii) harm or prejudice to Australia's economic interests;

(iii) disruption to the functions of the Government of the

Commonwealth, of a State or of a Territory;

(iv) damage to public infrastructure.

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

preparation for, or planning, more than one offence against

this Division.

Treason, espionage, foreign interference and related offences Schedule 1

Main amendments Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

82.10 Defence

It is a defence to a prosecution for an offence against this Division

if:

(a) the conduct the person engaged in was accessing or using a

computer or other electronic system; and

(b) the person engaged in the conduct in the person's capacity as

a public official.

Note:

A defendant bears an evidential burden in relation to the matter in this

section (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

For an offence against:

Column 2

The alternative verdict is an offence

against:

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);

national security)

Schedule 1 Treason, espionage, foreign interference and related offences

Part 1 Main amendments

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

Alternative verdicts

Item

Column 1

For an offence against:

Column 2

The alternative verdict is an offence

against:

section 82.4 (sabotage involving

foreign principal reckless as to

national security)

section 82.6 (sabotage reckless as to

national security)

section 82.5 (sabotage with

intention as to national security)

section 82.6 (sabotage reckless as to

national security)

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;

(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.

Treason, espionage, foreign interference and related offences Schedule 1

Main amendments Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

Division 83--Other threats to security

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

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.

Penalty: Imprisonment for 7 years.

(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.

Schedule 1 Treason, espionage, foreign interference and related offences

Part 1 Main amendments

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

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

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

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

(i) the training is provided on behalf of a foreign

government principal within the meaning of Part 5.2

(see section 90.3);

(ii) the training is directed, funded or supervised by a

foreign government principal or a person acting on

behalf of a foreign government principal.

Penalty: Imprisonment for 20 years.

Treason, espionage, foreign interference and related offences Schedule 1

Main amendments Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

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).

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:

Schedule 1 Treason, espionage, foreign interference and related offences

Part 1 Main amendments

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

(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

performance, in Australia by any another 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 10 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;

(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) or

(3); and

(b) for an offence against section 83.4--section 80.3.

9 Part 5.2 of the Criminal Code (heading)

Repeal the heading, substitute:

Treason, espionage, foreign interference and related offences Schedule 1

Main amendments Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

Part 5.2--Espionage and related offences

10 Subsection 90.1(1) of the Criminal Code

Insert:

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;

(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 subsection (2).

foreign government principal has the meaning given by

section 90.3.

foreign political organisation means a foreign political party or a

foreign political organisation.

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:

national security has the meaning given by section 90.4.

security classification has the meaning given by section 90.5.

Schedule 1 Treason, espionage, foreign interference and related offences

Part 1 Main amendments

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

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;

(b) a public international organisation within the meaning of

Division 70 (see section 70.1);

(see section 102.1);

(d) an entity or organisation owned, directed or controlled by a

foreign principal within the meaning of paragraph (b) or (c);

(e) an entity or organisation owned, directed or controlled by 2

or more foreign principals within the meaning of

paragraph (a), (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;

Treason, espionage, foreign interference and related offences Schedule 1

Main amendments Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

(b) an authority of the government 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;

(g) a foreign political organisation;

(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);

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;

Schedule 1 Treason, espionage, foreign interference and related offences

Part 1 Main amendments

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

(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 has the meaning prescribed by the

regulations.

(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 policies of the Government of the

Commonwealth in relation to protective security.

(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.

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 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:

Treason, espionage, foreign interference and related offences Schedule 1

Main amendments Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

(i) has a security classification; or

(ii) concerns Australia's national security; and

(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 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

(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 made available to a foreign principal or a person acting

on behalf of a foreign principal.

Penalty: Imprisonment for 25 years.

Strict liability

(3) Strict liability applies to subparagraphs (1)(b)(i) and (2)(b)(i).

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.

Schedule 1 Treason, espionage, foreign interference and related offences

Part 1 Main amendments

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

(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

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

being 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

being 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.

Treason, espionage, foreign interference and related offences Schedule 1

Main amendments Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

91.3 Espionage--security classified information etc.

(1) A person commits an offence if:

(a) the person deals with information or an article; and

(b) the person's conduct results or will result in the information

or article being made available to a foreign principal or a

person acting on behalf of a foreign principal; and

(i) has a security classification; or

(ii) concerns Australia's national security.

Penalty: Imprisonment for 20 years.

(2) For the purposes of paragraph (1)(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 subparagraph (1)(c)(i).

91.4 Defences

(1) It is a defence to a prosecution for an offence 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

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 of an offence 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)).

Schedule 1 Treason, espionage, foreign interference and related offences

Part 1 Main amendments

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

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, 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:

(i) the person dealt with information or an article that has a

security classification of secret or above;

(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.

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.

Treason, espionage, foreign interference and related offences Schedule 1

Main amendments Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

(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.

(3) Strict liability applies to subparagraph (1)(b)(iii).

(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

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;

Schedule 1 Treason, espionage, foreign interference and related offences

Part 1 Main amendments

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

(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

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

(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;

Treason, espionage, foreign interference and related offences Schedule 1

Main amendments Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

(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 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

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 of an offence 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)).

Schedule 1 Treason, espionage, foreign interference and related offences

Part 1 Main amendments

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

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

(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

Treason, espionage, foreign interference and related offences Schedule 1

Main amendments Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

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

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 against this

Subdivision that the person dealt with the information or article:

(a) in accordance with a law of the Commonwealth; or

Schedule 1 Treason, espionage, foreign interference and related offences

Part 1 Main amendments

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

(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

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:

Treason, espionage, foreign interference and related offences Schedule 1

Main amendments Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

(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

(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

person (the target):

Schedule 1 Treason, espionage, foreign interference and related offences

Part 1 Main amendments

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

(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

(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:

Treason, espionage, foreign interference and related offences Schedule 1

Main amendments Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

(i) is covert or deceptive; 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

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 one foreign principal.

92.4 Offence of preparing for a foreign interference offence

(1) A person commits an offence if:

Schedule 1 Treason, espionage, foreign interference and related offences

Part 1 Main amendments

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

(a) the person engages in conduct; and

(b) the person does so with the intention of preparing for, or

planning, an offence against another provision of this

Subdivision (foreign interference).

Penalty: Imprisonment for 10 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 Subdivision 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 Subdivision; and

preparation for, or planning, more than one offence against

this Subdivision.

92.5 Defence

It is a defence to a prosecution for an offence against this

Subdivision that the person engaged in the conduct:

(a) in accordance with a law of the Commonwealth; or

(b) in accordance with an arrangement or agreement to which the

Commonwealth is party; or

Note:

A defendant bears an evidential burden in relation to the matters in

this section (see subsection 13.3(3)).

92.6 Geographical jurisdiction

Section 15.2 (extended geographical jurisdiction--category B)

applies to an offence against this Subdivision.

Treason, espionage, foreign interference and related offences Schedule 1

Main amendments Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

Subdivision C--Foreign interference involving foreign

intelligence agencies

92.7 Knowingly supporting foreign intelligence agency

A person commits an offence if:

(a) the person provides support or resources to an organisation or

a person acting on behalf of an organisation; and

(b) the person knows that the organisation is a foreign

intelligence agency.

Note:

An alternative verdict may be available for an offence against this

section (see section 93.5).

Penalty: Imprisonment for 15 years.

92.8 Recklessly supporting foreign intelligence agency

A person commits an offence if:

(a) the person provides support or resources to an organisation or

a person acting on behalf of an organisation; and

(b) the organisation is a foreign intelligence agency.

Penalty: Imprisonment for 10 years.

92.9 Knowingly funding or being funded by foreign intelligence

agency

A person commits an offence if:

(a) the person:

(i) directly or indirectly receives or obtains funds from, or

directly or indirectly makes funds available to, an

organisation or a person acting on behalf of an

organisation; or

(ii) directly or indirectly collects funds for or on behalf of

an organisation or a person acting on behalf of an

organisation; and

(b) the person knows that the organisation is a foreign

intelligence agency.

Schedule 1 Treason, espionage, foreign interference and related offences

Part 1 Main amendments

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

Note:

An alternative verdict may be available for an offence against this

section (see section 93.5).

Penalty: Imprisonment for 15 years.

92.10 Recklessly funding or being funded by foreign intelligence

agency

A person commits an offence if:

(a) the person:

(i) directly or indirectly receives or obtains funds from, or

directly or indirectly makes funds available to, an

organisation or a person acting on behalf of an

organisation; or

(ii) directly or indirectly collects funds for or on behalf of

an organisation or a person acting on behalf of an

organisation; and

(b) the organisation is a foreign intelligence agency.

Penalty: Imprisonment for 10 years.

92.11 Defence

It is a defence to a prosecution for an offence against this

Subdivision that the person engaged in the conduct:

(a) in accordance with a law of the Commonwealth; or

(b) in accordance with an arrangement or agreement to which the

Commonwealth is party; or

Note:

A defendant bears an evidential burden in relation to the matters in

this section (see subsection 13.3(3)).

Division 92A--Theft of trade secrets involving foreign

government principal

92A.1 Theft of trade secrets involving foreign government principal

(1) A person commits an offence if:

(a) the person dishonestly receives, obtains, takes, copies or

duplicates, sells, buys or discloses information; and

Treason, espionage, foreign interference and related offences Schedule 1

Main amendments Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

(b) all of the following circumstances exist:

(i) the information is not generally known in trade or

business, or in the particular trade or business

concerned;

(ii) the information has a commercial value that would be,

or could reasonably be expected to be, destroyed or

diminished if the information were communicated;

(iii) the owner of the information has made reasonable

efforts in the circumstances to prevent the information

becoming generally known; and

(i) the conduct is engaged in on behalf of, or in

collaboration with, a foreign government principal or a

person acting on behalf of a foreign government

principal;

(ii) the conduct is directed, funded or supervised by a

foreign government principal or a person acting on

behalf of a foreign government principal.

Penalty: Imprisonment for 15 years.

(2) For the purposes of paragraph (1)(a), dishonest means:

(a) dishonest according to the standards of ordinary people; and

(b) known by the defendant to be dishonest according to the

standards of ordinary people.

(3) In a prosecution for an offence against this section, the

determination of dishonesty is a matter for the trier of fact.

(4) For the purposes of paragraph (1)(c):

(a) the person does not need to have in mind a particular foreign

government principal; and

(b) the person may have in mind more than one foreign

government principal.

92A.2 Geographical jurisdiction

(1) Section 15.2 (extended geographical jurisdiction--category B)

applies to an offence against section 92A.1.

Schedule 1 Treason, espionage, foreign interference and related offences

Part 1 Main amendments

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

(2) However, subsections 15.2(2) and 15.2(4) (defences for primary

and ancillary offences) do not apply.

18 Section 93.1 of the Criminal Code

Repeal the section, substitute:

93.1 Consent of Attorney-General required for prosecutions

(1) Proceedings for the commitment of a person for trial for an offence

against this Part 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;

(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:

(a) for an offence against Subdivision A of Division 91

(espionage)--in a way mentioned in subsection 91.4(1); and

(b) for an offence against Subdivision B of Division 91

(espionage on behalf of foreign principal)--in a way

mentioned in subsection 91.9(1); and

interference)--in a way mentioned in section 92.5; and

(d) for an offence against Subdivision C of Division 92 (foreign

interference involving foreign intelligence agencies)--in a

way mentioned in section 92.11.

19 Subsection 93.2(2) of the Criminal Code

Omit "interest of the security or defence of the Commonwealth",

substitute "interests of Australia's national security".

Treason, espionage, foreign interference and related offences Schedule 1

Main amendments Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

20 At the end of Division 93 of the Criminal Code

Add:

93.3 Evidentiary certificate

(1) The Attorney-General may sign a certificate stating any of the

following matters in relation to information or an article identified

in the certificate:

(a) that the information or article has, or had at a specified time,

a security classification;

(b) that the information or article has, or had at a specified time,

a specified level of security classification;

security;

(d) that the information or article concerns a particular specified

aspect of Australia's national security.

(2) For the purposes of proceedings for an offence against Division 91

or 92, a certificate signed by the Attorney-General under this

section is prima facie evidence of the matters certified in it.

93.4 Fault elements for attempted espionage offences

Despite subsection 11.1(3), the fault element, in relation to each

physical element of an offence of attempting to commit an offence

against a provision of:

(a) Subdivision A of Division 91 (espionage); or

(b) Subdivision B of Division 91(espionage on behalf of foreign

principal);

is the fault element in relation to that physical element of the

offence against the provision of Subdivision A or B of Division 91.

93.5 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

Schedule 1 Treason, espionage, foreign interference and related offences

Part 1 Main amendments

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

(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 the offence specified in column 2.

Alternative verdicts

Item

Column 1

For an offence against:

Column 2

The alternative verdict is an offence

against:

subsection 91.1(1)

subsection 91.1(2)

subsection 91.2(1)

subsection 91.2(2)

subsection 91.6(1)

the underlying offence mentioned in

paragraph 91.6(1)(a)

subsection 91.8(1)

subsection 91.8(2)

subsection 92.2(1)

subsection 92.3(1)

subsection 92.2(2)

subsection 92.3(2)

section 92.7

section 92.8

section 92.9

section 92.10

(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.

21 Section 94.1 of the Criminal Code

Omit "or document which is made, obtained, recorded, retained, forged,

possessed or otherwise", substitute ", document or other article which

is".

22 After section 132.8 of the Criminal Code

Insert:

132.8A Damaging Commonwealth property

(1) A person commits an offence if:

(a) the person engages in conduct; and

Treason, espionage, foreign interference and related offences Schedule 1

Main amendments Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

(b) the conduct results in damage to, or the destruction of,

property; and

Penalty: Imprisonment for 10 years.

(2) Absolute liability applies to paragraph (1)(c).

(3) Section 15.4 (extended geographical jurisdiction--category D)

applies to an offence against this section.

23 Subsection 132.7(5) of the Criminal Code (paragraph (e) of

the definition of property offence)

After "132.8(1)", insert "or 132.8A(1)".

24 Dictionary in the Criminal Code

Insert:

constitutional trade and commerce means trade and commerce:

(a) with other countries; or

(b) among the States; or

(d) between 2 Territories.

Defence Minister means the Minister administering the Defence

Force Discipline Act 1982.

foreign intelligence agency means an intelligence or security

service (however described) of a foreign country.

mutiny has the meaning given by subsection 83.1(2).

25 Saving provision

(1)

If, immediately before the commencement of this item, a Proclamation

is in effect for the purposes of paragraph 80.1AA(1)(b) of the Criminal

Code as in force at that time, the Proclamation:

(a) continues in effect despite the repeal and substitution of

section 80.1AA of the Criminal Code by this Schedule; and

Treason, espionage, foreign interference and related offences Schedule 1

Consequential amendments Part 2

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

Part 2--Consequential amendments

Aboriginal and Torres Strait Islander Act 2005

26 Subclause 1(1) of Schedule 4 (definition of undue

influence)

Omit "section 28 of the Crimes Act 1914", substitute "section 83.4 of

the Criminal Code".

Australian Citizenship Act 2007

27 Section 3 (paragraph (a) of the definition of national

security offence)

Omit "II or".

28 Section 3 (paragraph (c) of the definition of national

security offence)

Repeal the paragraph, substitute:

related offences); or

(ca) an offence against Division 91 of the Criminal Code

(espionage); or

(cb) an offence against Part 5.3 (terrorism) of the Criminal Code;

29 Subparagraph 35A(1)(a)(ii)

Repeal the subparagraph, substitute:

(ii) a provision of Subdivision B of Division 80 of the

Criminal Code (treason);

(iia) a provision of Division 82 of the Criminal Code

(sabotage);

(iib) a provision of Division 91 of the Criminal Code

(espionage);

30 Subparagraph 35A(1)(a)(v)

Repeal the subparagraph.

Schedule 1 Treason, espionage, foreign interference and related offences

Part 2 Consequential amendments

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

Australian Federal Police Act 1979

31 Subsection 4(1) (subparagraph (a)(i) of the definition of

protective service offence)

Omit "24AB, 29,".

32 Subsection 4(1) (after subparagraph (a)(ii) of the definition

of protective service offence)

Insert:

(iia) Division 82 of the Criminal Code (sabotage); or

(iib) Division 91 of the Criminal Code (espionage), or

(iid) section 132.8A of the Criminal Code (damaging

Commonwealth property); or

33 Subsection 4(1) (subparagraph (a)(va) of the definition of

protective service offence)

Omit "Act; or", substitute "Act;".

34 Subsection 4(1) (subparagraph (a)(vi) of the definition of

protective service offence)

Repeal the subparagraph.

Commonwealth Electoral Act 1918

35 Subsection 352(1) (definition of undue influence)

Omit "28 of the Crimes Act 1914", substitute "83.4 of the Criminal

Code".

36 Subparagraph 386(a)(i)

Omit "28 of the Crimes Act 1914", substitute "83.4 of the Criminal

Code".

Crimes Act 1914

37 Subsection 4J(7)

Repeal the subsection, substitute:

Treason, espionage, foreign interference and related offences Schedule 1

Consequential amendments Part 2

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

(7) This section does not apply to an offence against:

(a) subsection 79(2) or (5) of this Act; or

(b) Division 80 of the Criminal Code (treason, urging violence

and advocating terrorism or genocide); or

(d) Division 91 of the Criminal Code (espionage); or

(e) Division 92 of the Criminal Code (foreign interference).

38 Paragraphs 15AA(2)(c) and (d)

Omit "Subdivision C of Division 80 or Division 91 of the Criminal

Code, or against section 24AA of this Act,", substitute "Division 80

(treason, urging violence and advocating terrorism or genocide) or

Division 91 (espionage) of the Criminal Code".

39 At the end of subsection 15AA(2)

Add:

; and (e) an offence against subsection 92.2(1) or 92.3(1) (intentional

or reckless offence of foreign interference), if it is alleged

that any part of the conduct the defendant engaged in

involved making a threat to cause serious harm or a demand

with menaces.

40 After paragraph 15YU(1)(d)

Insert:

(da) an offence against Subdivision B of Division 80 of the

Criminal Code (treason); or

(db) an offence against Division 82 of the Criminal Code

(sabotage); or

41 Paragraph 15YU(1)(g)

Repeal the paragraph.

42 Paragraph 19AG(1)(a)

Repeal the paragraph.

43 Part II

Repeal the Part.

Schedule 1 Treason, espionage, foreign interference and related offences

Part 2 Consequential amendments

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

Foreign Evidence Act 1994

44 Subsection 3(1) (after paragraph (da) of the definition of

designated offence)

Insert:

(db) an offence against Division 82 of the Criminal Code

(sabotage); or

45 Subsection 3(1) (paragraph (g) of the definition of

designated offence)

Repeal the paragraph.

Migration Act 1958

46 Subparagraph 203(1)(c)(i)

Repeal the subparagraph.

47 Subparagraph 203(1)(c)(ia)

After "Division 80", insert "or 82".

48 After subparagraph 203(1)(c)(ia)

Insert:

(ib) an offence against section 83.1 (advocating mutiny) or

83.2 (assisting prisoners of war to escape) of the

Criminal Code; or

Surveillance Devices Act 2004

49 Subparagraph 30(1)(a)(vi)

Omit ", 73.3 or 91.1", substitute "or 73.3".

50 After subparagraph 30(1)(a)(vi)

Insert:

(vii) an offence against Division 91 of the Criminal Code

(espionage); or

Secrecy Schedule 2

Secrecy of information Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

Schedule 2--Secrecy

Part 1--Secrecy of information

Crimes Act 1914

1 Subsection 3(1) (paragraph (b) of the definition of

Commonwealth officer)

Omit "; and", substitute ".".

2 Subsection 3(1) (paragraphs (c) and (d) of the definition of

Commonwealth officer)

Repeal the paragraphs.

3 Subsection 3(1) (definition of

Queen's dominions)

Repeal the definition.

4 Paragraph 4J(7)(a)

Repeal the paragraph.

5 Parts VI and VII

Repeal the Parts.

Criminal Code Act 1995

6 At the end of Chapter 5 of the Criminal Code

Add:

Part 5.6--Secrecy of information

Division 121--Preliminary

121.1 Definitions

(1) In this Part:

cause harm to Australia's interests means to:

Schedule 2 Secrecy

Part 1 Secrecy of information

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

(a) interfere with or prejudice the prevention, detection,

investigation, prosecution or punishment of:

(i) a criminal offence against; or

(ii) a contravention of a provision, that is subject to a civil

penalty, of:

a law of the Commonwealth; or

(b) interfere with or prejudice the performance of functions of

the Australian Federal Police under:

(i) paragraph 8(1)(be) of the Australian Federal Police Act

1979 (protective and custodial functions); or

(ii) the Proceeds of Crime Act 2002; or

relation to information that was communicated in confidence:

(i) by, or on behalf of, the government of a foreign country,

an authority of the government of a foreign country or

an international organisation; and

(ii) to the Government of the Commonwealth, to an

authority of the Commonwealth, or to a person

receiving the communication on behalf of the

Commonwealth or an authority of the Commonwealth;

(d) harm or prejudice Australia's international relations in any

other way; or

(e) harm or prejudice relations between the Commonwealth and

a State or Territory; or

(f) harm or prejudice the health or safety of the public or a

section of the public.

Commonwealth officer means any of the following:

(a) an APS employee;

(b) an individual appointed or employed by the Commonwealth

otherwise than under the Public Service Act 1999;

(d) a member or special member of the Australian Federal

Police;

(e) an officer or employee of a Commonwealth authority;

(f) an individual who is a contracted service provider for a

Commonwealth contract;

Secrecy Schedule 2

Secrecy of information Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

(g) 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.

deal has the meaning given by subsection 90.1(1).

domestic intelligence agency means:

(a) the Australian Secret Intelligence Service; or

(b) the Australian Security Intelligence Organisation; or

(d) the Defence Intelligence Organisation; or

(e) the Australian Signals Directorate; or

(f) the Office of National Assessments.

information has the meaning given by section 90.1.

inherently harmful information means information that is any of

the following:

(a) security classified information;

(b) information the communication of which would, or could

reasonably be expected to, damage the security or defence of

Australia;

a domestic intelligence agency or a foreign intelligence

agency in connection with the agency's functions;

(d) information that was provided by a person to the

Commonwealth or an authority of the Commonwealth in

order to comply with an obligation under a law or otherwise

by compulsion of law;

(e) information relating to the operations, capabilities or

technologies of, or methods or sources used by, a domestic or

foreign law enforcement agency.

international relations has the meaning given by section 10 of the

National Security Information (Criminal and Civil Proceedings)

Act 2004.

proper place of custody has the meaning given by section 121.2.

Schedule 2 Secrecy

Part 1 Secrecy of information

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

Regulatory Powers Act means the Regulatory Powers (Standard

Provisions) Act 2014.

security classified information means information that has a

security classification (within the meaning of section 90.4).

security or defence of Australia includes the operations,

capabilities or technologies of, or methods or sources used by,

domestic intelligence agencies or foreign intelligence agencies.

(2) To avoid doubt, communicate includes publish and make

available.

121.2 Definition of proper place of custody

(1) Proper place of custody has the meaning prescribed by the

regulations.

(2) 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.

121.3 Evidentiary certificate

(1) The Attorney-General may sign a certificate stating either of the

following matters in relation to information or a thing identified in

the certificate:

(a) that the information or thing has, or had at a specified time, a

security classification;

(b) that the information or thing has, or had at a specified time, a

specified level of security classification.

(2) For the purposes of proceedings for an offence against

Division 122, a certificate signed by the Attorney-General under

this section is prima facie evidence of the matters certified in it.

Secrecy Schedule 2

Secrecy of information Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

Division 122--Secrecy of information

122.1 Inherently harmful information

Communication of inherently harmful information

(1) A person commits an offence if:

(a) the person communicates information; and

(b) the information is inherently harmful information; and

person by reason of his or her being, or having been, a

Commonwealth officer or otherwise engaged to perform

work for a Commonwealth entity.

Note:

For exceptions to the offences in this section, see section 122.5.

Penalty: Imprisonment for 15 years.

Other dealings with inherently harmful information

(2) A person commits an offence if:

(a) the person deals with information (other than by

communicating it); and

(b) the information is inherently harmful information; and

person by reason of his or her being, or having been, a

Commonwealth officer or otherwise engaged to perform

work for a Commonwealth entity.

Penalty: Imprisonment for 5 years.

Information removed from, or held outside, proper place of

custody

(3) A person commits an offence if:

(a) the person:

(i) removes information from a proper place of custody for

the information; or

(ii) holds information outside a proper place of custody for

the information; and

(b) the information is inherently harmful information; and

Schedule 2 Secrecy

Part 1 Secrecy of information

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

person by reason of his or her being, or having been, a

Commonwealth officer or otherwise engaged to perform

work for a Commonwealth entity.

Penalty: Imprisonment for 5 years.

Failure to comply with direction regarding information

(4) A person commits an offence if:

(a) the person is given a direction; and

(b) the direction is a lawful direction regarding the retention, use

or disposal of information; and

(d) the information is inherently harmful information; and

(e) the information was made or obtained by that or any other

person by reason of his or her being, or having been, a

Commonwealth officer or otherwise engaged to perform

work for a Commonwealth entity.

Penalty: Imprisonment for 5 years.

(5) Strict liability applies to paragraphs (1)(b), (2)(b), (3)(b) and (4)(d)

to the extent the information is security classified information.

122.2 Conduct causing harm to Australia's interests

Communication causing harm to Australia's interests

(1) A person commits an offence if:

(a) the person communicates information; and

(b) either:

(i) the communication causes harm to Australia's interests;

(ii) the communication will or is likely to cause harm to

Australia's interests; and

person by reason of his or her being, or having been, a

Commonwealth officer or otherwise engaged to perform

work for a Commonwealth entity.

Secrecy Schedule 2

Secrecy of information Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

Note 1:

For the definition of cause harm to Australia's interests, see

section 121.1.

Note 2:

For exceptions to the offences in this section, see section 122.5.

Penalty: Imprisonment for 15 years.

Other conduct causing harm to Australia's interests

(2) A person commits an offence if:

(a) the person deals with information (other than by

communicating it); and

(b) either:

(i) the dealing causes harm to Australia's interests; or

(ii) the dealing will or is likely to cause harm to Australia's

interests; and

person by reason of his or her being, or having been, a

Commonwealth officer or otherwise engaged to perform

work for a Commonwealth entity.

Penalty: Imprisonment for 5 years.

Information removed from, or held outside, proper place of

custody

(3) A person commits an offence if:

(a) the person:

(i) removes information from a proper place of custody for

the information; or

(ii) holds information outside a proper place of custody for

the information; and

(b) either:

(i) the removal or holding causes harm to Australia's

interests; or

(ii) the removal or holding will or is likely to cause harm to

Australia's interests; and

person by reason of his or her being, or having been, a

Commonwealth officer or otherwise engaged to perform

work for a Commonwealth entity.

Schedule 2 Secrecy

Part 1 Secrecy of information

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

Penalty: Imprisonment for 5 years.

Failure to comply with direction regarding information

(4) A person commits an offence if:

(a) the person is given a direction; and

(b) the direction is a lawful direction regarding the retention, use

or disposal of information; and

(d) either:

(i) the failure to comply causes harm to Australia's

interests; or

(ii) the failure to comply will or is likely to cause harm to

Australia's interests; and

(e) the information was made or obtained by that or any other

person by reason of his or her being, or having been, a

Commonwealth officer or otherwise engaged to perform

work for a Commonwealth entity.

Penalty: Imprisonment for 5 years.

122.3 Aggravated offence

(1) A person commits an offence against this section if:

(a) the person commits an offence against section 122.1 or 122.2

(the underlying offence); and

(b) any of the following circumstances exist in relation to the

commission of the underlying offence:

(i) the information in relation to which the underlying

offence is committed (the relevant information) has a

security classification of secret or above;

(ii) if the commission of the underlying offence involves a

record containing the relevant information--the record

is marked with a code word, "for Australian eyes only"

or as prescribed by the regulations for the purposes of

this subparagraph;

(iii) the commission of the underlying offence involves 5 or

more records each of which has a security classification;

Secrecy Schedule 2

Secrecy of information Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

(iv) the commission of the underlying offence involves the

person altering a record to remove or conceal its

security classification;

(v) at the time the person committed the underlying

offence, the person held an Australian Government

security clearance.

Penalty:

(a) if the penalty for the underlying offence is imprisonment for

15 years--imprisonment for 20 years; or

(b) if the penalty for the underlying offence is imprisonment for

5 years--imprisonment for 10 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.

(3) Strict liability applies to subparagraph (1)(b)(iii).

(4) To avoid doubt:

(a) 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; and

(b) a person may be convicted of an offence against this section

even if the person has not been convicted of the underlying

offence.

122.4 Unauthorised disclosure of information by Commonwealth

officers and former Commonwealth officers

(1) A person commits an offence if:

(a) the person communicates information; and

(b) the person made or obtained the information by reason of his

or her being, or having been, a Commonwealth officer or

otherwise engaged to perform work for a Commonwealth

entity; and

(d) the duty arises under a law of the Commonwealth.

Penalty: Imprisonment for 2 years.

Schedule 2 Secrecy

Part 1 Secrecy of information

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

(2) Absolute liability applies in relation to paragraph (1)(d).

122.5 Defences

Powers, functions and duties in a person's capacity as a

Commonwealth officer etc. or under arrangement

(1) It is a defence to a prosecution for an offence by a person against

this Division that:

(a) the person was exercising a power, or performing a function

or duty, in the person's capacity as a Commonwealth officer

or a person who is otherwise engaged to perform work for a

Commonwealth entity; or

(b) the person dealt with, removed or held the information in

accordance with an arrangement or agreement to which the

Commonwealth or a Commonwealth entity is party and

which allows for the exchange of information.

Note:

A defendant bears an evidential burden in relation to the matters in

this subsection (see subsection 13.3(3)).

Information that is already public

(2) It is a defence to a prosecution for an offence by a person against

this Division that the information in relation to which the offence is

committed is information 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)).

Information communicated to the Inspector-General of Intelligence

and Security, the Commonwealth Ombudsman or the Law

Enforcement Integrity Commissioner

(3) It is a defence to a prosecution for an offence by a person against

this Division relating to the communication of information that the

person communicated the information:

(a) to any of the following:

(i) the Inspector-General of Intelligence and Security, or a

person engaged or employed to assist the

Secrecy Schedule 2

Secrecy of information Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

Inspector-General as described in subsection 32(1) of

the Inspector-General of Intelligence and Security Act

1986;

(ii) the Commonwealth Ombudsman, or another officer

within the meaning of subsection 35(1) of the

Ombudsman Act 1976;

(iii) the Law Enforcement Integrity Commissioner, a staff

member of ACLEI, or a consultant to, or a person made

available to, the Integrity Commissioner under the Law

Enforcement Integrity Commissioner Act 2006; and

(b) for the purpose of the Inspector-General, the Ombudsman or

the Law Enforcement Integrity Commissioner (as the case

requires) exercising a power, or performing a function or

duty.

Note:

A defendant bears an evidential burden in relation to the matters in

this subsection (see subsection 13.3(3)).

Information communicated in accordance with the Public Interest

Disclosure Act 2013

(4) It is a defence to a prosecution for an offence by a person against

this Division relating to the communication of information that the

person communicated the information in accordance with the

Public Interest Disclosure Act 2013.

Note:

A defendant bears an evidential burden in relation to the matters in

this subsection (see subsection 13.3(3)).

Information communicated to a court or tribunal

(5) It is a defence to a prosecution for an offence by a person against

this Division relating to the communication of information that the

person communicated the information to a court or tribunal

(whether or not as a result of a requirement).

Note:

A defendant bears an evidential burden in relation to the matters in

this subsection (see subsection 13.3(3)).

Schedule 2 Secrecy

Part 1 Secrecy of information

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

Information dealt with or held for the purposes of fair and

accurate reporting

(6) It is a defence to a prosecution for an offence by a person against

this Division relating to the dealing with or holding of information

that the person dealt with or held the information:

(a) in the public interest (see subsection (7)); and

(b) in the person's capacity as a journalist engaged in fair and

accurate reporting.

Note:

A defendant bears an evidential burden in relation to the matters in

this subsection (see subsection 13.3(3)).

(7) Without limiting paragraph (6)(a), dealing with or holding

information is not in the public interest if the dealing or holding

includes the following:

(a) dealing with or holding information that would be an offence

under section 92 of the Australian Security Intelligence

Organisation Act 1979 (publication of identity of ASIO

employee or ASIO affiliate);

(b) dealing with or holding information that would be an offence

under section 41 of the Intelligence Services Act 2001

(publication of identity of staff);

under section 22, 22A or 22B of the Witness Protection Act

1994 (offences relating to Commonwealth, Territory, State

participants or information about the NWPP);

(d) dealing with or holding information that will or is likely to

harm or prejudice the health or safety of the public or a

section of the public.

Information that has been previously communicated

(8) It is a defence to a prosecution for an offence by a person against

this Division relating to the communication of information if:

(a) the person did not make or obtain the information by reason

of any of the following:

(i) his or her being, or having been, a Commonwealth

officer;

(ii) his or her being otherwise engaged to perform work for

a Commonwealth entity;

Secrecy Schedule 2

Secrecy of information Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

(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 has already been communicated, or made

available, to the public (the prior publication); and

directly or indirectly); and

(d) at the time of the communication, the person believes that the

communication will not cause harm to Australia's interests or

the security or defence of Australia; 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)).

Information relating to a person etc.

(9) It is a defence to a prosecution for an offence by a person against

this Division relating to dealing with information if:

(a) the person did not make or obtain the information by reason

of any of the following:

(i) his or her being, or having been, a Commonwealth

officer;

(ii) his or her 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) at the time of the dealing, the person believes that the making

or obtaining of the information by the person was required or

authorised by law; and

obtaining of the information, the person has reasonable

grounds for that belief; and

(d) any of the following apply:

(i) the person communicates the information to the person

to whom the information relates;

(ii) the person is the person to whom the information

relates;

Schedule 2 Secrecy

Part 1 Secrecy of information

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

(iii) the dealing is in accordance with the express or implied

consent of the person to whom the information relates.

Note:

A defendant bears an evidential burden in relation to the matters in

this subsection (see subsection 13.3(3)).

(10) To avoid doubt, a defence to an offence may constitute an

authorisation for the purposes of paragraph (9)(b).

Division 123--Miscellaneous

123.1 Injunctions

Enforceable provisions

(1) The provisions of Division 122 are enforceable under Part 7 of the

Regulatory Powers Act.

Note:

Part 7 of the Regulatory Powers Act creates a framework for using

injunctions to enforce provisions.

Authorised person and relevant court

(2) For the purposes of Part 7 of the Regulatory Powers Act, as that

Part applies to the provisions of Division 122 of this Act:

(a) the Minister is an authorised person; and

(b) each of the following is a relevant court:

(i) the Federal Court of Australia;

(ii) the Federal Circuit Court of Australia;

(iii) a court of a State or Territory that has jurisdiction in

relation to matters arising under this Act.

Extension to external Territories

(3) Part 7 of the Regulatory Powers Act, as that Part applies to the

provisions of Division 122 of this Act, extends to every external

Territory.

Secrecy Schedule 2

Secrecy of information Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

123.2 Forfeiture of articles etc.

(1) A sketch, article, record or document which is made, obtained,

recorded, retained, possessed or otherwise dealt with in

contravention of this Part is forfeited to the Commonwealth.

(2) In subsection (1), sketch, article and record have the same

respective meanings as in Part 5.2.

123.3 Extended geographical jurisdiction--category D

Section 15.4 (extended geographical jurisdiction--category D)

applies to an offence against this Part.

7 Application

The amendments made by this Part apply to conduct that occurs on or

after the commencement of this item.

Schedule 2 Secrecy

Part 2 Consequential amendments

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

Part 2--Consequential amendments

Agricultural and Veterinary Chemicals (Administration) Act

1992

8 Subsection 69F(3)

Omit "section 70 of the Crimes Act 1914", substitute "Part 5.6 (secrecy

of information) of the Criminal Code".

Archives Act 1983

9 Subsection 30A(1) (note)

Omit "70 of the Crimes Act 1914", substitute "122.4 of the Criminal

Code".

Australian Citizenship Act 2007

10 Section 3 (paragraph (a) of the definition of national

security offence)

Repeal the paragraph.

11 Section 3 (paragraph (cb) of the definition of national

security offence)

After "(terrorism)", insert "or Part 5.6 (secrecy of information)".

Australian Crime Commission Act 2002

12 Schedule 1 (entry relating to the Australian Security

Intelligence Organisation Act 1979)

Omit "Crimes Act 1914, section 85B".

Secrecy Schedule 2

Consequential amendments Part 2

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

Australian Federal Police Act 1979

13 Subsection 4(1) (subparagraph (a)(i) of the definition of

protective service offence)

Omit "79,".

14 Subsection 4(1) (after subparagraph (a)(iib) of the

definition of protective service offence)

Insert:

(iic) Part 5.6 of the Criminal Code (secrecy); or

Chemical Weapons (Prohibition) Act 1994

15 Subsection 102(5) (definition of Commonwealth officer)

Omit "70 of the Crimes Act 1914", substitute "121.1 of the Criminal

Code".

Comprehensive Nuclear-Test-Ban Treaty Act 1998

16 Paragraph 74(1)(e)

Omit "70 of the Crimes Act 1914", substitute "121.1 of the Criminal

Code".

Defence Home Ownership Assistance Scheme Act 2008

17 Subsection 81(5)

Repeal the subsection.

Freedom of Information Act 1982

18 Paragraph 78(1)(a)

Repeal the paragraph.

Schedule 2 Secrecy

Part 2 Consequential amendments

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

Law Enforcement Integrity Commissioner Act 2006

19 Paragraph 105(3)(a)

Repeal the paragraph.

Liquid Fuel Emergency Act 1984

20 Subsection 29(3)

Repeal the subsection.

Migration Act 1958

21 Subsection 503A(9) (definition of Commonwealth officer)

Omit "70 of the Crimes Act 1914", substitute "121.1 of the Criminal

Code".

National Greenhouse and Energy Reporting Act 2007

22 Subsection 23(1) (note)

Omit "70 of the Crimes Act 1914", substitute "122.4 of the Criminal

Code".

23 Subsection 57(2) (note)

Omit "70 of the Crimes Act 1914", substitute "122.4 of the Criminal

Code".

Native Title Act 1993

24 Subsection 203DF(8)

Repeal the subsection.

Offshore Minerals Act 1994

25 Subsection 405(2) (note 3)

Repeal the note, substitute:

Secrecy Schedule 2

Consequential amendments Part 2

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

Note 3:

See Part 5.6 of the Criminal Code for offences relating to secrecy of

information.

Ombudsman Act 1976

26 Paragraph 14(2)(a)

Repeal the paragraph.

Parliamentary Service Act 1999

27 Subsection 65AA(2) (note)

Omit "70 of the Crimes Act 1914 creates offences", substitute "122.4 of

the Criminal Code creates an offence".

28 Subsection 65AB(2) (note)

Omit "70 of the Crimes Act 1914 creates offences", substitute "122.4 of

the Criminal Code creates an offence".

Public Service Act 1999

29 Subsection 72A(2) (note)

Omit "70 of the Crimes Act 1914 creates offences", substitute "122.4 of

the Criminal Code creates an offence".

30 Subsection 72B(2) (note)

Omit "70 of the Crimes Act 1914 creates offences", substitute "122.4 of

the Criminal Code creates an offence".

Renewable Energy (Electricity) Act 2000

31 Subsection 156(4)

Repeal the subsection.

Schedule 2 Secrecy

Part 2 Consequential amendments

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

Textile, Clothing and Footwear Investment and Innovation

Programs Act 1999

32 Subsection 37R(6)

Repeal the subsection.

33 Subsection 37ZZA(6)

Repeal the subsection.

34 Subsection 52(5)

Repeal the subsection.

Aggravated offence for giving false or misleading information Schedule 3

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

Schedule 3--Aggravated offence for giving

false or misleading information

Criminal Code Act 1995

1 After section 137.1 of the Criminal Code

Insert:

137.1A Aggravated offence for giving false or misleading

information

(1) A person commits an offence if:

(a) the person commits an offence against subsection 137.1(1)

(the underlying offence); and

(b) the information given in committing the underlying offence

was given in relation to an application for, or the

maintenance of, an Australian Government security

clearance.

Penalty: Imprisonment for 5 years.

(2) There is no fault element for the physical element in

paragraph (1)(a) other than the fault elements (however described)

for the underlying offence.

(3) To avoid doubt:

(a) 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; and

(b) a person may be convicted of an offence against

subsection (1) even if the person has not been convicted of

the underlying offence.

Alternative verdicts

(4) If, on a trial of a person for an offence against subsection (1), the

trier of fact:

(a) is not satisfied that the person is guilty of that offence; and

Schedule 3 Aggravated offence for giving false or misleading information

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

(b) is satisfied beyond reasonable doubt that the person is guilty

of the underlying offence;

it may find the person not guilty of the offence against

subsection (1) but guilty of the underlying offence.

(5) Subsection (4) only applies if the person has been accorded

procedural fairness in relation to the finding of guilt for the

underlying offence.

References to section 137.1

(6) A reference in any law to section 137.1 is taken to include a

reference to this section.

Telecommunications serious offences Schedule 4

Amendments commencing at the same time as Schedules 1 and 3 to this Act Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

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

1 After subparagraph 5D(1)(e)(ib)

Insert:

(ic) Division 82 of the Criminal Code (sabotage); or

(id) Division 83 of the Criminal Code (other threats to

security); or

(ie) Division 91 of the Criminal Code (espionage); or

(if) Division 92 of the Criminal Code (foreign interference);

(ig) Division 92A of the Criminal Code (theft of trade

secrets involving foreign government principal); or

2 At the end of paragraph 5D(1)(e)

Add:

(viii) section 137.1A of the Criminal Code (aggravated

offence for giving false or misleading information); or

Schedule 4 Telecommunications serious offences

Part 2 Amendments commencing at the same time as Schedule 2 to this Act

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

Part 2--Amendments commencing at the same time

as Schedule 2 to this Act

Telecommunications (Interception and Access) Act 1979

3 After subparagraph 5D(1)(e)(vi)

Insert:

(vii) Division 122 of the Criminal Code (secrecy of

information); or

Foreign influence transparency scheme Schedule 5

Transitional provisions Part 1

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

Schedule 5--Foreign influence transparency

scheme

Part 1--Transitional provisions

1 Requirement to register in relation to pre-existing

arrangements

If, at the time the Foreign Influence Transparency Scheme Act 2017

commences, a registrable arrangement is in existence between a person

and a foreign principal, then, despite section 16 of that Act, the person

is not required to register under the scheme before the day that is 6

months after the day on which that Act commences.

Schedule 5 Foreign influence transparency scheme

Part 2 Amendments relating to the Electoral Legislation Amendment (Electoral

Funding and Disclosure Reform) Act 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

No. , 2017

Part 2--Amendments relating to the Electoral

Legislation Amendment (Electoral Funding

and Disclosure Reform) Act 2017

Foreign Influence Transparency Scheme Act 2017

2 Section 10 (definition of electoral donations threshold)

Omit "$13,500", substitute "the disclosure threshold within the meaning

of Part XX of the Commonwealth Electoral Act 1918".

3 Section 10 (after paragraph (d) of the definition of general

political lobbying)

Insert:

(e) a person or entity that is registered under the Commonwealth

Electoral Act 1918 as a political campaigner;

4 At the end of subsection 12(1)

Add:

; (g) processes in relation to a person or entity registered under the

Commonwealth Electoral Act 1918 as a political campaigner.

5 At the end of section 12

Add:

Examples of processes in relation to registered political

campaigner

(7) For the purposes of paragraph (1)(g), the following are examples of

processes in relation to a person or entity registered under the

Commonwealth Electoral Act 1918 as a political campaigner:

(a) processes in relation to the campaigner's:

(i) constitution; or

(ii) platform; or

(iii) policy on any matter of public concern; or

(iv) administrative or financial affairs (in his or her capacity

as a campaigner, if the campaigner is an individual); or

Foreign influence transparency scheme Schedule 5

Amendments relating to the Electoral Legislation Amendment (Electoral Funding and

Disclosure Reform) Act 2017 Part 2

No. , 2017

National Security Legislation Amendment (Espionage and Foreign

Interference) Bill 2017

(v) membership; or

(vi) relationship with foreign principals within the meaning

of paragraph (a), (b) or (c) of the definition of foreign

principal in section 10, or with bodies controlled by

such foreign principals;

(b) the conduct of the campaigner's campaign in relation to a

federal election or designated vote;

executive or delegates to its conferences;

(d) the selection (however done) of the campaigner's leader and

any spokespersons for the campaigner.

Commonwealth of Australia Bills

NATIONAL SECURITY LEGISLATION AMENDMENT (ESPIONAGE AND FOREIGN INTERFERENCE) BILL 2017