6.1
This chapter discusses the new espionage offences proposed in Schedule 1 to the Bill.
6.2
The proposed espionage offences were a discussed by a range of participants in the Committee’s inquiry, with concerns centring on the breadth of conduct captured by the offences, the limitations posed to freedom of expression and political communication and the limited available defences.
6.3
During the course of the inquiry the Attorney-General proposed amendments to some provisions in the Bill affecting the espionage offences. This chapter considers the espionage offences both as outlined in the Bill, and taking into account the Attorney-General’s proposed amendments.
6.4
This chapter considers
the rationale for the proposed new offences,
evidence concerning the breadth of conduct captured by the offences,
evidence concerning the offence-specific defences available in relation to the offences, and
other matters, including penalties and interactions with other legislation.
Overview of the provisions
6.5
Schedule 1 will amend Part 5.2 of the Criminal Code to replace current espionage laws. The Bill will repeal the four current espionage offences in Division 91, replacing these with 35 offences overall: 10 underlying offences and 25 aggravated offences.
6.6
The new offences and proposed penalties are set out below.
Table 6.1: Espionage offences
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Espionage—dealing with information etc. concerning national security which is or will be made available to foreign principal - intention as to national security
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91.1(1)
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Life
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91.6(b) (i)–(v)
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Espionage—dealing with information etc. concerning national security which is or will be made available to foreign principal - reckless as to national security
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91.1(2)
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25 years
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91.6(b)(i)–(v)
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Espionage—dealing with information etc. which is or will be made available to foreign principal - intention as to national security
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91.2(1)
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25 years
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91.6(b)(i)–(v)
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Espionage—dealing with information etc. which is or will be made available to foreign principal - reckless as to national security
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91.2(2)
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20 years
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91.6(b)(i)–(v)
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Espionage—security classified information etc.
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91.3
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20 years
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91.6(b)(i)–(v)
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Espionage on behalf of foreign principal - intention as to national security
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91.8(1)
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25 years
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N/A
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Espionage on behalf of foreign principal - reckless as to national security
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91.8(2)
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20 years
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N/A
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Espionage on behalf of foreign principal - conduct on behalf of foreign principal
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91.8(3)
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15 years
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N/A
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Offence of soliciting or procuring an espionage offence or making it easier to do so
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91.11
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15 years
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N/A
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Offence of preparing for an espionage offence
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91.12
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15 years
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N/A
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*If the penalty for the underlying offence is imprisonment for 25 years, the penalty for the aggravated offence will be imprisonment for life. If the penalty for the underlying offences is 20 years, the penalty for the aggravated offence will be imprisonment for 25 years.
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Rationale for the proposed new offences
6.7
Existing espionage offences in Division 91 of the Criminal Code concern conduct that does, will or is intended to, make certain information or articles available to a foreign country, a foreign organisation, or person acting on their behalf. Currently, espionage laws are limited to information ‘concerning the Commonwealth’s security or defence’, or ‘concerning the security or defence of another country’, but only where the information was acquired by the Commonwealth.
6.8
The Director-General of Security described the changing nature of modern espionage as follows:
espionage now ranges from its classical form of a foreign spy typically paying an official for classified information and then using tradecraft to conceal that act—early John Le Carre stuff, if you like—to what is now complex cyberintrusion that’s conducted typically from overseas to enable the theft of sensitive technologies. The wonder of cyberintrusion is that it’s comparatively cheap, it’s instantaneous and, most importantly, it’s very difficult to detect and to attribute.
6.9
The Attorney-General’s Department explained in its submission the need to reform existing laws, which is considered to be insufficient in the following ways:
offences are limited to intentional conduct: offences only cover conduct where a person intends to prejudice Australia’s security or defence, or to advantage the security or defence of a foreign country.
offences are limited to security or defence information: the disclosure of this information ‘represents the most serious end of the offending spectrum’, however, the communication of other information, such as information held outside the Commonwealth by private contractors, academic institutions or political organisations can be equally damaging.
prosecution is required to prove an absence of ‘lawful authority’: where the offence relates to conduct intended to advantage the security or defence of a foreign country, the prosecution must prove beyond reasonable double that the communication was made without lawful authority. This is said to be a significant barrier to prosecution, especially where the subject of prosecution is a current or former Commonwealth officer.
current espionage laws do not take account of contemporary methodologies: current espionage laws cover communicating information or making, obtaining or copying a record. This does not sufficiently reflect technological advances, such as the evolving sophistication and complexity of cyber-attacks.
6.10
Some of the key differences between the existing espionage offences and the proposed new offences in the Bill include:
some proposed offences do not require the offender to intend to prejudice national security, with some using the lower threshold of ‘reckless’ and others requiring neither intention nor recklessness,
the proposed espionage offences will not be limited to information concerning security or defence. Some proposed offences will require that the information is security classified or ‘concerns Australia’s national security’; for other offences, any information or article could form the basis of an espionage charge,
the conduct will relate to ‘foreign principals’, a term defined in the Bill to include a broader range of foreign organisations and actors,
lack of lawful authority is not an element in any of the proposed offences,
the Bill criminalises preparing, planning, soliciting and procuring espionage,
the Bill introduces a range of aggravated offences, and
the maximum penalty is increased from 25 years imprisonment to imprisonment for life.
6.11
A number of submitters did not support the proposed reforms to the proposed espionage offences, and some submitters expressed serious concerns. This chapter will discuss the specific concerns of participants. The Committee also received a large number of form letters from members of the public raising concerns regarding the proposed espionage offences.
Subdivision A – Espionage
6.12
All five espionage offences proposed in Subdivision A (and the 25 related aggravated offences) are premised on a person engaging in conduct that results or will result in information or an article being made available to a foreign principal. The offences are distinguished by two variables: the character of the information or article; and the person’s intent (if any) at the time of committing the offence. These variables can be summarised as follows:
Table 6.2: Division 91, Subdivision A - Espionage
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Section
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Type of information/article
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Intention/recklessness
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91.1(1)
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Has a security classification or ‘concerns’ Australia’s national security
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Intent to prejudice Australia’s national security or advantage the national security of a foreign country
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91.1(2)
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Has a security classification or ‘concerns’ Australia’s national security
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Reckless as to whether conduct will prejudice Australia’s national security or advantage the national security of a foreign country
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91.2(1)
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Any
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Intent to prejudice Australia’s national security
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91.2(2)
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Any
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Reckless as to whether conduct will prejudice Australia’s national security
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91.3
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Has a security classification or ‘concerns’ Australia’s national security
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No intent or recklessness as to national security required.
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6.13
The scope of espionage offences rests upon the interpretation of key concepts, namely:
the types of information that the Bill captures,
the conduct that the Bill captures by ‘dealing’ with information,
the required fault elements, including the meaning of ‘prejudicial to national security’, and
the meaning of ‘making information available to a foreign principal’.
6.14
Many participants in the inquiry raised concerns about the breadth of conduct captured by the proposed espionage offences. Submitters expressed concern that a broad range of benign and public interest conduct would be captured by the offences, in particular citing operations of human rights groups, think tanks, consultants, journalists, universities, Australia’s allies, lawyers, and private citizens as being potentially affected. Specific concerns raised by participants are discussed below.
6.15
The Attorney-General’s Department responded:
The expansion of the scope of the espionage offences is necessary in order to cover the full range of espionage conduct being engaged in by Australia’s foreign adversaries.
Meaning of ‘made available’ to a foreign principal
6.16
Both current and proposed espionage offences relate to conduct which results in information or articles being ‘made available’ to foreign entities.
6.17
The Bill does not define the term ‘made available’ exhaustively. However, the Dictionary to the Criminal Code states:
[M]ake available, in relation to material, includes, but is not limited to, describing how to obtain access, or describing methods that are likely to facilitate access, to material (for example: by setting out the name of a website, an IP address, a URL, a password, or the name of a newsgroup).
6.18
The Explanatory Memorandum does not address the meaning of ‘made available’ in the context of the proposed espionage offences. However, proposed section 90.1 defines the term ‘deal’ to include a similar phrase: ‘makes it available’. In this context, the Explanatory Memorandum states:
‘Makes it available’ is intended to cover the passage of information or articles other than by disclosing or publishing it. This is intended to cover situations where arrangements are made between two individuals to pass information using a pre-arranged location, without the individuals needing to meet. (emphasis added)
6.19
The espionage offences require that the person has ‘made available’ the information to a foreign principal or person acting on behalf of a foreign principal. However, the Bill does not require a person to have in mind a particular foreign principal, and the person may have in mind more than one foreign principal.
6.20
Accordingly, the joint media organisations argued that communicating information online, in print, or by broadcast would breach the espionage provisions. Similarly, Human Rights Watch submitted:
[I]t is not clear how strong the causative link needs to be between a person’s conduct and information becoming available to a foreign principal. For example, the new offences may apply to users of social media who share leaked information by reposting it on Facebook or Twitter. Similarly, sections 91.1(2), 91.2(2) and 91.3 may in effect criminalise the publication of politically sensitive information that a foreign principal may independently access.
6.21
The Attorney-General’s Department confirmed that with regard to the espionage offence in proposed section 91.1, ‘it is possible that the information could be communicated to a foreign principal through publication of news’, but noted that the offence in section 91.1 can only be established if the person was aware of a substantial risk that his or her conduct would prejudice Australia’s national security or advantage the national security of a foreign country and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk’. The Attorney-General’s Department also confirmed that the espionage offences could cover privately, professionally or commercially produced research, opinions, advice or analysis made available to foreign principals.
6.22
Upon questioning from the Committee, the Attorney-General’s Department considered that defining the term ‘makes available’ in the Bill was not necessary. The Attorney-General’s Department acknowledged that ‘a person can deal with information by publishing it online’.
Breadth of definitions of ‘national security’ ‘foreign principal’ and ‘deals’
6.23
The definitions of ‘national security’ and ‘foreign principal’, as used across the Bill, are discussed in Chapter 3. This chapter focuses on the use of these terms, in addition to the term ‘deals’, in the context of the proposed espionage offences.
6.24
Current espionage offences criminalise making certain information available to a foreign country, foreign organisation, or person acting on behalf of a foreign country or foreign organisation. The Criminal Code does not define the term ‘foreign organisation’.
6.25
The Bill replaces the current, undefined terms of ‘another country or a foreign organisation’ and ‘a person acting on behalf of such a country or organisation’ with a new concept of a ‘foreign principal’ or persons acting on behalf of a foreign principal. The term ‘foreign principal’ is defined in proposed section 90.2.
6.26
Existing espionage offences only relate to information that concerns ‘security or defence.’ A number of the new espionage offences rely upon the proposed new definition of ‘national security’ in section 90.4.
6.27
Current espionage offences criminalise ‘communicating or making available’ information. In contrast, the proposed espionage offences require a person to ‘deal’ with information, which is broadly defined in proposed section 90.1 to include receiving, obtaining, collecting, possessing, making a record of, copying, altering, concealing, communicating, publishing or making available.
6.28
The Explanatory Memorandum highlights a key distinction between the current and proposed offences:
The new offences criminalise a broad range of dealings with information, including possessing or receiving, and protect a broader range of information, including unclassified material. The current methodology of Australia’s adversaries means that dealings with unclassified information, if accompanied by the requisite intention to harm Australia, can be as damaging as the passage of classified information. The new offences will not just target the person who discloses the information, but also the actions of the foreign principal who receives the information. The new offences in Division 91 will also, for the first time, criminalise soliciting or procuring a person to engage in espionage and will introduce a new preparation or planning offence, which will allow law enforcement agencies to intervene at an earlier stage to prevent harmful conduct occurring.
6.29
Submitters raised concerns that the definitions of national security, foreign principal and deals would interact to significantly expand the scope of espionage laws. The United Nations Special Rapporteurs submitted that ‘adopting such a sweeping definition’ of national security would broaden the scope of the espionage offences ‘while conferring far-reaching discretion on the government.’
6.30
Human Rights Watch submitted that the intersection between the definition of ‘foreign principal’ and ‘national security’ would likely capture legitimate collaboration with international organisations, for example,
[h]uman rights activists and organizations meet regularly with foreign diplomats, United Nations representatives and regional groups like ASEAN and the European Union to raise concerns about abusive governmental policies and press for change.
6.31
Similarly, the Australian Lawyers Alliance and Human Rights Watch raised concerns that the breadth of the proposed definitions of ‘deal’ and ‘national security’ would ‘dramatically expand the nature of the activities to which the [espionage] provisions will apply, when compared with the existing rules’ and make the ambit of what is considered ‘espionage’ extremely broad.
6.32
The Law Council also argued that the definitions of ‘national security’ and ‘foreign principal’ are defined so broadly, that the proposed espionage offences go ‘far beyond’ existing laws:
Part of the problem comes from the wide definition of ‘national security’ … particularly, the elements of political relations with another country … Another aspect is how this broad definition applies to the definition of a foreign principal … which covers state owned companies (and enterprises that are directed or controlled by the state) and foreign private companies that are being used to channel government activities.
The proposed espionage offences, with the economic and political elements of the definition of national security, would seem to cover any form of consultancy with a foreign government, the sort that accountancy or legal firms may engage in as a matter of course. It may also cover the provision of information to other entities such as foreign banks or state owned companies by Australian companies or businesses.
6.33
The Law Council submitted that these broad definitions could also capture journalists, academics, consultants, individual citizens and allies. The Law Council submitted that Australian think tanks or advocacy groups that provide information to a ‘foreign principal’ may also be caught. GetUp shared this view, submitting that its activities were likely to be affected. GetUp submitted that the proposed espionage offences would capture
instances in which Australian breaches of international law are communicated to an international body, such as the United Nations or an international news organisation.
6.34
The Committee received a large number of form letters from members of the public expressing similar concerns that the espionage laws could inhibit journalists, whistle-blowers and activists from holding the government to account.
6.35
GetUp also submitted that the extended definition of ‘national security’ would capture harm caused to Australia’s international reputation, which would have a practical effect ‘upon GetUp’s campaigning on issues such as the Trans-Pacific Partnership, refugees and climate change.’ Accordingly, GetUp recommended that the definition of ‘foreign principal’ be limited to foreign governments and their agents. A number of form letters received by the Committee similarly raised concerns that the laws could be used to avoid government embarrassment.
6.36
Citing concerns that the espionage laws could be used to obscure embarrassing, illegal, corrupt or otherwise damaging government conduct, the Australian Lawyers Alliance advocated an alternative approach:
Concepts of espionage and the definitions that underpin it must be limited to the work of intelligence services, and not expanded to allow the traditional operations of government to be obscured.
6.37
GetUp similarly recommended limiting the scope of offences to acts that compromise Australia’s security or defence.
Breadth of information captured
6.38
The espionage offences in proposed sections 91.1 and 91.3 (and related offences) apply to information and articles which:
‘concern’ Australia’s national security; or
have a security classification.
6.39
The espionage offences in proposed section 91.2 (and related offences) apply to any article or information.
6.40
‘Information’ is defined to include information of any kind, whether true or false, whether in material form or not, and including an opinion or a report of a conversation. An ‘article’ includes any thing, substance or material. The Bill proposes that for the purposes of Division 91, ‘dealing with information or an article’ will include dealing with part of the information or article; or the substance, effect or description of the information or article.
Information concerning national security
6.41
The Bill proposes a number of offences that criminalise conduct relating to information that ‘concerns Australia’s national security’. A number of submitters raised concerns that this threshold lacks clarity.
6.42
The phrase ‘concerns’ is carried over from the current espionage laws which apply to information ‘concerning the Commonwealth’s security or defence’. The existing Criminal Code does not define the term ‘concerns’, and neither the Bill nor the Explanatory Memorandum propose to clarify its meaning. Accordingly, the phrase will take its ordinary and natural meaning. The Macquarie Dictionary provides that ‘concerns’ means ‘to relate to; be connected with; be of interest or importance to; affect’.
6.43
For information to ‘concern’ national security it does not need to have emanated from the Commonwealth Government (or another Australian Government) or that the information was derived from any other sensitive or privileged source. The Attorney-General’s Department outlined the rationale for broadening the information to which the espionage offences apply to is that
disclosures of other privileged information held outside the Commonwealth such as information held by private contractors, academic institutions or political organisations, may be as harmful to Australia’s national security as information held by the Commonwealth.
6.44
Submitters identified a number of concerns. The United Nations Special Rapporteurs submitted:
[T]he lack of specificity regarding information disclosures that will ‘prejudice’ or ‘concern’ Australia’s national security, or ‘advantage’ the national security of a foreign country, fails to establish a direct and immediate connection between the expression and the threat. Accordingly, these offences raise the possibility that any person who publicly communicates or receives information deemed politically controversial or sensitive could be prosecuted for espionage.
6.45
Similar concerns were raised by Human Rights Watch and WWF-Australia.
6.46
The Law Council noted as a ‘difficulty’ that the offences are not limited to sensitive Commonwealth information, but could include situations where information or an article is unclassified material.
6.47
As outlined above, ‘national security’ is defined broadly to encompass a range of matters beyond the current espionage threshold of ‘security or defence’. The Committee questioned whether a private citizen’s opinion on Australia’s trade, military or political relations could be said to ‘concern’ Australia’s national security. The Attorney-General’s Department advised that ‘[a]lthough it is not possible to give a definitive answer about a hypothetical scenario, the department does not consider it likely that a private citizen’s view or opinions on Australia’s trade, military or political relations would be information that ‘concerns Australia’s national security’.
Evidentiary certificates
6.48
The Bill enables the Attorney-General to sign an evidentiary certificate in espionage proceedings. The certificate would be prima facie evidence in proceedings that the information or article in question concerns Australia’s national security or concerns a particular aspect of Australia’s national security. Several submitters raised concerns regarding the proposed introduction of evidentiary certificates. These matters were discussed in detail in Chapter 3.
Security classified information
6.49
The Bill proposes a number of espionage offences, and aggravated espionage offences, that criminalise conduct relating to information or an article that ‘has a security classification’.
6.50
Several submitters raised concerns with the introduction of offences premised on dealings with security-classified information. The key issues identified by submitters were:
the proposal to define the term ‘security classification’ in regulations,
the use of an administrative system for document management as the basis of criminal liability, and
the use of evidentiary certificates and strict liability.
6.51
During the course of the inquiry, the Attorney-General notified the Committee of a number of proposed amendments to the treatment of security classifications in the Bill.
6.52
Submitters’ concerns, and the Attorney-General’s proposed amendments, are discussed in Chapter 3.
Any information – proposed section 91.2
6.53
In contrast to current espionage offences, the proposed offences at section 91.2 will capture information from any source, on any topic. The offences will arise where a person deals with any article or information and:
the person intends to prejudice, or is reckless as to whether their conduct will prejudice, ‘national security’, and
the conduct results or will result in the information being made available to a foreign principal.
6.54
The Attorney-General’s Department submitted that:
The methodology of Australia’s adversaries means that even dealings with unclassified information or publicly available information can be equally as damaging to Australia’s national security interests as dealings with classified information.
6.55
The Explanatory Memorandum contains the following example:
Person A is a Commonwealth official employed as an analyst at a government department. Person A is strongly opposed to Australia’s intention to negotiate a treaty with Country B. Person A compiles a report informed by the knowledge he has gained through his role as an analyst in the government department, which contains an aggregation of sensitive, but publically available, information—informed by expertise Person A has developed as a government analyst. Person A provides this to an official of Country B with the intention of convincing Country B not to negotiate the treaty with Australia, thereby harming Australia’s international relations.
6.56
Some submitters were concerned that the information would not need to derive from a sensitive source or relate to national security, and could include unclassified material. In light of the preceding discussion, a range of online activity could be seen to satisfy this threshold.
6.57
The Attorney-General’s Department confirmed that proposed section 91.2 could cover privately, professionally or commercially produced research, opinions, advice or analysis, and ‘applies to any information and does not require it to be security classified or concern national security’.
6.58
The Department also noted that the existing espionage offences in the Criminal Code are not limited to information originating from government. The existing offences apply to information concerning:
the Commonwealth’s security or defence, and
the security or defence of another country, being information that the person acquired from the Commonwealth.
6.59
Existing section 90.1 defines ‘security or defence’ of a country to include the operations, capabilities and technologies of, and methods and sources used by, the country’s intelligence or security agencies.
6.60
Human Rights Watch recommended restricting espionage offences to information that has a security classification and concerns national security. This would require removing the proposed section 91.2 from the Bill and modifying proposed sections 91.1 and 91.3.
6.61
The Law Council of Australia recommended that, in the event that the espionage offences proceed, the offences should be limited to ‘Commonwealth information’. The Attorney-General’s Department responded:
The effect of this amendment would be to significantly limit the application of espionage offences only to Commonwealth officers and people who received information from a Commonwealth officer. This limitation is not present in existing offences relating to information about the Commonwealth’s security and defence and its introduction [would] undermine the protection of Australia’s interests.
The amendments seek to broaden the offences to cover the information being sought by Australia’s foreign adversaries. Espionage activity is not limited to seeking information held by, or received from, a Commonwealth officer.
Fault elements
6.62
The Bill introduce three tiers of espionage offences:
offences which require the person to intend their conduct to prejudice Australia’s national security (or in some instances advantage the national security of a foreign country),
offences which require the person to be reckless as to whether their conduct will prejudice Australia’s national security (or in some instances advantage the national security of a foreign country), and
offences which do not require any intention or recklessness as to national security.
Prejudice Australia’s national security
6.63
A number of the proposed espionage, sabotage and foreign interference offences require a person to engage in conduct either with a recklessness as to whether their conduct will ‘prejudice’ Australia’s national security, or an intention to prejudice Australia’s national security. Chapter 3 discusses the term, as used across the Bill.
6.64
Submitters were concerned that this threshold would capture a broad range of conduct under the umbrella of ‘espionage’. GetUp raised concerns that this threshold would be met by damaging Australia’s reputation, and submitted that persons should be free to protest and criticise government, regardless of the impact on the Australian Government’s reputation overseas.
6.65
As noted in Chapter 3, the Attorney-General’s Department advised that the reference to ‘political and economic relationships’ in the definition of national security would extend to a government’s reputation or relationships with a foreign government, or between officials.
Recklessness to national security
6.66
In contrast to current espionage laws, a number of the proposed espionage offences will capture offences committed with the less culpable mental state of ‘recklessness’ regarding national security.
6.67
A person is reckless with respect to a result if the person is aware of a substantial risk that the result will occur and having regard to the circumstances known to them, it is unjustifiable to take the risk.
6.68
The Attorney-General’s Department submitted that:
The introduction of offences for recklessness addresses the significant harm that may result from acts of espionage in circumstances in which a person lacks the relevant intent but nevertheless engages in the conduct, reckless as to the relevant circumstances or result.
… The benefit of adding offences that have recklessness as a fault element is that it provides a range of options to law enforcement and prosecutorial agencies when investigating espionage offences. It also allows for tiered penalties to be applied, with the highest penalties applying to the most serious offences where intention is established, and lower penalties applying where recklessness is established.
6.69
A number of submissions raised concerns with the introduction of reckless espionage offences. The joint media organisations anticipated that a reckless offence could capture legitimate journalism, providing:
Section 91.1(2) provides the offence for recklessly dealing with information prejudicial to Australia’s national security in a way that makes it available to a foreign power. It would be the case that communicating such information online, in print, or by broadcast would breach the provision. Further, to breach this section a journalist or media organisation would not need to have a foreign power in mind.
We note that the only applicable defence is that the information was already in the public domain with the authority of the Commonwealth.
Offences which do not require the offender to consider national security
6.70
One of the key changes proposed by the Bill is the introduction of espionage offences that do not require the offender to intend, or even be reckless as to whether their conduct would or could prejudice Australia’s national security or advantage the national security of a foreign country.
6.71
In this third tier, the prosecution will not need to prove that the person had any awareness that their conduct could prejudice Australia’s national security, or benefit another country. These offences omit the element found in other espionage offences that requires the prosecution to prove that the person possessed some intention or recklessness as to national security. The relevant offences are:
the offence in proposed section 91.3, which can arise where a person makes information available to a foreign principal, and that information concerns Australia’s national security or has a security classification. It is not an element of the offence that the person intended to prejudice national security, or was reckless to it.
the aggravated offences arising from the underlying offence in proposed section 91.3, which similarly do not require recklessness or intention to national security.
the offence in section 91.8(3), which requires that a person deals with information or an article; is reckless as to whether their conduct involves the commission by another person of an espionage offence; and engages in the conduct in connection with a foreign principal. In contrast to the offences set out in sections 91.8(1) and 91.8(2) it is not an element of the offence that the person engaged in this conduct intending to prejudice national security, or being reckless as to whether their conduct would prejudice national security.
flowing from the offences in proposed section 91.3 and 91.8, the ancillary offences in proposed sections 91.11 and 91.12, which similarly do not require an intent or recklessness as to national security.
6.72
Human Rights Watch submitted that all espionage offences should contain an element that requires the person to intend to cause harm.
6.73
The Law Council similarly submitted that the espionage offences should require (as a minimum for ‘outsiders’) that the dealing with the information did, or was reasonably likely to, or intended to prejudice Australia’s national security or advantage the national security of a foreign country.
Extra-territoriality and sovereignty
6.74
Both the current and proposed espionage offences will be subject to extended geographical jurisdiction (category D). This means that the offence is available where:
the conduct and the result of the alleged offence occur outside Australia,
the person engaged in the conduct is not an Australian citizen or resident, and
the conduct is lawful in the country in which it is committed.
6.75
The Explanatory Memorandum provides that:
Category D geographical jurisdiction is appropriate because intelligence agencies may undertake key facets of espionage activities against Australia in foreign countries to conceal these activities from hostile authorities.
6.76
However, the offences as drafted will also capture conduct that foreign actors undertake within their own country in order to advance their national interest. For example, the offence in proposed section 91.2 will be made out where a person (regardless of their location or nationality) makes information or an article available to a foreign principal, reckless as to whether this conduct would prejudice Australia’s national security. Given the broad definition of national security, and the intended meaning of ‘prejudice’ (discussed above), a broad range of activity undertaken by sovereign states could be captured. For example, if a foreign public official provided internal briefing documents to their government, in order to negotiate trade deals or treaties with Australia, this would likely satisfy both the offences in proposed sections 91.2 and 91.3.
6.77
The Criminal Code would require the Attorney-General’s consent to prosecute such a charge, but the person could be arrested, charged or remanded on bail before such consent was obtained.
Aggravated offences
6.78
The Bill proposes creating a number of aggravated espionage offences that will apply where a person commits an offence against proposed Subdivision A.
Table 6.3: Aggravated espionage offences
|
An aggravated offence will arise where a person commits one of the underlying offences in Subdivision A and any of the following circumstances exist in relation to the commission of the underlying offence:
|
|
91.6(1)(b)(i)
|
the person dealt with information or an article that has a security classification of SECRET or above;
|
|
91.6(1)(b)(ii)
|
the person dealt with information or an article from a foreign intelligence agency;
|
|
91.6(1)(b)(iii)
|
the person dealt with 5 or more records or articles each of which has a security classification;
|
|
91.6(1)(b)(iv)
|
the person altered a record or article to remove or conceal its security classification;
|
|
91.6(1)(b)(v)
|
at the time the person dealt with the information or article, the person held an Australian Government security clearance.
|
6.79
The effect of committing an aggravated espionage offences is:
if the penalty for the underlying offences is 20 years, the penalty for the aggravated offence will be imprisonment for 25 years.
if the penalty for the underlying offence is imprisonment for 25 years, the penalty for the aggravated offence will be imprisonment for life.
where the underlying offence carries a maximum penalty of life imprisonment, the aggravating conduct will be taken into account in determining the sentence (proposed section 91.5).
6.80
A number of the key terms in the aggravated offences’ are not defined, including:
‘security classification’ in proposed subsections 91.6(1)(b)(i), (iii) and (iv);
‘secret or above’ in proposed subsection 91.6 (1)(b)(i); and
Australian Government security clearance in subsection 91.6 (1)(b)(v).
6.81
The aggravated espionage offences are similar to the aggravated offences created in the context of the secrecy provisions. The issues affecting both provisions are discussed in Chapter 3.
6.82
The Law Council of Australia submitted that the problems with the underlying offences are exacerbated by the existence of the proposed aggravated offence. The Council pointed to the drafting of the provisions which
does not require that the person knows that the: information or an article has a security classification of secret or above; that the information is from a foreign intelligence agency; that the 5 or more records or articles had a security classification.
Government proposed amendments
6.83
On 13 February 2018, the Attorney-General’s Department advised the Committee that it had been asked by the Attorney-General to progress a number of changes to the Bill. Draft amendments were provided by the Attorney-General on 5 March 2018. As discussed in Chapter 3, the proposed amendments affecting the espionage offences included:
amending proposed section 90.5, which defines security classification, to mean a classification of SECRET or TOP SECRET, or any other equivalent classification or marking prescribed by the regulations,
removing subsections 91.1(3) and 91.6(3), which apply strict liability on whether information or articles have a security classification, and
removing an aggravated espionage offence where the person deals with information or an article that has security classification of SECRET or above.
6.84
The proposed amendments also make significant changes to the espionage offence at proposed section 91.3, which does not require the person to intend that, or be reckless as to whether, their conduct will prejudice Australia’s national security. The amendments propose including an additional element that
(aa) the person deals with the information or article for the primary purpose of making the information or article available to a foreign principal or a person acting on behalf of a foreign principal.
6.85
The Attorney-General explained:
The inclusion of this additional element ensures that the offence will not inappropriately cover the publication of information by a journalist whose conduct does indirectly make the information available to a foreign principal, but whose primary purpose is to report news or current affairs to the public.
6.86
The amended section 91.3 would also no longer apply to information or AN article that ‘concerns Australia’s national security’—that is, it would only apply in relation to security classified information.
6.87
Submitters generally viewed the proposed amendments to section 91.3 positively. The joint councils for civil liberties, for example, described the changes as a ‘significant improvement’.
6.88
The Law Council of Australia noted that the addition of the proposed ‘primary purpose’ element would ‘still leave a person providing information about oil and gas negotiations with East Timor to the Timorese Government or a United Nations Agency liable to the offence’. However, the Law Council acknowledged that (depending on how liberally security classifications are imposed) such negotiations may not attract the SECRET or TOP SECRET classification required for the conduct to constitute an offence.
Subdivision B – Espionage on behalf of foreign principal
6.89
Proposed Subdivision B creates three new offences of ‘espionage on behalf of foreign principal’ (proposed section 91.8). An offence arises where a person:
engages in conduct on behalf of, directed, funded or supervised by a foreign principal, and
the person is reckless as to whether the conduct involves the commission by any person of an offence against Subdivision A, and
intends to prejudice Australia’s national security or advantage the national security of a foreign country (proposed section 91.8(1)), or
is reckless as to whether their conduct will prejudice Australia’s national security or advantage the national security of a foreign country (proposed section 91.8(2)), or
neither intends nor is reckless as to national security (proposed section 91.8(3)).
6.90
The issues relating to the Subdivision A offences (discussed above) apply equally to the offences proposed in Subdivision B. In addition, the Law Council raised particular concerns relating to proposed section 91.8. The Law Council submitted that a person could be convicted of an offence under proposed section 91.8:
… subject to a 25 or 20 year imprisonment term for dealing with information or an article which may come under the definition of ‘national security’ in a way that they intend to advantage for example a foreign client which may be a state owned company and guilty of an offence if they are reckless as to whether any other person engages in an espionage offence.
6.91
The Law Council raised particular concerns with the proposed offence in section 91.8(3):
Under proposed subsection 91.8(3) there is no requirement even that the person intended or was reckless as to whether their conduct will prejudice Australia’s ‘national security’ or advantage the ‘national security’ of a foreign country. A person may be subject to a term of imprisonment for 15 years.
Subdivision C – Espionage-related offences
6.92
Proposed Subdivision C creates two new espionage offences:
soliciting or procuring an espionage offence or making it easier to do, and
preparing for an espionage offence.
6.93
The offences in Subdivision C are ancillary offences to the offences set out in Subdivision A and Subdivision B of Division 91. Accordingly, the concerns raised by submitters in relation to the Subdivision A and B offences (discussed above) are equally applicable to Subdivision C offences. In addition, submitters raised additional concerns pertaining specifically to the Subdivision C offences.
Soliciting, procuring and making it easier to commit espionage
6.94
Proposed section 91.11 will make it an offence for a person acting on behalf of, in collaboration with, directed, funded or supervised by a foreign principal or person acting on their behalf to solicit, procure, or ‘make it easier’ for another person to undertake espionage. The Explanatory Memorandum provides:
The purpose of this offence is to address gaps in the current law, which does not criminalise soliciting or procuring espionage. This offence will give law enforcement the means to deal with this conduct at the time it occurs, without the need to wait until an espionage offence is committed or sensitive information is actually passed to a foreign principal.
6.95
The Explanatory Memorandum also provides that these offences are intended to
accommodate for the wide range of activity and techniques that the practice of soliciting or procuring espionage encompasses. It is possible that when the offender makes contact with a target the offender will not have particular information or a thing, or a particular kind of dealing with the information or thing, in mind. For example, the offender may only know that the target is well connected to government or that the target has access to classified information, without knowing exactly what information the target can provide. Further, there is no fixed pattern for how an offender will approach a target. In some instances the offender will meet the target and solicit information in one dealing. In other instances, the offender may build a relationship of trust with the target through multiple dealings, and intends to build up to inducing the target to commit espionage.
6.96
The phrase ‘procure’ is defined in the Dictionary to the Criminal Code insofar as it relates to procuring a person to engage in sexual activity. In this context procure includes conduct to:
a.
encourage, entice or recruit the person to engage in that activity; or
b.
induce the person (whether by threats, promises or otherwise) to engage in that activity.
6.97
It is intended section 91.11 will be interpreted consistently with this definition.
6.98
The term ‘solicits’ is not defined and will take its ordinary meaning. The Explanatory Memorandum provides that this is intended to include asking for, requesting, pressing for, or trying to obtain information or a thing from another person.
6.99
‘Making it easier’ is also not defined. The Explanatory Memorandum provides that the term is intended to capture
behaviour such as cultivating or grooming a target before the attempt to solicit or procure espionage is made. For example, a person may arrange meetings, provide gifts, or seek to establish a relationship of trust or friendship with a target. It would also include seeking passage of an unclassified government document or informed comment with the intent of procuring or soliciting the target to provide classified information in the future.
6.100
A number of submitters criticised this proposed offence. The Law Council raised concerns that the ambiguity of the terms ‘making it easier’ would extend the already broad scope of the offences, and that this offence was so broad that it could capture
a foreign government or state owned company (a client) that seeks to establish a relationship with an Australian economist or range of consultancy services (who is not a Commonwealth officer or Australian Government employee) for the purpose of obtaining information regarding what Australian companies may be worth investing in.
6.101
Human Rights Watch was concerned that, consistently with other espionage offences, no intention to harm is required.
6.102
The Law Council submitted that the offence is not needed in light of the availability of offences for attempt under existing section 11.1 of the Criminal Code.
Preparing for espionage
6.103
Proposed section 91.12 will introduce an offence for preparing for or planning an offence of espionage (proposed subdivision A), or espionage on behalf of a foreign principal (proposed subdivision B).
6.104
The Explanatory Memorandum states that the purpose of the proposed offence is to
give law enforcement authorities the means to deal with preparatory conduct and enable a person to be arrested before any [sic] without the need to wait until an espionage offence is committed or sensitive information is actually passed to a foreign principal.
6.105
The Bill does not define the terms ‘preparation’ and ‘planning’. The Explanatory Memorandum provides that these terms are intended to take their ordinary meanings, but provides the following examples of conduct which could satisfy the proposed offences:
the term ‘preparation’ could include acts to conceive, formulate, make ready, arrange, and assemble an idea, plan, thing, or person for an offence against Subdivision A (espionage) or B (espionage on behalf of foreign principals).
the term ‘planning’ could include acts to organise, arrange, design, draft, or setup an idea, plan, thing, or person for an offence against Subdivision A (espionage) or B (espionage on behalf of foreign principals).
6.106
General issues concerning the Bill’s inclusion of preparatory offences are discussed in Chapter 3.
Defences
6.107
The general defences available under Part 2.3 of the Criminal Code will apply to the proposed espionage offences. Additionally, the Bill proposes four specific defences:
dealing in accordance with a law of the Commonwealth,
dealing in accordance with an arrangement or agreement allowing exchange of information, to which the Commonwealth is a party,
dealings in the person’s capacity as a public official, and
dealings in information that has already been communicated or made available to the public with the authority of the Commonwealth (available for all offences other than those outlined in Subdivision C).
6.108
Some of these defences are also available in proceedings for the proposed foreign interference and secrecy offences, and are considered in detail in those chapters (see Chapter 5 and 7). A number of additional defences exist for the proposed secrecy offences, for example, the defence of prior publication and the defence of fair and accurate reporting.
6.109
Some submitters raised concerns that the defences proposed in the Bill are insufficient.
6.110
For example, the Law Council of Australia considered the application of the defence, dealing with information ‘in accordance with a law of the Commonwealth’, was unclear for circumstances where a defendant is unable to point to a specific law of the Commonwealth that they were acting in accordance with. The Attorney-General’s Department considered that Commonwealth officers would not have difficulty describing where they thought that authority arose. Chapter 3 discusses the effect of the evidential burden being placed on the defendant in relation to defences.
6.111
A number of submitters recommended that a defence of prior publication should be available for espionage offences. In relation to the proposed secrecy offences, proposed subsection 122.5(8) contains a defence for ‘prior publication’, which refers to information that has already been communicated, or made available to the public. The Attorney-General’s Department argued that an equivalent prior publication defence is not appropriate for espionage offences, noting that proposed sections 91.1 and 91.2 include the element that the person intended to, or was reckless as to whether his or her conduct would, prejudice Australia’s national security (or advantage the national security of a foreign country).
6.112
A number of submitters also raised concerns regarding the absence of a public interest defence. In contrast to the secrecy offences, the Bill does not provide any defence for journalists or news reporting.
6.113
The Australian Lawyers Alliance submitted that, given the broad scope of the proposed espionage offences, the lack of a public interest defence would be likely to ‘stifle essential public interest disclosures’. The Alliance cited the publication of the Panama Papers, Paradise Papers and the Nauru Files as prosecutable conduct under the proposed espionage offences.
6.114
The joint media organisations recommended that a general public interest defence or journalist defence be made available for all espionage and secrecy offences, on the basis that ‘this is the only way to ensure public interest reporting can continue and Australians are informed of what is going on in their country’. Human Rights Watch made a similar recommendation. The joint media organisations submitted that the risk ‘that a journalist could go to jail for doing their job is very real, and as a result of reporting in the public interest’.
6.115
GetUp agreed that journalists should be protected but stressed that ‘robust exemptions’ should be introduced ‘to protect not just journalists, but all citizens’ protesting or raising evidence of wrongdoing against the Australian Government.
6.116
The Attorney-General’s Department did not agree that it would possible for the conduct captured by the espionage offense to be ‘in the public interest’:
It is hard to see how the passage of information to a foreign principal could be in the public interest where it is done with an intention to, or reckless as to whether the person’s conduct will, prejudice Australia’s national security or advantage the national security of a foreign country. The espionage offences (other than section 91.3) require proof of this element.
6.117
The Law Council of Australia also recommended introducing defences to capture and protect bona fide business dealings and persons acting in good faith, for example, consultants and professionals acting in their ordinary capacity.
6.118
The Attorney-General’s Department argued otherwise:
A bona fide dealings or good faith defence is not appropriate in the context of espionage offences which (with the exception of section 91.3) require proof of a person’s intention or recklessness as to whether their conduct will prejudice Australia’s national security or advantage the national security of a foreign country … It is difficult to conceive a situation in which a person could simultaneously be reckless as to harming Australia’s national interest, yet be acting in good faith. Genuine good faith would preclude recklessness being made out.
Exposure to liability – public officials and allies
6.119
The Explanatory Memorandum provides that the espionage offences
are only intended to apply where a person’s dealing with information is not a proper or legitimate part of their work. There are a vast range of legitimate circumstances in which public officials deal with information concerning Australia’s national security (including highly classified information) in performing their duties. For example, possessing or copying information concerning national security is a day to day occurrence in many Commonwealth departments and agencies and for Ministers and their staff. It is not intended to criminalise these dealings.
6.120
Consistent with the existing espionage offences in the Criminal Code, however, a range of proper and legitimate work will be caught by the espionage offences. This is because a number of the offences do not require harm, or an intention or recklessness as to prejudice national security (as discussed above). Similar to the existing references to ‘another country or a foreign organisation’ in the current espionage offences, the Bill’s definition of ‘foreign principal’ does not distinguish between friend and foe.
6.121
The espionage offences as drafted will capture legitimate government business, including intelligence sharing with foreign allies and partner agencies. At present, officials must generally rely on the defence of ‘lawful authority’ in section 10.5 of the Criminal Code to undertake work that would otherwise be captured by the espionage offences. As the Explanatory Memorandum notes, this defence
is narrow and only applies to conduct that is specifically justified or excused by a law. Consistent with the definition of law in the Dictionary to the Criminal Code, this means the conduct must be specifically justified or excused by a law of the Commonwealth, and includes the Criminal Code.
6.122
The Bill introduces a series of new, broader defences for officials, permitting them to deal with information
a.
‘in accordance’ with a law of the Commonwealth, rather than the law of the Commonwealth needing to specifically justify or excuse the person’s conduct,
b.
‘in accordance with an arrangement or agreement to which the Commonwealth is party and which allows for the exchange of information or articles, such as an intelligence sharing agreement or arrangement with a foreign partner,
c.
in their capacity as a public official.
6.123
The Bill as drafted will require the Commonwealth staff undertaking these roles to rely upon a statutory defence in order to undertake their routine duties—that is, that the conduct was undertaken in their capacity as a public official, in accordance with a Commonwealth arrangement or otherwise in accordance with law. Staff will bear the evidentiary burden for their defence.
6.124
This issue is discussed in more detail in Chapter 3, and is also discussed in Chapter 5 in relation to the secrecy offences. In relation to the secrecy offences, a number of submitters referred to the comprehensive review of secrecy laws undertaken by the Australia Law Reform Commission (ALRC) in 2009. The ALRC review did not consider espionage offences, but in relation to secrecy offences the Commission recommended that there should be exceptions (as opposed to defences) in the general secrecy offence for disclosure in the course of an officer’s functions or duties; disclosure with the authority of an agency head or minister; and disclosure of information that is already lawfully in the public domain.
Consistency with secrecy defences
6.125
The Human Rights Law Centre noted that much of the conduct captured by the secrecy offences (discussed in Chapter 4) ‘could equally be captured by some of the other provisions’. The Centre noted the importance of ensuring that defences across the secrecy and espionage offences are consistent, in order to ensure that:
… the weakness of safeguards in one regime does not compromise the other by allowing for an alternative avenue for the prosecution of disclosure in the public interest.
Penalties
Proportionality
6.126
The Bill proposes increasing the maximum penalty for an espionage offence from 25 years to life imprisonment. A number of new espionage offences, such as ‘reckless’ espionage will carry the same penalty as the current espionage offence, which requires an intent to cause harm.
6.127
The Attorney-General’s Department advised:
New espionage offences will apply tiered penalties ranging from 15 years to life imprisonment. The tiered penalties will ensure that the penalty for each offence is commensurate with the seriousness of the offence and culpability of the offender. The lower penalty of 15 years imprisonment will apply to espionage-related offences such as soliciting or procuring a person to engage in espionage or preparing or planning for an espionage offence.
The highest penalty of life imprisonment will apply to the most egregious conduct, which involves dealing with security classified information or information relevant to national security with an intent to prejudice Australia’s national security or advantage the national security of a foreign country, resulting in the information being made available to a foreign principal.
The maximum penalty of life imprisonment is significantly higher than the maximum penalty of 25 years imprisonment for existing espionage offences. The purpose of increasing the penalty is to ensure that it appropriately reflects the gravity of the offence. Less serious conduct will be criminalised in separate offences and subject to lower penalties. This ensures that the most serious penalty of life imprisonment is only available in circumstances representing the worst possible category of offending.
6.128
Some submitters raised concerns about the severity of the proposed penalties. The law firm Nyman Gibson Miralis submitted that these penalties are disproportionate because the offences do not require harm to be caused. The firm submitted that:
Though criminal sentencing is a discretionary exercise, the exceptionally wide range of conduct captured by the proposed espionage offences could create too much uncertainty and lack of consistency in sentencing decisions.
6.129
The firm recommended making amendments to section 16A of the Crimes Act 1914—which concerns the matters to which court to have regard when passing sentence—to address this.
Freedom of political communication and expression
6.130
Flowing from the intersection of the various issues discussed above, submitters outlined a broad range of benign, legitimate and public interest conduct that could be captured by the espionage offences. In this context, a number of submitters were concerned that these laws would infringe the right to freedom of expression, and the implied right to political communication. The United Nations Special Rapporteurs submitted:
We are gravely concerned that the Bill would impose draconian criminal penalties on expression and access to information that is central to public debate and accountability in a democratic society.
6.131
However, the Explanatory Memorandum’s Statement of Compatibility with Human Rights does not address whether the right to freedom of expression would be restricted by the proposed espionage offences. The Statement’s consideration in this regard is limited to inciting mutiny and secrecy offences.
6.132
Consistent with the criticisms made of the secrecy provisions, some submitters considered that the proposed espionage laws would have a ‘chilling effect’ on political discourse, and could operate to prevent government from being held to account. The Committee also received a large number of form letters from members of the public raising concerns regarding the Bill’s ‘chilling effect’ on freedom of expression. Form letters also expressed concern that the Bill would silence critics of the government and impact journalists, activists and whistle-blowers.
6.133
The Law Council submitted that the proposed espionage offences may not be compatible with, and could have a stifling effect on, freedom of expression. The joint civil liberties councils submitted that the proposed laws would ‘inevitably stifle our democracy’.
6.134
The Parliamentary Joint Committee on Human Rights, in its review of the Bill, commented:
For a measure to be a proportionate limitation on the right to freedom of expression it must be sufficiently circumscribed. In this respect, it appears that the offences as drafted capture a very broad range of conduct. For example, under the offence of dealing with security classified information under proposed section 91.3, it appears that a journalist, by publishing any information subject to a security classification online, will commit an offence. This is because online publication would necessarily make the information available to a foreign principal. Noting that a large number of government documents may be defined as security classified, the extent of the limitation on the right to freedom of expression imposed by these offences is extensive Further, it would appear to still be an offence for a journalist in the above example even if the information were unclassified if it concerned ‘Australia’s national security’.
6.135
The Law Council also questioned the constitutionality of the proposed espionage laws:
Primarily, the Law Council is concerned that Australians, Australian businesses and advocacy groups and journalists may be caught by the offences for innocuous conduct that is undertaken as a matter of course or in the public interest. In circumstances where the dealing with the information or article relates to politics, and specifically elections, a question may also arise as to whether the provisions will be read down by a court so as to avoid invalidity with the implied right to freedom of political communication.
6.136
The Law Council expanded:
In circumstances where reporting on politics occurs for example regarding Australia’s elections and the reporting 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, a question arises as to the extent that this may be inconsistent with the implied right to freedom of political communication. The current and proposed checks and balances may not be sufficient to ameliorate this concern.
6.137
The Australian Lawyers Alliance submitted that it was particularly concerned about the ramification that the Bill would have for freedom of speech in Australia (in respect of both the proposed secrecy offences and espionage offences). Pointing to complexities in establishing standing in constitutional challenges, the Australian Lawyers Alliance noted that the provisions could possibly operate despite constitutional invalidity, for want of legal challenge. In light of this potentiality, the Alliance recommended:
… the Bill should be reformed to ensure that all communication of a political nature, including that which might be embarrassing for the government or MPs, is not prohibited by its proposed provisions.
6.138
The Australian Lawyers Alliance submitted that an adequate explanation had not been provided for the expanded scope of activities which would be captured as espionage, but that in any event
[c]oncepts of espionage and the definitions that underpin it must be limited to the work of intelligence services, and not expanded to allow the traditional operations of government to be obscured. It should never prevent or prohibit exposure of information that reveals wrongdoing, corruption, or other matters of public interest. Revealing such information ultimately strengthens national security, and the legislation should not inhibit it. Government must always be open and accountable, unless there are clear and persuasive arguments for secrecy, and in those cases any secrecy must be limited to those matters for which it is justified and absolutely essential.
6.139
Professor Rory Medcalf, of the Australian National University’s National Security College, submitted in relation to the package of Bills that
… on the whole the Bills reflect the kind of legislation Australia urgently needs to protect its national security from what ASIO has identified as an unprecedented set of threats of foreign interference and influence. At the same time, the Bills need suitable and early refinement to ensure they reflect a consistent respect for freedom of expression.
6.140
Professor Medcalf submitted:
Refinements to the present Bills should be possible to limit such perceived or actual collateral harm, such as the rights of academics transparently to conduct international dialogues and research collaboration and the rights of professional journalists to protect their sources and to report on national security issues in the public interest.
Attorney-General’s Consent
6.141
In contrast to the proposed secrecy offences, the consent of the Attorney-General will be required to institute proceedings. Proposed section 93.1 requires the consent of the Attorney-General to be granted before instituting proceedings, however, a person may be detained, arrested and placed on remand before this time. Human Rights Watch submitted that the requirement to obtain the consent of the Attorney-General does not sufficiently mitigate the threat to liberty that the espionage offences carry.
Consequential amendments
Citizenship
6.142
The Bill proposes expanding the current citizenship cessation regime to include all of the new espionage offences proposed by the Bill. The Bill also proposes that a conviction for any of these offences will be grounds to refuse the citizenship application of a stateless person. This is discussed in Chapter 10.
Presumption against bail
6.143
The Bill proposes applying a presumption against bail to all espionage offences where it is alleged that the person’s conduct caused, or carried a substantial risk or causing the death of a person. This is discussed in Chapter 10.
Standard non-parole periods
6.144
The Bill proposes requiring minimum non-parole periods to be fixed in relation to all of the new proposed espionage offences. This is discussed in Chapter 10.
Committee Comment
6.145
As outlined in Chapter 1, the Committee seeks to ensure that each of the measures in the Bill is:
clear and unambiguous in its terms,
proportional and appropriately targeted to the threat, and
6.146
The Committee accepts that there is a pressing need to reform Australia’s espionage laws in order to reflect the full range of malicious conduct that could harm Australia’s national security. The Director-General of Security gave frank evidence that foreign intelligence services can and do adapt how they conduct espionage in Australia so as to exploit gaps in our legal framework. As such, the Committee accepts that it is necessary to ensure that the espionage offences apply to the full range of conduct that those foreign intelligence services, their agencies and their proxies engage in, when seeking to obtain classified, sensitive and privileged information to harm Australia’s interests, and to further the interests of their own country. However, these interests cannot and should not displace the requirement for clarity and proportionality in the law, as outlined above.
6.147
A number of the proposed espionage offences have been drafted broadly, to ensure that they capture the fully array of means by which foreign intelligence services commit espionage in Australia. The Committee accepts that the Government has, in fact, sought to bring greater clarity to the scope of the proposed new espionage offences compared with the existing offences in the Criminal Code. Nevertheless, the breadth of the proposed new offences may come at the cost of the scope of these offences being uncertain. The effect of this uncertainty is particularly acute due to the espionage offences’ intersection with the right to freedom of expression and the implied right of political communication. Imprecise laws may have a broad unintended effect of deterring the democratic communication of political ideas and the operation of a free press, due to fear of prosecution. The gravity of the penalties (life imprisonment and loss of citizenship) may further compound this deterrent effect. This has the potential to go beyond the intention of discouraging malicious insiders and foreign actors from undermining our national security.
6.148
Accordingly, the Committee has made a number of recommendations refining the proposed espionage offences to provide greater certainty and more effectively target the need to protect information that could harm Australia’s national security if disclosed.
6.149
The Committee notes that certain offences proposed in the Bill apply to dealings with information that is either security classified or ‘concerns national security’. The term ‘concerns national security’ is not defined in either the existing Criminal Code or the Bill, however the existing espionage offences in section 91.1 of the Criminal Code include a similar term ‘information concerning the Commonwealth’s security or defence’. Both the existing term, and the proposed new term, cover classified information and ‘official’ Commonwealth Government information, as well as sensitive information derived from other sources. Espionage is not, and has never been, universally concerned with access to ‘official’ or ‘secret’ information. For example, there are countless historical examples of persons committing espionage during wartime by observing the publicly-visible movements of warships and forces, and passing information about those movements to an enemy power. The existing espionage offences in the Criminal Code, and those in the laws of many comparable jurisdictions, do not include such a limit.
6.150
Nevertheless, in seeking to criminalise those who commit espionage by collecting sensitive and privileged, but non-secret information to harm Australia or advance the interests of a foreign power, the Bill has the potential to capture legitimate expressions of opinion or other commentary that concerns national security. In relation to most offences, this risk is diminished by the requirement to demonstrate that the person intended, or was reckless as to whether their conduct would harm Australia’s national security or advantage the national security of a foreign country. There are certain offences in the Bill for which this is not the case, which are addressed separately below. To address the residual risk, the Committee considers that the Bill should be amended to define the term ‘concerns’ national security.
6.151
The Committee recommends that the Bill be amended to define the term ‘concerns’ national security.
6.152
The offences in sections 91.1, 91.2 and 91.3 apply not only to the situation where a person commits espionage by directly communicating information to a foreign principal or a person acting on their behalf, but also to the situation where a person makes the information available to the foreign principal or a person acting on their behalf. The Explanatory Memorandum explains that the concept of making information available is intended to capture scenarios such as a person leaving the information in a letterbox for another person to collect at a later date, or giving the information to an intermediary who will later give the information to its intended recipient.
6.153
A more complex case, which was raised in evidence to the Committee, is the case in which a person publishes information, for example, in a book, journal or online. The Committee is conscious that there are numerous, public examples of exceptionally grave harm being caused by the publication of classified or sensitive information—it is plausible that a person would seek to commit espionage by publishing information, if the law permitted them to escape criminal liability by publishing information.
6.154
The Committee acknowledges concerns raised in evidence that certain classes of people, including academics and human rights groups, often publish information relating to Australia’s political and economic relations with other countries, in particular. The Committee does not agree that such conduct would ordinarily constitute an offence under the Bill. In the unusual case that such a publication did technically satisfy all of the elements of an offence, the Committee is satisfied that the safeguards contained in the Prosecution Policy of the Commonwealth and the Bill would be more than sufficient to prevent an unjust prosecution. In particular, it is unlikely that the Commonwealth Director of Public Prosecutions would consider that prosecuting such a case would be in the public interest. Nor is it likely that the Attorney-General would consent to such a prosecution.
6.155
Nonetheless, some stakeholders have expressed the view that it is unclear whether the term ‘made available’, as used in the espionage offences, would include making information or a document available by way of publishing it. The Committee considers that the term ‘made available’ for the purpose of the espionage offences should be defined in the Bill.
6.156
The Committee recommends that the Bill be amended to define the term ‘made available’ for the purpose of the espionage offences.
6.157
Additionally, the Committee considers that a defence should be available such that ‘making available’ to a foreign principal information that is already in the public domain is not captured by the espionage offences. While the specific drafting of a prior publication defence will require careful consideration, the Committee notes that some of the proposed espionage offences cover similar conduct to the Bill’s secrecy offences. It may therefore be appropriate for the new defence to use similar language to proposed section 122.5(8)—‘Information that has been previously communicated’.
6.158
The Committee recommends that the Bill be amended to introduce a prior publication defence for the proposed espionage offences. The defence should be appropriately drafted to ensure the effectiveness of the provisions whilst protecting freedom of expression and the implied constitutional right to freedom of political communication.
The Bill should further be amended to require that, prior to instituting proceedings to commit a person to trial for an espionage offence, the Attorney-General must consider whether the conduct might be authorised in any of the defences outlined in Division 91.
6.159
As discussed above, a key change proposed by the Bill is the introduction of espionage offences that do not require the offender to intend, or even be reckless as to whether their conduct would or could prejudice Australia’s national security or advantage the national security of a foreign country (proposed sections 91.3 and 91.8(3)). As currently drafted, these offences would apply to any dealing with information or an article that is security classified or ‘concerns national security’, and which makes the information available to a foreign principal (or a person acting on their behalf).
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The Committee notes particular concerns raised in the inquiry about the potential impact of these offences on freedom of expression and political communication. The Committee welcomes the Attorney-General’s proposed amendments to section 91.3, which would narrow the scope of the offence to security classified information and information that is dealt with for the ‘primary purpose’ of making it available to the foreign principal. As discussed in Chapter 3, the Committee also supports the limitation of ‘security classified information’ to classifications of SECRET or above, and the removal of strict liability from this element of the offence.
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The Committee recommends that the Attorney-General’s proposed amendments to narrow the scope of the offence in proposed section 91.3 of the Bill be implemented. This includes requiring that the person dealt with the information for the ‘primary purpose’ of making it available to a foreign principal, limiting the offence to information or articles that have a security classification, and removing strict liability from the offence.
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The Committee notes that proposed sections 91.4 and 91.9 include offence-specific defences for dealings ‘in accordance with a law of the Commonwealth’. While existing espionage offences include the absence of lawful authority as an element of the offence, the defendant will bear the evidential burden for the proposed new defence of ‘in accordance with a law of the Commonwealth’. Existing section 10.5 of the Criminal Code also includes a general defence of ‘lawful authority’, where the conduct constituting an offence is ‘justified or excused by or under a law’. The Explanatory Memorandum currently includes a brief outline of the legal difference between the defences. However, the Committee considers it would assist in clarifying the scope of the new defence if the Explanatory Memorandum provided examples of situations in which conduct would be excused by the offence-specific defences, but would not be excused by the general defence of lawful authority.
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The Committee recommends that the Explanatory Memorandum be amended to clarify the intended scope of the proposed defence in Division 91 for dealings ‘in accordance with a law of the Commonwealth’. The Explanatory Memorandum should provide examples of situations in which conduct would be excused by the specific defence, but not the general defence of lawful authority available under section 10.5 of the Criminal Code.
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In Chapter 4, the Committee recommended limiting the aggravating factor for the proposed secrecy offences to clearances of Negative Vetting 1 (or equivalent) and above. Negative Vetting 1 is the minimum clearance that enables a person to access SECRET classified material, which, under the Attorney-General’s proposed amendments, is the minimum level required for information to be considered having a ‘security classification’ under the espionage offences. Accordingly, the Committee considers that the aggravating factor for the espionage offences should also be limited to persons holding a clearance of Negative Vetting 1 (or equivalent) and above.
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The Committee recommends that the Bill be amended to limit the aggravating factor at subparagraph 91.6(1)(b)(v), in relation to the proposed espionage offences, to persons holding an Australian Government security clearance that allows the person to access information with a classification of SECRET or above.
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The Committee notes the concerns raised by the Law Council of Australia and other submitters regarding the introduction of the offence of preparing for an espionage offence, which displaces the law of attempt. The inclusion of preparatory offences in the Bill is discussed in general terms in Chapter 3. In the case of section 91.12, however, the Committee accepts the need for an offence that enables authorities to intervene before a serious espionage offence has been committed. The Committee accepts that existing provisions in the Criminal Code may not allow for this in all circumstances.
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As discussed above, the Statement of Compatibility with Human Rights in the Explanatory Memorandum does not address whether the right to freedom of expression would be restricted by the proposed espionage offences. The Statement’s consideration in this regard is limited to inciting mutiny and secrecy offences. Noting the significant concerns raised by participants about the potential impact of the proposed espionage offences on freedom of expression, the Committee recommends that the Statement of Compatibility with Human Rights be updated to explicitly address this matter.
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The Committee recommends that the Explanatory Memorandum be amended so that the Statement of Compatibility with Human Rights explicitly addresses the limitation to the right to freedom of expression imposed by the espionage offences.