(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; and
(c) in relation to public infrastructure within the meaning of paragraph (1)(f)—to the element that the food is produced, distributed or sold by a constitutional corporation or for the purposes of, or in the course of, constitutional trade and commerce.
82.2A Expressions also used in the Australian Security Intelligence Organisation Act 1979
The meaning of an expression in this Division does not affect the meaning of that expression in the Australian Security Intelligence Organisation Act 1979, unless that Act expressly provides otherwise.
Subdivision B—Offences
82.3 Offence of sabotage involving foreign principal with intention as to national security
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in damage to public infrastructure; and
(c) the person intends that the conduct will:
(i) prejudice Australia’s national security; or
(ii) advantage the national security of a foreign country; and
(d) any of the following circumstances exists:
(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;
(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.
Penalty: Imprisonment for 25 years.
(2) For the purposes of subparagraph (1)(c)(ii), the person:
(a) does not need to have in mind a particular foreign country; and
(b) may have in mind more than one foreign country.
(3) For the purposes of paragraph (1)(d), the person:
(a) does not need to have in mind a particular foreign principal; and
(b) may have in mind more than one foreign principal.
Note: An alternative verdict may be available for an offence against this section (see section 82.12).
82.4 Offence of sabotage involving foreign principal reckless as to national security
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in damage to public infrastructure; and
(c) the person is reckless as to whether the conduct will:
(i) prejudice Australia’s national security; or
(ii) advantage the national security of a foreign country; and
(d) any of the following circumstances exists:
(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;
(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.
Penalty: Imprisonment for 20 years.
(2) For the purposes of subparagraph (1)(c)(ii), the person:
(a) does not need to have in mind a particular foreign country; and
(b) may have in mind more than one foreign country.
(3) For the purposes of paragraph (1)(d), the person:
(a) does not need to have in mind a particular foreign principal; and
(b) may have in mind more than one foreign principal.
Note: An alternative verdict may be available for an offence against this section (see section 82.12).
82.5 Offence of sabotage with intention as to national security
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in damage to public infrastructure; and
(c) the person intends that the conduct will:
(i) prejudice Australia’s national security; or
(ii) advantage the national security of a foreign country.
Penalty: Imprisonment for 20 years.
(2) For the purposes of subparagraph (1)(c)(ii), the person:
(a) does not need to have in mind a particular foreign country; and
(b) may have in mind more than one foreign country.
Note: An alternative verdict may be available for an offence against this section (see section 82.12).
82.6 Offence of sabotage reckless as to national security
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in damage to public infrastructure; and
(c) the person is reckless as to whether the conduct will:
(i) prejudice Australia’s national security; or
(ii) advantage the national security of a foreign country.
Penalty: Imprisonment for 15 years.
(2) For the purposes of paragraph (1)(c), the person:
(a) does not need to have in mind a particular foreign country; and
(b) may have in mind more than one foreign country.
82.7 Offence of introducing vulnerability with intention as to national security
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct has the result that an article or thing, or software, becomes vulnerable:
(i) to misuse or impairment; or
(ii) to being accessed or modified by a person not entitled to access or modify it; and
(c) the article or thing, or software, is or is part of public infrastructure; and
(d) the person engages in the conduct with the intention that prejudice to Australia’s national security will occur (whether at the time or at a future time).
Note: An alternative verdict may be available for an offence against this section (see section 82.12).
Penalty: Imprisonment for 15 years.
82.8 Offence of introducing vulnerability reckless as to national security
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct has the result that an article or thing, or software, becomes vulnerable:
(i) to misuse or impairment; or
(ii) to being accessed or modified by a person not entitled to access or modify it; and
(c) the article or thing, or software, is or is part of public infrastructure; and
(d) the person engages in the conduct reckless as to whether prejudice to Australia’s national security will occur (whether at the time or at a future time).
Penalty: Imprisonment for 10 years.
82.9 Preparing for or planning sabotage offence
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person does so with the intention of preparing for, or planning, an offence against this Division (other than this section).
Penalty: Imprisonment for 7 years.
(2) Section 11.1 (attempt) does not apply to an offence against subsection (1).
(3) Subsection (1) applies:
(a) whether or not an offence against this Division is committed; and
(b) whether or not the person engages in the conduct in preparation for, or planning, a specific offence against a provision of this Division; and
(c) whether or not the person engages in the conduct in preparation for, or planning, more than one offence against this Division.
82.10 Defences
(1) It is a defence to a prosecution for an offence by a person against this Division if:
(a) the person is, at the time of the offence, a public official; and
(b) the person engaged in the conduct in good faith in the course of performing duties as a public official; and
(c) the conduct is reasonable in the circumstances for the purpose of performing those duties.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).
(2) It is a defence to a prosecution for an offence by a person against this Division if:
(a) the person is, at the time of the offence:
(i) an owner or operator of the public infrastructure; or
(ii) acting on behalf of, or with the consent of, an owner or operator of the public infrastructure; and
(b) the person engaged in the conduct in good faith; and
(c) the conduct is within the lawful authority of the owner or operator; and
(d) the conduct is reasonable in the circumstances for the purpose of exercising that lawful authority.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).
82.11 Geographical jurisdiction
Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Division.
82.12 Alternative verdicts
(1) If, on a trial of a person for an offence specified in column 1 of an item in the following table, the trier of fact:
(a) is not satisfied that the person is guilty of that offence; and
(b) is satisfied beyond reasonable doubt that the person is guilty of an offence against a provision specified in column 2 of that item;
it may find the person not guilty of the offence specified in column 1 but guilty of an offence specified in column 2.
Alternative verdicts
Item Column 1 For an offence against: Column 2 The alternative verdict is an offence against:
1 section 82.3 (sabotage involving foreign principal with intention as to national security) any of the following:(a) section 82.4 (sabotage involving foreign principal reckless as to national security);(b) section 82.5 (sabotage with intention as to national security);(c) section 82.6 (sabotage reckless as to national security)
2 section 82.4 (sabotage involving foreign principal reckless as to national security) section 82.6 (sabotage reckless as to national security)
3 section 82.5 (sabotage with intention as to national security) section 82.6 (sabotage reckless as to national security)
4 section 82.7 (introducing vulnerability with intention as to national security) section 82.8 (introducing vulnerability reckless as to national security)
(2) Subsection (1) only applies if the person has been accorded procedural fairness in relation to the finding of guilt for the offence specified in column 2.
82.13 Consent of Attorney‑General required for prosecutions
(1) Proceedings for the commitment of a person for trial for an offence against this Division must not be instituted without the written consent of the Attorney‑General.
(2) However, the following steps may be taken (but no further steps in proceedings may be taken) without consent having been given:
(a) a person may be arrested for the offence and a warrant for such an arrest may be issued and executed;
(b) a person may be charged with the offence;
(c) a person so charged may be remanded in custody or on bail.
(3) Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time.
(4) In deciding whether to consent, the Attorney‑General must consider whether the conduct might be authorised by section 82.10.
Division 83—Other threats to security
83.1A Expressions also used in the Australian Security Intelligence Organisation Act 1979
The meaning of an expression in this Division does not affect the meaning of that expression in the Australian Security Intelligence Organisation Act 1979, unless that Act expressly provides otherwise.
83.1 Advocating mutiny
(1) A person (the advocate) commits an offence if:
(a) the advocate engages in conduct; and
(b) the conduct involves advocating mutiny; and
(c) the advocate engages in the conduct reckless as to whether the result will be that a defence member (within the meaning of the Defence Force Discipline Act 1982) will take part in a mutiny; and
(d) at the time the advocate engages in the conduct:
(i) the advocate knows that the advocate is an Australian citizen or a resident of Australia; or
(ii) the advocate knows that the advocate has voluntarily put himself or herself under the protection of the Commonwealth; or
(iii) the advocate is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Note: The defence in section 80.3 for acts done in good faith applies to this offence.
Penalty: Imprisonment for 7 years.
(1A) For the purposes of this section:
(a) a person advocates mutiny if the person counsels, promotes, encourages or urges mutiny; and
(b) a reference to advocating mutiny includes a reference to:
(i) advocating mutiny even if mutiny does not occur; and
(ii) advocating a specific mutiny; and
(iii) advocating more than one mutiny.
(2) A mutiny is a combination between persons who are, or at least 2 of whom are, members of the Australian Defence Force:
(a) to overthrow lawful authority in the Australian Defence Force or in a force of another country that is acting in cooperation with the Australian Defence Force; or
(b) to resist such lawful authority in such a manner as to substantially prejudice the operational efficiency of the Australian Defence Force or of, or of a part of, a force of another country that is acting in cooperation with the Australian Defence Force.
(3) Strict liability applies to subparagraph (1)(d)(iii).
(4) Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this section.
83.2 Assisting prisoners of war to escape
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct assists one or more prisoners of war (within the meaning of Article 4 of the Third Geneva Convention) to escape from custody; and
(c) the custody is controlled wholly or partly by the Commonwealth or the Australian Defence Force; and
(d) the conduct takes place in the context of an international armed conflict.
Penalty: Imprisonment for 15 years.
(2) Absolute liability applies to paragraph (1)(d).
(3) Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this section.
83.3 Military‑style training involving foreign government principal etc.
Offence in relation to military‑style training
(1) A person commits an offence if:
(a) the person provides, receives, or participates in, training; and
(b) the training involves using arms or practising military exercises, movements or evolutions; and
(c) any of the following circumstances exists:
(i) the training is provided on behalf of a foreign government principal within the meaning of Part 5.2 (see section 90.3) or a foreign political organisation within the meaning of that Part (see section 90.1);
(ii) the training is directed, funded or supervised by a foreign government principal or foreign political organisation, or a person acting on behalf of a foreign government principal or foreign political organisation.
Penalty: Imprisonment for 20 years.
Defence—foreign work authorisation under the Defence Act 1903
(1A) Subsection (1) does not apply to an individual in relation to conduct engaged in by the individual as part of work (within the meaning of Part IXAA of the Defence Act 1903) or training (within the meaning of that Part) that is authorised by a foreign work authorisation granted to the individual under section 115C of that Act and that is in force at the time the individual engages in the conduct.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).
Defence—class of individuals who are not foreign work restricted individuals
(1B) Subsection (1) does not apply to an individual if:
(a) the individual provides training (within the meaning of Part IXAA of the Defence Act 1903); and
(b) the individual is included in a class of individuals covered by an instrument in force under subsection 115(1) of that Act at the time the individual provides the training; and
(c) neither of the following apply:
(i) the training relates to goods, software or technology within the scope of Part 1 of the Defence and Strategic Goods List (within the meaning of the Defence Trade Controls Act 2012);
(ii) the training relates to military tactics, military techniques or military procedures; and
(d) the training is provided to, or on behalf of:
(i) a government body (within the meaning of Part IXAA of the Defence Act 1903) of a foreign country; or
(ii) a military organisation (within the meaning of Part IXAA of the Defence Act 1903) of a foreign country; and
(e) the foreign country is a relevant foreign country (within the meaning of Part IXAA of the Defence Act 1903).
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).
Defences—countries that are not relevant foreign countries
(1C) Subsection (1) does not apply to an individual if:
(a) the individual is a foreign work restricted individual (within the meaning of Part IXAA of the Defence Act 1903); and
(b) the individual provides training (within the meaning of that Part); and
(c) the training is provided to, or on behalf of:
(i) a government body (within the meaning of that Part) of a foreign country; or
(ii) a military organisation (within the meaning of that Part) of a foreign country; and
(d) the foreign country is covered by an instrument in force under subsection 115(3) of that Act at the time the individual provides the training.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).
(1D) Subsection (1) does not apply to an individual if:
(a) the individual is not a foreign work restricted individual (within the meaning of Part IXAA of the Defence Act 1903); and
(b) the individual is:
(i) an Australian citizen; or
(ii) a permanent resident of Australia (within the meaning of that Part); and
(c) the individual provides training (within the meaning of that Part); and
(d) either:
(i) the training relates to goods, software or technology within the scope of Part 1 of the Defence and Strategic Goods List (within the meaning of the Defence Trade Controls Act 2012); or
(ii) the training relates to military tactics, military techniques or military procedures; and