(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
(f) the foreign country is covered by an instrument in force under subsection 115(3) of the Defence Act 1903 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)).
Defence—authorised by written agreement
(2) Subsection (1) does not apply to a person in relation to conduct engaged in by the person that is authorised by a written agreement to which the Commonwealth is a party.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).
Defence—solely for service with armed force
(3) Subsection (1) does not apply in relation to training a person provides, receives or participates in, if the provision, receipt or participation is solely in the course of, and as part of, the person’s service in any capacity in or with:
(a) the armed forces of the government of a foreign country; or
(b) any other armed force, if a declaration under subsection 119.8(1) covers the person and the circumstances of the person’s service in or with the force.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).
Exception to subsection (1B) or (3)—terrorist organisation
(4) Subsection (1B) or (3) does not apply if:
(a) at the time the person engages in the conduct:
(i) the person is in or with an organisation or entity; or
(ii) the training is funded partly by an organisation or entity; and
(b) the organisation or entity is a prescribed organisation within the meaning of Part 5.5 (see section 117.1).
Defence—humanitarian assistance etc.
(4A) Subsection (1) does not apply to a person in relation to conduct engaged in by the person solely or primarily for one or more of the following purposes:
(a) providing aid of a humanitarian nature;
(b) performing an official duty for:
(i) the United Nations or an agency of the United Nations; or
(ii) the International Committee of the Red Cross.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).
Geographical jurisdiction
(5) Section 15.2 (extended geographical jurisdiction—category B) applies to an offence against this section.
83.4 Interference with political rights and duties
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct involves the use of force or violence, or intimidation, or the making of threats of any kind; and
(c) the conduct results in interference with the exercise or performance, in Australia by any other person, of an Australian democratic or political right or duty; and
(d) the right or duty arises under the Constitution or a law of the Commonwealth.
Note: The defence in section 80.3 for acts done in good faith applies to this offence.
Penalty: Imprisonment for 3 years.
(2) Absolute liability applies to paragraph (1)(d).
83.5 Consent of Attorney‑General required for prosecutions
(1) Proceedings for the commitment of a person for trial for an offence against this Division must not be instituted without the written consent of the Attorney‑General.
(2) However, the following steps may be taken (but no further steps in proceedings may be taken) without consent having been given:
(a) a person may be arrested for the offence and a warrant for such an arrest may be issued and executed;
(b) a person may be charged with the offence;
(c) a person so charged may be remanded in custody or on bail.
(3) Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time.
(4) In deciding whether to consent, the Attorney‑General must consider whether the conduct might be authorised in a way mentioned in:
(a) for an offence against section 83.3—subsection 83.3(1A), (1B), (1C), (1D), (2), (3) or (4A); and
(b) for an offence against section 83.1 or 83.4—section 80.3.
Part 5.2—Espionage and related offences
Division 90—Preliminary
90.1 Definitions
(1) In this Part:
advantage: conduct will not advantage the national security of a foreign country if the conduct will advantage Australia’s national security to an equivalent extent.
article includes any thing, substance or material.
concerns: information or an article concerns Australia’s national security if the information or article relates to, or is connected with, or is of interest or importance to, or affects, Australia’s national security.
deal: a person deals with information or an article if the person does any of the following in relation to the information or article:
(a) receives or obtains it;
(b) collects it;
(c) possesses it;
(d) makes a record of it;
(e) copies it;
(f) alters it;
(g) conceals it;
(h) communicates it;
(i) publishes it;
(j) makes it available.
Note: See also the definition of make available in this subsection and subsection (2).
foreign government principal has the meaning given by section 90.3.
foreign political organisation includes:
(a) a foreign political party; and
(b) a foreign organisation that exists primarily to pursue political objectives; and
(c) a foreign organisation that exists to pursue militant, extremist or revolutionary objectives.
foreign principal has the meaning given by section 90.2.
information means information of any kind, whether true or false and whether in a material form or not, and includes:
(a) an opinion; and
(b) a report of a conversation.
make available information or an article includes:
(a) place it somewhere it can be accessed by another person; and
(b) give it to an intermediary to give to the intended recipient; and
(c) describe how to obtain access to it, or describe methods that are likely to facilitate access to it (for example, set out the name of a website, an IP address, a URL, a password, or the name of a newsgroup).
national security has the meaning given by section 90.4.
prejudice: embarrassment alone is not sufficient to prejudice Australia’s national security.
record, in relation to information, means a record of information in any form, including but not limited to, a document, paper, database, software system or other article or system containing information or from which information can be derived.
security classification has the meaning given by section 90.5.
sketch includes a representation of a place or thing.
(2) In this Part, dealing with information or an article includes:
(a) dealing with all or part of the information or article; and
(b) dealing only with the substance, effect or description of the information or article.
(4) This Part applies to and in relation to a document or article regardless of who made it and what information it contains.
90.2 Definition of foreign principal
Each of the following is a foreign principal:
(a) a foreign government principal;
(aa) a foreign political organisation;
(b) a public international organisation within the meaning of Division 70 (see section 70.1);
(c) a terrorist organisation within the meaning of Division 102 (see section 102.1);
(d) an entity or organisation owned, directed or controlled by a foreign principal within the meaning of paragraph (aa), (b) or (c);
(e) an entity or organisation owned, directed or controlled by 2 or more foreign principals within the meaning of paragraph (a), (aa), (b) or (c).
90.3 Definition of foreign government principal
Each of the following is a foreign government principal:
(a) the government of a foreign country or of part of a foreign country;
(b) an authority of the government of a foreign country;
(c) an authority of the government of part of a foreign country;
(d) a foreign local government body or foreign regional government body;
(e) a company to which any of the subparagraphs of paragraph (a) of the definition of foreign public enterprise in section 70.1 applies;
(f) a body or association to which either of the subparagraphs of paragraph (b) of the definition of foreign public enterprise in section 70.1 applies;
(h) an entity or organisation owned, directed or controlled:
(i) by a foreign government principal within the meaning of any other paragraph of this definition; or
(ii) by 2 or more such foreign government principals that are foreign government principals in relation to the same foreign country.
90.4 Definition of national security
(1) The national security of Australia or a foreign country means any of the following:
(a) the defence of the country;
(b) the protection of the country or any part of it, or the people of the country or any part of it, from activities covered by subsection (2);
(c) the protection of the integrity of the country’s territory and borders from serious threats;
(d) the carrying out of the country’s responsibilities to any other country in relation to the matter mentioned in paragraph (c) or an activity covered by subsection (2);
(e) the country’s political, military or economic relations with another country or other countries.
(2) For the purposes of subsection (1), this subsection covers the following activities relating to a country, whether or not directed from, or committed within, the country:
(a) espionage;
(b) sabotage;
(c) terrorism;
(d) political violence;
(e) activities intended and likely to obstruct, hinder or interfere with the performance by the country’s defence force of its functions or with the carrying out of other activities by or for the country for the purposes of its defence or safety;
(f) foreign interference.
90.5 Definition of security classification
(1) Security classification means:
(a) a classification of secret or top secret that is applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying information:
(i) for a classification of secret—that, if disclosed in an unauthorised manner, could be expected to cause serious damage to the national interest, organisations or individuals; or
(ii) for a classification of top secret—that, if disclosed in an unauthorised manner, could be expected to cause exceptionally grave damage to the national interest; or
(b) any equivalent classification or marking prescribed by the regulations.
(1A) For the purposes of a reference, in an element of an offence in this Part, to security classification, strict liability applies to the element that:
(a) a classification is applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying the information mentioned in subparagraph (1)(a)(i) or (ii); or
(b) a classification or marking is prescribed by the regulations as mentioned in paragraph (1)(b).
(2) Before the Governor‑General makes regulations for the purposes of subsection (1), the Minister must be satisfied that the regulations are not inconsistent with the policy framework mentioned in paragraph (1)(a).
(3) Despite subsection 14(2) of the Legislation Act 2003, regulations made for the purposes of subsection (1) of this section may prescribe a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time, if the instrument or other writing is publicly available.
90.6 Expressions also used in the Australian Security Intelligence Organisation Act 1979
The meaning of an expression in this Part does not affect the meaning of that expression in the Australian Security Intelligence Organisation Act 1979, unless that Act expressly provides otherwise.
Division 91—Espionage
Subdivision A—Espionage
91.1 Espionage—dealing with information etc. concerning national security which is or will be communicated or made available to foreign principal
Intention as to national security
(1) A person commits an offence if:
(a) the person deals with information or an article; and
(b) the information or article:
(i) has a security classification; or
(ii) concerns Australia’s national security; and
(c) the person intends that the person’s conduct will:
(i) prejudice Australia’s national security; or
(ii) advantage the national security of a foreign country; and
(d) the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal.
Note: An alternative verdict may be available for an offence against this subsection (see section 93.5).
Penalty: Imprisonment for life.
Reckless as to national security
(2) A person commits an offence if:
(a) the person deals with information or an article; and
(b) the information or article:
(i) has a security classification; or
(ii) concerns Australia’s national security; and
(c) the person is reckless as to whether the person’s conduct will:
(i) prejudice Australia’s national security; or
(ii) advantage the national security of a foreign country; and
(d) the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal.
Penalty: Imprisonment for 25 years.
Other matters
(4) For the purposes of subparagraphs (1)(c)(ii) and (2)(c)(ii), the person:
(a) does not need to have in mind a particular foreign country; and
(b) may have in mind more than one foreign country.
(5) For the purposes of paragraphs (1)(d) and (2)(d), the person:
(a) does not need to have in mind a particular foreign principal; and
(b) may have in mind more than one foreign principal.
91.2 Espionage—dealing with information etc. which is or will be communicated or made available to foreign principal
Intention as to national security
(1) A person commits an offence if:
(a) the person deals with information or an article; and
(b) the person intends that the person’s conduct will prejudice Australia’s national security; and
(c) the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal.
Note: An alternative verdict may be available for an offence against this subsection (see section 93.5).
Penalty: Imprisonment for 25 years.
Reckless as to national security
(2) A person commits an offence if:
(a) the person deals with information or an article; and
(b) the person is reckless as to whether the person’s conduct will prejudice Australia’s national security; and
(c) the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal.
Penalty: Imprisonment for 20 years.
Other matters
(3) For the purposes of paragraphs (1)(c) and (2)(c):
(a) the person does not need to have in mind a particular foreign principal; and
(b) the person may have in mind more than one foreign principal.
91.3 Espionage—security classified information etc.
(1) A person commits an offence if:
(a) the person deals with information or an article; and
(aa) the person deals with the information or article for the primary purpose of communicating the information or article, or making it available, to a foreign principal or a person acting on behalf of a foreign principal; and
(b) the person’s conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal; and
(c) the information or article has a security classification.
Penalty: Imprisonment for 20 years.
(2) For the purposes of paragraphs (1)(aa) and (b):
(a) the person does not need to have in mind a particular foreign principal; and
(b) the person may have in mind more than one foreign principal.
(3) Strict liability applies to paragraph (1)(aa).
91.4 Defences
(1) It is a defence to a prosecution for an offence by a person against this Subdivision that the person dealt with the information or article:
(a) in accordance with a law of the Commonwealth; or
(b) in accordance with an arrangement or agreement to which the Commonwealth is party and which allows for the exchange of information or articles; or
(c) in the person’s capacity as a public official.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).
(2) It is a defence to a prosecution for an offence by a person against this Subdivision that the information or article the person deals with is information or an article that has already been communicated or made available to the public with the authority of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
(3) It is a defence to a prosecution for an offence by a person against section 91.1, in which the prosecution relies on subparagraph 91.1(1)(c)(ii) or (2)(c)(ii), or against section 91.3, if:
(a) the person did not make or obtain the information or article by reason of any of the following:
(i) the person being, or having been, a Commonwealth officer (within the meaning of Part 5.6);
(ii) the person being otherwise engaged to perform work for a Commonwealth entity;
(iii) an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information; and
(b) the information or article has already been communicated, or made available, to the public (the prior publication); and
(c) the person was not involved in the prior publication (whether directly or indirectly); and