(i) directly or indirectly receives or obtains funds from, or directly or indirectly makes funds available to, an organisation or a person acting on behalf of an organisation; or
(ii) directly or indirectly collects funds for or on behalf of an organisation or a person acting on behalf of an organisation; and
(b) the person knows that the organisation is a foreign intelligence agency.
Note: An alternative verdict may be available for an offence against this section (see section 93.5).
Penalty: Imprisonment for 15 years.
92.10 Recklessly funding or being funded by foreign intelligence agency
A person commits an offence if:
(a) the person:
(i) directly or indirectly receives or obtains funds from, or directly or indirectly makes funds available to, an organisation or a person acting on behalf of an organisation; or
(ii) directly or indirectly collects funds for or on behalf of an organisation or a person acting on behalf of an organisation; and
(b) the organisation is a foreign intelligence agency.
Penalty: Imprisonment for 10 years.
92.11 Defence
It is a defence to a prosecution for an offence by a person against this Subdivision that the person engaged in the conduct:
(a) in accordance with a law of the Commonwealth; or
(b) in accordance with an arrangement or agreement to which the Commonwealth is party; or
(c) in the person’s capacity as a public official.
Note: A defendant bears an evidential burden in relation to the matters in this section (see subsection 13.3(3)).
Division 92A—Theft of trade secrets involving foreign government principal
92A.1 Theft of trade secrets involving foreign government principal
(1) A person commits an offence if:
(a) the person dishonestly receives, obtains, takes, copies or duplicates, sells, buys or discloses information; and
(b) all of the following circumstances exist:
(i) the information is not generally known in trade or business, or in the particular trade or business concerned;
(ii) the information has a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were communicated;
(iii) the owner of the information has made reasonable efforts in the circumstances to prevent the information becoming generally known; and
(c) any of the following circumstances exists:
(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign government principal or a person acting on behalf of a foreign government principal;
(ii) the conduct is directed, funded or supervised by a foreign government principal or a person acting on behalf of a foreign government principal.
Penalty: Imprisonment for 15 years.
(2) For the purposes of paragraph (1)(a), dishonest means:
(a) dishonest according to the standards of ordinary people; and
(b) known by the defendant to be dishonest according to the standards of ordinary people.
(3) In a prosecution for an offence against this section, the determination of dishonesty is a matter for the trier of fact.
(4) For the purposes of paragraph (1)(c):
(a) the person does not need to have in mind a particular foreign government principal; and
(b) the person may have in mind more than one foreign government principal.
92A.2 Geographical jurisdiction
(1) Section 15.2 (extended geographical jurisdiction—category B) applies to an offence against section 92A.1.
(2) However, subsections 15.2(2) and 15.2(4) (defences for primary and ancillary offences) do not apply.
Division 93—Prosecutions and hearings
93.1 Consent of Attorney‑General required for prosecutions
(1) Proceedings for the commitment of a person for trial for an offence against this Part must not be instituted without:
(a) the written consent of the Attorney‑General; and
(b) for proceedings that relate to information or an article that has a security classification—a certification by the Attorney‑General that, at the time of the conduct that is alleged to constitute the offence, it was appropriate that the information or article had a security classification.
(2) However, the following steps may be taken (but no further steps in proceedings may be taken) without consent or certification having been obtained:
(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:
(a) for an offence against Subdivision A of Division 91 (espionage)—in a way mentioned in section 91.4; and
(b) for an offence against Subdivision B of Division 91 (espionage on behalf of foreign principal)—in a way mentioned in section 91.9; and
(c) for an offence against Subdivision B of Division 92 (foreign interference)—in a way mentioned in section 92.5; and
(d) for an offence against Subdivision C of Division 92 (foreign interference involving foreign intelligence agencies)—in a way mentioned in section 92.11.
93.2 Hearing in camera etc.
(1) This section applies to a hearing of an application or other proceedings before a federal court, a court exercising federal jurisdiction or a court of a Territory, whether under this Act or otherwise.
(2) At any time before or during the hearing, the judge or magistrate, or other person presiding or competent to preside over the proceedings, may, if satisfied that it is in the interests of Australia’s national security:
(a) order that some or all of the members of the public be excluded during the whole or a part of the hearing; or
(b) order that no report of the whole or a specified part of, or relating to, the application or proceedings be published; or
(c) make such order and give such directions as he or she thinks necessary for ensuring that no person, without the approval of the court, has access (whether before, during or after the hearing) to any affidavit, exhibit, information or other document used in the application or the proceedings that is on the file in the court or in the records of the court.
(3) A person commits an offence if the person contravenes an order made or direction given under this section.
Penalty: Imprisonment for 5 years.
93.4 Fault elements for attempted espionage offences
Despite subsection 11.1(3), the fault element, in relation to each physical element of an offence of attempting to commit an offence against a provision of:
(a) Subdivision A of Division 91 (espionage); or
(b) Subdivision B of Division 91 (espionage on behalf of foreign principal);
is the fault element in relation to that physical element of the offence against the provision of Subdivision A or B of Division 91.
93.5 Alternative verdicts
(1) If, on a trial of a person for an offence specified in column 1 of an item in the following table, the trier of fact:
(a) is not satisfied that the person is guilty of that offence; and
(b) is satisfied beyond reasonable doubt that the person is guilty of an offence against a provision specified in column 2 of that item;
it may find the person not guilty of the offence specified in column 1 but guilty of the offence specified in column 2.
Alternative verdicts
Item Column 1 For an offence against: Column 2 The alternative verdict is an offence against:
1 subsection 91.1(1) subsection 91.1(2)
2 subsection 91.2(1) subsection 91.2(2)
3 subsection 91.6(1) the underlying offence mentioned in paragraph 91.6(1)(a)
4 subsection 91.8(1) subsection 91.8(2)
5 subsection 92.2(1) subsection 92.3(1)
6 subsection 92.2(2) subsection 92.3(2)
7 section 92.7 section 92.8
8 section 92.9 section 92.10
(2) Subsection (1) only applies if the person has been accorded procedural fairness in relation to the finding of guilt for the offence specified in column 2.
Division 94—Forfeiture
94.1 Forfeiture of articles etc.
A sketch, article, record or document which is dealt with in contravention of this Part is forfeited to the Commonwealth.
Part 5.3—Terrorism
Division 100—Preliminary
100.1 Definitions
(1) In this Part:
AFP member means:
(a) a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); or
(b) a special member of the Australian Federal Police (within the meaning of that Act).
AFP Minister means the Minister administering the Australian Federal Police Act 1979.
ASIO affiliate has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
ASIO employee has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
Commonwealth place has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970.
confirmed control order means an order made under section 104.16.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
continued preventative detention order means an order made under section 105.12.
control order means an interim control order or a confirmed control order.
corresponding State preventative detention law means a law of a State or Territory that is, or particular provisions of a law of a State or Territory that are, declared by the regulations to correspond to Division 105 of this Act.
detained in custody has the meaning given by subsection (3A).
detained in custody in a prison has the meaning given by subsection (3B).
detained in non‑prison custody has the meaning given by subsection (3C).
engage in a hostile activity has the meaning given by subsection 117.1(1).
exemption condition:
(a) in relation to a control order—has the meaning given by subsection 104.5B(2); or
(b) in relation to an extended supervision order or an interim supervision order—has the meaning given by subsection 105A.7C(2).
express amendment of the provisions of this Part or Chapter 2 means the direct amendment of the provisions (whether by the insertion, omission, repeal, substitution or relocation of words or matter).
frisk search means:
(a) a search of a person conducted by quickly running the hands over the person’s outer garments; and
(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.
funds means:
(a) property and assets of every kind, whether tangible or intangible, movable or immovable, however acquired; and
(b) legal documents or instruments in any form, including electronic or digital, evidencing title to, or interest in, such property or assets, including, but not limited to, bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds, debt instruments, drafts and letters of credit.
identification material, in relation to a person, means prints of the person’s hands, fingers, feet or toes, recordings of the person’s voice, samples of the person’s handwriting or photographs (including video recordings) of the person, but does not include tape recordings made for the purposes of section 23U or 23V of the Crimes Act 1914.
immigration detention has the same meaning as in the Migration Act 1958.
initial preventative detention order means an order made under section 105.8.
interim control order means an order made under section 104.4, 104.7 or 104.9.
interim post‑sentence order has the meaning given by section 105A.2.
issuing authority:
(a) for initial preventative detention orders—means a senior AFP member; and
(b) for continued preventative detention orders—means a person appointed under section 105.2.
issuing court means the Federal Court of Australia.
lawyer means a person enrolled as a legal practitioner of a federal court or the Supreme Court of a State or Territory.
listed terrorist organisation means an organisation that is specified by the regulations for the purposes of paragraph (b) of the definition of terrorist organisation in section 102.1.
monitoring device means any electronic device capable of being used to determine or monitor the location of a person or an object or the status of an object.
Note: See also the definition of related monitoring equipment in this subsection.
ordinary search means a search of a person or of articles in the possession of a person that may include:
(a) requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes or hat; and
(b) an examination of those items.
organisation means a body corporate or an unincorporated body, whether or not the body:
(a) is based outside Australia; or
(b) consists of persons who are not Australian citizens; or
(c) is part of a larger organisation.
personal information has the same meaning as in the Privacy Act 1988.
police officer means:
(a) an AFP member; or
(b) a member (however described) of a police force of a State or Territory.
post‑sentence order has the meaning given by section 105A.2.
prescribed authority has the same meaning as in Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979.
preventative detention order means an order under section 105.8 or 105.12.
prohibited contact order means an order made under section 105.15 or 105.16.
referring State has the meaning given by section 100.2.
related monitoring equipment, in relation to a monitoring device, means any electronic equipment necessary for operating the monitoring device.
reside includes reside temporarily.
residence includes temporary residence.
seizable item means anything that:
(a) would present a danger to a person; or
(b) could be used to assist a person to escape from lawful custody; or
(c) could be used to contact another person or to operate a device remotely.
senior AFP member means:
(a) the Commissioner of the Australian Federal Police; or
(b) a Deputy Commissioner of the Australian Federal Police; or
(c) an AFP member of, or above, the rank of Superintendent.
specified authority: a person, or person in a class of persons, is a specified authority for a requirement or condition in a control order, an extended supervision order or interim supervision order in relation to another person (the subject) if:
(a) the person or class is any of the following:
(i) a police officer, or class of police officer;
(ii) if the requirement or condition relates to electronic monitoring—a person, or class of person, who is involved in electronically monitoring the subject;
(iii) for any requirement or condition in the order—any other person, or class of person; and
(b) the Court making the order is satisfied that the person or class is appropriate in relation to the requirement or condition; and
(c) the person or class is specified in the order.
superior court means:
(a) the High Court; or
(b) the Federal Court of Australia; or
(d) the Supreme Court of a State or Territory; or
(e) the District Court (or equivalent) of a State or Territory.
terrorist act means an action or threat of action where:
(a) the action falls within subsection (2) and does not fall within subsection (3); and
(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and
(c) the action is done or the threat is made with the intention of:
(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
(ii) intimidating the public or a section of the public.
Elements of the definition of terrorist act
(2) Action falls within this subsection if it:
(a) causes serious harm that is physical harm to a person; or
(b) causes serious damage to property; or
(c) causes a person’s death; or
(d) endangers a person’s life, other than the life of the person taking the action; or
(e) creates a serious risk to the health or safety of the public or a section of the public; or
(f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:
(i) an information system; or
(ii) a telecommunications system; or
(iii) a financial system; or
(iv) a system used for the delivery of essential government services; or
(v) a system used for, or by, an essential public utility; or
(vi) a system used for, or by, a transport system.
(3) Action falls within this subsection if it:
(a) is advocacy, protest, dissent or industrial action; and
(b) is not intended:
(i) to cause serious harm that is physical harm to a person; or
(ii) to cause a person’s death; or
(iii) to endanger the life of a person, other than the person taking the action; or
(iv) to create a serious risk to the health or safety of the public or a section of the public.
Definition of detained in custody etc.
(3A) A person is detained in custody if the person is detained in custody under a law of the Commonwealth, a State or a Territory.
(3B) A person is detained in custody in a prison if the person is detained in custody in a gaol, lock‑up or remand centre, including under a continuing detention order or interim detention order. However, a person is not detained in custody in a prison if the person is in immigration detention in a gaol, lock‑up or remand centre.
(3C) A person is detained in non‑prison custody if the person is detained in custody, but is not detained in custody in a prison.
Note: An example of a person who is detained in non‑prison custody is a person who is in immigration detention (whether in a gaol, lock‑up, remand centre or otherwise).
References to person, property or public
(4) In this Division:
(a) a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia; and
(b) a reference to the public includes a reference to the public of a country other than Australia.