Guide In Brief: Clarifying the Concept of “Partnership” in National Security

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More significantly, the new offence of treachery was considered necessary as doubt arose as to the capture of treason laws of foreign spies and saboteurs. Specifically, the offence of treachery did not rely on a requirement or presumption of a duty of allegiance to the Crown or the State linked to citizenship as for treason. Section 24AA of the Crimes Act deals with the offence of 'Treachery' which covers doing any act or thing with the intent to overthrow the Constitution by revolution or sabotage, attempts by force or violence to overthrow an established government in Australia or abroad, and acts of treason directed against certain proclaimed countries.

Thus, this basically encompasses levying war or doing any act preparatory to levying war against the Commonwealth or another country, assisting or intending to assist, a proclaimed enemy of a proclaimed country, or instigating a person to make an armed invasion of another country. The new treachery offence criminalises the use of force or violence intended to overthrow the Constitution , a Commonwealth, state or territory government or the lawful authority of the Government of the Commonwealth emphasis added.

The new treachery offence also does not contain reference to acts intended to overthrow the Government of a proclaimed country. The offence of assisting enemies of the ADF has not been incorporated into the new contemporary offence of treachery. This is because it has been more appropriately inserted into the new offence of treason under proposed section The maximum penalty of life imprisonment is left unchanged.

The Explanatory Memorandum states that the treachery offence is designed to complement the proposed treason offence, with an apparent focus on maintaining the physical and political integrity of the Sovereign, Governor-General or Prime Minister. They have suggested that the Explanatory Memorandum be revised to include such guidance. For paragraph Therefore, the defendant must have been aware of a substantial risk that his or her conduct involved force or violence and, having regard to the circumstances known to him or her it was unjustifiable to take that risk.

The Department explained:. It is also consistent with the language used in the existing offence of urging violence against the Constitution in section Conversely, the references to intimidation and threats in new section Given that a penalty of life imprisonment applies to the treachery offence at subsection The Law Council of Australia considers that the severity of the penalty to be imposed life imprisonment makes it appropriate to re-think the fault element and replace it with the requirement of intention. The Crimes Act lists sabotage as one of the offences against government.

Item 8 of Schedule 1 to the Bill proposes to insert a new Division 82 into Part 5. The proposed amendments seek to reflect and respond to the fast-evolving nature of security threats, which may be thought of as including cyber, personnel and physical and modalities of security attacks by capturing new conduct and expanding the range of critical public infrastructure to be protected.

The circumstances of conduct which is captured under the rubric of sabotage is increased by the introduction of the following offences:. The penalties range from a maximum term of 25 years imprisonment for the most serious offence to seven years for preparing for or planning sabotage. In particular the higher penalties attach to sabotage offences that are committed on behalf of a foreign principal. Public infrastructure has the meaning given in proposed section The Explanatory Memorandum acknowledges that the terms infrastructure, facility, premises, network or electronic system used in proposed paragraph These terms are left to take their ordinary meaning as follows:.

In relation to being reckless as to the conduct advantaging the national security of a foreign country, the person does not need to have in mind a particular country and may have more than one foreign country in mind. In relation to advantaging the national security of a foreign country, the person does not need to have in mind a particular country and may have more than one foreign country in mind.

This amendment proposes a definition of prejudice in section Thus a person cannot be prosecuted for a sabotage offence if that person intended that, or was reckless as to whether, his or her conduct would cause embarrassment alone. The Law Council has questioned the necessity of this provision, arguing that it should be removed from the Bill, because:. Incitement, conspiracy and attempt provisions in Part 2. The Law Council has stated that if the Government does not accept this suggestion, then it would recommend:. The Department noted that the:. Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers provides general guidance on the matters to be considered when developing or amending criminal offences and enforcement powers.

The Guide does not reflect a binding policy position but provides principles and precedents to assist the framing of criminal offences and related matters. Should the Committees express particular views regarding preparatory offences, consideration would be given to including guidance on these as well.

Defence - accessing or using a computer or electronic system in capacity as a public official. The second defence has been proposed in response to recommendation 45 of the PJCIS report, which recommended:. This provision states that section The Commonwealth Criminal Code creates four types of extended geographic jurisdiction. Category D extended geographic jurisdiction applies the broadest jurisdictional reach by providing that an offence can be committed whether or not the conduct occurs in Australia and whether or not the results of the conduct occur in Australia.

However, this only applies if the person has been accorded procedural fairness in relation to the finding of guilt for the relevant offence specified in column 2.

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In deciding whether to consent, the Attorney-General must consider whether the conduct of the accused might be authorised by section However, proposed subsection The Explanatory Memorandum reasons that the seriousness of the offences justify permitting some measures towards commencing proceedings to be taken without the prior consent of the Attorney-General. In particular, the steps listed in proposed subsection This provision may be seen as representing a recognition of the concept of abuse of process, as an actionable wrong and a basis for a stay of proceedings, which has been developed by the courts of the common law world over an extended period.

The purpose of the doctrine is to prevent the judicial system being used in a way that is contrary to the underlying values, purposes and principles of the rule of law. It seems that thrown into and captured by these definitions of sabotage and espionage are what would have previously been known as acts of subversion.

This places political subversives into the same category of wrongdoers as enemy spies and saboteurs. This is arguably not an insignificant shift as it has the practical effect of undermining and stifling the ability of law abiding citizens who wish to exercise their constitutional right to politically disagree with, or offer an opinion on government policies and actions. This supersedes and replaces the existing offence of inciting mutiny, currently contained in section 25 of the Crimes Act and which has a potential life sentence of imprisonment.

The repeal of section 25 is effected by item 43 of Schedule 1 of the Bill. For a person to be convicted of the offence of advocating mutiny the person has to engage in conduct which involves advocating mutiny. The person has to be reckless as to whether a result of their conduct will be that a mutiny occurs. The offender can also be a body corporate—for example, a media organisation. The conduct leading to the offence does not have to be committed in Australia. The offence has a maximum penalty of seven years imprisonment. Recommendation 46 of the PJCIS report recommended that the Bill be amended to define the term for the purposes of the section.

Proposed paragraph This also applies to the authority or operational efficiency of the force of another country that is acting in cooperation with the ADF. Mutiny itself is not made an offence by this Bill. Under proposed section The offence of advocating mutiny sits alongside the general criminal offence of incitement, [] which involves a person, the inciter, inciting another person to commit a criminal offence.

It is an essential element of an incitement offence that the inciter intends that the incited offence be actually committed. This may not apply to incitement to mutiny — as only ADF members can be charged with mutiny, a civilian could only be charged with incitement, whether or not the mutiny occurred. Oddly, the maximum penalty for advocating mutiny, seven years imprisonment, would in many circumstances be higher than the maximum penalty if a person was charged with inciting mutiny under section As the general penalty in the DFDA for mutiny is ten years imprisonment, [] the term for inciting such a mutiny, which outwardly seems a more serious offence than advocating a mutiny, would be five years imprisonment.

The use of the word involve would appear to mean that advocacy of mutiny has to be an element of the conduct but does not have to be the primary object of that conduct. This, and the requirement that the conduct only needs to be reckless rather than intentional, makes advocating mutiny potentially a broad offence.

An example of the conduct envisaged is provided in the Explanatory Memorandum — in this example the partner of an ADF member encourages the member to convince other members to resist orders. It is appropriate to criminalise this broader range of conduct due to the potentially serious military consequences of the commission of a mutiny offence by a defence force member. The need for the Attorney-General to give written consent for a prosecution to occur could be seen, in such circumstances, as a safeguard against minor matters being prosecuted. However, it could also be painted by opponents of the Bill as potentially adding a political element to prosecutions under this provision.

The USA has a general law relating to insurrection or rebellion in the following terms:. Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. It is arguable that in the USA an advocating mutiny offence, where the advocate was reckless as to the effect of their conduct, would face legal hurdles because of the First Amendment free speech to the US Constitution.

In regard to Canadians in general, section 53 of the Criminal Code applies:. In terminology, this provision is similar to the current Australian provision, which the Bill intends to replace. The maximum penalty 14 years falls below the current Australian maximum penalty life , but above the proposed penalty in the Bill seven years. The Government Amendments insert a Note in the Bill under subsection A similar offence currently exists under section 26 of the Crimes Act. Section 26 will be repealed by item 43 of Schedule 1 to the Bill. While the new provision is drafted with more clarity and in more modern language than the existing provision, it covers similar conduct.

One major difference of the proposed provision relates to the maximum penalty, which will be 15 years imprisonment rather than the current life imprisonment. As noted in the Explanatory Memorandum, this better reflects modern sentencing practices and represents a penalty comparable to those for offences related to escaping criminal detention. An offence of assisting a prisoner of war to escape is committed if a person engages in conduct which includes omitting to do something which assists a prisoner or prisoners of war to escape from custody wholly or partly controlled by the Commonwealth or the Australian Defence Force, and where the conduct occurs within the context of an international armed conflict.

For the purposes of this provision prisoner of war has a fixed meaning, being the meaning of that term in Article 4 of the Third Geneva Convention. This is basically a member of the armed forces of one of the parties to a conflict who falls into the hands of an adverse party.

There is no strict definition of what circumstances demonstrate that a person is in custody. The provision is not intended to relate solely to prison-type situations, but to any situation where a prisoner of war is in custody; for example from the very moment that they are first taken by an opposing force. Finally, the conduct giving rise to an offence must take place in the context of an international armed conflict. This element of the offence is one of absolute liability; which is to say that the understanding of the nature of the conflict by the person engaging in the conduct is not a relevant consideration.

As with other proposed Division 83 offences, a prosecution in this matter requires the written approval of the Attorney-General; although preliminary steps such as arrest and charging can take place in advance of that consent. This provision is unexceptional and unlikely to attract significant, if any, criticism. The Law Council has noted that, while assisting a prisoner of war to escape attracts a severe penalty, the actual act of escaping carries no penalty for the escaped prisoner.

There appears to be an obvious distinction between being an enemy combatant and assisting that enemy combatant. The revised definition of foreign political party responds to recommendation 6 of the PJCIS Advisory Report, which recommended that the definition be clarified. Most of the words in the provision are undefined and thus take their normal meaning. A foreign government is unlikely to be giving specific orders — the Explanatory Memorandum notes that partial direction or general oversight is sufficient.

In regard to a person being directed, funded or supervised by a foreign government principal or a foreign political organisation, the standard of conduct of the person prescribed by the legislation is recklessness. While the person being trained may not positively know that they are being trained by or are working for a foreign government principal or a foreign political organisation, the fact that the person was aware of a substantial risk that that was the case and in the circumstances it was unjustifiable to take the risk will be sufficient to prove that element of the offence.

Certainly wilful blindness to the real line of command is not a defence. Section Category B extended geographic jurisdiction provides that an offence can be committed:. The maximum penalty for an offence against proposed section This is consistent with the range of penalties provided for similar offences in anti-terrorist legislation.

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There are a number of scenarios that are not intended to be covered by these provisions, and which form specific exceptions in the legislation. For the purposes of a prosecution under this provision the defendant would have to raise one of the exceptions that follow and point to evidence that suggests a reasonable possibility that the exception applies.

The prosecution would then have to refute that defence beyond reasonable doubt. As an obvious example of an exemption, an Australian who provides training to an allied force which was engaged with Australia in a joint training exercise would not be committing an offence. The Government Amendments introduced an additional defence that applies where the relevant conduct is engaged in by a person solely or primarily for the purpose of providing humanitarian aid or performing an official duty for the UN or the International Committee of the Red Cross Amendment The provision also is not intended to capture training in a terrorist organisation.

That conduct is not lawful but is rather covered by specific legislation. This appears to be a military term rather than a word in common usage and arguably diminishes the clarity of the provision, particularly as these are provisions likely to be overseen by civilian courts. While its military meaning appears in some dictionaries, it is not present in the Macquarie Dictionary, which is favoured by some Australian courts. Is intended to capture military manoeuvres involving planned and regulated movements of troops or tactical exercises carried out in the field. It is questionable whether a court would find that this term added anything to the terms military exercises or movements.

Other than this, this proposed provision appears unexceptional. It may attract limited unfavourable comment from persons who believe that Australians have the right to assist secessionist movements, at least in some circumstances. Item 43 repeals the existing offence of interfering with political liberty at section 28 of the Crimes Act. Replacing this offence is proposed section Section 28 of the Crimes Act currently makes it an offence for any person to use violence, threats or intimidation of any kind, so as to hinder or interfere with the free exercise or performance, by any other person, of any political right or duty.

The offence is punishable by a maximum penalty of three years imprisonment. In the Bill as originally introduced, this offence was punishable by a maximum penalty of ten years imprisonment, thus increasing the current penalty by seven years, but with no stated justification for this increase. An offence committed under section The Explanatory Memorandum acknowledges that the terms force, violence, intimidation and threat are not defined in the Bill as they are intended to take their ordinary meanings. The term force could include acts such as restraining, manipulating, coercing and physically making a person do something against their will.

The term violence is not intended to require evidence of actual harm to establish that an act of violence has been conducted. If particular conduct constituted an act of violence, without actually being a violent act, then this may be sufficient to satisfy this element of the crime. The term intimidation is intended to include conduct that makes a person timid or fearful. Item 5 amends subsection Section 1 of the Commonwealth Electoral Act has a similar but more specific and confined offence compared to proposed section In addition, section 2 of the Commonwealth Electoral Act makes it an offence to discriminate against another person on the ground of the other person making a donation to a political party or group by denying the person access to membership of certain groups; by not allowing the person to work or continue to work; or by subjecting the person to any form of intimidation or coercion or any other detriment.

It is difficult to reconcile the impetus for the proposed scope and capture of the offence created by proposed section In that case, Justice Dowsett found that the factual circumstances of the case did not amount to a breach of section 1. Furthermore, his Honour stated that that political right or duty is restricted:. In my view, a political right, for the purposes of subs 1 is the right to vote including the allocation of preferences , the right to stand for election and the right to support or oppose a candidate, group of candidates or party.

Furthermore, Justice Dowsett stated that to knock down a sign might be legitimately thought of an exercise of another person's political right. The logic underlying this type of restriction on a political right or duty, which is practically necessitated by a balancing of rights of opposing participants in the political process, is neither acknowledged nor discussed in the Explanatory Memorandum, nor is the new broader offence drafted in consideration of this unavoidable reality.

The Explanatory Memorandum states that convictions under section The following definitions which support the offences contained in Part 5. Deal : a person deals with information or an article if the person does any of the following in relation to the information or article:. The Replacement Explanatory Memorandum provides examples as guidance as to what conduct may be captured by these terms.

This definition of foreign government principal appears to be sufficiently flexible in accommodating the different ways in which foreign power may be exercised, recognising the power of companies within some state structures and the complex governance models. The concept of national security is discussed above. Responding to this recommendation, the Government Amendments provide that security classification means:.

Proposed Subdivision A replaces the existing section However, the drafting of these offences and their penalties outlined below, have attracted concern from various members of the legal profession. The Law Council has expressed significant reservation about the espionage offences and does not support their passage. Espionage—dealing with information etc. The Explanatory Memorandum was also silent as to what its potential operative meaning may be within the context of the proposed espionage offences. However, section The original Explanatory Memorandum stated:. 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.

As the Explanatory Memorandum suggests, to establish this offence the prosecution needs to prove beyond reasonable doubt the following elements as a result of express or default fault elements:. The Explanatory Memorandum clarifies that this is a second tier offence and. As proposed subsection At the very least, this provision has the potential to capture a number of journalists and academics.

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In short, the offence appears to be framed too broadly and given its potential capture, it may have a chilling effect on freedom of political communication and does not appear to sit comfortably with High Court rulings in this space. The High Court has held:. Freedom of communication in relation to public affairs and political discussion cannot be confined to communications between elected representatives and candidates for election on the one hand and the electorate on the other.

The efficacy of representative government depends also upon free communication on such matters between all persons, groups and other bodies in the community. The High Court has also elaborated on this and placed certain parameters around freedom of political communication. In McCloy v New South Wales , the High Court applied a proportionality test to gauge the purpose of the law and the means of achieving it, basically inquiring as to whether the law was suitable, necessary and adequate in its balance.

The offence seems disproportionate to its rather broadly stated objective, and the content-based nature of the speech affected is potentially very broad and arguably difficult to justify. The defences in s Apart from the recklessness element, the other distinction between section 70 1 of the Crimes Act and proposed subsection It is not necessarily the case that the foreign principal is going to do more harm if any with that publicly available information than an ordinary local who receives such information.

The maximum penalties for the offences in Subdivision A range from life imprisonment to 20 years imprisonment. In addition to the general defences available under Part 2. It is also a defence for a prosecution for an offence under sections For the offences in subsections What appears to be absent from this list of aggravating circumstances, is where the person who committed the underlying offence in sections It is arguable that members and senators should be held to a higher standard of behaviour because there is an expectation that they will use their position to serve and act in the interest of Australia and Australians.

As part of that duty and those roles, it may not be unreasonable to expect that these roles carry with them a particular higher duty of secrecy and discretion. As such, disclosures by such persons may reduce public confidence in their ability to carry out their duties effectively and loyally.

Category D extended geographic jurisdiction provides that an offence can be committed whether or not the conduct occurs in Australia and whether or not the results of the conduct occur in Australia. The person does not need to have in mind a particular foreign country and may have in mind more than one foreign country. The person will not need to have in mind a particular foreign principal and may have in mind more than one foreign principal. As well as defences provided for in 2.

Basically, the defences may apply where a person is dealing with that information or article as a legitimate part of their work. Proposed The Note to this provision in the Bill states the defendant will bear an evidentiary burden in relation to this defence. 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 relevant authorities seeking to prevent these activities.

Offence of soliciting or procuring an espionage offence or making it easier to do so. The person will not need to have in mind a particular foreign principal and may have in mind more than one foreign principal proposed section The Explanatory Memorandum states that there is currently a gap in the law such that soliciting or procuring espionage is not an offence. The Explanatory Memorandum provides guidance around the meaning of two key terms in relation to this offence:.

The Bill protects and promotes the right to opinion and freedom of expression, the freedom of assembly and association and the right to take part in public affairs and elections by Deception refers to an intentional or reckless deception, whether by words or conduct, and whether as to fact or as to law, and includes:. The Explanatory Memorandum points out that this definition is in alignment with the definition relevant to the fraud offences in the Criminal Code.

Menaces has the same meaning as in Part 7. A threat against an individual is taken not to be menaces unless the threat would be likely to cause the individual to act unwillingly, and the maker of the threat is aware of the vulnerability of the person to the threat subsection A person will commit this offence if:.

For the purpose of this offence, the person does not need to have in mind a particular foreign principal and the person may have in mind more than one foreign principal proposed They note that by way of contrast, the use of the same phrase in proposed section In the absence of such parameter in the drafting of proposed sections However, the Explanatory Memorandum states that phrase would cover:.

In relation to the targeted person offences proposed subsections The influence intended could be entirely kindly and benign. To avoid such an outcome, ALHR considers that the following issues require clarification: who the perpetrator would need to notify about their attempt to influence a political or government process and in which forum , or by what means that notice might be given. The purpose of this offence is to give law enforcement means to deal with preparatory conduct and enable intervention before foreign interference occurs. The terms preparation or planning do not receive further articulation in the Bill itself.

However the Explanatory Memorandum states that these terms are intended to take their ordinary meaning:. Category B geographic jurisdiction provides that the offence applies:. Subdivision C covers conduct involving funding, supporting and resourcing of foreign intelligence agencies:. It states that they:. What constitutes providing support or resources to an organisation will depend on the facts of each case but it is intended to cover assistance in the form of providing a benefit or other practical goods and materials, as well as engaging in conduct intended to aid, assist or enhance an organisations activities, operations, or objectives.

The explanatory memorandum I would also say that that language is consistent with, and mirrors, the language used in the terrorism offences of providing support to a terrorist organisation. The Government Amendments to the Bill amend sections The Law Council proposed that the foreign interference offences should provide a defence for persons acting in the public interest. This would provide protection to investigative journalists or ordinary citizens. The Law Council seems to consider the proposed offences in sections It has proposed that offences should:.

The drafting of proposed section It attaches, by default under section 5. The recurring theme of concern with the offences is not only the breadth of their capture, but also the proposed penalties. The Law Council has stated:. Furthermore, it has been suggested that in proposing the maximum penalties for the espionage offences which range between 15 years to life imprisonment, and represent a significant increase from existing penalties, that the Government consider providing a more transparent and detailed rationale for these increases, demonstrating them to be necessary and proportionate.

In relation to proposed section However, in paragraph of the Explanatory Memorandum it is suggested that knowledge attaches to this circumstance by default, however this is not possible under subsection 5. Proposed section 92A. In general, a Category B offence will not be committed by an Australian resident if the conduct constituting the offence occurs wholly in a foreign country which does not criminalise the relevant conduct.

That means that an Australian resident will commit the offence even in circumstances where the conduct occurs in a country that does not have a corresponding offence. In deciding whether to consent, the Attorney-General must consider whether the conduct of the accused might be authorised by the defences in sections In addition, the Government Amendments to the Bill require that if the proceedings relate to information or an article that has a security classification, the Attorney-General must certify that it was appropriate for the information or article to be classified at the time of the alleged offence proposed paragraph The presumption against bail is appropriately reserved for serious offences recognising the need to balance the right to liberty and the protection of the community.

For offences subject to a presumption against bail the accused will nevertheless be afforded to opportunity to rebut the presumption. Proposed Amendment 73 amends section 15AA of the Crimes Act so that a presumption against bail applies for an offence against subsections The drafting of the Bill as introduced had the effect of applying the presumption against bail if the conduct of the defendant involved making a threat to cause serious harm or a demand with menaces.

Proposed Amendment 74 : removes the reference to Division 91 espionage from paragraph 19AG 1 c of the Crimes Act , which deals with minimum non-parole periods, and inserts a new paragraph 19AG 1 d which applies the minimum non-parole period to an offence against new subsections Item 51 of the Bill proposed by Amendment 77 of the Government Amendments to the Bill repeals existing subsection 6 1B of the Independent National Security Legislation Monitor Act , and replaces it with proposed subsection 6 1B , which imposes a requirement on the Monitor to begin a review of the operation, effectiveness and implications of Division 82 sabotage , Part 5.

The Explanatory Memorandum states:. New Part 5. The offences will apply to all persons, not just Commonwealth officers. A version of section 70 disclosure of information by Commonwealth officers was included in the original Crimes Act , but was amended in to extend the secrecy obligation to former Commonwealth officers. Urgent consideration should be given by the Government to the question of reforming section 70 of the Crimes Act so as to limit the categories of information that it is an offence to disclose and to establish procedural safeguards for any person who may face prosecution under that section.

Any such reform of section 70 should preferably be enacted either before or simultaneously with the enactment of the Freedom of Information Bill. Article 19 [of the ICCPR ] protects the right to freedom of expression, which includes the right to impart information. The exercise of such a right is, however, subject to certain restrictions, as set out in Article These restrictions may only be such as are provided by law and are necessary for the respect of the rights or reputations of others and for the protection of national security or of public order or of public health or morals.

Section 70 proscribes the disclosure of any information acquired by virtue of office and, therefore, may restrict a person's right to impart information that has no bearing on the matters in respect of which restrictions may, under Article The Commission recommends that section 70 be amended to limit its operation to the kinds of information in respect of which restrictions may be imposed under Article It also recommended section 79 be repealed and other specific secrecy offences be introduced, together with a general secrecy offence that provided that a person must not:.

The proposed penalty would be imprisonment for seven years. The Australian Government should review all legislative and regulatory provisions giving rise to a duty not to disclose official information—including in particular regulation 2. Because of this, any reform of this provision raises special difficulties. It is essential that a provision of this kind is clear on its face and draws an appropriate balance between the need to protect sensitive government information and other public interests such as appropriate public access to government information []. The Australian Government should undertake a comprehensive review of s 79 of the Crimes Act in order to clarify and modernise the language and intent of the provision and to ensure that an appropriate public policy balance is found across the range of offences created by the provision.

Such a review should consider, among other things:. The ALRC recommended a harm-based approach be taken to the reform of secrecy offences.

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Recommendation 5—1 The general secrecy offence should require that the disclosure of Commonwealth information did, or was reasonably likely to, or intended to:. The basic problem with section 35P is that it does not distinguish between journalists and others outsiders and ASIO insiders. The application in this manner of broad secrecy prohibitions to outsiders is not satisfactorily justified, including by precedents in Australia or elsewhere In , the Australian Border Force Act included secrecy and disclosure provisions which have some similarities to the offences in the Bill.

The maximum penalty for the offence is imprisonment for two years. Recent disclosures of national security information particularly large scale disclosures originating in the United States have had implications for the Australian Government and have contributed to reconsideration of the legislative protections of official information. These disclosures have also put renewed emphasis on the tension between public interest disclosures, the reporting of news and national security interests.

For example, the disclosures made by former National Security Agency contractor Edward Snowden in have had a range of consequences for the Australian Government. Concerns about releases of official information are on-going. For example, in August , it was reported that overseas intelligence partners had raised concerns that sensitive information provided to Australian Government agencies concerning a terrorist bomb plot were appearing in Australian newspapers. In particular, section 70 sets out penalties for the unauthorised disclosure of information by current and former Commonwealth officers and section 79 contains offences relating to official secrets.

In particular, for the purposes of section 70, the definition includes those who perform services on behalf of the Commonwealth despite not holding office or being employed by the Commonwealth. Subsection 70 1 makes it an offence for a Commonwealth officer to publish or communicate, without authorisation, any fact or document which comes into their knowledge or possession by virtue of being a Commonwealth officer and which they have duty not to disclose.

This may include, but is not limited to, classified and security sensitive information. Section 70 does not create a duty to keep information secret or confidential. Rather, the source of such a duty must be found elsewhere—most commonly in a specific secrecy provision. In R v Goreng Goreng , for example, the duty was found in reg 2. Section 79 of the Crimes Act deals with the protection of official secrets. The section contains a number of offences relating to the communication, retention and granting access to official secrets to any person.

A Commonwealth officer, or another person in receipt of prescribed items or information from a Commonwealth officer, may be guilty of an offence. The five offences in section 79 are summarised below. The maximum penalty is seven years imprisonment. Subsection 79 3 provides that a person commits an offence if they communicate or allow a person to have access to a prescribed item or information without authorisation.

The maximum penalty is two years imprisonment. The maximum penalty is six months imprisonment. The offences in section 79 have a broader application beyond Commonwealth officers. The ALRC report on the secrecy offences noted:. The offence therefore covers both initial disclosures by Commonwealth officers and subsequent disclosures by third parties. In addition, the offences relating to the receipt and handling of an official secret apply to any person, regardless of whether the person was aware that he or she had a duty not to disclose information.

Proposed Part 5. There is also a provision for aggravated offences with increased penalties if specific circumstances exist with the underlying offences and a replacement offence for unauthorised disclosures by current and former Commonwealth officers. Key definitions relating to these offences are contained in Part 5. Previously, these offences had broader coverage but in the amended Bill have been directed to current and former Commonwealth officers.

The proposed section Unlike the Public Service Act and its supporting regulations, the Members of Parliament Staff Act contains no clear duty not to disclose information. While there is a provision in the Code of Conduct for Ministerial Staff regarding the appropriate use of information, this only applies to personal and electorate staff of Ministers and Parliamentary Secretaries.

The penalty for this offence is imprisonment for three years. The Government amendments have inserted another element to this offence. Under Part 2. Section 5. If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

This means, for example, that for the offence of communicating inherently harmful information proposed subsection Strict liability is set out in section 6. It states that if a law that creates an offence provides that it is an offence of strict liability then there are no fault elements for any of the physical elements of the offence.

However, the defence of mistake of fact is available set out in section 9. The Supplementary Explanatory Memorandum states:. The effect of subsection Previously, these offences had broader coverage, but in the amended Bill have been directed to current and former Commonwealth officers. If a person commits an underlying offence and one of the listed circumstances exists then an increased penalty will apply to the aggravated offence. If the penalty for the underlying offence is three years, the penalty for the aggravated offence will be five years.

It provides that a person commits an offence if:. Reflecting section 70 of the Crimes Act , the penalty for this offence is two years imprisonment. However, unlike section 70 of the Crimes Act , proposed subsection Absolute liability means there is no fault element and unlike strict liability the defence of mistake of fact is not available under section 9. A person can only be criminally liable for the offence against section The question of whether that duty arises under the law of the Commonwealth is, effectively, a question of law.

The general position, set out in sections 9. Consistent with those general principles of the criminal law, a person should not be excused from criminal liability where they are reckless as to whether they are subject to a duty of non-disclosure, merely because they are mistaken or ignorant about whether that duty arises under a law of the Commonwealth, or under some other source. However, beyond this point of principle, it is not clear if there are specific practical reasons, such as issues with prosecutions under section 70 of the Crimes Act which have prompted this change.

Notably, the ALRC report on secrecy offences does not appear to have recommended the introduction of absolute liability for this element of secrecy offences. Outsiders should not be subject to the same offences and penalties as government insiders, given the distinct duties owed by Commonwealth officers. Similarly, the Law Council suggested the proportionality of the measures could be improved by treating insiders and outsiders separately. The first new offence in proposed subsection The maximum penalty for this offence would is five years imprisonment.

The second offence, in proposed subsection The maximum penalty for this offence would is two years imprisonment. For both proposed offences, subsection In most cases, the defendant will bear an evidentiary burden in relation to the defence. However, the Government amendments have made some changes to the evidential burdens for integrity agency officials and employees.

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In the Bill as introduced, this defence was directed to Commonwealth officers. A note under the subsection indicates the defendant may bear an evidentiary burden in relation to elements of this defence. It references proposed subsection A note under the subsection states that the defendant bears an evidential burden in relation to the matters in this subsection. Paragraph A note provides that persons mentioned in paragraph 3 a do not bear an evidential burden in relation to the matters in this subsection see subsection Information communicated etc. In the Bill as introduced, this section only dealt with the Public Interest Disclosure Act , however the PJCIS report recommended that the Bill be amended to make clear the effect of the defences in relation to the Freedom of Information Act recommendation A note under the subsection indicates the defendant may bear an evidentiary burden in relation the matters in this defence.

A note under the subsection indicates that a defendant bears an evidential burden in relation to the matters in this subsection. However, the defence in subsection A note under proposed subsection Nonetheless, the amended subsection Subsection The definition of a foreign military organisation will include the armed forces of a foreign country as well as the civilian components of its military organisation.

For example, in the Australian context this would include the Australian Defence Force, the civilian element of the Department of Defence, Reserves and any civilians who are accompanying the ADF overseas. If a person's communication or dealing with the information harms or prejudices the health or safety of the Australian public or a section of the public The multiple conditions which comprise this defence suggest that there will be limited circumstances where it may apply.

In particular, in the defence in proposed section The defence under subsection Before disclosing information that has already been published, a person must believe on reasonable grounds that the subsequent disclosure will not cause harm. This is because in some cases, even where information is considered to have been published and in the public domain, subsequent disclosure will still result in harm. These are the defences that:. Proposed Division includes provisions creating further avenues to restrict disclosure of information and clarifies the geographic jurisdiction for the offences in Division In particular proposed section This is the broadest category of extended geographic jurisdiction set out in the Criminal Code section A number of consequential amendments will be made to a variety of legislation by Schedule 2.

Section 30A of the Archives Act provides Archives officers must not disclose census information and includes a note that section 70 of the Crimes Act creates an offence in relation to the disclosure of information by Commonwealth officers. Item 9 substitutes section This inclusion would require the Minister of Home Affairs to refuse a citizenship application if the person has been convicted of a Part 5. There is a risk that some of the secrecy offences in Part 5. Item 12 repeals a reference to section 85B of the Crimes Act which relates to in camera hearings being repealed by the Bill from the Australian Crime Commission Act Item 15 repeals this reference and substitutes a reference to proposed section Item 17 repeals subsection 81 5 of the Defence Home Ownership Assistance Scheme Act which refers to the definition of Commonwealth officer and section 70 of the Crimes Act.

While the subsection is repealed, it is not replaced by the sections in the Bill which include the definition of Commonwealth officer or the proposed offence. Item 18 repeals paragraph 78 1 a of the Freedom of Information Act Similarly, item 19 also removes a reference to paragraph 80 c of the Crimes Act from the Law Enforcement Integrity Commissioner Act Section 29 allows the Minister to appoint authorised persons for the purpose of enforcement. Item 20 repeals subsection 29 3 which provides that these authorised persons are to the treated as Commonwealth officers for the purposes of Part VI of the Crimes Act.

Section A of the Migration Act deals with the protection of information supplied by law enforcement agencies or intelligence agencies. Subsection 23 1 of the NGAER Act provides a secrecy offence for certain persons making unauthorised disclosures of greenhouse and energy information. The note to subsection 23 1 clarifies that the same conduct may be an offence against section 23 and section 70 of the Crimes Act. This is the proposed offence which replaces section 70 of the Crimes Act in dealing with unauthorised disclosures by current and former Commonwealth officers. Section DF of the Native Title Act provides for the appointment of a person to perform inspections and audits or undertake investigations under the Act.

Item 24 repeals subsection DF 8. Item 26 repeals paragraph 14 2 a of the Ombudsman Act Items 27 and 28 amend notes to sections in the Parliamentary Service Act which refer to section 70 of the Crimes Act , to change these references to the new offence in proposed section Similarly, items 29 and 30 amend notes to sections in the Public Service Act which refer to section 70 of the Crimes Act , to change these references to the new offence in proposed section Schedule 3 introduces proposed section The new section follows and builds on the existing section The current section A person convicted of such an offence is liable to imprisonment for 12 months.

An offence against section And it means the complete denuclearization of the Korean Peninsula. The United States will not accept North Korea as a nuclear state; nor will we stand by while it seeks to develop a nuclear-armed missile that can target the United States. First, close and expanded cooperation with Japan and South Korea. The days when North Korea could exploit any seams between our three governments are over. And let me add that the prospects for a peaceful resolution also will require close U. Second, the United States refuses to reward bad North Korean behavior.

The United States will not play the game of accepting empty promises or yielding to threats. We have made clear our openness to authentic negotiations with North Korea. To get the assistance it desperately needs and the respect it claims it wants, North Korea will have to change course. Today, the Treasury Department is announcing the imposition of U.

Third, we unequivocally reaffirm that the United States is committed to the defense of our homeland and our allies. Recently, North Korean officials have made some highly provocative statements. This includes not only any North Korean use of weapons of mass destruction—but also, as the President made clear, their transfer of nuclear weapons or nuclear materials to other states or non-state entities.

Such actions would be considered a grave threat to the United States and our allies and we will hold North Korea fully accountable for the consequences. Finally, the United States will continue to encourage North Korea to choose a better path. As he has said many times, President Obama came to office willing to offer his hand to those who would unclench their fists. The United States is prepared to help North Korea develop its economy and feed its people—but it must change its current course. The United States is prepared to sit down with North Korea to negotiate and to implement the commitments that they and the United States have made.

We ask only that Pyongyang prove its seriousness by taking meaningful steps to show it will abide by its commitments, honor its words, and respect international law. Burma has already received billions in debt forgiveness, large-scale development assistance, and an influx of new investment. While the work of reform is ongoing, Burma has already broken out of isolation and opened the door to a far better future for its people in partnership with its neighbors and with the United States. And, as President Obama said in his speech to the people of Burma, we will continue to stand with those who continue to support rights, democracy and reform.

To that end, the President considers U. We have put in place a wide-ranging Comprehensive Partnership. We are also working with Indonesia and Brunei on a major new initiative to mobilize capital to help bring clean and sustainable energy to the Asia-Pacific. And, of course, no U. President has ever had closer personal ties to an Asia-Pacific nation than President Obama does with Indonesia—a warm relationship that was on full display in November when the President visited Jakarta.

The third pillar of our strategy is building a constructive relationship with China. The President places great importance on this relationship because there are few diplomatic, economic or security challenges in the world that can be addressed without China at the table and without a broad, productive, and constructive relationship between our countries. And we have made substantial progress in building such a relationship over the past four years. As China completes its leadership transition, the Administration is well positioned to build on our existing relationships with Xi Jinping, Li Keqiang and other top Chinese leaders.

Of course, the U. Our consistent policy has been to improve the quality and quantity of our cooperation; promote healthy economic competition; and manage disagreements to ensure that U. As President Obama has made clear, the United States speaks up for universal values because history shows that nations that uphold the rights of their people are ultimately more successful, more prosperous and more stable. As President Obama has said many times, the United States welcomes the rise of a peaceful, prosperous China.

We do not want our relationship to become defined by rivalry and confrontation. And I disagree with the premise put forward by some historians and theorists that a rising power and an established power are somehow destined for conflict. There is nothing preordained about such an outcome. It is not a law of physics, but a series of choices by leaders that lead to great power confrontation.

Others have called for containment. We reject that, too. A better outcome is possible. But it falls to both sides—the United States and China—to build a new model of relations between an existing power and an emerging one. Xi Jinping and President Obama have both endorsed this goal. To build this new model, we must keep improving our channels of communication and demonstrate practical cooperation on issues that matter to both sides. To that end, a deeper U. This remains a necessary component of the new model we seek, and it is a critical deficiency in our current relationship.

The Chinese military is modernizing its capabilities and expanding its presence in Asia, drawing our forces into closer contact and raising the risk that an accident or miscalculation could destabilize the broader relationship. We need open and reliable channels to address perceptions and tensions about our respective activities in the short-term and about our long-term presence and posture in the Western Pacific.

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It is also critical that we strengthen the underpinnings of our extensive economic relationship, which is marked by increasing interdependence. We have been clear with Beijing that as China takes a seat at a growing number of international tables, it needs to assume responsibilities commensurate with its economic clout and national capabilities. The United States will urge a further opening of the Chinese market and a leveling of the playing field. And the United States will seek to work together with China to promote international financial stability through the G and to address global challenges such as climate change and energy security.

Another such issue is cyber-security, which has become a growing challenge to our economic relationship as well. Economies as large as the United States and China have a tremendous shared stake in ensuring that the Internet remains open, interoperable, secure, reliable, and stable. Both countries face risks when it comes to protecting personal data and communications, financial transactions, critical infrastructure, or the intellectual property and trade secrets that are so vital to innovation and economic growth. It is in this last category that our concerns have moved to the forefront of our agenda.

I am not talking about ordinary cybercrime or hacking. And, this is not solely a national security concern or a concern of the U. Increasingly, U. The international community cannot afford to tolerate such activity from any country. As the President said in the State of the Union, we will take action to protect our economy against cyber-threats. From the President on down, this has become a key point of concern and discussion with China at all levels of our governments.

And it will continue to be. The United States will do all it must to protect our national networks, critical infrastructure, and our valuable public and private sector property. But, specifically with respect to the issue of cyber-enabled theft, we seek three things from the Chinese side. First, we need a recognition of the urgency and scope of this problem and the risk it poses—to international trade, to the reputation of Chinese industry and to our overall relations. Second, Beijing should take serious steps to investigate and put a stop to these activities.

Finally, we need China to engage with us in a constructive direct dialogue to establish acceptable norms of behavior in cyberspace. We have worked hard to build a constructive bilateral relationship that allows us to engage forthrightly on priority issues of concern. From the outset, the Obama Administration embarked on a concerted effort to develop and strengthen regional institutions—in other words, building out the architecture of Asia.

And the reasons are clear: an effective regional architecture lowers the barriers to collective action on shared challenges. It creates dialogues and structures that encourage cooperation, maintain stability, resolve disputes through diplomacy and help ensure that countries can rise peacefully. There is no underestimating the strategic significance of this region.

Impressive growth rates in countries like Thailand — and a percent increase in international investment in —suggest that ASEAN nations are only going to become more important, politically and economically.

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While the United States has no territorial claims there, and does not take a position on the claims of others, the United States is firmly opposed to coercion or the use of force to advance territorial claims. Only peaceful, collaborative and diplomatic efforts, consistent with international law, can bring about lasting solutions that will serve the interests of all claimants and all countries in this vital region. That includes China, whose growing place in the global economy comes with an increasing need for the public goods of maritime security and unimpeded lawful commerce, just as Chinese businessmen and women will depend on the public good of an open, secure Internet.

Finally, the United States will continue to pursue the fifth element of our strategy: building an economic architecture that allows the people of the Asia-Pacific —including the American people--to reap the rewards of greater trade and growth. It is our view —and I believe history demonstrates — that the economic order that will deliver the next phase of broad-based growth that the region needs is one that rests on economies that are open and transparent, and trade and investment that are free, fair and environmentally sustainable.

The Administration has also worked through APEC and bilaterally to lower economic barriers at and within borders, increase and protect investment, expand trade in key areas, and protect intellectual property. We always envisioned the TPP as a growing platform for regional economic integration. The TPP is also attractive because it is ambitious but achievable. We can get this done. In fact, the United States is working hard with the other parties to complete negotiations by the end of The TPP is part of a global economic agenda that includes the new agreement we are pursuing with Europe—the Transatlantic Trade and Investment Partnership.

Even small improvements can yield substantial benefits for our people.