Criminal Code Amendment (Espionage and Related Matters) Act 2002

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Criminal Code Amendment (Espionage and Related Matters) Act 2002

Act No. 91 of 2002 as amended

This compilation was prepared on 18 July 2005

[This Act was amended by Act No. 100 of 2005]

 

Amendments from Act No. 100 of 2005

[Schedule 2 (item 10) amended subsection 2(4)
[Schedule 2 (item 11) amended subsection 2(5)

Schedule 2 (items 10 and 11) commenced immediately after 31 October 2002]

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra

 

 

 

Contents

1 Short title

2 Commencement

3 Schedule(s)

4 Transitional—pre‑commencement offences

Schedule 1—Amendments relating to the integrity and security of the Commonwealth

Crimes Act 1914

Criminal Code Act 1995

Schedule 2—Consequential amendments

Part 1—Crimes Act 1914

Part 2—Australian Protective Service Act 1987

 

An Act to amend the Crimes Act 1914 and the Criminal Code Act 1995, and for related purposes

[Assented to 31 October 2002]

The Parliament of Australia enacts:

1  Short title

  This Act may be cited as the Criminal Code Amendment (Espionage and Related Matters) Act 2002.

2  Commencement

 (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent

31 October 2002

2.  Schedule 1, items 1A, 1, 2 and 3

The 28th day after the day on which this Act receives the Royal Assent

28 November 2002

3.  Schedule 1, item 4

The day on which this Act receives the Royal Assent, subject to subsection (3)

Does not commence at all

4.  Schedule 1, item 5

The 28th day after the day on which this Act receives the Royal Assent

28 November 2002

5.  Schedule 2, item 1

The 28th day after the day on which this Act receives the Royal Assent, subject to subsection (4)

 

6.  Schedule 2, item 2

Immediately after the commencement of item 1 of Schedule 1, subject to subsection (5)

 

7.  Schedule 2, items 3, 4, 5, 6 and 7

The 28th day after the day on which this Act receives the Royal Assent

28 November 2002

Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

 (2) Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.

 (3) If either the Suppression of the Financing of Terrorism Act 2002 or the Security Legislation Amendment (Terrorism) Act 2002 receives the Royal Assent before the day on which this Act receives the Royal Assent, the provision covered by item 3 of the table does not commence at all.

 (4) If item 6 of Schedule 1 to the Security Legislation Amendment (Terrorism) Act 2002 commences before item 1 of Schedule 1 to this Act, then item 1 of Schedule 2 to this Act does not commence at all.

 (5) If item 6 of Schedule 1 to the Security Legislation Amendment (Terrorism) Act 2002 does not commence before item 1 of Schedule 1 to this Act, then item 2 of Schedule 2 to this Act does not commence at all.

3  Schedule(s)

  Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

4  Transitional—pre‑commencement offences

 (1) Despite the amendment or repeal of a provision by a Schedule to this Act, that provision continues to apply, after the commencement of this section, in relation to:

 (a) an offence committed before the commencement of this section; or

 (b) proceedings for an offence alleged to have been committed before the commencement of this section; or

 (c) any matter connected with, or arising out of, such proceedings;

as if the amendment or repeal had not been made.

 (2) Subsection (1) does not limit the operation of section 8 of the Acts Interpretation Act 1901.

 

Schedule 1—Amendments relating to the integrity and security of the Commonwealth

 

Crimes Act 1914

1A  Part VII (heading)

Repeal the heading, substitute:

Part VII—Official secrets and unlawful soundings

1  Section 78

Repeal the section.

2  Section 79

Omit “safety or defence” (wherever occurring), substitute “security or defence”.

3  Sections 81, 83A, 83B, 84, 84A, 85A and 85C

Repeal the sections.

Criminal Code Act 1995

4  The Schedule (after Chapter 4 of the Criminal Code)

Insert:

Chapter 5—The security of the Commonwealth

Note: If either the Suppression of the Financing of Terrorism Act 2002 or the Security Legislation Amendment (Terrorism) Act 2002 receives the Royal Assent before the day on which this Act receives the Royal Assent, this item does not commence at all. See subsection 2(3).

5  The Schedule (Chapter 5 of the Criminal Code)

Insert in the appropriate numerical position:

Part 5.2—Offences relating to espionage and similar activities

Division 90—Preliminary

90.1  Definitions

 (1) In this Part:

article includes any thing, substance or material.

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.

intelligence or security agency has the meaning given by section 85ZL of the Crimes Act 1914.

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 or defence of a country includes the operations, capabilities and technologies of, and methods and sources used by, the country’s intelligence or security agencies.

sketch includes a representation of a place or thing.

the Commonwealth includes the Territories.

 (2) In this Part, unless the contrary intention appears:

 (a) expressions referring to obtaining, recording, using, having in possession, communicating or retaining include obtaining, recording, using, having in possession, communicating or retaining in whole or in part, and whether the thing or information itself, or only the substance, effect or description of the thing or information, is obtained, recorded, used, possessed, communicated or retained; and

 (b) a reference to a sketch, document or article or to information is to be read as including a reference to a copy of, a part of or a copy of a part of a sketch, document or article or information.

 (3) For the purposes of this Part, a place that is occupied by, or a thing that is under the control of, the Commonwealth is taken to belong to the Commonwealth.

 (4) This Part applies to and in relation to a document or article regardless of who made it and what information it contains.

Division 91—Offences relating to espionage and similar activities

91.1  Espionage and similar activities

 (1) A person commits an offence if:

 (a) the person communicates, or makes available:

 (i) information concerning the Commonwealth’s security or defence; or

 (ii) information concerning the security or defence of another country, being information that the person acquired (whether directly or indirectly) from the Commonwealth; and

 (b) the person does so intending to prejudice the Commonwealth’s security or defence; and

 (c) the person’s act results in, or is likely to result in, the information being communicated or made available to another country or a foreign organisation, or to a person acting on behalf of such a country or organisation.

Penalty: Imprisonment for 25 years.

 (2) A person commits an offence if:

 (a) the person communicates, or makes available:

 (i) information concerning the Commonwealth’s security or defence; or

 (ii) information concerning the security or defence of another country, being information that the person acquired (whether directly or indirectly) from the Commonwealth; and

 (b) the person does so:

 (i) without lawful authority; and

 (ii) intending to give an advantage to another country’s security or defence; and

 (c) the person’s act results in, or is likely to result in, the information being communicated or made available to another country or a foreign organisation, or to a person acting on behalf of such a country or organisation.

Penalty: Imprisonment for 25 years.

 (3) A person commits an offence if:

 (a) the person makes, obtains or copies a record (in any form) of:

 (i) information concerning the Commonwealth’s security or defence; or

 (ii) information concerning the security or defence of another country, being information that the person acquired (whether directly or indirectly) from the Commonwealth; and

 (b) the person does so:

 (i) intending that the record will, or may, be delivered to another country or a foreign organisation, or to a person acting on behalf of such a country or organisation; and

 (ii) intending to prejudice the Commonwealth’s security or defence.

Penalty: Imprisonment for 25 years.

 (4) A person commits an offence if:

 (a) the person makes, obtains or copies a record (in any form) of:

 (i) information concerning the Commonwealth’s security or defence; or

 (ii) information concerning the security or defence of another country, being information that the person acquired (whether directly or indirectly) from the Commonwealth; and

 (b) the person does so:

 (i) without lawful authority; and

 (ii) intending that the record will, or may, be delivered to another country or a foreign organisation, or to a person acting on behalf of such a country or organisation; and

 (iii) intending to give an advantage to another country’s security or defence.

Penalty: Imprisonment for 25 years.

 (5) For the purposes of subparagraphs (3)(b)(i) and (4)(b)(ii), the person concerned does not need to have a particular country, foreign organisation or person in mind at the time when the person makes, obtains or copies the record.

 (6) A person charged with an offence under this section may only be remanded on bail by a judge of the Supreme Court of a State or Territory. This subsection has effect despite anything in section 93.1.

Note: Section 93.1 deals with how a prosecution is instituted.

 (7) Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to offences under this section.

91.2  Defence—information lawfully available

 (1) It is a defence to a prosecution of an offence against subsection 91.1(1) or (2) that the information the person communicates or makes available is information that has already been communicated or made available to the public with the authority of the Commonwealth.

 (2) It is a defence to a prosecution of an offence against subsection 91.1(3) or (4) that the record of information the person makes, obtains or copies is a record of information 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 subsections (1) and (2). See subsection 13.3(3).

Division 93—Prosecutions and hearings

93.1  Institution of prosecution

 (1) A prosecution under this Part may be instituted only by, or with the consent of, the Attorney‑General or a person acting under the Attorney‑General’s direction.

 (2) However:

 (a) a person charged with an offence against this Part may be arrested, or a warrant for his or her arrest may be issued and executed; and

 (b) such a person may be remanded in custody or on bail;

even if the consent of the Attorney‑General or a person acting under his or her direction has not been obtained, but no further proceedings are to be taken until that consent has been obtained.

 (3) Nothing in this section prevents the discharging of the accused if proceedings are not continued within a reasonable time.

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 interest of the security or defence of the Commonwealth:

 (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.

Division 94—Forfeiture

94.1  Forfeiture of articles etc.

  A sketch, article, record or document which is made, obtained, recorded, retained, forged, possessed or otherwise dealt with in contravention of this Part is forfeited to the Commonwealth.

 

Schedule 2—Consequential amendments

Part 1—Crimes Act 1914

1  Subsection 4J(7)

Repeal the subsection, substitute:

 (7) This section does not apply to an offence against:

 (a) section 24, 24AA, 24AB or subsection 79(2) or (5) of this Act; or

 (b) section 91.1 of the Criminal Code.

2  Subsection 4J(7)

Repeal the subsection, substitute:

 (7) This section does not apply to an offence against:

 (a) section 24AA or 24AB or subsection 79(2) or (5) of this Act; or

 (b) section 80.1 or 91.1 of the Criminal Code.

3  Paragraph 79(1)(a)

After “Part”, insert “or in contravention of section 91.1 of the Criminal Code”.

4  Subsection 79(5)

Omit “78”, insert “ 91.1 of the Criminal Code”.


Part 2—Australian Protective Service Act 1987

5  Subparagraph 13(2)(a)(i)

Omit “78, 79, 83A”, substitute “79”.

6  At the end of paragraph 13(2)(a)

Add:

 (vi) section 91.1 of the Criminal Code; or

7  Subsection 21(3)

Repeal the subsection, substitute:

 (3) Subsection (2) has effect subject to sections 37A, 38 and 39 of the Migration Act 1958.

 

 

Overview

The Criminal Code Amendment (Espionage and Related Matters) Act 2002, enacted by the Parliament of Australia, was introduced to address the need for stricter measures to protect the security and defence of the Commonwealth and other countries from espionage and related activities. The Act aims to enhance the integrity and security of the Commonwealth by amending the Crimes Act 1914 and the Criminal Code Act 1995, and making consequential amendments to other related Acts. The policy objective behind this legislation is to provide a robust legal framework that deters and penalises acts of espionage and similar activities that could compromise national and international security. The Act established stringent penalties for those involved in espionage and introduced provisions for the forfeiture of articles and records obtained in contravention of the law. It also included measures for the institution of prosecutions and the conduct of hearings in camera to protect sensitive information during legal proceedings.

Scope and Application

The Criminal Code Amendment (Espionage and Related Matters) Act 2002 applies to any person, including Australian citizens, residents, and entities operating within Australia, who engage in activities that could be deemed espionage or related to the security or defence of the Commonwealth or another country. The Act imposes severe penalties, including imprisonment for up to 25 years, for acts that involve communicating, making available, or recording information related to the security or defence of the Commonwealth or another country without lawful authority, or with the intention to prejudice the Commonwealth's security or defence, or to advantage another country's security or defence. The Act's jurisdiction extends throughout the Commonwealth of Australia, including its territories, and it applies to documents or articles regardless of their origin or content. The Act does not apply to information that has already been lawfully communicated or made available to the public by the Commonwealth. Prosecutions under this Act can only be instituted by, or with the consent of, the Attorney-General or a person acting under the Attorney-General’s direction, although preliminary arrest and remand are permissible without such consent. The Act includes provisions for in camera hearings and the forfeiture of articles that are dealt with in contravention of its provisions.

Key Provisions

The Criminal Code Amendment (Espionage and Related Matters) Act 2002 (Act) amends the Crimes Act 1914 and the Criminal Code Act 1995 to introduce new offences related to espionage and the security of the Commonwealth. It creates new provisions concerning the communication, making available, recording, and obtaining of information pertaining to the security or defence of the Commonwealth or another country. These provisions are designed to protect sensitive information and prevent actions that could prejudice the national security or defence capabilities. The Act imposes significant obligations on individuals and entities. It mandates that any act involving the communication, recording, or obtaining of sensitive information, whether directly or indirectly, must be done with lawful authority and without intent to prejudice the Commonwealth's security or defence. Additionally, it places a burden on the accused to prove that any information communicated or recorded was already publicly available with Commonwealth authority, serving as a defence against certain charges. Breaches of the Act are subject to severe penalties. For example, communicating or making available information concerning the Commonwealth's security or defence with intent to prejudice its security or defence, or to give an advantage to another country, carries a maximum penalty of 25 years imprisonment. Similarly, making, obtaining, or copying records of such information with the intent to deliver them to another country or foreign organisation also carries a 25-year imprisonment penalty. These stringent measures underscore the seriousness with which the Act treats espionage and related activities. Moreover, the Act allows for the forfeiture of any sketches, articles, records, or documents made, obtained, or retained in contravention of its provisions. This ensures that any materials used in committing these offences are confiscated and cannot be used or exploited further. Additionally, the Act specifies that only the Attorney-General, or a person acting under their direction, can institute a prosecution for offences under this Act. This centralised control aims to ensure that only cases of significant national importance are pursued, thereby maintaining the integrity and security of the Commonwealth.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.