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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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This bill seeks to amend various Acts in relation to the criminal law
to:
• amend existing espionage offences;
• introduce new foreign interference offences targeting covert,
deceptive or threatening actions by foreign actors;
• amend Commonwealth secrecy offences;
• introduce comprehensive new sabotage offences;
• amend various offences, including treason;
• introduce a new theft of trade secrets offence;
• introduce a new aggravated offence for providing false and
misleading information in the context of security clearance processes;
and
• allow law enforcement agencies to have access to telecommunications
interception powers.
The bill also seeks to make amendments relevant to the Foreign Influence
Transparency Scheme, including seeking to amend the Foreign Influence
Transparency Scheme Act 2017 (currently a bill before Parliament)
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Portfolio
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Attorney-General
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Introduced
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House of Representatives on 7 December 2017
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1.272 The bill proposes reforming, and introducing, a number of key offences relating to threats to national security. The committee is concerned that a number of definitions in the bill, that are central to, or at least relate to, these offences, are broadly defined. As a result, a number of the offence provisions in the bill have a broad application. In particular:
• 'deal' is defined as doing a number of listed things in relation to information or an article, including merely receiving or obtaining it, collecting it or possessing it;[203]
• 'foreign principal' is defined as including, amongst other things, a public international organisation, being an organisation of which two or more countries are members or a commission, council or other body established by such an organisation (thereby including all United Nations bodies);[204]
• 'national security' is defined as the national security of Australia and of a foreign country and includes the protection of the integrity of the country's territory and borders from 'serious threats' (which is not defined) or the country's political, military or economic relations with another country;[205] and
• 'inherently harmful information' is defined as including security classified information (regardless of whether the classification was appropriately made) or information that was provided by anyone to the Commonwealth in order to comply with an obligation under law or by compulsion of law.
1.273 As a result of these broad definitions, a number of offences in the bill appear to be overly broad. For example, under proposed section 91.3 a person commits an espionage offence if they deal with information or an article and this results in the information or article being made available to a foreign principal or to a person acting on their behalf and the information or article has a security classification or concerns Australia's national security. The penalty for the offence is imprisonment for up to 20 years. Because of the broad definition of 'deals' and 'national security' this could mean that a journalist who publishes security classified information online would commit the offence (as the publication would make the information available to a foreign principal), regardless of the public interest reasons for publishing it and whether the security classification was appropriately made. The broad definitions of 'deal' and 'foreign principal' could also make it an offence for a person to share unclassified information with a public international organisation, such as the World Health Organisation, if the information concerned Australia's political or economic relations with another country (with no requirement that the sharing of such information would affect those relations). The committee notes the only listed defence to the offence in proposed section 91.3 is that the person dealt with the information in accordance with a Commonwealth law, in the person's capacity as a public official or in accordance with an agreement with the Commonwealth allowing for the exchange of such information or articles.[206] There is no defence available for journalists or others acting in the public interest or even that the information had already been lawfully made publicly available.
1.274 In addition, proposed subsections 122.1(1) and (2) make it an offence for a person to communicate or deal with inherently harmful information that was made or obtained by that or any other person by reason of being, or having been, a Commonwealth officer or engaged to perform work for a Commonwealth entity. This offence is subject to a penalty of imprisonment of up to 15 years (for communicating) and 5 years (for otherwise dealing). As a result of the definitions of 'deal' and 'inherently harmful information', an offence under section 122.1could be made out if a person simply receives security classified information from a Commonwealth officer, even if they did not solicit that information and did nothing else with that information. The offences also do not distinguish between conduct committed by a Commonwealth officer or contractor in the course of their duties and third parties who have no professional obligation to maintain the confidentiality of such information. The committee also notes that the offence could be committed by a Commonwealth officer merely carrying out their everyday functions of dealing with security classified material, with the burden of proof resting with the officer to raise evidence to prove that they were acting in accordance with their duties in doing so (see paragraphs 1.276 to 1.286 below).
1.275 The committee therefore seeks the minister's detailed justification of:
• the breadth of the definitions of 'deal', 'foreign principal', 'national security' and 'inherently harmful information' in the context of the offences in which they apply; and
• the breadth of the offences in proposed sections 91.3 and 122.1.
1.276 A number of key offences relating to threats to national security in the bill provide offence-specific defences, which provide that the offence does not apply, or it is a defence to the offence, in certain specified circumstances. In doing so, the defence provisions reverse the evidential burden of proof, as subsection 13.3(3) of the Criminal Code Act 1995 provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter.
1.277 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.
1.278 While in these instances the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), rather than a legal burden (requiring the defendant to positively prove the matter), the committee expects any such reversal of the evidential burden of proof to be justified.
1.279 The committee also notes that the Guide to Framing Commonwealth Offences[208] provides that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence), where:
• it is peculiarly within the knowledge of the defendant; and
• it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.[209]
1.280 In this bill, there are a number of offence-specific defences that do not appear to satisfy these criteria, particularly as knowledge of the matters specified in the defences do not appear to be matters that would be peculiar to the defendant.[210] For example, the bill provides that offences do not apply, or defences are available, in circumstances such as:
• the conduct was engaged in solely by way of, or for the purposes of, the provision of aid or assistance of a humanitarian nature;[211]
• the conduct engaged in was accessing or using a computer or other electronic system in the person's capacity as a public official;[212]
• the conduct was authorised by a written agreement to which the Commonwealth is a party;[213]
• the military-style training provided, received or participated in was as part of a person's service with the armed forces of the government of a foreign country or specified armed forces;[214]
• the person dealt with information or an article in accordance with the law of a Commonwealth or an arrangement or agreement to which the Commonwealth is a party; or in the person's capacity as a public official;[215]
• the information or article had already been communicated or made available to the public with the authority of the Commonwealth;[216]
• the information was disclosed to the Inspector-General of Intelligence and Security (or a person assisting them); the Commonwealth Ombudsman; or the Law Enforcement Integrity Commissioner, for the purposes of them exercising a power, or performing a function or duty;[217]
• the communication of information was in accordance with the Public Interest Disclosure Act 2013 or was to a court or tribunal;[218]
• the person dealt with or held information in the public interest and in their capacity as a journalist engaged in fair and accurate reporting.[219]
1.281 In most cases, the explanatory memorandum gives a detailed explanation as to the effect of the provision, but the justification for reversing the evidential burden of proof is generally that the defendant 'should be readily able to point to' the relevant evidence[220] or the defendant is 'best placed' to know of the relevant evidence.[221] The committee reiterates that the Guide to Framing Commonwealth Offences states that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence), where it is peculiarly within the knowledge of the defendant. Because a defendant is readily able to point to evidence or in a good position to do so does not mean that the relevant matter is 'peculiarly' within their knowledge. Rather, many of the matters listed above would appear to be matters that the prosecution would be best placed to establish, e.g. whether something had been done in accordance with the authority or agreement of the Commonwealth or disclosed to a specified Commonwealth entity.
1.282 In other instances, the explanatory memorandum[222] states that whether a person has lawful authority for doing something is a matter peculiarly within the knowledge of the defendant, but gives no justification as to why this is something especially within the defendant's knowledge, rather than something the prosecution would know. Rather, the explanatory memorandum states that it would be 'significantly more cost-effective for the defendant to assert the matter' than for the prosecution to disprove. It is not clear to the committee what significant difficulties the prosecution would face in proving whether or not a person acted in accordance with a law of the Commonwealth. The committee also notes the test is not whether or not it is more 'cost-effective' for the defendant (who may have limited financial resources) to raise evidence in relation to a matter, rather it is whether it is a matter peculiarly within the defendant's knowledge, and as such, it would be significantly more difficult and costly for the prosecution to disprove.
1.283 The committee also notes that proposed Division 122 sets out a number of offences for a person to communicate or deal with security classified information which was obtained by the person by reason of being a Commonwealth officer (or engaged to perform work for a Commonwealth entity). This appears to criminalise the work any public servant or engaged contractor does when dealing with security classified information. The bill relies on the existence of defences to the offence, which provide it is not an offence if a person is acting in their capacity as a Commonwealth officer or is engaged to perform the relevant work. However, this would appear to leave officials acting appropriately in the course of their employment open to a criminal charge and then places the evidential burden of proof on the officer to raise evidence to demonstrate that they were in fact acting in accordance with their employment.
1.284 The explanatory memorandum states that there are a vast range of circumstances in which Commonwealth officers and others deal with security classified information, noting that possessing or copying information concerning national security 'is a day to day occurrence in many Commonwealth departments and agencies, for Ministers and their staff, for State and Territory law enforcement agencies working on counter-terrorism investigations, and for defence contractors'.[223] It goes on to state that it is not intended to criminalise such dealings, and that the prosecution would consider the availability of defences before seeking to prosecute a person. However, the committee notes, in not making the question of whether a person is authorised to deal with such matters an element of the offence, the provisions do, in fact, criminalise such officers and impose an evidential burden of proof on such persons. The committee further notes that there may be some officers who, by reason of the sensitive national security nature of their work and secrecy requirements under other legislation, may be unable to lawfully raise evidence relating to whether they were acting in the course of their duties.[224]
1.285 The committee considers that many of the matters listed above at paragraph 1.280 do not appear to be matters that are peculiarly within the defendant's knowledge, or that it would be difficult or costly for the prosecution to establish the matters. These matters appear to be matters more appropriate to be included as an element of the offences.
1.286 The committee requests the minister's detailed advice as to:
• the appropriateness of including each of the specified matters as an offence-specific defence, by reference to the principles set out in the Guide to Framing Commonwealth Offences;
• whether there are secrecy provisions in other legislation that might prevent public officials from discharging the evidential burden of proof as to whether they were acting in accordance with their statutory duties; and
• the appropriateness of amending the bill to provide that the relevant matters be included as an element of each offence or that, despite section 13.3 of the Criminal Code, a defendant does not bear the burden of proof in relying on the offence-specific defences.
1.287 Proposed section 80.1AC seeks to make it an offence for a person to engage in conduct that involves the use of force or violence, where the person engages in such conduct with the intention of overthrowing the Constitution, the federal or a state or territory government or the lawful authority of the federal government. The offence is subject to a penalty of imprisonment for life. The explanatory memorandum explains that the offence in proposed section 80.1AC will replace an existing treachery offence, and gives an example of how the offence might be committed:
Person B holds the strong view that Australia’s constitutional democracy does not best serve the interests of the Australian people and that anarchy is preferable. Person B forms an anarchist group with a large number of like-minded people and they storm Parliament House. Using weapons and violence, the group seeks to cause harm to a large number of parliamentarians, intending that the anarchist movement will remove the established government.[226]
1.288 The explanatory memorandum goes on to state:
Whether or not the overthrow of the Constitution or government occurs or the conduct is capable of bringing it about is not relevant to the defendant’s culpability for the offence. For example, Person B’s conduct may not be capable of defeating the security measures in place at Parliament House and therefore Person B’s conduct was not capable of overthrowing the Government. The defendant could still commit the offence despite the fact that this outcome does not occur, or is not capable of occurring.[227]
1.289 The committee notes that while this offence could apply to extremely serious forms of conduct as described in the explanatory memorandum, the way the offence is drafted means it could also potentially apply to much less serious conduct. What constitutes conduct involving 'the use of force or violence' is not specified, and the committee notes that the use of force would include force against things. In addition, while the defendant would need to intend to engage in conduct, he or she would only need to be reckless as to whether the conduct involved the use of force or violence.[228] This, combined with the fact that it is not relevant whether the conduct was capable of achieving the defendant's aims, could mean, for example, that a person with a delusional aim of overthrowing the government might be liable to be sentenced to life imprisonment, despite only having engaged in conduct that resulted in minor force being applied to a government building.
1.290 The committee therefore seeks the minister's detailed justification for making the offence in proposed section 80.1AC subject to a penalty of life imprisonment when the provision does not precisely specify the nature of the offending conduct.
1.291 A number of proposed offence provisions in the bill apply strict liability to elements of the offence. Those elements relate mainly to whether information or an article has a security classification (which has the meaning prescribed by the regulations).[230] Item 17 of Schedule 1 to the bill repeals Division 91 of the Criminal Code, and substitutes a new Division 91 – which includes a series of proposed offences relating to espionage. Proposed section 91.1 creates an offence of dealing with classified information relating to national security in a way that will make that information available to a foreign principal or to a person acting on their behalf. The offence is punishable by life imprisonment, or a prison term of 25 years, depending on whether the offence is committed intentionally or recklessly. Proposed section 91.3 of the bill creates a similar offence of dealing with security classified information, which is punishable by 20 years' imprisonment. Proposed section 91.6 creates an aggravated offence, which would apply where a person commits an offence under proposed sections 91.1, 91.2 or 91.3 (underlying offence), and an aggravating circumstance listed in proposed subsection 91.6(1) also exists.
1.292 A key element of each of the offences in proposed sections 91.1 and 91.2 is that the information with which the person deals has a security classification. The explanatory memorandum states that:
It is anticipated that the regulations will prescribe the relevant protective markings that will denote information as being [security] classified for the purposes of these offences. At this time, these markings are listed in the Australian Government information security management guidelines – Australian Government security classification system (available at www.protectivesecurity.gov.au), and include:
• PROTECTED
• CONFIDENTIAL
• SECRET
• TOP SECRET[231]
1.293 With respect to the offences in proposed sections 91.1 and 91.3, the question of whether the relevant information is security classified is a matter of strict liability. Further, an aggravating circumstance in proposed section 91.6 is that the person dealt with five or more records or articles, each of which has a security classification. Whether the records or articles have a security classification is also a matter of strict liability.
1.294 Item 6 of Schedule 2 to the bill inserts a new Division 122 into the Criminal Code – which contains a number of offences relating to secrecy. Proposed section 122.1 creates a series of offences relating to communicating and dealing with inherently harmful information, to removing or holding inherently harmful information outside its proper place of custody, and to failing to comply with a direction in relation to inherently harmful information. The offences are punishable by terms of imprisonment of between 5 and 15 years. The bill provides that where the information with which the alleged offender deals has a security classification (outlined above), whether the information is inherently harmful would be a matter of strict liability.
1.295 Proposed section 122.3 creates an aggravated offence, which would apply where a person commits an underlying offence under proposed sections 122.1 or 122.2, and an aggravating circumstance listed in proposed subsection 122.3(1) also exists. One of the aggravating circumstances in proposed section 122.3(1) is that the commission of the underlying offence involves five or more records, each of which has a security classification. Whether the records have a security classification is a matter of strict liability.
1.296 Under general principles of the criminal law, fault is required to be proved before a person can be found guilty of a criminal offence (ensuring that criminal liability is only imposed on persons who are sufficiently aware of what they are doing and the consequences it may have). When a bill states that an offence, or an element of an offence, is one of strict liability, this removes the requirement for the prosecution to prove the defendant's fault. In such cases, the offence or the element of the offence will be made out if it can be proven that the defendant engaged in certain conduct, without the prosecution having to prove that the defendant's conduct was intentional, reckless or negligent. As the imposition of strict liability undermines fundamental criminal law principles, the committee expects the explanatory memorandum to provide a justification for any imposition of strict liability, including clearly outlining whether the approach is consistent with the Guide to Framing Commonwealth Offences.[232]
1.297 The statement of compatibility states:
For the elements relevant to information or articles carrying a security classification, [the application of strict liability] is appropriate because information or articles carrying a security classification are clearly marked with the security classification and any person who has access to security classified information should easily be able to identify as such.
...
The application of strict liability is also necessary to ensure that a person cannot avoid criminal responsibility because they were unaware of certain circumstances for example that information was security classified information. Consistent with the Guide to Framing Commonwealth Offences, requiring knowledge of such an element in these circumstances would undermine deterrence of the offence. There are also legitimate grounds for penalising a person's lacking 'fault' in these circumstances because, with an offence of espionage for example, the person still engaged in conduct with the intention to, or reckless as to whether, that conduct would prejudice Australia's national security or advantage the national security of a foreign country [233]
1.298 However, the committee notes that the meaning of 'security classification' is to be prescribed by the regulations, with no detail set out in the bill. The committee notes the explanatory memorandum's advice that at this time the markings listed in the Australian Government information security management guidelines are likely to be prescribed by the regulations.[234] However, the committee notes that those guidelines provide that '[i]f information is created outside the Australian Government the person working for the government actioning this information is to determine whether it needs a protective marking'.[235] This indicates that any outside contractor or consultant working for the government can mark information with a security classification. It is not clear that in all cases the question of whether information or articles had a security classification would always be apparent to a person, particularly as there is a vast range of persons who can apply a security classification to a document. It is therefore not clear that such a classification would always be appropriately applied and made clearly apparent to persons unfamiliar with the classification process. The committee also notes that the defence of mistake of fact only applies to persons who have considered whether certain facts exist (but is under a mistaken but reasonable belief about those facts). It will not apply if a person has failed to consider the existence of a security classification.
1.299 The committee also notes that the Guide to Framing Commonwealth Offences states that the application of strict liability to all elements of an offence is only considered appropriate where the offence is not punishable by imprisonment and only punishable by a fine of up to 60 penalty units for an individual.[236] While in this instance strict liability only applies to a discrete element of each of the identified offences, the committee notes that the offences are subject to very significant terms of imprisonment (between 5 years and life imprisonment).
1.300 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of applying strict liability to elements of the offences in proposed sections 91.1, 91.3, 91.6, 122.1 and 122.3 (as to whether information or articles have a security classification), particularly given such offences are punishable by terms of imprisonment ranging from 5 years to life imprisonment.
1.301 Section 15AA of the Crimes Act 1914 (Crimes Act) provides for a presumption against bail for persons charged with, or convicted of, certain Commonwealth offences unless exceptional circumstances exist. Item 38 of Schedule 1 to the bill proposes to amend section 15AA of the Crimes Act to apply the presumption against bail to the proposed offences in Divisions 80 and 91 of the Criminal Code (including offences relating to urging violence, advocating terrorism, genocide, offences relating to espionage).[238] Item 39 of Schedule 1 to the bill also proposes to amend section 15AA of the Crimes Act, in this case to apply the presumption against bail to the new foreign interference offences in circumstances where it is alleged that the defendant's conduct involved making a threat to cause serious harm of a demand with menaces.[239]
1.302 The presumption against bail applies both to those convicted of, but also those charged with, certain offences. The committee notes that it is a cornerstone of the criminal justice system that a person is presumed innocent until proven guilty, and presumptions against bail (which deny a person their liberty before they have been convicted) test this presumption. As such, the committee expects that a clear justification be given in the explanatory materials for imposing a presumption against bail (including extending the presumption against bail to new offences), and expects that the explanatory materials would include any evidence that courts are currently failing to consider the serious nature of an offence in determining whether to grant bail.
1.303 In this instance, the explanatory memorandum states that extending the presumption against bail to the offences proposes by the bill is appropriate given the relevant conduct is similar in nature to that of an espionage offence and it is appropriate that a person being prosecuted for a foreign interference offence should only be subject to a presumption against bail in circumstances where there is a threat of harm.[240] The statement of compatibility also gives a general justification for when it may be appropriate to impose a presumption against bail, noting that the existing provisions in the Crimes Act and the amendments in the bill means the presumption against bail is appropriately reserved for serious offence, and the accused nevertheless has the opportunity to rebut the presumption.
1.304 The committee reiterates its concerns that some of the espionage offences (for which there would be a presumption against bail) may be overly broad (see above at paragraphs 1.272 to 1.275) and no information has been provided as to why bail authorities and courts would not be able to adequately assess the risks posed by persons charged with such offences before setting bail. The committee further emphasises that it is a cornerstone of the criminal justice system that a person is presumed innocent until proven guilty, and presumptions against bail (which deny a person their liberty before they have been convicted) test this presumption.
1.305 The committee requests the minister's detailed justification as to the appropriateness of imposing a presumption against bail and why it is necessary to create a presumption against bail rather than specifying the relevant matters a bail authority or court must have regard to in exercising their discretion whether to grant bail.
1.306 Proposed section 121.2 seeks to provide a definition of 'proper place of custody'. Proposed subsection 121.2(1) provides that 'proper place of custody' will have the meaning prescribed by the regulations. Proposed subsection 121.2(2) then provides that, despite section 14(2) of the Legislation Act 2003, regulations made for the purposes of the definition of 'proper place of custody' may prescribe a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.
1.307 At a general level, the committee will have concerns where provisions in a bill allow legislative provisions to operate by reference to other documents, because such an approach:
• raises the prospect of changes being made to the law in the absence of parliamentary scrutiny, (for example, where an external document is incorporated as in force 'from time to time' this would mean that any future changes to that document would operate to change the law without any involvement from Parliament);
• can create uncertainty in the law; and
• means that those obliged to obey the law may have inadequate access to its terms (in particular, the committee will be concerned where relevant information, including standards, accounting principles or industry databases, is not publicly available or is available only if a fee is paid).
1.308 As a matter of general principle, any member of the public should be able to freely and readily access the terms of the law. Therefore, the committee's consistent scrutiny view is that where material is incorporated by reference into the law it should be freely and readily available to all those who may be interested in or affected by the law.
1.309 The issue of access to external material incorporated into the law by reference, such as Australian and international standards, has been an issue of ongoing concern to Australian parliamentary scrutiny committees. Most recently, the Joint Standing Committee on Delegated Legislation of the Western Australian Parliament published a detailed report on this issue,[242] which comprehensively outlines the significant concerns associated with the incorporation of material by reference – particularly where the material is not readily and freely available.
1.310 With regard to these matters, the explanatory memorandum states:
The incorporation of the content of the definition [of 'proper place of custody'] by reference to another instrument or document is necessary to enable the definition to incorporate documents setting out Commonwealth protective security policy documents, to ensure alignment between the Commonwealth's protective security police [sic] as in force from time-to-time and the scope of the offences.
The Commonwealth Protective Security Policy Framework sets out the Commonwealth protective security policy as in force from time-to-time. Tier 1, 2 and 3 documents comprising the PSPF are available free of charge online. Tier 4 documents that agencies develop to set out agency-specific protective security policies and procedures are available free of charge to all persons in agencies subject to those policies and procedures.[243]
1.311 The committee acknowledges that the explanatory memorandum states that all persons would have access to Tier 1, 2 and 3 documents within the PSPF, and that Tier 4 documents would be available to persons to whom they directly apply (that is, persons in relevant agencies). However, the committee reiterates that it is a fundamental principle of the rule of law that every person interested in or affected by the law should be able readily and freely access its terms. In this regard, the committee is concerned that Tier 4 documents (and potentially other documents incorporated by reference into regulations made for the purpose of proposed section 121.2) may not be freely and readily available to the public at large.
1.312 The committee requests the minister's advice as to whether, at a minimum, the bill can be amended to insert a statutory requirement that the relevant documents to be incorporated will be made freely and readily available to all persons in agencies subject to those policies and procedures.
[202] Various provisions. The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).
[203] See Schedule 1, item 10, section 90.1(1), proposed definition of 'deal'.
[204] See Schedule 1, item 16, proposed section 90.2.
[205] See Schedule 1, item 16, proposed section 90.4.
[206] See Schedule 1, item 17, proposed section 91.4.
[207] See Schedule 1, item 4, proposed subsection 80.1AA(4); item 8, proposed section 82.10 and proposed subsections 83.3(2) and (3); item 17, proposed sections 91.4, 91.9, 91.13, 92.5 and 92.11; and Schedule 2, item 6, proposed section 122.5. The committee draws senators' attention to these provisions pursuant to principle 1(a)(i) of the committee’s terms of reference.
[208] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 50-52.
[209] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 50.
[210] See Schedule 1, item 4, proposed subsection 80.1AA(4); item 8, proposed section 82.10 and proposed subsections 83.3(2) and (3); item 17, proposed sections 91.4, 91.9, 91.13, 92.5 and 92.11; and Schedule 2, item 6, proposed section 122.5
[211] See Schedule 1, item 4, proposed subsection 80.1AA(4).
[212] See Schedule 1, item 8, proposed section 82.10.
[213] See Schedule 1, item 8, proposed subsection 83.3(2).
[214] See Schedule 1, item 8, proposed subsection 83.3(3).
[215] See Schedule 1, item 17, proposed subsections 91.4(1), 91.9(1) and sections 91.13, 92.5 and 92.11; Schedule 2, item 6, proposed subsection 122.5(1).
[216] See Schedule 1, item 17, proposed subsections 91.4(2) and 91.9(2); Schedule 2, item 6, proposed subsection 122.5(2).
[217] See Schedule 2, item 6, proposed subsection 122.5(3).
[218] Schedule 2, item 6, proposed subsections 122.5(4) and (5).
[219] Schedule 2, item 6, proposed subsection 122.5(6).
[220] See explanatory memorandum, pp. 73, 127, 148, 159, 276-283.
[221] See explanatory memorandum, p. 88.
[222] See explanatory memorandum, pp. 123, 145,155, 182 and 195.
[223] Explanatory memorandum, p. 275.
[224] See pp. 5-6 of submission 13 from the Inspector-General of Intelligence and Security to the Parliamentary Joint Committee on Intelligence and Security, Review of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017.
[225] See Schedule 1, item 4, proposed section 80.1AC. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).
[226] Explanatory memorandum, p. 34.
[227] Explanatory memorandum, pp. 35-36.
[228] See explanatory memorandum, p. 35.
[229] See Schedule 1, item 17, proposed sections 91.1, 91.3 and 91.6, and Schedule 2, item 6, proposed sections 122.1 and 122.3. The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).
[230] See item 16, proposed section 90.5 for a definition of 'security classification'.
[231] Explanatory memorandum, p. 105
[232] Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 22-25.
[233] Statement of compatibility, p. 17.
[234] Explanatory memorandum, pp. 104-105.
[235] Australian Government, Information security management guidelines: Australian Government security classification system, version 2.2, approved November 2014, amended April 2015, p. 4, paragraph 29. Available at: https://www.protectivesecurity.gov.au/informationsecurity/Documents/INFOSECGuidelinesAustralianGovernmentSecurityClassificationSystem.pdf
[236] Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 23.
[237] Schedule 1, items 38 and 39. The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).
[238] See explanatory memorandum, p. 215.
[239] See explanatory memorandum, p. 216.
[240] Explanatory memorandum, p. 216.
[241] Schedule 2, item 6, proposed section 121.2. The committee draws senators' attention to this provision pursuant Senate Standing Order 24(1)(a)(i).
[242] Joint Standing Committee on Delegated Legislation, Parliament of Western Australia, Access to Australian Standards Adopted in Delegated Legislation, June 2016.
[243] Explanatory memorandum, p. 234.
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