Section 91.1 Criminal Code Act | Espionage


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The Legislation

Section 91.1 of the Criminal Code Act 1995 (Cth) is Espionage and is extracted below.

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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.