Webdiary - Founded and Inspired by Margo Kingston

Malcolm B Duncan writes:

The original enactment which would have been relevant to John Pratt’s duties in the Defence force was:

DEFENCE ACT 1903-1973 - SECT. 73A.
Unlawfully giving or obtaining information as to defences

Inserted by No. 36, 1917, s. 18.

Sub-section (1) amended by No. 74, 1939, s. 3.

73A. (1) Any member of the Defence Force or officer in the Public Service of the Commonwealth who communicates to any person otherwise than in the course of his official duty any plan, document, or information relating to any fort, battery, field work, fortification, or defence work, or to any defences of the Commonwealth, or to any factory, or air-force aerodrome or establishment or any other naval, military or air-force information, shall be guilty of an offence.

Amended by No. 74, 1939, s. 3.

By the compilation of 2005, that section had been amended to read:

DEFENCE ACT 1903
- SECT 73A
Unlawfully giving or obtaining information as to defences

(1)

A person who is a member of the Defence Force or a person appointed or engaged under the Public Service Act 1999 is guilty of an offence if:

(a) the person communicates to any other person any plan, document, or information relating to any fort, battery, field work, fortification, or defence work, or to any defences of the Commonwealth, or to any factory, or air force aerodrome or establishment or any other naval, military or air force information; and
(b) the communication is not in the course of the first-mentioned person's official duty.

And has now transmogrified into:

DEFENCE FORCE DISCIPLINE ACT 1982 - SECT 58
Unauthorised disclosure of information

(1) A person who is a defence member or a defence civilian is guilty of an offence if:

(a) the person discloses information; and

(b) there is no lawful authority for the disclosure; and

(c) the disclosure is likely to be prejudicial to the security or defence of Australia.

Maximum punishment: Imprisonment for 2 years.

(2) Strict liability applies to paragraph (1)(c).

Note: For strict liability , see section 6.1 of the Criminal Code .

(3) It is a defence if the person proves that he or she neither knew, nor could reasonably be expected to have known, that the disclosure of the information was likely to be prejudicial to the security or defence of Australia.

Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code .

The alternative section under the Crimes Act (Cth) was amended to read:

CRIMES ACT 1914-1973 - SECT. 79.
Official secrets.

Substituted by No. 84, 1960, s. 52.

79. (1) For the purposes of this section, a sketch, plan, photograph, model, cipher, note, document, or article is a prescribed sketch, plan, photograph, model, cipher, note, document or article in relation to a person, and information is prescribed information in relation to a person, if the person has it in his possession or control and-

(a) it has been made or obtained in contravention of this Part;

(b) it has been entrusted to the person by a Commonwealth officer or a person holding office under the Queen or he has made or obtained it owing to his position as a person-

(i) who is or has been a Commonwealth officer;

(ii) who holds or has held office under the Queen;

(iii) who holds or has held a contract made on behalf of the Queen or the Commonwealth;

(iv) who is or has been employed by or under a person to whom a preceding sub-paragraph of this paragraph applies; or

(v) acting with the permission of a Minister,

and, by reason of its nature or the circumstances under which it was entrusted to him or it was made or obtained by him or for any other reason, it is his duty to treat it as secret; or

(c) it relates to a prohibited place or anything in a prohibited place and-

(i) he knows; or

(ii) by reason of its nature or the circumstances under which it came into his possession or control or for any other reason, he ought to know,

that it should not be communicated to a person not authorized to receive it.

Amended by No. 33, 1973, s. 7.

(2) If a person for a purpose intended to be prejudicial to the safety or defence of the Commonwealth or a part of the Queen's dominions-

(a) communicates a prescribed sketch, plan, photograph, model, cipher, note, document or article, or prescribed information, to a person, other than-

(i) a person to whom he is authorized to communicate it; or

(ii) a person to whom it is, in the interest of the Commonwealth or a part of the Queen's dominions, his duty to communicate it,

or permits a person, other than a person referred to in sub-paragraph (i) or (ii), to have access to it;

(b) retains a prescribed sketch, plan, photograph, model, cipher, note, document or article in his possession or control when he has no right to retain it or when it is contrary to his duty to retain it; or

(c) fails to comply with a direction given by lawful authority with respect to the retention or disposal of a prescribed sketch, plan, photograph, model, cipher, note, document or article,

he shall be guilty of an indictable offence.

Penalty: Imprisonment for seven years.

Amended by No. 33, 1973, s. 7.

(3) If a person communicates a prescribed sketch, plan, photograph, model, cipher, note, document or article, or prescribed information, to a person, other than-

(a) a person to whom he is authorized to communicate it; or

(b) a person to whom it is, in the interest of the Commonwealth or a part of the Queen's dominions, his duty to communicate it,

or permits a person, other than a person referred to in paragraph (a) or (b), to have access to it, he shall be guilty of an offence.

Penalty: Imprisonment for two years.

(4) If a person-

(a) retains a prescribed sketch, plan, photograph, model, cipher, note, document or article in his possession or control when he has no right to retain it or when it is contrary to his duty to retain it;

(b) fails to comply with a direction given by lawful authority with respect to the retention or disposal of a prescribed sketch, plan, photograph, model, cipher, note, document of article; or

(c) fails to take reasonable care of a prescribed sketch, plan, photograph, model, cipher, note, document or article, or prescribed information, or to ensure that it is not communicated to a person not authorized to receive it or so conducts himself as to endanger its safety,

he shall be guilty of an offence.

Penalty: Imprisonment for six months.

Amended by No. 33, 1973, s. 7.

(5) If a person receives any sketch, plan, photograph, model, cipher, note, document, article or information, knowing or having reasonable ground to believe, at the time when he receives it, that it is communicated to him in contravention of section 78 or sub-section (2) of this section, he shall be guilty of an indictable offence unless he proves that the communication was contrary to his desire.

Penalty: Imprisonment for seven years.

Amended by No. 33, 1973, s. 7.

(6) If a person receives any sketch, plan, photograph, model, cipher, note, document, article or information, knowing, or having reasonable ground to believe, at the time when he receives it, that it is communicated to him in contravention of sub-section (3), he shall be guilty of an offence unless he proves that the communication was contrary to his desire.

Penalty: Imprisonment for two years.

Amended by No. 33, 1973, s. 7.

(7) On a prosecution under sub-section (2) it is not necessary to show that the accused person was guilty of a particular act tending to show a purpose intended to be prejudicial to the safety or defence of the Commonwealth or a part of the Queen's dominions and, notwithstanding that such an act is not proved against him, he may be convicted if, from the circumstances of the case, from his conduct or from his known character as proved, it appears that his purpose was a purpose intended to be prejudicial to the safety or defence of the Commonwealth or a part of the Queen's dominions.

(8) On a prosecution under this section, evidence is not admissible by virtue of the last preceding sub-section if the Magistrate exercising jurisdiction with respect to the examination and commitment for trial of the defendant, or the Judge presiding at the trial, as the case may be, is of the opinion that that evidence, if admitted-

(a) would not tend to show that the purpose of the defendant was a purpose intended to be prejudicial to the safety or defence of the Commonwealth or a part of the Queen's dominions; or

(b) would, having regard to all the circumstances of the case and notwithstanding the next succeeding sub-section, prejudice the fair trial of the defendant.

(9) If evidence referred to in the last preceding sub-section is admitted at the trial, the Judge shall direct the jury that the evidence may be taken into account by the jury only on the question whether the purpose of the defendant was a purpose intended to be prejudicial to the safety or defence of the Commonwealth or a part of the Queen's dominions and must be disregarded by the jury in relation to any other question.

Amended by No. 33, 1973, s. 7.

(10) A person charged with an offence against sub-section (2) may be found guilty of an offence against sub-section (3) or (4) and a person charged with an offence against sub-section (5) may be found guilty of an offence against sub-section (6).

And by December 2005 that had been re-enacted as:

CRIMES ACT 1914
Part VII—Official secrets and unlawful soundings

- SECT 77
Interpretation

(1)

In this Part, unless the contrary intention appears:

article includes any thing, substance or material.

cipher includes:

(a) a code or cryptogram;
(b) a system, method, device or machine whereby a cipher, code or cryptogram may be created; and
(c) a code word, password or identification signal.

information means information of any kind whatsoever, whether true or false and whether in a material form or not, and includes:

(a) an opinion; and
(b) a report of a conversation.

model includes design, pattern and specimen.

plan includes a written record of a survey or of a bearing or measurement taken for the purpose of fixing the position of a place.

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, collecting, recording, using, having in possession, communicating, receiving or retaining include obtaining, collecting, recording, using, having in possession, communicating, receiving 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, collected, recorded, used, possessed, communicated, received or retained;
(b) expressions referring to obtaining or retaining any sketch, plan, photograph, model, cipher, note, document, article or information include copying or causing to be copied the whole or a part of the sketch, plan, photograph, model, cipher, note, document, article or information; and
(c) expressions referring to the communication of any sketch, plan, photograph, model, cipher, note, document, article or information include the transfer or transmission, or the publishing, of the sketch, plan, photograph, model, cipher, note, document, article or information.

(3)

A reference in the Part to a sketch, plan, photograph, model, cipher, note, document or article or to information shall be read as including a reference to a copy of, a part of or a copy of a part of a sketch, plan, photograph, model, cipher, note, document or article or information.

(4)

For the purposes of this Part, a place that is occupied by, or a thing that is under the control of, the Commonwealth shall be deemed to belong to the Commonwealth.

(5)

This Part applies to and in relation to a sketch, plan, photograph, model, cipher, note, document or article by whomsoever it is made and whatsoever information it contains.

SECT 79
Official secrets

(1)

For the purposes of this section, a sketch, plan, photograph, model, cipher, note, document, or article is a prescribed sketch, plan, photograph, model, cipher, note, document or article in relation to a person, and information is prescribed information in relation to a person, if the person has it in his possession or control and:

(a) it has been made or obtained in contravention of this Part or in contravention of section 91.1 of the Criminal Code;
(b) it has been entrusted to the person by a Commonwealth officer or a person holding office under the Queen or he has made or obtained it owing to his position as a person:
(i) who is or has been a Commonwealth officer;
(ii) who holds or has held office under the Queen;
(iii) who holds or has held a contract made on behalf of the Queen or the Commonwealth;
(iv) who is or has been employed by or under a person to whom a preceding subparagraph applies; or
(v) acting with the permission of a Minister;
and, by reason of its nature or the circumstances under which it was entrusted to him or it was made or obtained by him or for any other reason, it is his duty to treat it as secret; or
(c) it relates to a prohibited place or anything in a prohibited place and:
(i) he knows; or
(ii) by reason of its nature or the circumstances under which it came into his possession or control or for any other reason, he ought to know;
that it should not be communicated to a person not authorized to receive it.

(2)

If a person with the intention of prejudicing the security or defence of the Commonwealth or a part of the Queen's dominions:

(a) communicates a prescribed sketch, plan, photograph, model, cipher, note, document or article, or prescribed information, to a person, other than:
(i) a person to whom he is authorized to communicate it; or
(ii) a person to whom it is, in the interest of the Commonwealth or a part of the Queen's dominions, his duty to communicate it;
or permits a person, other than a person referred to in subparagraph (i) or (ii), to have access to it;
(b) retains a prescribed sketch, plan, photograph, model, cipher, note, document or article in his possession or control when he has no right to retain it or when it is contrary to his duty to retain it; or
(c) fails to comply with a direction given by lawful authority with respect to the retention or disposal of a prescribed sketch, plan, photograph, model, cipher, note, document or article;

he shall be guilty of an indictable offence.

Penalty: Imprisonment for 7 years.

(3)

If a person communicates a prescribed sketch, plan, photograph, model, cipher, note, document or article, or prescribed information, to a person, other than:

(a) a person to whom he is authorized to communicate it; or
(b) a person to whom it is, in the interest of the Commonwealth or a part of the Queen's dominions, his duty to communicate it;

or permits a person, other than a person referred to in paragraph (a) or (b), to have access to it, he shall be guilty of an offence.

Penalty: Imprisonment for 2 years.

(4)

If a person:

(a) retains a prescribed sketch, plan, photograph, model, cipher, note, document or article in his possession or control when he has no right to retain it or when it is contrary to his duty to retain it;
(b) fails to comply with a direction given by lawful authority with respect to the retention or disposal of a prescribed sketch, plan, photograph, model, cipher, note, document or article; or
(c) fails to take reasonable care of a prescribed sketch, plan, photograph, model, cipher, note, document or article, or prescribed information, or to ensure that it is not communicated to a person not authorized to receive it or so conducts himself as to endanger its safety;

he shall be guilty of an offence.

Penalty: Imprisonment for 6 months.

(5)

If a person receives any sketch, plan, photograph, model, cipher, note, document, article or information, knowing or having reasonable ground to believe, at the time when he receives it, that it is communicated to him in contravention of section 91.1 of the Criminal Code or subsection (2) of this section, he shall be guilty of an indictable offence unless he proves that the communication was contrary to his desire.

Penalty: Imprisonment for 7 years.

(6)

If a person receives any sketch, plan, photograph, model, cipher, note, document, article or information, knowing, or having reasonable ground to believe, at the time when he receives it, that it is communicated to him in contravention of subsection (3), he shall be guilty of an offence unless he proves that the communication was contrary to his desire.

Penalty: Imprisonment for 2 years.

(7)

On a prosecution under subsection (2) it is not necessary to show that the accused person was guilty of a particular act tending to show an intention to prejudice the security or defence of the Commonwealth or a part of the Queen's dominions and, notwithstanding that such an act is not proved against him, he may be convicted if, from the circumstances of the case, from his conduct or from his known character as proved, it appears that his intention was to prejudice the security or defence of the Commonwealth or a part of the Queen's dominions.

(8)

On a prosecution under this section, evidence is not admissible by virtue of subsection (7) if the magistrate exercising jurisdiction with respect to the examination and commitment for trial of the defendant, or the judge presiding at the trial, as the case may be, is of the opinion that that evidence, if admitted:

(a) would not tend to show that the defendant intended to prejudice the security or defence of the Commonwealth or a part of the Queen's dominions; or
(b) would, having regard to all the circumstances of the case and notwithstanding subsection (9), prejudice the fair trial of the defendant.

(9)

If evidence referred to in subsection (8) is admitted at the trial, the judge shall direct the jury that the evidence may be taken into account by the jury only on the question whether the defendant intended to prejudice the security or defence of the Commonwealth or a part of the Queen's dominions and must be disregarded by the jury in relation to any other question.

(10)

A person charged with an offence against subsection (2) may be found guilty of an offence against subsection (3) or (4) and a person charged with an offence against subsection (5) may be found guilty of an offence against subsection (6).

There is now a further alternative charge under the Schedule to the Criminal Code Act 1995:

CRIMINAL CODE ACT 1995 - SCHEDULE The Criminal Code

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).