Intentional espionage on behalf of foreign principal is an offence under section 91.8(1) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 25 years in prison.
To establish the offence, the prosecution must prove beyond reasonable doubt that:
To ‘deal with’ includes to receive, obtain, collect, possess, make a record, copy, alter, conceal, communicate, publish or make available.
To ‘make available’ includes to:
An ‘article’ includes anything, substance or material.
‘National security’ is defined as:
‘Prejudice’ does not include embarrassment alone.
‘Advantage’ does not include conduct that benefits Australia at least as much as the foreign country.
‘Espionage offences’ include:
Section 91.1(1) – Intentionally providing national security information to foreign principal
Section 91.2 – intentionally providing information to a foreign principal, and
Section 91.3 – Providing security classified information
A ‘foreign principal’ is defined as:
You are not guilty of the offence if you are able to establish, ‘on the balance of probabilities’ that you dealt with the information or article:
Duress and self-defence are also defences to the charge.
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