Espionage and Foreign Interference Offences in Australia

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Espionage Charges

On Saturday 15 April 2023, Bondi man Alexander Csergo appeared in Parramatta Local Court charged with one count of reckless foreign interference contrary to section 92.3 of the Criminal Code Act 1995.

The allegation is that Ms Csergo had been selling national security material to two foreign intelligence operatives.

If convicted of the offence, he faces a maximum sentence of up to 15 years imprisonment. 

The arrest was made after a joint investigation by the Australian Security Intelligence Organisation (SIO), the Counter Foreign Interference Taskforce (CFIT) and the Australian federal police (AFP). 

Mr Csergo is the second person charged under enactments to the Criminal Code Act introduced by the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018.

He has been refused bail and remanded in custody.

It is alleged that the offences took place between February 2021 and April 2023 and occurred in Shanghai China and NSW Australia. AFP assistant commissioner Krissy Barrett has informed the media that Mr Csergo is alleged to have been offered money by two foreign intelligence officers for information relating to Australian defence, economic and national security matters, amongst other things.

National security threats

This article will first look at the ASIO’s annual threat assessment report with a view to ascertaining those the organisations believes are being by those who are being targeted by foreign intelligence services. 

From there, we will explore a most recent successful operation by ASIO and its partner agencies resulting in the expulsion of a significant number of embassy and consular staff. 

Then we shall discuss another fairly recent operation involving a global superpower highlighting the potential security risks facing Australia and why Australia is seeing the highest prevalence of spying it ever has. From there this article will peruse the changes to legislation to ensure that our efforts to protect Australia are fit for purpose and not bound up in red tape. 

From there, we will have a look at two of the global organisations which help keep us safe yet be mindful of the vigilance each associated member must have over each other lest we become complacent.  

And finally, the main espionage and foreign interference offences that apply in Australia will be outlined, including the elements of the offences, the maximum penalties , the exceptions and the available defences.

ASIO annual national threat assessment 

This assessment was presented to parliament in Canberra on 21 February 2023 by the  Australian security and intelligence organisation (ASIO) director-general Mike Burgess. 

The ASIO national security threat assessment included within it attempts by at least two unnamed foreign countries to harm residents of Australia including operations to target alleged dissidents in order to deal with them and in one incidence there was an Iranian inspired plot to lure the dissident to a foreign country and dispose of that person. 

Those attempts were thwarted by ASIO and its partner agencies. Whilst many aspects concerning the protection of Australia were discussed in depth the overriding threats as determined by ASIO’s head are espionage and foreign interference and this is where this article shall focus.

Targeting those who can provide an advantage

For many years, Australian judges, pilots, war veterans and journalists amongst other professional people such as defence personnel, “were  being targeted by foreign espionage agencies at unprecedented levels” with the threat to Australia higher than it has ever been according to the director-general. 

This includes the Cold War and the attack on America in what simply became known as  9/11, an event which sparked the ‘war on terrorism’ and led to the enactment of a plethora of laws ostensibly designed to protect against terrorists but which has actually resulted in the loss of civil liberties and legal safeguards.

However, it was only recently that a spy ring which had been operating for about 18 months was finally shut down and the spies returned to their country surreptitiously over the past year.

The Russians were here 

Whilst ASIO said that the countries where such security threats emanated from would remain unknown the Sydney Morning Herald ran a story which in addition to the Iranian revelation was that the main ring of spies were Russian including members of the Russian embassy and consular staff. 

The espionage ring had been operating for about 18 months with the group quietly sent back to Russia without fanfare to avoid repercussions by Russia in relation to Australian embassy staff. Whilst this investigation was proceeding at the same time another ASIO operation was underway.

China was here too

It’s been less than a year since a Chinese warship with espionage capabilities traversed Australia’s west coastline for about a week with Australian defence minister Peter Dutton claiming it an act of aggression and ordering the Royal Australian navy (RAN) to keep surveillance on the warship. 

This occurred about several weeks after China’s Communist party and the Solomon Islands signed a security pact exacerbating tensions between China and Australia. 

And due to numerous territorial disputes in the South China Sea, the Taiwan Strait and the Korean peninsula Australia has become a focus for foreign intelligence services whose aim is to undermine Australia and further their own agenda. Indeed, the director-general pointed out that it even included some nations who are supposed to be friends.

Chinese warships have been observed over the past few years off Australia’s north and eastern coasts also.

Qantas had complained of the warships interfering with its aircraft radio frequency not only off the Australian coastline but also over the South China sea. What is of particular concern is that China has been building up a presence in the South China sea where Australia has many financial interests including right of trade routes. 

Another concern is that China, amongst other nefarious activities, is also endeavouring to hire former Australian military personnel including pilots. 

A further concern is the nation has been making substantial political donations via agents. 

We shouldn’t forget that it is only just a few years since Australia conducted an investigation into an alleged plan to endeavour to infiltrate the Australian parliament by the Chinese Communist party.

It appears no wonder that spying has increased in Australia, particularly with the leaking and theft of top-secret intelligence material from several sources as told to the Australian parliament by ASIO’s director-general. 

In addition, 16,000 people had advertised that they had security clearance whilst 1,000 stated that they worked in the intelligence community. 

ASIO found that Australian media outlets had their information technology systems compromised by foreign intelligence services endeavouring to obtain sources’ details. 

This would then enable the spies to identify and intimidate or harm those who would provide factual information on their countries. 

Add to this the exodus of former military personnel including pilots targeted by China and other authoritarian countries and you have precisely the reason why spying has never been so prevalent in Australia. 

Legislative change to further protect Australia

The Australian government last month introduced a Bill to give ASIO sole responsibility for issuing the highest-level security clearances as opposed to those other agencies who previously had the power to do so namely:

  • The Australian Government Security Vetting Agency,
  • The Australian Secret Intelligence Service,
  • The Australian Federal Police, and
  • The Office of National iItelligence.

Five eyes intelligence sharing alliance

The ‘Five Eyes’ alliance (FVEY) is a joint venture between Australia – New Zealand – United Kingdom – United States – Canada and was initially formed in 1941 convening secret meetings between British and US codebreakers held at Bletchley park (The top-secret home of the world war two codebreakers) prior to the US joining the war effort. 

It developed into an intelligence sharing alliance through the second world war and subsequently the cold war evolving into a sophisticated surveillance system from about 1960 onwards under what was known as the Echelon to monitor communications between the former Soviet Union and the Eastern Bloc countries. 

Now, it monitors the whole world as indeed does the evolved 14 eyes though it seems the FVEY is still regarded as the premium intelligence gathering unit.

The Cold War, between the US and Soviet Union and their respective allies from 1946 to 1991 may be best described as a battle for world dominance.

AUKUS pact

Since the trilateral security pact between Australia, the United Kingdom and the United States of America (AUKUS) and whilst the international centre for defence and security (ICDS) adopted its importance in the Indo-Pacific region, spying has increased in Australia since AUKUS was formed in late 2021. 

The commercial benefits for all three countries included the sharing of technologies, the intra-purchasing of highly enriched uranium and building of nuclear submarines whilst at the same time expressing a unified force for their potential enemies to observe. 

China condemned AUKUS as a cold war mentality but not so Japan which on the other hand thought it an important security initiative requesting that Japan cooperate and integrate with AUKUS particularly in the area of Japan’s artificial intelligence and cyberwarfare capabilities. 

This caused a minor dispute between America who didn’t appear to want Japanese involvement with AUKUS whilst Australia’s prime minister welcomed Japanese overtures thus settling the minor tiff.

As there exists a positive synergy between both alliances AUKUS will focus on military capabilities such as quantum technologies, electronic warfare and undersea weaponry with RAN building 8 nuclear powered submarines in Australia. 

FVEY will concentrate on intelligence gathering and sharing initiatives. Last month saw the AUKUS leaders meet in California for a conference. 

Needless to say, the details of the meeting have not been disclosed to the public.

Espionage and foreign interference offences in Australia

The Criminal Code Act (1995) is a piece of Australian Commonwealth legislation, which means it applies across the nation.

Divisions 91 and 92 of the Act contain a range of offences relating to espionage and foreign interference respectively.

Espionage offences: Division 91

As stated, Division 91 of the Act contains offences relating to espionage.

These offences are:

Espionage – Intentionally Providing National Security Information to a Foreign Principal 

This an offence under section 91.1(1) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of life in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You dealt with information or an article,
  2. The information or article had a security classification, or concerned Australia’s national security,
  3. You intended by your conduct to prejudice Australia’s national security, or to advantage the national security of a foreign country, and
  4. Your conduct resulted in, or will result in, the information or article being communicated or made available to a foreign principal, or a person acting on behalf of a foreign principal.

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:

  1. Place it somewhere it can be accessed by another person,
  2. Give it to an intermediary to give to an intended recipient, or
  3. Describe how to obtain or facilitate access to it.

An ‘article’ includes any thing, substance or material.

‘Security classification’ means a classification of secret or top secret, or an equivalent, that is applied in accordance with the policy framework of the Commonwealth.

‘National security’ is defined as:

  1. Defence of the country,
  2. Protection of the country or part thereof,
  3. Protection of the country’s people,
  4. Protection of the integrity of the country’s territory or borders from serious threats,
  5. Carrying out the country’s responsibilities towards any other country in terms of protecting territory or borders, or preventing espionage, sabotage, terrorism or political violence against that country,
  6. The country’s political, military or economic relations with another country,
  7. Protection against espionage, sabotage, terrorism or political violence
  8. Protection against obstruction, hinderance or interference with the defence force, or
  9. Foreign interference.

‘Prejudice’ does not include embarrassment alone.

‘Advantage’ does not include conduct that benefits Australia at least as much as the foreign country.

A ‘foreign principal’ is defined as:

  1. A foreign government principal,
  2. A foreign political organisation,
  3. A public international organisation,
  4. A terrorist organisation, or
  5. An entity or organisation owned, directed or controlled by a foreign principal/s.

Statutory defences to the offence

A ‘statutory defence’ is generally considered to be one which relates to a specific offence, rather than to criminal offences generally.

In relation to the above section, the Act provides that you are not guilty if you are able to establish, ‘on the balance of probabilities’ that you dealt with the information or article:

  1. In accordance with a law of the Commonwealth,
  2. In accordance with an arrangement or agreement to which the Commonwealth is a party and which allows for the exchange of information or articles
  3. In your capacity as a public official, or
  4. In circumstances where the information or article has already been communicated or made available to the public with the authority of the Commonwealth.

General legal defences

General legal defences also apply to the offence.

Where you are able to raise evidence of a general legal defence, the onus then shifts to the prosecution to prove beyond reasonable doubt that the defence does not apply to the circumstances of your case.

If the prosecution is unable to do this, you are entitled to an acquittal; in other words, a verdict of not guilty.

General legal defences include self-defence, duress and necessity.

Espionage – Recklessly Providing National Security Information to a Foreign Principal 

This is an offence under section 91.1(2) 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:

  1. You dealt with information or an article,
  2. The information or article had a security classification, or concerned Australia’s national security,
  3. You were reckless as to whether your conduct would prejudice Australia’s national security, or advantage the national security of a foreign country, and
  4. Your conduct resulted in or will result in, the information or article being communicated or made available to a foreign principal, or a person acting on behalf of a foreign principal.

You were ‘reckless’ if you were aware there was a substantial risk that your conduct would prejudice Australia’s national security, or advantage the national security of a foreign country, and it was unjustifiable to take that risk, but you went ahead with your actions regardless.

The definitions and defences that apply to the previous offence also apply to this one.

Espionage – Intentionally Providing Information to a Foreign Principal 

This is an offence under section 91.2(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:

  1. You dealt with information or an article,
  2. You intended by your conduct to prejudice Australia’s national security, and
  3. Your conduct resulted in or will result in, the information or article being communicated or made available to a foreign principal, or a person acting on behalf of a foreign principal.

The definitions and defences that apply to the first-mentioned offence above also apply to this one.

Espionage – Recklessly Providing Information to a Foreign Principal 

This is an offence under section 91.2(2) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 20 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You dealt with information or an article,
  2. You were reckless as to whether your conduct would prejudice Australia’s national security, and
  3. Your conduct resulted in or will result in, the information or article being communicated, or made available to a foreign principal, or a person acting on behalf of a foreign principal.

You were ‘reckless’ if you were aware there was a substantial risk that your conduct would prejudice Australia’s national security, and it was unjustifiable to take that risk but you went ahead with your actions regardless.

The definitions and defences that apply to the first-mentioned offence above also apply to this one.

Espionage – Providing Security Classified Information 

This is an offence under section 91.3 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 20 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You dealt with information or an article,
  2. Your primary purpose for doing so was to communicate or make it available to a foreign principal or person acting on behalf of a foreign principal, and
  3. The information or article had a security classification.

Information or an article has ‘security classification’ if it is accorded secret or top secret classification, or an equivalent, in accordance with the policy framework of the Commonwealth.

The definitions and defences that apply to the first-mentioned offence above also apply to this one.

Aggravated Espionage 

This an offence under section 91.6 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of:

  1. 25 years in prison where the maximum for the underlying offence was 20 years, or
  2. Life in prison where the maximum for the underlying offence was 25 years.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You were guilty of an espionage offence under:
  • Section 91.1(1) – Intentionally providing national security information to foreign principal,
  • Section 91.2 – Intentionally providing information to a foreign principal, or
  • Section 91.3 – Providing security classified information, and
  1. You dealt with the information or an article of a foreign intelligence agency, or you dealt with 5 or more records or articles which had security classifications, or you altered a record or article to remove or conceal its security classification, or you held an Australian government security clearance allowing access to the material.

Intentional Espionage on Behalf of Foreign Principal 

This 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:

  1. You dealt with information or an article,
  2. You intended by your conduct to prejudice Australia’s national security, or to advantage the national security of a foreign country,
  3. You were reckless as to whether your conduct, or the conduct of another person, involved the commission of an espionage offence, and
  4. Your conduct was on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal.

The definitions and defences that apply to the first-mentioned offence above also apply to this one.

Reckless Espionage on Behalf of a Foreign Principal 

This is an offence under section 91.8(2) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 20 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You dealt with information or an article,
  2. You were reckless as to whether your conduct would prejudice Australia’s national security, or advantage the national security of a foreign country,
  3. You were reckless as to whether your conduct, or the conduct of another person, involved the commission of an espionage offence, and
  4. Your conduct was on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal.

You were ‘reckless’ if you were aware there was a substantial risk that your conduct would prejudice Australia’s national security, or advantage the national security of a foreign country, and it was unjustifiable to take that risk, but you went ahead with your actions regardless.

The definitions and defences that apply to the first-mentioned offence above also apply to this one.

Conduct on Behalf of a Foreign Principal 

This is an offence under section 91.8(3) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 15 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You dealt with information or an article
  2. You were reckless as to whether your conduct, or the conduct of another person, involved the commission of an espionage offence, and
  3. Your conduct was on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal.

The definitions and defences that apply to the first-mentioned offence above also apply to this one.

Soliciting or Procuring an Espionage Offence 

This is an offence under section 91.11 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 15 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You engaged in conduct relating to another person (‘the target’)
  2. You intended by doing so to solicit or procure the target to deal with information or an article in a way that would constitute an espionage offence, and
  3. Your conduct was on behalf of, or in collaboration with, or directed, funded or supervised by, a foreign principal or person acting on a foreign principal’s behalf.

The relevant espionage offences for the purposes of the offence are:

  • Dealing with information concerning national security which is or will be communicated or made available to foreign principal under section 91.1 of the Act,
  • Dealing with information which is or will be communicated or made available to foreign principal under section 91.2,
  • Dealing with security classified information under section 91.3,
  • Aggravated espionage under section 91.6, and
  • Espionage on behalf of foreign principal under section 91.8.

To establish an offence under section 91.11, the prosecution does not have to prove:

  1. That you had a particular foreign principal in mind, or
  2. Whether you had one or more foreign principals in mind.

You may commit the offence even if:

  1. An espionage offence did not eventuate,
  2. It was impossible for the target to deal with the information or article in a way that would amount to an espionage offence,
  3. You did not have a particular piece of information, article or dealing in mind, or
  4. The number of dealings was indeterminate.

You are not guilty if you attempted but failed to engage in the prescribed conduct with the target.

The definitions and defences that apply to the first-mentioned offence above also apply to this one.

Preparing For or Planning an Espionage Offence

This is an offence under section 91.12 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 15 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You engaged in conduct,
  2. You did so with the intention of preparing for, or planning, an offence, and
  3. The intended offence was an espionage offence.

The relevant espionage offences are those described in the previous section, and definitions and defences that apply to the first-mentioned offence above also apply to this one.

Foreign interference offences: Division 92

Division 92 of the Criminal Code Act 1995 (Cth)contains offences relating to foreign interference.

These offences are:

Intentional Foreign Interference – General Offence 

Is a crime under section 92.2(1) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 20 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You engaged in conduct,
  2. Your conduct was on behalf of, or in collaboration with, a foreign principal, or a person acting on behalf of a foreign principal, or was directed, funded or supervised by a foreign principal, or a person acting on behalf of a foreign principal.
  3. You intended by your conduct to:
    (a) Influence a political or governmental process of the Commonwealth, or of a state or territory within the Commonwealth,
    (b) Influence the exercise of an Australian democratic or political right or duty, whether within Australia or overseas,
    (c) Support intelligence activities or a foreign principal, or
    (d) Prejudice Australia’s national security, and
  1. Any part of your conduct:
    (a) Was covert or involved deception,
    (b) Involved a threat to cause serious harm, or
    (c) Involved a demand with menaces.

A ‘foreign principal’ is defined as:

  1. A foreign government principal,
  2. A foreign political organisation,
  3. A public international organisation,
  4. A terrorist organisation, or
  5. An entity or organisation owned, directed or controlled by a foreign principal/s.

A ‘foreign government principal’ is defined as:

  1. The government of a foreign country or of part thereof,
  2. An authority of the government of a foreign country,
  3. An authority of the government of part of a foreign country,
  4. A foreign local government body or foreign regional government body,
  5. A company of a foreign country or part thereof,
  6. A body or association of an authority of a foreign country, or

An entity or organisation owned, directed or controlled by a foreign government principal, or by 2 or more such foreign government principals

A ‘deception’ is an intentional or reckless deception, whether by words or other conduct, and whether as to fact or as to law, and includes:

  1. A deception as to the intentions of you or any other person, and
  2. Conduct that causes a computer, a machine or an electronic device to cause an unauthorised response.

A deception was ‘reckless’ if you were aware there was a substantial risk your conduct would deceive, and it was unjustifiable to take that risk but you went ahead with your actions regardless.

A ‘menace’ includes:

  1. An express or implied threat of conduct that is detrimental or unpleasant to another person, and
  2. A general threat of detrimental or unpleasant conduct that is implied because of the status, office or position of the maker of the threat.

Statutory defences

A ‘statutory defence’ is generally considered to be one which relates to a specific offence, rather than to criminal offences generally.

In relation to the above section, the Act provides that you are not guilty if you establish, ‘on the balance of probabilities’, that your conduct was:

  1. In accordance with a law of the Commonwealth,
  2. In accordance with an arrangement or agreement to which the Commonwealth was party, or
  3. In your capacity as a public official.

General legal defences 

General legal defences also apply to the offence.

Where you are able to raise evidence of a general legal defence, the onus then shifts to the prosecution to prove beyond reasonable doubt that the defence does not apply to the circumstances of your case.

If the prosecution is unable to do this, you are entitled to an acquittal; in other words, a verdict of not guilty.

General legal defences include self-defence, duress and necessity.

Limitation to prosecution

The Attorney-General’s consent is required for a prosecution to be commenced under the section.

Hearing in secret

Your hearing may occur ‘in camera’ (in secret) if the court believes this is in the interests of national security.

Intentional foreign interference by influencing a targeted person

This is an offence under section 92.2(2) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 20 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You engaged in conduct,
  2. Your conduct was on behalf of, or in collaboration with, a foreign principal, or a person acting on behalf of a foreign principal, or was directed, funded or supervised by a foreign principal, or a person acting on a foreign principal’s behalf,
  3. You intended by your conduct to influence another person (‘the target’):
    (a) In relation to a political or governmental process of the Commonwealth, or of a state or territory within the Commonwealth, or
    (b) In the target’s exercise of any Australian democratic or political right or duty, whether in Australia or overseas, and
  1. You concealed from, or failed to disclose to, the target that your conduct was on behalf of, or in collaboration with, a foreign principal, or a person acting for a foreign principal, or was directed, funded or supervised by a foreign principal or a person acting on a foreign principal’s behalf.

The definitions, defences, limitations on prosecution and secrecy rules that apply to the previous offence above also apply to this one.

Reckless Foreign Interference – General Offence 

This is a crime under section 92.3(1) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 15 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You engaged in conduct,
  2. Your conduct was on behalf of, or in collaboration with, a foreign principal, or a person acting on behalf of a foreign principal, or was directed, funded or supervised by a foreign principal, or a person acting on behalf of a foreign principal,
  3. You were reckless as to whether your conduct would:
    (a) Influence a political or governmental process of the Commonwealth, or of a state or territory within the Commonwealth,
    (b) Influence the exercise of an Australian democratic or political right or duty, whether within Australia or overseas,
    (c) Support intelligence activities or a foreign principal, or
    (d) Prejudice Australia’s national security, and
  1. Any part of your conduct:
    (a) Was covert or involved deception,
    (b) Involved a threat to cause serious harm, or
    (c)Involved a demand with menaces.

You were ‘reckless’ if you were aware that there was a substantial risk that your conduct would bring about a state of affairs described in (3) above, and it was unjustifiable to take that risk but you went ahead with your actions regardless.

The definitions, defences, limitations on prosecution and secrecy rules that apply to an offence under 92.2(1) also above also apply to this one.

Preparing for a Foreign Interference Offence 

This is a crime under section 92.4 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 10 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You engaged in conduct, and
  2. You did so with the intention of preparing for, or planning, a foreign interference offence.

A foreign interference offence is:

  • An offence against section 92.2 of the Act, which is intentional foreign interference, or
  • An offence against section 92.3 of the Act, which is reckless foreign interference.

You may be found guilty whether or not the foreign interference offence was actually committed.

The definitions, defences, limitations on prosecution and secrecy rules that apply to an offence under 92.2(1) also above also apply to this one.

Knowingly Supporting a Foreign Intelligence Agency 

This is an offence under section 92.7 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 15 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You provided resources, or material support, to an organisation or person acting on behalf of an organisation, and
  2. You knew the organisation was a foreign intelligence agency.

The definitions, defences, limitations on prosecution and secrecy rules that apply to an offence under 92.2(1) also above also apply to this one.

Recklessly Supporting a Foreign Intelligence Agency 

This is an offence under section 92.8 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 10 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You provided resources, or material support, to an organisation or person acting on behalf of an organisation, and
  2. The organisation was a foreign intelligence agency.

The relevant mental element is ‘recklessness’, which means the prosecution must prove you were aware there was a substantial risk that the organisation you were supporting was a foreign intelligence agency, and it was unjustifiable for you to take that risk but you went ahead with your actions regardless.

The definitions, defences, limitations on prosecution and secrecy rules that apply to an offence under 92.2(1) also above also apply to this one.

Knowingly Funding, Being Funded By or Collecting Funds for a Foreign Intelligence Agency 

This is an offence under section 92.9 of the Criminal Code Act 1995 (Cth), Which carries a maximum penalty of 15 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You directly or indirectly received or obtained funds from, made funds available to, or collected funds for or on behalf of an organisation, or a person acting on behalf of an organisation,
  2. The organisation was a foreign intelligence agency, and
  3. You knew the organisation was a foreign intelligence agency.

The definitions, defences, limitations on prosecution and secrecy rules that apply to an offence under 92.2(1) also above also apply to this one.

Recklessly Funding, Being Funded By or Collecting Funds For a Foreign Intelligence Agency 

This is an offence under section 92.10 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 10 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You directly or indirectly received or obtained funds from, made funds available to, or collected funds for or on behalf of an organisation, or a person acting on behalf of an organisation,
  2. The organisation was a foreign intelligence agency, and
  3. You were reckless as to whether the organisation was a foreign intelligence agency.

You were ‘reckless’ if you were aware there was a substantial risk that the organisation was a foreign intelligence agency, and it was unjustifiable to take that risk but you went ahead with your actions regardless.

The definitions, defences, limitations on prosecution and secrecy rules that apply to an offence under 92.2(1) also above also apply to this one.

Theft of Trade Secrets Involving a Foreign Government Principal 

This is an offence under section 92A.1 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 15 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You dishonestly received, obtained, took, copied, duplicated, sold, bought or disclosed information,
  2. You did so in circumstances whereby:
    (a) The information was not generally known in trade or business, or in the particular trade or business concerned,
    (b) The information had a commercial value that would have been, or could reasonably be expected to have been destroyed or diminished if the information had been communicated, or
    (c) The owner of the information made reasonable efforts in the circumstances to prevent the information becoming generally known, and
  3. The conduct was on behalf of, or in collaboration with, a foreign government principal, or a person acting on behalf of a foreign government principal, or directed, funded or supervised by a foreign government principal or a person acting on behalf of a foreign government principal.

The definitions, defences, limitations on prosecution and secrecy rules that apply to an offence under 92.2(1) also above also apply to this one.

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David McCulloch

David McCulloch

David McCulloch has spent years assisting Australian prison inmates and immigration detainees, collaborated with management and academics to establish a Nordic-style recidivism reduction program, written extensively on the history of criminal law and the inequities that plague the criminal justice system and been involved in law-related podcasts and television programs.
Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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