Espionage – Recklessly Providing Information to a Foreign Principal

Espionage – recklessly providing information to a foreign principal 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.

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 anything, substance or material.

‘Prejudice’ does not include embarrassment alone.

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.

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.

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:

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

Other defences to the charge include duress and self-defence.