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Espionage – Recklessly Providing National Security Information to a Foreign Principal

Espionage – Recklessly Providing National Security Information to a Foreign Principal 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.

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.

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.

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 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.

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

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