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Introducing Vulnerability With Recklessness as to National Security

Introducing vulnerability with recklessness as to national security is an offence under section 82.8 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 engaged in conduct
  2. Your conduct resulted in an article, thing or software becoming vulnerable to misuse or impairment, or being accessed or modified by a person not entitled to do so
  3. The article, thing or software was public infrastructure or part thereof, and
  4. You were reckless as to whether your conduct would prejudice Australia’s national security.

‘Public infrastructure’ is defined as:

  1. Any infrastructure, facility, premises, network or electronic system that belongs to the Commonwealth
  2. Defence premises within the meaning of the Defence Act 1903
  3. Service property or service land under the Defence Force Discipline Act 1982
  4. Telecommunications infrastructure under the Telecommunications Act 1997
  5. Any infrastructure, facility, premises, network or electronic system that:
  • Provides or relates to providing the public with utilities, services or food, or
  • Is located in Australia and belongs to or is operated by a constitutional corporation or is used to facilitate constitutional trade or commerce, or
  1. Food intended for the public and produced, distributed or sold by a constitutional corporation for trade or commerce.

‘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
  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.

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.

Defences to the charge include duress and self-defence.

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