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:
- You engaged in conduct
- 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
- The article, thing or software was public infrastructure or part thereof, and
- You were reckless as to whether your conduct would prejudice Australia’s national security.
‘Public infrastructure’ is defined as:
- Any infrastructure, facility, premises, network or electronic system that belongs to the Commonwealth
- Defence premises within the meaning of the Defence Act 1903
- Service property or service land under the Defence Force Discipline Act 1982
- Telecommunications infrastructure under the Telecommunications Act 1997
- 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
- Food intended for the public and produced, distributed or sold by a constitutional corporation for trade or commerce.
‘National security’ is defined as:
- Defence of the country
- Protection of the country or part thereof
- Protection of the country’s people
- Protection of the integrity of the country’s territory or borders from serious threats
- 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
- The country’s political, military or economic relations with another country
- Protection against espionage, sabotage, terrorism or political violence
- Protection against obstruction, hinderance or interference with the defence force, or
- 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.