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Preparing For or Planning an Espionage Offence

Preparing for or planning an espionage offence is a crime 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 for the purposes of the section 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 a foreign principal, under section 91.8

You are not guilty if you attempted but failed to commit an offence under section 91.12.

You are also not guilty if your actions were:

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

Duress is a defence to the charge.

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