Reckless espionage on behalf of foreign principal is an offence under section 91.8(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:
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:
An ‘article’ includes any thing, substance or material.
‘National security’ is defined as:
‘Prejudice’ does not include embarrassment alone.
‘Advantage’ does not include conduct that benefits Australia at least as much as the foreign country.
‘Espionage offences’ include:
Section 91.1(1) – Intentionally providing national security information to foreign principal
Section 91.2 – Intentionally providing information to a foreign principal, or
Section 91.3 – Providing security classified information
A ‘foreign principal’ is defined as:
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:
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