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Reckless Foreign Interference by Influencing a Targeted Person

Reckless foreign interference by influencing a targeted person is an offence under section 92.3(2) 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. Your conduct was on behalf of, or in collaboration with, a foreign principal, or a person acting on behalf of a foreign principal, or was directed, funded or supervised by a foreign principal, or a person acting on a foreign principal’s behalf
  3. You were reckless as to whether your conduct would influence another person (‘the target’):
    (a) In relation to a political or governmental process of the Commonwealth, or of a state or territory within the Commonwealth, or
    (b) In the target’s exercise of any Australian democratic or political right or duty, whether in Australia or overseas, and
  1. You concealed from, or failed to disclose to, the target that your conduct was on behalf of, or in collaboration with, a foreign principal, or a person acting for a foreign principal, or was directed, funded or supervised by a foreign principal or a person acting on a foreign principal’s behalf.

You were ‘reckless’ if you were aware that there was a substantial risk that your conduct would bring about a state of affairs described in (3) above, and it was unjustifiable to take that risk but you went ahead with your actions regardless.

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 may be found guilty of the offence regardless of whether you had a particular foreign principal in mind, or whether you had more than one foreign principal in mind.

You are not guilty if you establish, ‘on the balance of probabilities’, that your conduct was:

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

The Attorney-General’s consent is required for a prosecution to be commenced under the section, and the hearing may occur ‘in camera’ (in secret) if the court believes this is in the interests of national security.

Duress is a defence to the charge.

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