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Reckless Foreign Interference – General Offence

Reckless foreign interference – general offence is a crime under section 92.3(1) 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 behalf of a foreign principal
  3. You were reckless as to whether your conduct would:
    (a) Influence a political or governmental process of the Commonwealth, or of a state or territory within the Commonwealth
    (b) Influence the exercise of an Australian democratic or political right or duty, whether within Australia or overseas
    (c) Support intelligence activities or a foreign principal, or
    (d) Prejudice Australia’s national security, and
  1. Any part of your conduct:
    (a) Was covert or involved deception
    (b) Involved a threat to cause serious harm, or
    (c)Involved a demand with menaces.

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.

A ‘deception’ encompasses any intentional or reckless deception, whether by words or other conduct, and whether as to fact or law, and includes:

  1. A deception as to the intentions of you or any other person, and
  2. Conduct that caused a computer, machine or electronic device to make an unauthorised response.

A ‘menace’ includes:

  1. An express or implied threat of conduct that is detrimental or unpleasant to another person, and
  2. A general threat of detrimental or unpleasant conduct that is implied, because of the status, office or position of the maker of the threat.

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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