Recklessly Funding, Being Funded by or Collecting Funds for a Foreign Intelligence Agency

Recklessly funding, being funded by or collecting funds for a foreign intelligence agency is an offence under section 92.10 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:

1. You directly or indirectly received or obtained funds from, made funds available to, or collected funds for or on behalf of an organisation, or a person acting on behalf of an organisation
2. The organisation was a foreign intelligence agency, and
3. You were reckless as to whether the organisation was a foreign intelligence agency.

You were ‘reckless’ if you were aware there was a substantial risk that the organisation was a foreign intelligence agency, and it was unjustifiable to take that risk but you went ahead with your actions regardless.

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.