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Recklessly Supporting a Foreign Intelligence Agency

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Recklessly supporting a foreign intelligence agency is an offence under section 92.8 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 provided resources, or material support, to an organisation or person acting on behalf of an organisation, and
  2. The organisation was a foreign intelligence agency

The relevant mental element is ‘recklessness’, which means the prosecution must prove you were aware there was a substantial risk that the organisation you were supporting was a foreign intelligence agency, and it was unjustifiable for you 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.

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