Sabotage involving foreign principal with recklessness as to national security is an offence under section 82.4 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:
- You engaged in conduct
- Your conduct resulted in damage to public infrastructure
- You were reckless as to whether your conduct would:
- Prejudice Australia’s national security, or
- Advantage the national security of a foreign country, and
- Your conduct was on behalf of, in collaboration with, or directed, funded or supervised by a foreign principal or person acting on a foreign principal’s behalf.
‘Public infrastructure’ is defined as:
- Any infrastructure, facility, premises, network or electronic system that belongs to the Commonwealth
- Defence premises within the meaning of the Defence Act 1903
- Service property or service land under the Defence Force Discipline Act 1982
- Telecommunications infrastructure under the Telecommunications Act 1997
- Any infrastructure, facility, premises, network or electronic system that:
- Provides or relates to providing the public with utilities, services or food, or
- Is located in Australia and belongs to or is operated by constitutional corporation or is used to facilitate constitutional trade or commerce, or
- Food intended for the public and produced, distributed or sold by a constitutional corporation for trade or commerce.
Your conduct caused ‘damage to public infrastructure’ if it:
- Destroyed or resulted in its destruction
- Interfered with or abandoned it resulting in loss or unserviceability
- Resulted in loss of function, unsafety or unfitness for purpose
- Limited or prevented access by persons ordinarily entitled to access
- Resulted in defectiveness or contamination
- Degraded its quality, or
- Seriously disrupted an electronic system.
‘National security’ is defined as:
- Defence of the country
- Protection of the country or part thereof
- Protection of the country’s people
- Protection of the integrity of the country’s territory or borders from serious threats
- Carrying out the country’s responsibilities towards any other country
In terms of protecting territory or borders, or preventing espionage,
sabotage, terrorism or political violence
- The country’s political, military or economic relations with another country
- Protection against espionage, sabotage, terrorism or political violence
- Protection against obstruction, hinderance or interference with the defence force, or
- Foreign interference
‘Prejudice’ does not include embarrassment alone
‘Advantage’ does not include conduct that benefits Australia as much or more than the foreign country
A ‘foreign principal’ is defined as:
- A foreign government principal
- A foreign political organisation
- A public international organisation
- A terrorist organisation, or
- An entity or organisation owned, directed or controlled by a foreign principal/s.
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.
Defences to the charge include duress and self-defence.