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Soliciting or Procuring an Espionage Offence

Soliciting or procuring an espionage offence is a crime under section 91.11 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 relating to another person (‘the target’)
  2. You intended by doing so to solicit or procure the target to deal with information or an article in a way that would constitute an espionage offence, and
  3. Your conduct was on behalf of, or in collaboration with, or directed, funded or supervised by, a foreign principal or person acting on a foreign principal’s behalf.

The relevant espionage offences for the purposes of the offence are:

  • Dealing with information concerning national security which is or will be communicated or made available to foreign principal under section 91.1 of the Act
  • Dealing with information which is or will be communicated or made available to foreign principal under section 91.2
  • Dealing with security classified information under section 91.3
  • Aggravated espionage under section 91.6, and
  • Espionage on behalf of foreign principal under section 91.8

An ‘article’ includes any thing, substance or material.

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.

To establish an offence under section 91.11, the prosecution does not have to prove:

  1. That you had a particular foreign principal in mind, or
  2. Whether you had one or more foreign principals in mind.

You may commit the offence even if:

  1. An espionage offence did not eventuate
  2. It was impossible for the target to deal with the information or article in a way that would amount to an espionage offence
  3. You did not have a particular piece of information, article or dealing in mind, or
  4. The number of dealings was indeterminate.

You are not guilty if you attempted but failed to engage in the prescribed conduct with the target.

Duress is a defence to the charge.

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