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:
- You engaged in conduct relating to another person (‘the target’)
- 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
- 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:
- 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.
To establish an offence under section 91.11, the prosecution does not have to prove:
- That you had a particular foreign principal in mind, or
- Whether you had one or more foreign principals in mind.
You may commit the offence even if:
- An espionage offence did not eventuate
- It was impossible for the target to deal with the information or article in a way that would amount to an espionage offence
- You did not have a particular piece of information, article or dealing in mind, or
- 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.