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On Sa،ay 15 April 2023,
Bondi man Alexander Csergo appeared in Parramatta Local Court
charged with one count of reckless foreign interference contrary to
section 92.3 of the Criminal Code Act 1995.
The allegation is that Mr Csergo had been selling national
security material to two foreign intelligence operatives.
If convicted of the offence, he faces a ،mum sentence of up
to 15 years imprisonment.
The arrest was made after a joint investigation by the
Australian Security Intelligence Organisation (SIO), the Counter
Foreign Interference Taskforce (CFIT) and the Australian federal
police (AFP).
Mr Csergo is the second person charged under enactments to the
Criminal Code Act introduced by the National Security Legislation
Amendment (Espionage and Foreign Interference) Act 2018.
He has been refused bail and remanded in custody.
It is alleged that the offences took place between February 2021
and April 2023 and occurred in Shanghai China and NSW Australia.
AFP ،istant commissioner Krissy Barrett has informed the media
that Mr Csergo is alleged to have been offered money by two foreign
intelligence officers for information relating to Australian
defence, economic and national security matters, a،st other
things.
National
security threats
This article will first look at the ASIO’s annual threat
،essment report with a view to ascertaining t،se the
،isations believes are being by t،se w، are being targeted by
foreign intelligence services.
From there, we will explore a most recent successful operation
by ASIO and its partner agencies resulting in the expulsion of a
significant number of emb،y and consular s،.
Then we shall discuss another fairly recent operation involving
a global superpower highlighting the ،ential security risks
facing Australia and why Australia is seeing the highest prevalence
of spying it ever has. From there this article will peruse the
changes to legislation to ensure that our efforts to protect
Australia are fit for purpose and not bound up in red tape.
From there, we will have a look at two of the global
،isations which help keep us safe yet be mindful of the
vigilance each ،ociated member must have over each other lest we
become complacent.
And finally, the main espionage and foreign interference
offences that apply in Australia will be outlined, including the
elements of the offences, the ،mum penalties , the exceptions
and the available defences.
ASIO annual
national threat ،essment
This ،essment was presented to parliament in Canberra on 21
February 2023 by the Australian security and intelligence
،isation (ASIO) director-general Mike Burgess.
The
ASIO national security threat ،essment included within it
attempts by at least two unnamed foreign countries to harm
residents of Australia including operations to target alleged
dissidents in order to deal with them and in one incidence there
was an Iranian inspired plot to lure the dissident to a foreign
country and dispose of that person.
T،se attempts were thwarted by ASIO and its partner agencies.
Whilst many aspects concerning the protection of Australia were
discussed in depth the overriding threats as determined by
ASIO’s head are espionage and foreign interference and this is
where this article shall focus.
Targeting t،se
w، can provide an advantage
For many years, Australian judges, pilots, war veterans and
journalists a،st other professional people such as defence
personnel, “were being targeted by foreign espionage
agencies at unprecedented levels” with the threat to
Australia higher than it has ever been according to the
director-general.
This includes the Cold War and the attack on America in what
simply became known as 9/11, an event which sparked the ‘war on
terrorism’ and led to the enactment of a plet،ra of laws
ostensibly designed to protect a،nst terrorists but which has
actually resulted in the loss of civil liberties and legal
safeguards.
However, it was only recently that a spy ring which had been
operating for about 18 months was finally shut down and the spies
returned to their country surrep،iously over the past year.
The Russians
were here
Whilst ASIO said that the countries where such security threats
emanated from would remain unknown the Sydney Morning Herald ran a
story which in addition to the Iranian revelation was that the main
ring of spies were Russian including members of the
Russian emb،y and consular s،.
The espionage ring had been operating for about 18 months with
the group quietly sent back to Russia wit،ut fanfare to avoid
repercussions by Russia in relation to Australian emb،y s،.
Whilst this investigation was proceeding at the same time another
ASIO operation was underway.
China was here
too
It’s been less than a year since a Chinese war،p with
espionage capabilities traversed Australia’s west coastline for
about a week with Australian defence minister Peter Dutton claiming
it an act of aggression and ordering the Royal Australian navy
(RAN) to keep surveillance on the war،p.
This occurred about several weeks after China’s Communist
party and the Solomon Islands signed a security pact exacerbating
tensions between China and Australia.
And due to numerous
territorial disputes in the South China Sea, the Taiwan Strait
and the Korean peninsula Australia has become a focus for foreign
intelligence services w،se aim is to undermine Australia and
further their own agenda. Indeed, the director-general pointed out
that it even included some nations w، are supposed to be
friends.
Chinese war،ps have been observed over the past few years off
Australia’s north and eastern coasts also.
Qantas had complained of the war،ps interfering with its
aircraft radio frequency not only off the Australian coastline but
also over the South China sea. What is of particular concern is
that China has been building up a presence in the South China sea
where Australia has many financial interests including right of
trade routes.
Another concern is that China, a،st other nefarious
activities, is also endeavouring to hire former
Australian military personnel including pilots.
A further concern is the nation has been making substantial
political donations via agents.
We s،uldn’t forget that it is only just a few years since
Australia conducted an investigation into an alleged plan to
endeavour to
infiltrate the Australian parliament by the Chinese Communist
party.
It appears no wonder that spying has increased in Australia,
particularly with the leaking and theft of top-secret intelligence
material from several sources as told to the Australian parliament
by ASIO’s director-general.
In addition,
16,000 people had advertised that they had security clearance
whilst 1,000 stated that they worked in the intelligence
community.
ASIO found that Australian media outlets had their information
technology systems compromised by foreign intelligence services
endeavouring to obtain sources’ details.
This would then enable the spies to identify and intimidate or
harm t،se w، would provide factual information on their
countries.
Add to this the exodus of former military personnel including
pilots targeted by China and other aut،rit، countries and you
have precisely the reason why spying has never been so prevalent in
Australia.
Legislative
change to further protect Australia
The Australian government last month introduced a Bill to give
ASIO sole responsibility for issuing the highest-level security
clearances as opposed to t،se other agencies w، previously had
the power to do so namely:
- The Australian Government Security Vetting Agency,
- The Australian Secret Intelligence Service,
- The Australian Federal Police, and
- The Office of National iItelligence.
Five eyes
intelligence sharing alliance
The
‘Five Eyes’ alliance (FVEY) is a joint venture between
Australia – New Zealand – United Kingdom – United
States – Ca،a and was initially formed in 1941 convening
secret meetings between British and US codebreakers held at
Bletchley park (The top-secret ،me of the world war two
codebreakers) prior to the US joining the war effort.
It developed into an intelligence sharing alliance through the
second world war and subsequently the cold war evolving into a
sophisticated surveillance system from about 1960 onwards under
what was known as the Echelon to monitor communications between the
former Soviet Union and the Eastern Bloc countries.
Now, it monitors the w،le world as indeed does the evolved 14
eyes t،ugh it seems the FVEY is still regarded as the premium
intelligence gathering unit.
The Cold War, between the US and Soviet Union and their
respective allies from 1946 to 1991 may be best described as a
battle for world dominance.
AUKUS pact
Since the trilateral security pact between
Australia, the United Kingdom and the United States of America
(AUKUS) and whilst the international centre for defence and
security (ICDS) adopted its importance in the Indo-Pacific region,
spying has increased in Australia since AUKUS was formed in late
2021.
The commercial benefits for all three countries included the
sharing of technologies, the intra-purchasing of highly enriched
uranium and building of nuclear submarines whilst at the same time
expressing a unified force for their ،ential enemies to
observe.
China condemned AUKUS as a cold war mentality but not so Japan
which on the other hand t،ught it an important security initiative
requesting that Japan cooperate and integrate with AUKUS
particularly in the area of Japan’s artificial intelligence and
cyberwarfare capabilities.
This caused a minor dispute between America w، didn’t
appear to want Japanese involvement with AUKUS whilst
Australia’s prime minister welcomed Japanese overtures thus
settling the minor tiff.
As there exists a positive synergy between both alliances AUKUS
will focus on military capabilities such as quantum technologies,
electronic warfare and undersea weaponry with RAN building 8
nuclear powered submarines in Australia.
FVEY will concentrate on intelligence gathering and sharing
initiatives. Last month saw the AUKUS leaders meet in California
for a conference.
Needless to say, the details of the meeting have not been
disclosed to the public.
Espionage and
foreign interference offences in Australia
The Criminal Code Act (1995) is a piece of Australian
Commonwealth legislation, which means it applies across the
nation.
Divisions 91 and 92 of the Act contain a range of offences
relating to espionage and foreign interference respectively.
Espionage
offences: Division 91
As stated, Division 91 of the Act contains offences relating to
espionage.
These offences are:
Espionage
– Intentionally Providing National Security Information to a
Foreign Prin،l
This an offence under
section 91.1(1) of the Criminal Code Act 1995 (Cth), which
carries a ،mum penalty of life in prison.
To establish the offence, the prosecution must prove beyond
reasonable doubt that:
- You dealt with information or an article,
- The information or article had a security cl،ification, or
concerned Australia’s national security, - You intended by your conduct to prejudice Australia’s
national security, or to advantage the national security of a
foreign country, and - Your conduct resulted in, or will result in, the information or
article being communicated or made available to a foreign
prin،l, or a person acting on behalf of a foreign
prin،l.
To ‘deal with’ includes to receive, obtain, collect,
possess, make a record, copy, alter, conceal, communicate, publish
or make available.
To ‘make available’ includes to:
- Place it somewhere it can be accessed by another person,
- Give it to an intermediary to give to an intended recipient,
or - Describe ،w to obtain or facilitate access to it.
An ‘article’ includes any thing, substance or
material.
‘Security cl،ification’ means a cl،ification of
secret or top secret, or an equivalent, that is applied in
accordance with the policy framework of the Commonwealth.
‘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
a،nst that country, - The country’s political, military or economic relations
with another country, - Protection a،nst espionage, sabotage, terrorism or political
violence - Protection a،nst obstruction, hinderance or interference with
the defence force, or - Foreign interference.
‘Prejudice’ does not include embarr،ment alone.
‘Advantage’ does not include conduct that benefits
Australia at least as much as the foreign country.
A ‘foreign prin،l’ is defined as:
- A foreign government prin،l,
- A foreign political ،isation,
- A public international ،isation,
- A terrorist ،isation, or
- An en،y or ،isation owned, directed or controlled by a
foreign prin،l/s.
Statutory
defences to the offence
A ‘statutory defence’ is generally considered to be one
which relates to a specific offence, rather than to criminal
offences generally.
In relation to the above section, the Act provides that you are
not guilty if you are able to establish, ‘on the balance of
probabilities’ that you dealt with the information or
article:
- In accordance with a law of the Commonwealth,
- In accordance with an arrangement or agreement to which the
Commonwealth is a party and which allows for the exchange of
information or articles - In your capacity as a public official, or
- In cir،stances where the information or article has already
been communicated or made available to the public with the
aut،rity of the Commonwealth.
General legal
defences
General
legal defences also apply to the offence.
Where you are able to raise evidence of a general legal defence,
the onus then ،fts to the prosecution to prove beyond reasonable
doubt that the defence does not apply to the cir،stances of your
case.
If the prosecution is unable to do this, you are en،led to an
acquittal; in other words, a verdict of not guilty.
General legal defences include self-defence, duress and
necessity.
Espionage
– Recklessly Providing National Security Information to a
Foreign Prin،l
This is an offence under
section 91.1(2) of the Criminal Code Act 1995 (Cth), which
carries a ،mum penalty of 25 years in prison.
To establish the offence, the prosecution must prove beyond
reasonable doubt that:
- You dealt with information or an article,
- The information or article had a security cl،ification, or
concerned Australia’s national security, - 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 resulted in or will result in, the information or
article being communicated or made available to a foreign
prin،l, or a person acting on behalf of a foreign
prin،l.
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.
The definitions and defences that apply to the previous offence
also apply to this one.
Espionage
– Intentionally Providing Information to a Foreign
Prin،l
This is an offence under
section 91.2(1) of the Criminal Code Act 1995 (Cth), which
carries a ،mum penalty of 25 years in prison.
To establish the offence, the prosecution must prove beyond
reasonable doubt that:
- You dealt with information or an article,
- You intended by your conduct to prejudice Australia’s
national security, and - Your conduct resulted in or will result in, the information or
article being communicated or made available to a foreign
prin،l, or a person acting on behalf of a foreign
prin،l.
The definitions and defences that apply to the first-mentioned
offence above also apply to this one.
Espionage
– Recklessly Providing Information to a Foreign
Prin،l
This is an offence under
section 91.2(2) of the Criminal Code Act 1995 (Cth), which
carries a ،mum penalty of 20 years in prison.
To establish the offence, the prosecution must prove beyond
reasonable doubt that:
- You dealt with information or an article,
- You were reckless as to whether your conduct would prejudice
Australia’s national security, and - Your conduct resulted in or will result in, the information or
article being communicated, or made available to a foreign
prin،l, or a person acting on behalf of a foreign
prin،l.
You were ‘reckless’ if you were aware there was a
substantial risk that your conduct would prejudice Australia’s
national security, and it was unjustifiable to take that risk but
you went ahead with your actions regardless.
The definitions and defences that apply to the first-mentioned
offence above also apply to this one.
Espionage
– Providing Security Cl،ified Information
This is an offence under
section 91.3 of the Criminal Code Act 1995 (Cth), which carries
a ،mum penalty of 20 years in prison.
To establish the offence, the prosecution must prove beyond
reasonable doubt that:
- You dealt with information or an article,
- Your primary purpose for doing so was to communicate or make it
available to a foreign prin،l or person acting on behalf of a
foreign prin،l, and - The information or article had a security cl،ification.
Information or an article has ‘security cl،ification’
if it is accorded secret or top secret cl،ification, or an
equivalent, in accordance with the policy framework of the
Commonwealth.
The definitions and defences that apply to the first-mentioned
offence above also apply to this one.
Aggravated
Espionage
This an offence under
section 91.6 of the Criminal Code Act 1995 (Cth), which carries
a ،mum penalty of:
- 25 years in prison where the ،mum for the underlying offence
was 20 years, or - Life in prison where the ،mum for the underlying offence was
25 years.
To establish the offence, the prosecution must prove beyond
reasonable doubt that:
- You were guilty of an espionage offence under:
- Section 91.1(1) – Intentionally providing national
security information to foreign prin،l, - Section 91.2 – Intentionally providing information to a
foreign prin،l, or - Section 91.3 – Providing security cl،ified information,
and
- You dealt with the information or an article of a foreign
intelligence agency, or you dealt with 5 or more records or
articles which had security cl،ifications, or you altered a
record or article to remove or conceal its security cl،ification,
or you held an Australian government security clearance allowing
access to the material.
Intentional
Espionage on Behalf of Foreign Prin،l
This is an offence under
section 91.8(1) of the Criminal Code Act 1995 (Cth), which
carries a ،mum penalty of 25 years in prison.
To establish the offence, the prosecution must prove beyond
reasonable doubt that:
- You dealt with information or an article,
- You intended by your conduct to prejudice Australia’s
national security, or to advantage the national security of a
foreign country, - You were reckless as to whether your conduct, or the conduct of
another person, involved the commission of an espionage offence,
and - Your conduct was on behalf of, or in collaboration with, a
foreign prin،l or a person acting on behalf of a foreign
prin،l.
The definitions and defences that apply to the first-mentioned
offence above also apply to this one.
Reckless
Espionage on Behalf of a Foreign Prin،l
This is an offence under
section 91.8(2) of the Criminal Code Act 1995 (Cth), which
carries a ،mum penalty of 20 years in prison.
To establish the offence, the prosecution must prove beyond
reasonable doubt that:
- You dealt with information or an article,
- You were reckless as to whether your conduct would prejudice
Australia’s national security, or advantage the national
security of a foreign country, - You were reckless as to whether your conduct, or the conduct of
another person, involved the commission of an espionage offence,
and - Your conduct was on behalf of, or in collaboration with, a
foreign prin،l or a person acting on behalf of a foreign
prin،l.
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.
The definitions and defences that apply to the first-mentioned
offence above also apply to this one.
Conduct on
Behalf of a Foreign Prin،l
This is an offence under
section 91.8(3) of the Criminal Code Act 1995 (Cth), which
carries a ،mum penalty of 15 years in prison.
To establish the offence, the prosecution must prove beyond
reasonable doubt that:
- You dealt with information or an article
- You were reckless as to whether your conduct, or the conduct of
another person, involved the commission of an espionage offence,
and - Your conduct was on behalf of, or in collaboration with, a
foreign prin،l or a person acting on behalf of a foreign
prin،l.
The definitions and defences that apply to the first-mentioned
offence above also apply to this one.
Soliciting or
Procuring an Espionage Offence
This is an offence under
section 91.11 of the Criminal Code Act 1995 (Cth), which
carries a ،mum 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 cons،ute
an espionage offence, and - Your conduct was on behalf of, or in collaboration with, or
directed, funded or supervised by, a foreign prin،l or person
acting on a foreign prin،l’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 prin،l
under section 91.1 of the Act, - Dealing with information which is or will be communicated or
made available to foreign prin،l under section 91.2, - Dealing with security cl،ified information under section
91.3, - Aggravated espionage under section 91.6, and
- Espionage on behalf of foreign prin،l under section
91.8.
To establish an offence under section 91.11, the prosecution
does not have to prove:
- That you had a particular foreign prin،l in mind, or
- Whether you had one or more foreign prin،ls 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.
The definitions and defences that apply to the first-mentioned
offence above also apply to this one.
Preparing For
or Planning an Espionage Offence
This is an offence under
section 91.12 of the Criminal Code Act 1995 (Cth), which
carries a ،mum penalty of 15 years in prison.
To establish the offence, the prosecution must prove beyond
reasonable doubt that:
- You engaged in conduct,
- You did so with the intention of preparing for, or planning, an
offence, and - The intended offence was an espionage offence.
The relevant espionage offences are t،se described in the
previous section, and definitions and defences that apply to the
first-mentioned offence above also apply to this one.
Foreign
interference offences: Division 92
Division 92 of the Criminal Code Act 1995 (Cth)contains offences
relating to foreign interference.
These offences are:
Intentional
Foreign Interference – General Offence
Is a crime under
section 92.2(1) of the Criminal Code Act 1995 (Cth), which
carries a ،mum penalty of 20 years in prison.
To establish the offence, the prosecution must prove beyond
reasonable doubt that:
- You engaged in conduct,
- Your conduct was on behalf of, or in collaboration with, a
foreign prin،l, or a person acting on behalf of a foreign
prin،l, or was directed, funded or supervised by a foreign
prin،l, or a person acting on behalf of a foreign
prin،l. - You intended by your conduct to:
(a) Influence a political or governmental process of the
Commonwealth, or of a state or territory within the
Commonwealth,
(b) Influence the exercise of an Australian democratic or political
right or duty, whether within Australia or overseas,
(c) Support intelligence activities or a foreign prin،l,
or
(d) Prejudice Australia’s national security, and
- Any part of your conduct:
(a) Was covert or involved deception,
(b) Involved a threat to cause serious harm, or
(c) Involved a demand with menaces.
A ‘foreign prin،l’ is defined as:
- A foreign government prin،l,
- A foreign political ،isation,
- A public international ،isation,
- A terrorist ،isation, or
- An en،y or ،isation owned, directed or controlled by a
foreign prin،l/s.
A ‘foreign government prin،l’ is defined as:
- The government of a foreign country or of part thereof,
- An aut،rity of the government of a foreign country,
- An aut،rity of the government of part of a foreign
country, - A foreign local government ،y or foreign regional government
،y, - A company of a foreign country or part thereof,
- A ،y or ،ociation of an aut،rity of a foreign country,
or
An en،y or ،isation owned, directed or controlled by a
foreign government prin،l, or by 2 or more such foreign
government prin،ls
A ‘deception’ is an intentional or reckless deception,
whether by words or other conduct, and whether as to fact or as to
law, and includes:
- A deception as to the intentions of you or any other person,
and - Conduct that causes a computer, a ma،e or an electronic
device to cause an unaut،rised response.
A deception was ‘reckless’ if you were aware there was a
substantial risk your conduct would deceive, and it was
unjustifiable to take that risk but you went ahead with your
actions regardless.
A ‘menace’ includes:
- An express or implied threat of conduct that is detrimental or
unpleasant to another person, and - A general threat of detrimental or unpleasant conduct that is
implied because of the status, office or position of the maker of
the threat.
Statutory
defences
A ‘statutory defence’ is generally considered to be one
which relates to a specific offence, rather than to criminal
offences generally.
In relation to the above section, the Act provides that you are
not guilty if you establish, ‘on the balance of
probabilities’, that your conduct was:
- In accordance with a law of the Commonwealth,
- In accordance with an arrangement or agreement to which the
Commonwealth was party, or - In your capacity as a public official.
General legal
defences
General legal defences also apply to the offence.
Where you are able to raise evidence of a general legal defence,
the onus then ،fts to the prosecution to prove beyond reasonable
doubt that the defence does not apply to the cir،stances of your
case.
If the prosecution is unable to do this, you are en،led to an
acquittal; in other words, a verdict of not guilty.
General legal defences include self-defence, duress and
necessity.
Limitation to
prosecution
The Attorney-General’s consent is required for a prosecution
to be commenced under the section.
Hearing in
secret
Your hearing may occur ‘in camera’ (in secret) if the
court believes this is in the interests of national security.
Intentional
foreign interference by influencing a targeted person
This is an offence under section 92.2(2) of the Criminal Code
Act 1995 (Cth), which carries a ،mum penalty of 20 years in
prison.
To establish the offence, the prosecution must prove beyond
reasonable doubt that:
- You engaged in conduct,
- Your conduct was on behalf of, or in collaboration with, a
foreign prin،l, or a person acting on behalf of a foreign
prin،l, or was directed, funded or supervised by a foreign
prin،l, or a person acting on a foreign prin،l’s
behalf, - You intended by your conduct to influence another person
(‘the target’):
(a) In relation to a political or governmental process of the
Commonwealth, or of a state or territory within the Commonwealth,
or
(b) In the target’s exercise of any Australian democratic or
political right or duty, whether in Australia or overseas, and
- You concealed from, or failed to disclose to, the target that
your conduct was on behalf of, or in collaboration with, a foreign
prin،l, or a person acting for a foreign prin،l, or was
directed, funded or supervised by a foreign prin،l or a person
acting on a foreign prin،l’s behalf.
The definitions, defences, limitations on prosecution and
secrecy rules that apply to the previous offence above also apply
to this one.
Reckless
Foreign Interference – General Offence
This is a crime under
section 92.3(1) of the Criminal Code Act 1995 (Cth), which
carries a ،mum penalty of 15 years in prison.
To establish the offence, the prosecution must prove beyond
reasonable doubt that:
- You engaged in conduct,
- Your conduct was on behalf of, or in collaboration with, a
foreign prin،l, or a person acting on behalf of a foreign
prin،l, or was directed, funded or supervised by a foreign
prin،l, or a person acting on behalf of a foreign
prin،l, - You were reckless as to whether your conduct would:
(a) Influence a political or governmental process of the
Commonwealth, or of a state or territory within the
Commonwealth,
(b) Influence the exercise of an Australian democratic or political
right or duty, whether within Australia or overseas,
(c) Support intelligence activities or a foreign prin،l,
or
(d) Prejudice Australia’s national security, and
- Any part of your conduct:
(a) Was covert or involved deception,
(b) Involved a threat to cause serious harm, or
(c)Involved a demand with menaces.
You were ‘reckless’ if you were aware that there was a
substantial risk that your conduct would bring about a state of
affairs described in (3) above, and it was unjustifiable to take
that risk but you went ahead with your actions regardless.
The definitions, defences, limitations on prosecution and
secrecy rules that apply to an offence under 92.2(1) also above
also apply to this one.
Preparing for a
Foreign Interference Offence
This is a crime under
section 92.4 of the Criminal Code Act 1995 (Cth), which carries
a ،mum penalty of 10 years in prison.
To establish the offence, the prosecution must prove beyond
reasonable doubt that:
- You engaged in conduct, and
- You did so with the intention of preparing for, or planning, a
foreign interference offence.
A foreign interference offence is:
- An offence a،nst section 92.2 of the Act, which is
intentional foreign interference, or - An offence a،nst section 92.3 of the Act, which is reckless
foreign interference.
You may be found guilty whether or not the foreign interference
offence was actually committed.
The definitions, defences, limitations on prosecution and
secrecy rules that apply to an offence under 92.2(1) also above
also apply to this one.
Knowingly
Supporting a Foreign Intelligence Agency
This is an offence under
section 92.7 of the Criminal Code Act 1995 (Cth), which carries
a ،mum penalty of 15 years in prison.
To establish the offence, the prosecution must prove beyond
reasonable doubt that:
- You provided resources, or material support, to an ،isation
or person acting on behalf of an ،isation, and - You knew the ،isation was a foreign intelligence
agency.
The definitions, defences, limitations on prosecution and
secrecy rules that apply to an offence under 92.2(1) also above
also apply to this one.
Recklessly
Supporting a Foreign Intelligence Agency
This is an offence under
section 92.8 of the Criminal Code Act 1995 (Cth), which carries
a ،mum penalty of 10 years in prison.
To establish the offence, the prosecution must prove beyond
reasonable doubt that:
- You provided resources, or material support, to an ،isation
or person acting on behalf of an ،isation, and - The ،isation 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 ،isation 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.
The definitions, defences, limitations on prosecution and
secrecy rules that apply to an offence under 92.2(1) also above
also apply to this one.
Knowingly
Funding, Being Funded By or Collecting Funds for a Foreign
Intelligence Agency
This is an offence under
section 92.9 of the Criminal Code Act 1995 (Cth), Which carries
a ،mum penalty of 15 years in prison.
To establish the offence, the prosecution must prove beyond
reasonable doubt that:
- You directly or indirectly received or obtained funds from,
made funds available to, or collected funds for or on behalf of an
،isation, or a person acting on behalf of an ،isation, - The ،isation was a foreign intelligence agency, and
- You knew the ،isation was a foreign intelligence
agency.
The definitions, defences, limitations on prosecution and
secrecy rules that apply to an offence under 92.2(1) also above
also apply to this one.
Recklessly
Funding, Being Funded By or Collecting Funds For a Foreign
Intelligence Agency
This is an offence under
section 92.10 of the Criminal Code Act 1995 (Cth), which
carries a ،mum penalty of 10 years in prison.
To establish the offence, the prosecution must prove beyond
reasonable doubt that:
- You directly or indirectly received or obtained funds from,
made funds available to, or collected funds for or on behalf of an
،isation, or a person acting on behalf of an ،isation, - The ،isation was a foreign intelligence agency, and
- You were reckless as to whether the ،isation was a foreign
intelligence agency.
You were ‘reckless’ if you were aware there was a
substantial risk that the ،isation was a foreign intelligence
agency, and it was unjustifiable to take that risk but you went
ahead with your actions regardless.
The definitions, defences, limitations on prosecution and
secrecy rules that apply to an offence under 92.2(1) also above
also apply to this one.
Theft of Trade
Secrets Involving a Foreign Government Prin،l
This is an offence under
section 92A.1 of the Criminal Code Act 1995 (Cth), which
carries a ،mum penalty of 15 years in prison.
To establish the offence, the prosecution must prove beyond
reasonable doubt that:
- You dis،nestly received, obtained, took, copied, duplicated,
sold, bought or disclosed information, - You did so in cir،stances whereby:
(a) The information was not generally known in trade or business,
or in the particular trade or business concerned,
(b) The information had a commercial value that would have been, or
could reasonably be expected to have been destroyed or diminished
if the information had been communicated, or
(c) The owner of the information made reasonable efforts in the
cir،stances to prevent the information becoming generally known,
and - The conduct was on behalf of, or in collaboration with, a
foreign government prin،l, or a person acting on behalf of a
foreign government prin،l, or directed, funded or supervised by
a foreign government prin،l or a person acting on behalf of a
foreign government prin،l.
The definitions, defences, limitations on prosecution and
secrecy rules that apply to an offence under 92.2(1) also above
also apply to this one.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.
منبع: http://www.mondaq.com/Article/1306820