Espionage – providing security classified information is an offence under section 91.3 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 dealt with information or an article
- Your primary purpose for doing so was to communicate or make it available to a foreign principal or person acting on behalf of a foreign principal, and
- The information or article had a security classification.
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 how to obtain or facilitate access to it.
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.
Information or an article has ‘security classification’ if it is accorded secret or top secret classification, or an equivalent, in accordance with the policy framework of the Commonwealth.
You are not guilty of the offence 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 was party and which allowed for the exchange of information or articles
- In your capacity as a public official
- Where the information or article had already been communicated or made available to the public with the authority of the Commonwealth, or
- Where you did not believe your conduct would prejudice Australia’s national security.
Duress and self-defence are also defences to the charge.