The Offence of Intentional Foreign Interference

The Australian Federal Police have charged a 55-year-old man from NSW with foreign interference after he allegedly sold information regarding Australian defence, economic and national security arrangements to individuals working for a foreign intelligence service.

The arrest comes after investigation by a Counter Foreign Interference Taskforce initiated by ASIO.

The Australian national operates a business overseas and is reported to normally reside overseas.

He returned to Australia recently and was arrested at his Bondi residence on 14 April 2023.

He was subsequently charged with one count of reckless foreign interference, in contravention of section 92.3 of the Criminal Code Act 1995 (Cth).

The police will allege that the 55-year-old man was contacted by another man, who claimed to be from a ‘think tank’ seeking for the businessman to meet his representatives.

A think tank is essentially a body involved in policy work and producing research publications.

It is alleged that the man’s representatives, referred to as ‘Ken’ and ‘Evelyn’ by the AFP, met with the 55-year-old on numerous occasions.

During these meetings, ‘Ken’ and ‘Evelyn’ allegedly offered the man money to obtain the information regarding Australian defence, economic and national security arrangements, as well as matters relating to other countries.

The police will allege that these requests were complied with, with a number of reports obtained and the 55-year-old receiving payment.

The parties referred to as ‘Ken’ and ‘Evelyn’ are alleged to work for a foreign intelligence service currently undertaking intelligence collection activities, which has possibly led them to contacting other Australian citizens and residents.

In their statement, the AFP noted that: “espionage and foreign interference pose a serious threat to Australia’s sovereignty, security and integrity of our national institutions.”

The 55-year-old will be the second person charged by the Taskforce since the introduction of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill in 2018.

The National Security Legislation Amendment (Espionage and Foreign Interference) Bill amended the Criminal Code Act 1995(Cth) to introduce offences related to treason, espionage, foreign interference, and interfering with political rights and duties, among others.

It essentially seeks to target to activities of foreign actors and those who act or seek to act on their behalf, where this works against Australia’s interests.

Division 92 of the Criminal Code Act 1995 (Cth) addresses foreign interference.

Section 92.2 criminalises the offence of intentional foreign interference, which a person will commit if they commit conduct, which is engaged on behalf of, or in collaboration with, a foreign principal or directed, funded, or supervised by a foreign principal, including a person acting on their behalf.

In order for the offence to be committed, the person will intend for the conduct to:

• influence a political or governmental process of the Commonwealth or a State or Territory,
• influence the exercise (whether or not in Australia) of an Australian democratic or political right or duty,
• support intelligence activities of a foreign principal, or
• prejudice Australia’s national security.

It is also a requirement for it to be covert or involve deception, or involve the person making a threat to cause serious harm or making a demand with menaces.

The maximum penalty applicable is 20 years imprisonment.

Section 92.3 criminalises the same conduct, however, applies to circumstances in which the defendant is instead ‘reckless’ as to whether the conduct will influence, support, or prejudice the aforementioned factors. The maximum penalty applicable is instead 15 years imprisonment.

The Act also addresses those who participate in conduct with the intention of preparing for, or planning, an offence against sections 92.2 or 92.3, and prescribes a maximum penalty of 10 years imprisonment, as per section 92.4.

It is a defence to the charges if the conduct was done in accordance with: a law of the Commonwealth, an arrangement or agreement to which the Commonwealth is party, or in a person’s capacity as a public official.

By Poppy Morandin.

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