Username:
Password:
Submit

Australian Cyber Law Map

You are here: Cyber Law » Australian Cyber Law Map » Espionage, Sabotage and Foreign Interference

Espionage, Sabotage and Foreign Interference

Espionage, Sabotage and Foreign Interference

19 December 2022 - 14:32 | Version 16 | JenniferWestmorland

Overview

In Australia, offences relating to espionage, sabotage, foreign interference and other threats to Commonwealth security are contained within the Schedule of the Criminal Code Act 1995 (Cth) (the Criminal Code).

Background

In 2018, national security agencies, particularly the Australian Security Intelligence Organisation (ASIO), publicly identified that particular foreign adversaries have been increasingly attempting to engage in practices such as espionage and foreign interference (see also the 2017-18 ASIO Annual Report). ASIO expressed concern that existing national security laws were too “narrow” and thus could not address the challenges of a changing threat environment, implicitly referring to the rise of cyber-related practices including cyber espionage.
In response, the Commonwealth parliament passed the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth), which had the effect of giving national security and law enforcement agencies greater capabilities to counter national security threats, deter unwarranted behaviour, shed light on clandestine and deceptive practices, and utilise investigatory powers and options to prosecute offenders. The Act repealed the existing espionage offences in the Criminal Code and introduced 27 new offences that are broader in nature and carry greater penalties.
See National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017
See National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 - Second Reading Speech (7 December 2017)
See National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, Foreign Influence Transparency Scheme Bill 2017 - Second Reading Speech (26 June 2018)
See Sarah Kendall, 'Australia’s New Espionage Laws: Another Case of Hyper-Legislation and Over-Criminalisation' (2019) 38(1) UQ Law Journal 125

Legal Framework

Criminal Code Act 1995 (Cth)

Sabotage

Sabotage offences are contained in Division 82 of the Schedule to the Criminal Code Act 1995 (Cth) (the Criminal Code). The offences criminalise conduct that damages public infrastructure (including conduct that makes software vulnerable to misuse or unauthorised access), where the offender intends or is reckless as to whether that conduct will prejudice Australia's national security or advantage a foreign country. More serious offences cover conduct involving a foreign principal. There are limited defences available for public officials and owner/operators of public infrastructure who act reasonably and within the scope of their duties or authority.
Under Division 131, it is an offence to dishonestly appropriate Commonwealth property or to damage or destroy Commonwealth property.
Both the sabotage and Commonwealth property offences are given the broadest geographical jurisdiction under the Criminal Code (Category D), which means the Code applies regardless of whether the offence or its results occur in Australia or overseas.

Espionage

Espionage offences are contained in Division 91 of the Schedule to the Criminal Code Act 1995 (Cth) (the Criminal Code).
The Division contains a series of offences where a person communicates or makes available to a foreign principal security classified information or information concerning national security. Some offences require the offender to intend or be reckless as to whether their conduct prejudices national security or advantages the security of another country, while other offences impose strict liability on persons dealing with classified information.
It is a separate offence to engage in these espionage offences on behalf of or in collaboration with a foreign principal.
Espionage offences are given the broadest geographical jurisdiction under the Criminal Code (Category D), which means the Code applies regardless of whether the offence or its results occur in Australia or overseas.

Foreign interference

Foreign interference offences are contained in Division 92 of the Schedule to the Criminal Code Act 1995 (Cth) (the Criminal Code).
Under this Division, it is an offence to engage in covert or deceptive conduct involving a foreign principal that intentionally or recklessly influences an Australian political or government process, right or duty, prejudices Australia’s national security, or supports intelligence activities of a foreign principal.
Subject to a defence available to public officials acting in their official capacity, it is also an offence to, knowingly or otherwise, provide resources or material support to a foreign intelligence agency, or to receive or make available funds to a foreign intelligence agency.
It is also an offence to dishonestly receive, copy, sell, buy or disclose trade secrets in circumstances that involve a foreign principal.

Secrecy of information

Offences relating to the secrecy of information are contained in Division 122 of the Schedule to the Criminal Code Act 1995 (Cth) (the Criminal Code). These offences relate to information that is inherently harmful or causes (or will or is likely to cause) harm to Australia's interests that was made or obtained by a person working for the Commonwealth.
Here, 'Australia's interests' are defined broadly to include interference with respect to the prosecution of offences, federal police functions, international relations, the health or safety of the Australian public, and the security or defence of Australia.
It is an offence to communicate or deal with the information, remove it from its proper place of custody, or fail to comply with a direction regarding its retention or disposal. Aggravated offences apply where the information is particularly sensitive (eg marked "for Australian eyes only").
An absolute liability offence applies where the person is under a Commonwealth law duty not to disclose the information, although this offence is subject to a 5 year sunset clause, which expires on 29 June 2023.
The Division contains a long list of defences, including if the person was exercising powers or duties in their capacity as a public official or if disclosure occurs pursuant to another legislative instrument (eg the Public Interest Disclosure Act 2013 (Cth) or the Freedom of Information Act 1982 (Cth)).
See Disclosure of confidential information by Commonwealth officers - repeal of section 70 of the Crimes Act 1914 (Cth), Lexology

Other threats to security

Other offences relating to threats to security are contained in Division 83 of the of the Schedule to the Criminal Code Act 1995 (Cth).
For example, it is an offence to advocate mutiny amongst members of the Australian Defence Force, regardless of whether a mutiny occurs. Here, mutiny includes an overthrow of the lawful authority of the ADF or resistance to such authority in a manner that substantially prejudices the ADF's operational efficiency.
It is also an offence to use force, violence or a threat that interferes with another person's exercise of an Australian democratic or political right or duty arising under Commonwealth laws or the Commonwealth of Australia Constitution Act.