Are our anti-spy laws strong enough to meet growing espionage concerns?

8 December 2021

Article by Sarah Kendall, The University of Queensland Law School

Terrorism has been one of Australia’s most significant threats to national security since the September 11 terrorist attacks. But this is set to change.

Australia’s domestic spy agency ASIO anticipates espionage – spying – will supplant terrorism as Australia’s principal security threat over the next five years. They do not explicitly say why, but note this is “based on current trends” and that “espionage attempts by multiple countries remain unacceptably high”.

Espionage can harm our independence, economy and national security. For example, stealing trade secrets would give a foreign country an advantage on the international market, which would undermine Australian businesses. Or stealing information about military weapons would give our enemies the chance to develop their own technology to obstruct our use of these assets.

But what exactly is the nature of this espionage threat? And are our laws enough to protect us?

man coding on a computer in the dark.
Espionage is set to overtake terrorism as Australia's primary security concern. Photo by Jefferson Santos on Unsplash

The espionage threat

According to ASIO, foreign espionage is:

the theft of Australian information or capabilities for passage to another country, which undermines Australia’s national interest or advantages a foreign country.

Unlike the world wars or Cold War, foreign spies today do not just want to steal military or intelligence information. They seek any kind of sensitive or valuable information or things, including proprietary and commercial information, new technologies, and information about our relations with other countries.

Foreign spies steal this information by developing relationships with people working in sectors such as government, academia, business, science and technology.

They also engage in cyber espionage – today’s spies can steal large amounts of data in seconds. They can also do this anonymously and from outside Australia. The cyber espionage threat has been amplified by the COVID-19 pandemic, which has seen a drastic increase in the use and availability of cybertechnologies.

Espionage attempts are by no means a rare occurrence. ASIO warns they occur every day, in every Australian state and territory. And they are not just by China. A wide range of countries are attempting espionage against Australia.

The threat is real, sophisticated and wide-ranging. And ASIO warns that it will increase during times of “heightened tension”, like during the COVID-19 pandemic.

Australia’s espionage laws

To combat the growing threat of espionage, in 2018 the federal government introduced a complex scheme of 27 different espionage offences. These include a suite of underlying offences, plus a preparatory offence and a solicitation offence.

Foreign spies – and those who assist them – face life in prison if they break one of these serious national security laws.

All of Australia’s espionage crimes apply to people within Australia. They also apply to people in other countries too. This means they can capture spies who engage in cyber espionage from beyond Australia’s borders.

Journal Article: Australia's New Espionage Laws: Another Case of Hyper-Legislation and Over-Criminalisation

The underlying espionage offences

The underlying espionage offences criminalise dealing with information on behalf of, or to communicate to, a “foreign principal”, which includes foreign governments as well as entities they control, such as foreign intelligence agencies.

Here, “information” means any information or thing. This means the laws apply no matter what kind of information is taken, from classified government information and sensitive samples of new products (like vaccines) to seemingly innocuous information about Australia’s relations with other countries. They also apply no matter how that information is taken – it could be in person or via cybertechnologies.

Some of the offences require the person to have intended to (or been reckless as to whether) they would prejudice Australia’s national security or advantage the national security of a foreign country. Here, “national security” means traditional defence and intelligence matters. It also extends to Australia’s political and economic relations with other countries. So, the underlying offences would capture those who take information on behalf of another country and seek to harm our security, economy, or international relations – exactly what foreign spies do.

silhouette in front of a digital screen
Today's spies can steal vast quantities of sensitive or valuable data in seconds. Photo by Chris Yang on Unsplash

The preparatory offence

The aim of counterespionage is not to wait until espionage has happened, but to prevent espionage from occurring in the first place. With this in mind, the 2018 espionage reforms introduced a novel “preparatory offence”, which was modelled on similar terrorism offences.

The preparatory offence criminalises any act done to prepare or plan for espionage. It captures conduct far before the commission of any espionage offence, such as purchasing a laptop or googling the type of encryption used by the Australian Defence Force.

Read More: You could break espionage laws on social media without realising it

To amount to espionage, though, a person doing these kinds of things would need to intend to commit espionage at some time in the future.

Where foreign spies or their associates are concerned, this offence might be easier to prove than the underlying offences. It also gives law enforcement the power to intervene before the spies take anything.

The solicitation offence

The espionage offences take aim at the earliest stages of espionage in another way. The “solicitation offence” makes it a crime to do any act, intending to obtain someone else to commit espionage. The offence can be committed even if the other person never engages in espionage.

The solicitation offence would apply to foreign spies who try to develop relationships with Australians to get them to hand over valuable information.

Are our laws enough?

Australia’s revamped espionage laws are broad enough to capture modern – including cyber – espionage. But they are not enough to protect us from espionage.

One problem with the laws is that people who commit cyber espionage from outside Australia must be extradited here to face prosecution. This could be a significant impediment to prosecutions, especially where the spy is in a country that does not have an extradition treaty with Australia (or the treaty is not yet in force), such as China or Pakistan.

Another problem is identifying who the spy is, and therefore who to charge. This is a big issue where a person engages in cyber espionage because they can use things like anonymous proxy servers to hide their identity.

These problems mean that our espionage laws may not be as effective as they could be, and other measures may be necessary to prevent espionage from occurring in the first place. These measures include robust and effective cyber security - not just for government agencies, but in our homes and workplaces too. They also include public awareness campaigns about the nature of modern espionage. Every Australian must know what to look out for so that they do not inadvertently hand valuable information over to a spy.

Our espionage laws serve as a warning that broader does not necessarily mean better.

In addition to their questionable effectiveness, the breadth of the laws means they can capture entirely innocent conduct too, like social networking, media reporting, and academic research.

Policy paper: Espionage and press freedom in Australia (PDF, 1.3 MB)

So, in attempting to capture spies, the laws may also catch innocent Australians.

Sarah Kendall, PhD Candidate in Law, The University of Queensland Law School

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