In an increasingly connected society, espionage and foreign interference represent growing threats to Australia’s national security, sovereignty, and economic prosperity.
There is a need to reform and modernise national security laws to ensure that Australia is not permitting malicious foreign actors to harm its interests.
The National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 was passed by Parliament on 28 June 2018, amending the Criminal Code Act 1995 (Cth).
This Act strengthens a range of espionage offences and introduces various new foreign interference laws, providing Australian law enforcement and security agencies with the necessary powers to effectively investigate and prosecute these offences.
Criminal charges and imprisonment are now potential consequences for actions that may previously have been considered breaches of administrative policy.
What are the key changes?
The National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018:
- Strengthens existing espionage offences.
- Introduces new foreign interference offences targeting foreign actors who intend to influence Australia’s democratic or government processes or to harm its interests.
- Reforms the Commonwealth’s secrecy offences, ensuring they appropriately criminalise leaks of harmful information.
- Ensures law enforcement agencies have access to telecommunications interception powers to investigate offences.
- Introduces comprehensive new sabotage offences that effectively protect critical infrastructure.
- Reforms offences against government, including treason.
- Introduces a new theft of trade secrets offence.
- Introduces a new aggravated offence for providing false or misleading information in the context of security clearance processes.
A useful summary of the offences is provided by the Australian Government Department of Defence.
Key considerations in determining offences and penalties
Classification of information
A key determinant of the specific crime applicable and associated penalties is the sensitivity of information as classified by the Australian government. For example, engaging in espionage that involves “secret” or “top secret” information which could cause serious or grave damage to Australia’s national security can attract very harsh penalties up to life imprisonment.
Intent vs. recklessness
Another key consideration is whether someone intended to harm Australia’s national security or was simply reckless in dealing with sensitive information. This distinction may make the difference between a maximum sentence of 25 years imprisonment and one of life imprisonment.
