Espionage and foreign interference is currently a major focus of national security law in Australia. In December 2017, the Australian Government introduced an extensive package of new legislation relating to espionage, foreign interference and other related offences. This article aims to briefly inform you about the current state of Australian espionage and related offences and the impact of these new reforms if passed by Parliament as currently drafted.
Under current law, it is an offence for a person to communicate or make available:
- information concerning the Commonwealth’s security or defence; or
- information concerning the security or defence of another country, which is acquired (whether directly or indirectly) from the Commonwealth.
Obtaining or copying a record (in any form) of the above information may also amount to an offence.
A person also needs to:
- intend to prejudice the Commonwealth’s security or defence and that such conduct results or is likely to result in, the information being communicated or the record being delivered to a foreign country or organisation; or
- without lawful authority intend that the record will or may have been, delivered to a foreign country or organisation, and intended to give an advantage to another country’s security or defence.
However, the Bill extends the information that is communicated or delivered to a ‘foreign principal’ (which covers state-owned enterprises and foreign private companies that channel government activities) to include matters of ‘national security’. Under the draft legislation, national security not only encompasses Australia’s defence or security. But it also relates to information regarding Australia’s ‘political, military or economic relations with another country.’
The catch-all nature of these new economic and political elements in conjunction with the wide definition of ‘foreign principal’ may operate so broadly that it unintentionally affects innocent parties. For example, those who provide consultancy services to companies owned by foreign governments may be caught by the draft provisions.
In addition, being reckless as to whether such conduct will prejudice Australia’s national security or advantage the national security of a foreign country will also constitute criminal liability under these draft offences.
New economic espionage offence
The reforms introduce the theft of trade secrets as an offence. It specifically targets economic espionage that is particularly conducted by or on behalf of foreign individuals and entities. Dishonestly receiving, obtaining, taking, copying or duplicating, selling, buying or disclosing information that is a trade secret on behalf of a foreign government principal carries a maximum penalty of 15 years imprisonment.
The purpose of this provision is to mitigate, manage and ultimately prevent the theft of highly valuable and sensitive information (i.e. Defence Technology information and commercial secrets). If such ‘trade secrets’ were stolen, it could be detrimental to Australia’s commercial interests, trade relations and national security.
There are currently no criminal offences targeting foreign interference in Australia. Foreign interference generally involves the exertion of foreign influence in another country. A country typically engages in foreign interference to support their intelligence activities or to otherwise prejudice another nation’s national security.
For example, the use of cyber operations and disinformation campaigns to manipulate election outcomes. In Australia foreign interference activities are said to have been directed at a range of Australian interests, including the country’s military capabilities, commercial pursuits and political/democratic processes.
The Australian Government has introduced reforms aiming to address these foreign interference activities perpetrated by foreign actors and intelligence services.
The following offences would apply where a person’s conduct is covert or deceptive, involves threats or menaces or does not disclose the fact that their conduct is undertaken on behalf of a foreign principal:
- Offence of intentional foreign interference – interference generally or interference involving targeted person (20 years imprisonment);
- Offence of reckless foreign interference – interference generally or interference involving targeted person (15 years imprisonment).
A person engages in foreign interference if he/she intends or is reckless that their conduct would influence Australian governmental processes, influence the exercise of an Australian democratic or political right or duty, support intelligence activities of a foreign principal or prejudice Australia’s national security.
The reforms also criminalise the provision of support or funding to foreign intelligence services agencies.
Similar to the new espionage provisions, innocent parties may be adversely affected, for example, investigative journalists who inadvertently engage in ‘covert’ conduct or individuals exercising the freedom of expression.
Foreign Influence Transparency Scheme
The new reforms introduce a registration scheme for individuals or entities undertaking ‘registrable’ activities on behalf of a foreign principal.
A registrable activity includes activities conducted on behalf of a foreign principal, including an agreement to undertake activities even if such activities were never undertaken.
The purpose of this regime is to highlight the extent of foreign influence in Australia.
New legislation has highlighted the Australian Government’s focus on espionage and foreign interference. The broad nature of the newly proposed national security laws however raises matters of public importance concerning the breadth of the laws and their capacity to potentially unduly interfere with personal liberties.