Espionage is on the verge of overtaking terrorism as Australia’s top security concern – are our anti-spy laws sufficient?

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

Australian domestic spy agency ASIO predicts that espionage – espionage – will supplant terrorism as the main threat to Australia’s security over the next five years. They do not explicitly say why, but note that this is “based on current trends” and that “espionage attempts by several countries remain at an unacceptable level”.

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

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

The threat of espionage

According to ASIO, foreign espionage is:

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

Unlike world wars or the cold war, today’s foreign spies don’t just want to steal military or intelligence information. They are looking for any kind of sensitive or valuable information or things, including proprietary and commercial information, new technologies and information about our relations with other countries.

ASIO Director Mike Burgess has warned of a growing threat of espionage.
Mick Tsikas / AAP

Foreign spies steal this information by developing relationships with people working in industries 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 threat of cyber espionage has been magnified by the COVID-19 pandemic, which has seen a drastic increase in the use and availability of cyber technologies.

Espionage attempts are not uncommon. ASIO warns they happen every day, in every Australian state and territory. And they’re not just by China. A wide range of countries are trying to spy on Australia.

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

Australian Espionage Laws

To combat the growing threat of espionage, the federal government introduced in 2018 a complex program of 27 different espionage offenses. These include a series of predicate offenses, as well as a preparatory offense and a solicitation offense.

Foreign spies – and those who help them – risk life in prison if they break any of these serious national security laws.

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

The underlying espionage offenses

The underlying espionage offenses criminalize the processing of information on behalf of or to communicate to a “principal foreigner,” which includes foreign governments as well as entities they control, such as foreign intelligence agencies.

Read more: ASIO chief Mike Burgess says there are more spies in Australia “than at the height of the Cold War”

Here, “information” means any information or thing. This means that the laws apply regardless of the type of information gathered, whether it is classified government information and sensitive samples of new products (such as vaccines), or seemingly innocuous information about drugs. Australia’s relations with other countries. They also apply regardless of how this information is collected, whether in person or through cybertechnologies.

Some of the offenses require that the person intended (or was reckless as to whether) it would harm Australia’s national security or benefit the national security of a foreign country. Here, “national security” refers to traditional defense and intelligence matters. It also extends to Australia’s political and economic relations with other countries. Thus, the predicate offenses would encompass those who gather information on behalf of another country and seek to harm our security, economy or international relations – exactly what foreign spies do.

The preparatory offense

The purpose of counterintelligence is not to wait for the espionage to happen, but to prevent the espionage from happening in the first place. With this in mind, the 2018 espionage reforms introduced a new “preparatory offense”, which was modeled on similar terrorism offenses.

The preparatory offense criminalizes any act performed to prepare or plan espionage. It captures behavior long before any espionage offense is committed, such as buying a laptop computer or searching on Google for the type of encryption used by the Australian Defense Force.

google homepage
Googling certain terms could amount to a spy plan in the eyes of the law.

To constitute espionage, however, a person doing this sort of thing would have to intend to commit espionage at some point in the future.

When it comes to foreign spies or their associates, this offense may be easier to prove than the predicate offenses. It also gives law enforcement the power to intervene before spies take anything.

The crime of soliciting

Espionage offenses are aimed in another way at the early stages of espionage. The “solicitation offense” criminalizes any act aimed at inducing someone else to commit espionage. The offense can be committed even if the other person never engages in espionage.

The solicitation offense would apply to foreign spies who attempt to establish relationships with Australians to trick them into passing on valuable information.

Are our laws sufficient?

Australia’s revised espionage laws are broad enough to encompass modern espionage, 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 obstacle to prosecution, especially when 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.

Read more: You Might Break Social Media Espionage Laws Without Realizing It

Another problem is identifying who is the spy, and therefore who to accuse. This is a big problem when someone is engaging in cyber espionage, as 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 needed to prevent espionage from happening in the first place. These measures include robust and effective cybersecurity – not only for government agencies, but also in our homes and workplaces. They also include public awareness campaigns on the nature of modern espionage. Every Australian should know what to look for so that they don’t inadvertently pass on valuable information to a spy.

Our espionage laws serve as a warning that bigger doesn’t necessarily mean better.

In addition to their questionable effectiveness, the breadth of the laws means they can also capture quite innocent behaviors, like social media, media reporting, and academic research.

So, by trying to capture spies, the laws can also capture innocent Australians.

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