Review of Australia’s espionage, foreign interference, sabotage and theft of trade secrets offences (Division 82 and Part 5.2 Criminal Code Act 1995)

This roundtable was held virtually on Thursday, 5th June 2025. It was attended by representatives from:

• Australia’s Right to Know
• Alliance for Journalists’ Freedom

The purpose of the roundtable was to have a preliminary discussion about how the espionage, foreign interference, sabotage and theft of trade secrets offences in Division 82 and Part 5.2 of the Criminal Code Act 1995 (Cth) affect journalists and media organisations. The primary focus was on espionage and foreign interference. As this was a preliminary discussion the record should not be taken to imply that any individual or group necessarily agreed with positions or options that were discussed.

Media representatives noted that the Issues Paper was comprehensive and had assisted them in understanding the INSLM review and in considering their position and potential submissions on the matters within the scope of the review.

Key topics discussed:

• the practical impact of the espionage offences on freedom of the press and public interest journalism
• whether there should be some requirement for conduct to be ‘clandestine’ or ‘covert’ for it to be regarded as espionage
• the scope of conduct covered by ‘deals with’ and whether it is proportionate in espionage offences
• whether ‘recklessness’ is an appropriate fault element for espionage offences and what impact this threshold could have on public interest journalism
• the operation of the offence of ‘security classified information espionage’ (s 91.3)
• The way that the ‘making it easier to solicit or procure’ preparatory offence might apply to journalists meeting with potential sources.
• the definition of ‘foreign principal’ and how the term could apply to media organisations
• the adequacy of defences and safeguards for espionage offences to protect press freedom
• the operation of closed court and forfeiture powers (ss 93.2 and 94.1) and how they might apply to a prosecution that involves a journalist.

Impact of espionage offences on freedom of the press

Participants highlighted the importance of a free press in a democratic society and said that Australia’s broad espionage offences have an impact on public interest journalism. Concerns were raised that broad definitions in the offence (including the definition of information that ‘concerns national security’) result in legitimate public interest reporting on national security matters falling within the scope of offences and thus not being reported, even where there is a strong public interest. When pushed for evidence of how the offences have these consequences the key issues highlighted were:

• The financial burden on media organisations of having to seek extensive legal advice anytime there is a risk that national security laws such as these may be in play. Small organisations and independent journalists may avoid important stories simply because they do not have resources to access such advice.  Even large organisations have to make careful risk-based decisions on when to purse such reporting.  This is compounded by the complexity and uncertainty of some laws.
• There is a high emotional burden on journalists who may face personal criminal liability for investigating public interest matters that may ‘concern’ national security matters.

Should espionage have a ‘clandestine’ element?

There was discussion about how the ordinary meaning of ‘espionage’ implies some level of covert or clandestine actions – secretly passing sensitive information to a foreign government. Whereas the current offences only require dealing with information that ‘results or will result in [it] being communicated or made available to a foreign principal…’  This could include publishing an article in a newspaper or news media website which is available to the world, or if the media organisation was foreign owned simply filing an article in accordance with normal journalistic practice.

Most of the concerns media organisations have with the primary espionage offences could be reduced by reverting to a more traditional understanding of espionage and having a requirement that the information be made available clandestinely to a foreign government, thus excluding information that published by the press.

Definition of ‘deals with’ in espionage offences

The group considered whether the issues identified with ‘deals with’ in the Monitor’s review of secrecy offences in pt 5.6 of the Criminal Code Act 1995 (Cth) were applicable in the context of espionage offences. The group noted that the definition includes a variety of conduct (e.g. copying, altering, concealing) that occurs prior to communication to a foreign principal. This raised questions about the necessity of other pre-communication espionage offences, including the offence of soliciting or procuring in s 91.11 and the preparatory offence in s 91.12.

Participants also raised concerns that, given the breadth of the offences, ordinary journalistic conduct could constitute ‘dealing with’ information or be interpreted as preparatory conduct, even where no information was published.

Participants also discussed whether espionage offences could be re-framed as a harm-based offence, noting that there was a range of information in the public interest that could be described as information that ‘concerns national security’ that would not cause harm to national security if disclosed. If a ‘deemed harm’ element is necessary it should be narrow and clearly defined.

Mental element of recklessness

Participants raised concerns that that journalists reporting in the public interest on national security related matters could satisfy the legal threshold of recklessness and be caught by espionage offences. They noted that there may be legitimate public reasons where a new story that may ‘prejudice’ Australia’s economic relations with another country, which nevertheless are in the public interest to be brought to light.

Examples were discussed of how matters such as alleged fraud in procurement of defence-related equipment or misrepresentation of the strength of intelligence by government may not be able to be reported because they ‘concern’ national security and might ‘recklessly’ prejudice economic or political relations with another country, even where there is a strong public interest in the exposure of such matters.

Espionage offence in s 91.3

Participants noted concern with the scope and operation of the espionage offence in s 91.3 that involves a person dealing with security classified information or articles for the primary purpose of communicating the information or article, or making it available, to a foreign principal. Particular concern was expressed about the application of strict liability to that element, as well as the offence’s reliance on ‘security classification’ as an element of the offence (which the Monitor’s Review of Secrecy offences has recommended, and the government has accepted, should not form an element of a criminal offence).

The way that the ‘making it easier to solicit or procure’ preparatory offence might apply to journalists meeting with potential sources

There was discussion about the extremely wide and uncertain scope of the offence in s 91.11 of ‘soliciting, procuring or making it easier to solicit or procure’. There was concern that ordinary journalistic practice might fall within the scope of the offence. An example was given where a journalist meets a person at an event of some sort and the person expresses views or makes comments that the journalist thinks are worth considering/ exploring. The fact that the person may have first-hand knowledge or access to information is one of the considerations. The journalist then suggests they meet for a coffee to talk further about their views/ concerns. This is normal journalistic practice in exploring potentially relevant information and developing a relationship that might at some point in the future be part of the person becoming a ‘source’. There was concern that this might fall within the scope of the ‘making it easier to’ offence.

Scope and application of ‘foreign principal’

The group considered whether foreign-owned media organisations could be ‘foreign principals’ for the purpose of espionage and foreign interference offences and if this was appropriate. Participants raised that the complexity of the definition and its operation in the offences could make it difficult for journalists to assess whether their proposed conduct or their organisation falls within the scope of the offences. It was noted that many media organisations and journalists (particularly freelance journalists) do not possess the resources required to undertake such a complex assessment. It was also noted that many ‘main stream’ media organisations that operate in Australia are potentially ‘foreign principals’ under the current definition.

Adequacy of safeguards and defences

Participants discussed whether a specific defence for journalists, similar to the one for secrecy offences, would be appropriate for espionage offences. The group reiterated that improved clarity and certainty in the offences would enable journalists and media organisations to undertake better risk assessments of their proposed activities and safeguard against breaches.

There was also discussion about whether the ‘prior publication’ defence should apply to all of the offences. Currently the defence only applies to in prosecutions under ss 91.1(1) and (2), and only where the alleged intention is to advantage the national security of a foreign country. The defence would not apply to a prosecution for the same offence where it was alleged, for example, that a person was reckless as to whether their conduct would prejudice Australia’s national security.

Ancillary provisions relating to court closure and forfeiture of information or articles

The group briefly discussed the purpose and operation of the provisions in ss 93.2 and 94.1 which empower the court to make closed court and related orders and forfeit material dealt with in contravention of pt 5.2 to the Commonwealth. Participants were interested in how the court closed provision interacted with other legislative schemes and whether the threshold of ‘in the interests of’ was appropriate or whether such orders should only be available where shown to be ‘necessary’ for supressing matters. The group was also interested to understand how the forfeiture provision could apply to journalistic materials including notebooks, documents and emails. The idea that journalist’s notes might be forfeited to the Commonwealth was concerning.

This roundtable was held in a hybrid format and was attended by:

• Associate Professor Dr Rebecca Ananian-Welsh, University of Queensland
• Associate Professor Dr Keiran Hardy, Griffith University
• Dr Dominique Dalla-Pozza, The Australian National University
• Dr Brendan Walker-Munro, Southern Cross University
• Dr Sarah Kendall, University of Queensland

The purpose of the roundtable was to have a preliminary discussion about how the espionage, foreign interference, sabotage and theft of trade secrets offences in Division 82 and Part 5.2 of the Criminal Code Act 1995 (Cth) operate with academics who have researched/published on these topics. As this was a preliminary discussion the record should not be taken to imply that any individual necessarily agreed with positions or options that were discussed. Individual academics were discussing their own views, not those of the institutions that they are affiliated with.

Academics noted that the Issues Paper was comprehensive and the INSLM staff had already done a literature review identifying and considering relevant articles, many of which were cited in the issues paper. The roundtable was intended to build on already published work.

It was noted that the Monitor had recently met separately with media organisations and that those discussions had focused on issues relating to press freedom. While press freedom is also an area several academics have published on, the primary focus of this roundtable was intended to be on other issues given the input already received from media organisations and the published articles.

Key issues discussed

• the impact the offences have on academic freedom and practice
• whether, as a motive for the offences, the definitions and operation of the terms ‘national security’, ‘prejudice’ and ‘advantage’ are sufficiently clear and proportionate
• what information should be protected by espionage
• whether the preparatory and quasi preparatory espionage offences are appropriate, including their overlap with the definition of ‘deals with’
• the types of conduct that is criminalised by foreign interference offences and the outcomes that is currently covered
• the meaning of ‘covert’ for foreign interference offences
• the overlap between the ‘introducing vulnerability’ and preparatory sabotage offences
• if an express defence for industrial action is required
• whether the offence of theft of trade secrets is an effective remedy and if the offence should require a nexus to national security.

Impact of offences on academic freedom and practice

Participants raised concerns that the use, dissemination and analysis of open source information could fall within the scope espionage offences where it ‘concerns national security’. It was suggested that these concerns may be having a ‘chilling effect’ on national security academic work. It was also noted that complex and time-consuming schemes implemented by universities to comply with government advice and requirements relating to espionage and foreign interference can place a significant administrative burden on academics and universities, which can dissuade academics from collaborating with foreign universities or scholars. Instances where academic opportunities were declined on the basis of foreign associations were noted. Delay caused by the need to comply with detailed processes can also mean that deadlines for funding, conferences and publishing opportunities can be missed.

Definitions and operation of ‘national security’, ‘prejudice’ and ‘advantage’

Some participants supported the inclusion of a legislative definition of ‘national security’ rather than leaving its scope open to interpretation by the executive and the courts, as in some foreign jurisdictions. However, there were concerns that the current definition was too broad, circular and not fit for purpose. Amendments to the definition and terms that could replace ‘national security’ were discussed.

The group discussed how the threshold of harm or benefit required to satisfy the meaning of ‘prejudice to Australia’s national security’ or ‘advantage to the national security of a foreign country’ was unclear. The necessity of both limbs was questioned and it was suggested that any advantage to a foreign country achieved by the unauthorised disclosure of Australian information or covert interference with Australian governance and people would prejudice Australia’s national security. The requirement to provide proof that the advantage to another country was greater than any advantage to Australia was discussed as potentially complex in any prosecution.

Espionage offences

The group exchanged views on the core features of espionage and the types of conduct that should be criminalised by espionage offences, other offences (such as secrecy offences) or not criminalised at all. The group discussed whether espionage implied a level of deceptive, clandestine or nefarious conduct and noted the absence of this type of element in the offences. It was suggested that the inclusion of this type of element may narrow the offences in way that alleviates concerns about academic and press freedom.

Participants considered the types of information that should be protected by espionage offences. As a starting point, the group reflected on the categories of information recommended by the Monitor in his review of secrecy offences in pt 5.6 of the Criminal Code Act 1995 (Cth). The group had varying views as to whether the phrase ‘concerns national security’ was appropriate and whether law enforcement information should be considered national security information. There was broad agreement that the proportionality of the breadth of information covered espionage offences also depends on the scope of other elements – that is, breadth in one element may necessitate constriction in another and vice versa.

The group discussed whether the overlap between the 10 espionage offences was necessary and proportionate. Participants considered the breadth of the definition of ‘deals with’ and how it captures conduct at various stages of commission, including conduct that occurs well before information is communicated to a foreign principal. This raised questions about the necessity of the subdivision B offences, the soliciting offence in s 91.11 and the preparatory offence in s 91.12. There was broad agreement that the Commonwealth should be able to intervene prior to the communication of sensitive information to a foreign principal. Prosecution is not the only ‘disruption’ available.

Foreign interference offences

The group exchanged views on the meaning and operation of elements of the foreign interference offences. There was general agreement that these offences were intended to be broad, however, participants suggested that necessity, effectiveness and proportionality of the elements required reconsideration. Participants agreed there was uncertainty about the scope of a ‘political or governmental process’ or ‘Australian democratic or political right or duty’. The group also questioned the inclusion of ‘support intelligence activities’ in the general foreign interference offences given the breadth of espionage offences and specific offences for supporting foreign intelligence agencies.

In discussion about the meaning of ‘covert’, a participant raised concerns that the threshold or evidence required to prove ‘covertness’ appeared to be low, based on public reporting about foreign interference prosecutions. There was broad consensus that the meaning of ‘covert’ required further clarification.

Sabotage offences

Some participants acknowledged the overlap between offences for introducing a vulnerability and the preparatory offence but noted that it was foreseeable that introducing a vulnerability could be the ultimate intended outcome of conduct which could warrant a separate criminal offence. The group was interested in giving further consideration as to whether an express defence for industrial or protest action was necessary.

Theft of trade secrets offence

Participants did not raise strong concerns with the offence for theft of trade secrets however, consideration was given to whether the offence required a nexus to national security, possibly in the type of information protected. The group also discussed barriers to prosecution and limitations of the offence as an effective remedy, particularly in instances of the theft of university research.