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

In February 2025, the Independent National Security Legislation Monitor (the Monitor) commenced a review into Australia’s espionage, foreign interference, sabotage and theft of trade secrets offences (Division 82 and Part 5.2 of the Criminal Code Act 1995 (Cth) (Criminal Code)). The Monitor is required to review these provisions in accordance with s 6(1B)(a)-(b) of the Independent National Security Legislation Monitor Act 2010 (Cth) (INSLM Act).

Division 82 of the Criminal Code contains offences of committing sabotage, planning or preparing a sabotage offence, and for introducing a vulnerability into ‘public infrastructure’.

Part 5.2 of the Criminal Code contains offences for espionage (Division 91), foreign interference (Division 92), and theft of trade secrets (Division 92A). Part 5.2 also contains provisions relating to prosecutions, hearings and the forfeiture of articles (Divisions 93 and 94).

The Monitor has released an Issues to explain key issues being considered in the review. These include:

1. The current threat environment and what evidence there is that the offences have played a role in mitigating that threat as well as any evidence the laws have had unintended consequences including on academic collaboration and press freedom.
2. Whether the laws are consistent with international human rights and security obligations.
3. Whether key terms underpinning the offence are clear and appropriately scoped (particularly the definitions of 'national security', 'foreign principal' and ‘deal’).
4. Whether the offences themselves are appropriately constructed, with certain and clear elements that are necessary and proportionate.
5. Whether the preparatory offences (for sabotage, espionage and foreign interference) are appropriate.
6. Whether the laws contain adequate safeguards and appropriate defences.

Submitters are welcome to raise other issues associated with the operation, effectiveness and necessity of the offences under review as well as the safeguards for protecting individual rights and compliance with Australia’s international obligations.

Anyone interested in making a submission to this review may do so. Submissions close on 20 June 2025.