A. The 2023 Offences

The espionage offence framework under the Official Secrets Acts was heavily criticised by the Intelligence and Security Committee in 2020 for being out of date and “not fit for purpose”.Footnote ³⁹ To rectify this, the framework was entirely overhauled in 2023. The new offences introduced by the National Security Act were argued to be necessary to “reflect the evolving threat and the interconnected nature of the modern world” by capturing “modern methods of spying”.Footnote ⁴⁰ To that end, the Act introduced three new espionage offences: “Protected Information Espionage”; “Trade Secrets Espionage”; and a preparatory offence.Footnote ⁴¹ No express defences were introduced. The three espionage offences will be explained further below. This will be followed in the next section by a discussion of their key terms and elements.

Protected Information Espionage makes it an offence (punishable by up to life in prison) to obtain, copy, record, retain, disclose or provide access to protected information where the person’s conduct is “for a purpose that they know, or having regard to other matters known to them ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom”.Footnote ⁴² The “foreign power condition” must also be met in relation to the person’s conduct. This offence essentially replaces the 1911 Act’s Espionage by Information Gathering and Espionage by Information Communication offences.Footnote ⁴³

Trade Secrets Espionage criminalises similar conduct. It makes it an offence punishable by up to 14 years’ imprisonment to obtain, copy, record, retain, disclose or provide access to a trade secret without authorisation where the person “knows, or having regard to other matters known to them ought reasonably to know, that their conduct is unauthorised”.Footnote ⁴⁴ Reflecting the character of the offence as a counter-state threats offence, Trade Secrets Espionage also requires the foreign power condition to be met. No equivalent of this offence was found in the Official Secrets Acts.

The National Security Act also introduced a preparatory offence that applies to several “underlying” offences found in the Act, including Protected Information and Trade Secrets Espionage.Footnote ⁴⁵ The preparatory offence provides that a person commits a crime punishable by up to life in prison if, with the intention of committing acts constituting one of the espionage offences or with the intention of such acts being committed by another person, the person “engages in any conduct in preparation for the commission of such acts”.Footnote ⁴⁶ To be found guilty of the offence, it is not necessary that the person have in mind specific acts constituting an espionage offence, nor is it necessary that an espionage offence subsequently be committed.Footnote ⁴⁷ This offence is a broad offence that essentially captures “any conduct” and, therefore, is primarily limited by its fault element (an intention to commit an espionage offence).

The preparatory offence was the only one of the 1920 Inchoate Espionage Offences to be included in the National Security Act; the other offences were omitted because they are already found in common law and/or statute (and, therefore, they can be attached to any of the underlying espionage offences to create pre-crimes, such as soliciting espionage).Footnote ⁴⁸ However, because the preparatory offence is now a substantive offence under the Act, those inchoate offences also have the capacity to attach to the preparatory offence. This could create “pre-pre-crimes” (such as soliciting someone to prepare for espionage or attempting to prepare for espionage) which further broaden the scope of the law by criminalising conduct a further step removed from the commission of any substantive offence. These offences therefore significantly expand the scope of the UK’s 2023 espionage framework.

The three new espionage offences have a wider territorial ambit than the 1911 and 1920 Acts’ offences (which only applied to acts committed in “any part of His Majesty’s dominions” or, if committed abroad, only when committed by British Officers or subjectsFootnote ⁴⁹). Specifically, all three offences apply to conduct that occurs within or outside the UK,Footnote ⁵⁰ regardless of the individual’s nationality.Footnote ⁵¹ However, if conduct constituting Trade Secrets Espionage takes place wholly outside the UK, to be an offence the trade secret must have been in the possession or under the control of a “UK person” (i.e. a UK national or resident).Footnote ⁵² The wider territorial ambit of the 2023 Act’s offences has the effect that espionage committed outside the UK by foreign citizens – as frequently occurs in cyberespionage – is criminalised.

B. Key Terms and Elements

Unlike previous espionage offences (where the scope of most key terms was left to the courts), many of the terms and elements of Protected Information and Trade Secrets Espionage have been defined in legislation. For example, the National Security Act defines both “protected information” and “trade secret” – the type of information that is the subject of these two offences. Both terms refer to “any information, document or other article” (for simplicity, this article will use “information” to refer to this phrase).Footnote ⁵³ To be protected information, access to such information must be “restricted in any way” or it must be reasonable to expect that access to such information would be so restricted, for the purpose of protecting “the safety or interests of the United Kingdom”.Footnote ⁵⁴ “Trade secret” is also comprehensively defined, essentially encompassing commercially valuable information that is not generally known by experts in the field and whose value would be adversely affected if it became generally known.Footnote ⁵⁵

Although the National Security Act provides guidance as to what constitutes protected information and trade secrets, it does not further explain what “information, document or other article” encompasses, except that “information” includes “information about tactics, techniques and procedures”.Footnote ⁵⁶ While these terms could extend to digital information (as is targeted by cyberespionage), it is less clear whether they include things such as samples and prototypes (for example, a sample of a new vaccine or a prototype of sonic weaponry).

Central to both Protected Information and Trade Secrets Espionage is the “foreign power condition”. That condition will be met if the conduct (or course of conduct of which it forms a partFootnote ⁵⁷) is “carried out for or on behalf of a foreign power” and the person “knows, or having regard to other matters known to them ought reasonably to know”, that that is the case.Footnote ⁵⁸ The National Security Act provides that conduct or a course of conduct “is in particular to be treated as carried out for or on behalf of a foreign power” if it is instigated, directed or controlled by, “carried out with financial or other assistance provided by”, or “carried out in collaboration with, or with the agreement of, a foreign power”.Footnote ⁵⁹ This element can be satisfied by a “direct or indirect relationship” between the conduct and the foreign power (“for example, there may be an indirect relationship through one or more companies”).Footnote ⁶⁰ Additionally, where the conduct in question is the person’s conduct (and not a course of conduct), the foreign power condition can be met if “the person intends the conduct in question to benefit a foreign power”Footnote ⁶¹ (although it is “not necessary to identify a particular foreign power”Footnote ⁶²).

The National Security Act provides a comprehensive definition of “foreign power”.Footnote ⁶³ Specifically, a foreign power includes the sovereign or head of a foreign state;Footnote ⁶⁴ a foreign government (or part of one);Footnote ⁶⁵ “an agency or authority of a foreign government”Footnote ⁶⁶ or one “responsible for administering the affairs of an area within a foreign country”;Footnote ⁶⁷ or “a governing political party of a foreign government”.Footnote ⁶⁸ A “government” is not restricted to the government itself, but “includes persons exercising the functions of a government”.Footnote ⁶⁹ This definition of foreign power makes it clear that any foreign power could fall within its scope (including allies) and not just “enemies” as was used in previous espionage offences.

In addition to the foreign power condition, a second term is fundamental to Protected Information Espionage: “safety or interests of the UK”. That term is incorporated as a fault element of the offence (“for a purpose that … is prejudicial to the safety or interests of the United Kingdom”Footnote ⁷⁰) as well as an element of “protected information”.Footnote ⁷¹ Despite its importance, however, the term has not been defined in legislation. It was also not defined in the Official Secrets Act 1911, where the term formed part of the fault element of the previous espionage offences (“for any purpose prejudicial to the safety or interests of the State”Footnote ⁷²).

While it was not defined in the Official Secrets Act 1911, “safety or interests of the State” has been judicially considered. In Chandler v DPP, the court held that the “State” encompasses the organs of government of a national community,Footnote ⁷³ with “safety or interests of the State” referring to the objects of State policy determined by the Crown on the advice of Ministers.Footnote ⁷⁴ Similarly, in Secretary of State for the Home Department v Rehman, the court held that:

Although the National Security Act uses the UK instead of “State” or “national security”, drawing on the reasoning in Chandler and Rehman, “safety or interests of the UK” could be interpreted to mean the objects of UK government policy determined by the Crown on the advice of Ministers.

The court in Chandler also considered the scope of the fault element of previous espionage offences — “for any purpose prejudicial to the safety or interests of the State”. Specifically, the court held that this fault element consisted of both a subjective and an objective component – the defendant’s “purpose” was determined subjectively, but whether this subjective purpose prejudiced the safety or interests of the State was determined objectively. Therefore, it was irrelevant whether the defendant thought that his or her purpose was prejudicial or beneficial.

The scope of this fault element was criticised by the Law Commission, which emphasised that the reason for the person’s conduct is what is important.Footnote ⁷⁶ To remedy this problem, the fault element of Protected Information Espionage is entirely subjective. Specifically, the person’s conduct must have been “for a purpose that they know, or having regard to other matters known to them ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom”.Footnote ⁷⁷ A similar fault element has been included in Trade Secrets Espionage (in relation to whether the conduct is unauthorisedFootnote ⁷⁸) as well as in the foreign power condition (in relation to whether the conduct was “for or on behalf of a foreign power”Footnote ⁷⁹).

C. Application of the UK’s Espionage Laws

Many convictions were secured under the UK’s previous espionage offences; so, there were many reported cases from which application of the laws could be assessed. Most cases on Espionage by Information Gathering or Communication involved UK military or intelligence members or employees of UK government agencies who passed highly sensitive information to foreign officials or agents.Footnote ⁸⁰ These foreign officials were citizens of countries with whom the UK was or had been at war (for example, Russia and Germany); so, they were clearly enemies. The cases on preparing for espionage involved similar circumstances.Footnote ⁸¹ All of these prosecutions were successful, with defendants sentenced to lengthy periods of imprisonment (seven to 42 years’ imprisonment for espionage offences and two to two-and-a-half years’ for preparatory offences).

However, none of these cases involved information collected from outside the UK by foreign citizens (from countries that were not clearly “enemies”) using modern espionage methods, such as cyber hacking. Nor did any involve information other than defence or military information, such as trade secrets, which may be just as damaging to the UK if it were obtained by a foreign power. Such conduct is typical of modern espionage, yet was not criminalised under the UK’s previous espionage laws. The 2023 offences are intended to rectify these issues.

The espionage offences under the National Security Act apply to a broader scope of information than did the previous offences – specifically, trade secrets as well as any information that is “restricted in any way” for the purpose of protecting the safety of interests of the UK (whether in physical or digital form). However, while this latter category could encompass top-secret defence and military information, as well as other sensitive information (such as political, diplomatic, critical infrastructure, economic and scientific information), the bounds of this category are set not by the nature of the information itself, but by government decisions regarding how it should be handled.

On the role of government decisions consider, for example, the UK’s has three security classifications for information that determine the necessary level of protection (or restriction) – Official, Secret and Top Secret.Footnote ⁸² According to the UK Government, “All information that is created or processed by organisations subject to the [Government Security Classification Policy] is OFFICIAL by default … The majority of government information is classified as OFFICIAL” – the “OFFICIAL tier contains a huge volume of information”.Footnote ⁸³ Such information must be securely handled and should generally be marked as “OFFICIAL”, although this requirement can be overidden by organisational policy.Footnote ⁸⁴ Clearly, Official information could encompass a range of information that is technically restricted but is not truly sensitive or would not pose a tangible threat to the UK’s safety or interests. That it could do so significantly broadens the scope of the 2023 espionage laws.

In addition to applying to a broader scope of information than did the previous offences, as discussed above, the 2023 offences apply to a wide range of foreign actors. They also apply beyond the UK to conduct that takes place outside the UK too. Collectively, the 2023 reforms mean that the new espionage offences have the capacity to capture the actions of any foreign spy who might use more modern methods of spying (such as cyberespionage) to access a range of sensitive information that might harm the UK if it were to be obtained.

However, although these laws have the capacity to criminalise conduct that clearly constitutes modern espionage, they are also broad enough to capture some situations which may not involve genuine spying. For example, the “foreign power condition” has been defined such that it may apply to UK journalists, sources (including whistleblowers), academics and researchers who work for or collaborate with entities (such as media organisations, public universities or research institutions) that are owned, directed or controlled by a foreign government. This is because the National Security Act provides that the requirement that conduct is “carried out for or on behalf of a foreign power” can be “satisfied by a direct or indirect relationship between the conduct … and the foreign power”.Footnote ⁸⁵ As a result, it could be possible to establish an indirect relationship between the conduct of some journalists, sources or academics and a foreign government through media organisation or public university, for example. There are countless entities that could fall within the scope of these provisions, including those owned, directed or controlled by allies. Those who work for or collaborate with such entities (or their employees) are therefore put at risk of satisfying the foreign power condition, even if those people are engaging in legitimate activities. This could include, for example, collaborating with academics from a US university or working for a New Zealand-owned media organisation.

For the foreign power condition to be met, the person must still “know[], or having regard to other matters known to them ought reasonably to know” that the conduct or course of conduct is for or on behalf of a foreign power.Footnote ⁸⁶ However, it may not be difficult to prove this fault element in the context of the present example, especially as the “ought reasonably to know” standard has been included as an alternative to knowledge. For example, it could be argued that an academic ought reasonably to have known that the foreign university they were collaborating with was controlled by government, or that a journalist ought reasonably to have known that they were working for a media organisation that was owned by a foreign government, given the foreign nature of such interactions.

While the foreign power condition has the potential to be met in situations other than genuine espionage, the remaining elements of Protected Information Espionage or Trade Secrets Espionage would need to be satisfied for the person’s conduct to constitute a crime. This is unlikely to occur in the context of Trade Secrets Espionage given the requirement of knowledge of unauthorised conduct. Persons (including academics and researchers) involved in the genuine handling of trade secrets are usually aware of confidentiality obligations under their employment contract; so, it is likely to be difficult to argue that they did not know that their conduct was unauthorised.

However, there are certain situations beyond genuine foreign espionage in which the remaining elements of Protected Information Espionage have the potential to be met. In such situations, any preparatory conduct (such as preliminary research, talking to people or drafting notes) could be captured by the preparatory offence too. For example, UK journalists might obtain, retain or disclose information on UK military operations, intelligence agencies’ policies or diplomatic relations in the course of public interest reporting. Although it might be important for such information to be made public, it may be possible to argue that the journalist’s conduct was for a purpose (that is, to publish public interest stories) that they ought reasonably to have known is prejudicial to the safety or interests of the UK. It might even be possible to argue that the journalist had knowledge of this. A whistleblower or source who provides such infortmation to journalists may also commit an offence.

Given the breadth of “protected information” (applying to information that is restricted in any way and that need not necessarily be labelled as such), certain UK academics and researchers might also be capable of satisfying the elements of Protected Information Espionage. It could be argued that their conduct is for a purpose (to publish research) that they ought reasonably to know is prejudicial to the safety or interests of the UK. This fault element could also apply to others too, such as people who knowingly pass on “protected information” without asking the recipient about where that information might end up.

Although there have been no convictions or charges under the 2023 offences to date (so, any consideration of the scope of the offences remains hypothetical), it is possible that the new laws will be used against those involved in legitimate activities because the previous laws were used for such a purpose (along with, of course, prosecuting genuine spies). For example, in Chandler, several protestors who attempted to block military aircraft from taking off at a military airfield (campaigning for nuclear disarmament by non-violent means) were convicted of conspiracy and incitement to engage in Espionage by Trespass and were sentenced to 12 to 18 months’ imprisonment. This case serves as a warning of the dangers of over-broad laws and the need for adequate protections for those involved in legitimate activities.

A. The 2018 Offences

Because there had been no convictions and – it was claimed – the second-generation offences had failed to “evolve[] … with the modern threat environment”Footnote ⁹³ (and therefore Australia’s “agencies lacked the legislative tools they needed to act”Footnote ⁹⁴), the 2018 reforms were introduced. These reforms consist of five underlying offences, two “espionage-related” offences and three defences. The espionage-related offences (the “Solicitation Offence”Footnote ⁹⁵ and the “Preparatory Offence”Footnote ⁹⁶) prescribe maximum penalties of 15 years’ imprisonment, while the more serious underlying offences prescribe maximum penalties of 20 years’, 25 years’ and life imprisonment. Although there are only five underlying offences, some of these have alternative fault elements (either intention or recklessness as to certain national security consequences), essentially creating nine different underlying offences. Many of these offences share common physical and fault elements. The underlying offences include: the “Core Espionage Offence”;Footnote ⁹⁷ “Communication Espionage”;Footnote ⁹⁸ “Classified Information Espionage”;Footnote ⁹⁹ “Espionage on Behalf of a Foreign Principal”;Footnote ¹⁰⁰ and “Trade Secrets Espionage”.Footnote ¹⁰¹

The Core Espionage Offence criminalises dealing with security classifiedFootnote ¹⁰² or national security information that is or will be communicated to a foreign principal. It has two different fault elements – the person intended either to “prejudice Australia’s national security” or to “advantage the national security of a foreign country”,Footnote ¹⁰³ or they were reckless as to this prejudice or advantage.Footnote ¹⁰⁴ Communication Espionage also has two alternative fault elements. It is an offence for a person to deal with information that is or will be communicated to a foreign principal where they either intended to “prejudice Australia’s national security”,Footnote ¹⁰⁵ or were reckless as to this prejudice.Footnote ¹⁰⁶

Espionage on Behalf of a Foreign Principal criminalises dealing with information “on behalf of, or in collaboration with”, or where the dealing is “directed, funded or supervised by”, a foreign principal, where the person is reckless as to whether this involves the commission of an espionage offence.Footnote ¹⁰⁷ In addition to those elements, the offence may also be proved where the person intended to “prejudice Australia’s national security” or “advantage the national security of a foreign country”,Footnote ¹⁰⁸ or they were reckless as to this prejudice or advantage.Footnote ¹⁰⁹ The outcome is, essentially, three different offences: Espionage on Behalf of a Foreign Principal (intention), (recklessness) or (no fault element).

Classified Information Espionage and Trade Secrets Espionage have no fault elements in relation to prejudice or advantage to national security, meaning that a person will have committed these crimes if they engage in the requisite physical conduct, regardless of whether they turned their mind to the national security consequences. Classified Information Espionage makes it an offence to deal with security classified information that is or will be communicated to a foreign principal where this is done with “the primary purpose of communicating” it to a foreign principal.Footnote ¹¹⁰ Where a person dishonestly obtains or discloses trade secrets on behalf of or in collaboration with, or where the dealing is “directed, funded or supervised by”, a foreign principal, Trade Secrets Espionage will have been committed.Footnote ¹¹¹

Australia’s espionage framework includes four aggravating circumstances that apply to four of the underlying offences and operate to increase the maximum penalty available for those offences.Footnote ¹¹² This essentially creates 16 aggravated offences and a highly complex scheme of 27 separate espionage offences.Footnote ¹¹³

Three defences may apply to a charge of espionage under Australian law. First, it is a defence for a person to deal with the information according to a Commonwealth law or agreement, or in a person’s capacity as a public official (the “Lawful Dealing” defence).Footnote ¹¹⁴ The first defence applies to all offences except Trade Secrets Espionage. The second defence (“Authorised Prior Publication”), which applies to all offences except Trade Secrets Espionage and the espionage-related offences, arises where the information was already “communicated … to the public with the authority of the Commonwealth”.Footnote ¹¹⁵ The final defence (“Unauthorised Prior Publication”) arises where: the information was already communicated to the public; the person was not involved in this prior publication nor was the information obtained as a result of being a Commonwealth officer; and, at the time of dealing with the information, the person had reasonable grounds for believing that doing so would not prejudice Australia’s national security, “having regard to the nature, extent and place of the prior publication”.Footnote ¹¹⁶ This defence applies only to the Espionage on Behalf of a Foreign Principal offences but also to the Core Espionage Offence (where the prosecution relies on intention or recklessness as to advantage to the national security of a foreign country).

All of Australia’s espionage offences (with the exception of Trade Secrets Espionage) apply to conduct and results of conduct that occur both within and outside of Australia.Footnote ¹¹⁷ Trade Secrets Espionage only applies to conduct within Australia or, if the conduct occurred outside Australia, where: (1) the result of the conduct occurred in Australia, or (2) the person was an Australian citizen or resident at the time that the conduct occurred.Footnote ¹¹⁸

B. Key Terms and Elements

Many of Australia’s underlying espionage offences share key terms and elements. At their core, the offences criminalise dealings with certain information or articles on behalf of, or to communicate to, a foreign principal. Some of these offences also require that the person intends the conduct to prejudice Australia’s national security or to give advantage to the national security of a foreign country, or is reckless to such prejudicing or giving advantage. Not only have these key terms been defined with incredible breadth, but some terms are also uncertain in their application.

“Deal” has been defined to cover receiving, obtaining, collecting, possessing, making a record, copying, altering, concealing, communicating, publishing or making available.Footnote ¹¹⁹ “Make available” has been defined to include placing the information or article somewhere to be accessed by another, giving it to an intermediary to give to the recipient, and describing how to access it or methods that may facilitate access to it (for example, by setting out “the name of a website, an IP address, a URL, a password, or the name of a newsgroup”).Footnote ¹²⁰ This means that dealing with information encompasses providing a password to someone, collecting information, or communicating it to another person, as well as mere passive receipt, leaving the information in a place that may be accessed by another person, or passing on the name of a newsgroup that may be able to access the information.

“Information” means “information of any kind, whether true or false and whether in a material form or not, and includes an opinion, and a report of a conversation”, with “articles” meaning “any thing, substance or material”.Footnote ¹²¹ Dealing with such information or articles encompasses “dealing with all or part of” it, or even the “substance, effect or description” of it.Footnote ¹²² While these definitions are broad enough to include documentary information, information held in electronic form and physical products of research (such as samples and prototypes), they also include false information and mere opinions. For simplicity, this article will use “information” to refer to “information or articles”.

At the core of espionage is that the dealing has something to do with a “foreign principal”. Foreign principals are foreign governments or their authorities, foreign political organisations, public international organisations, terrorist organisations, foreign public enterprises and entities “owned, directed or controlled by” any of these foreign principals.Footnote ¹²³ “Foreign public enterprise” has been defined to mean a company, body or association that enjoys special legal rights or benefits under foreign law where: (1) the foreign government “holds more than 50% of the issued share capital” of, or voting power in, the company, or can “appoint more than 50% of the … board of directors”; (2) the directors of the company, body or association are accustomed to act under the directions of the foreign government; or (3) the foreign government is “in a position to exercise control over the company”, body or association.Footnote ¹²⁴ Foreign public enterprises are therefore essentially entities that are owned or controlled by a foreign government.

“National security” is relevant both to the fault element of some of the offences and, for the Core Espionage Offence, to the type of information that is dealt with. Unlike the UK, which has eschewed legislative definitions of “security” and “national security” on separation of powers grounds,Footnote ¹²⁵ that term has been defined in the Criminal Code Act 1995 (Cth). This is typical of Australian law, where security is traditionally legislatively defined.Footnote ¹²⁶ In the espionage context, national security encompasses traditional defence matters, including: defence of the country; protection of its borders from serious threats; and protection of the country and its people from espionage, sabotage, terrorism, political violence, foreign interference and obstruction of the defence force.Footnote ¹²⁷ However, it also extends beyond these matters to “the carrying out of the country’s responsibilities” to other countries and “the country’s political, military or economic relations with another country”.Footnote ¹²⁸ The breadth of this definition means that “national security” controversially includes a country’s economic or international relations. In Thomas v Mowbray, Gummow and Crennan JJ. queried whether in certain provisions of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) – which use a similar definition of “national security”Footnote ¹²⁹ – “the Parliament has sought to over-reach the bounds of the understanding of ‘national security’”.Footnote ¹³⁰

All offences – except Classified Information and Trade Secrets Espionage – require one of several fault elements to be proved. These include that the person intended to: (1) prejudice Australia’s national security; or (2) advantage the national security of a foreign country. Alternatively, the person may only have been reckless as to either. “Intention” has been defined as the person: meaning to engage in the conduct or bring about the result; believing a circumstance “exists or will exist”; or being aware that a result “will occur in the ordinary course of events”.Footnote ¹³¹ By contrast, “recklessness” criminalises a much lower level of culpability – all that must be shown is that the person was “aware of a substantial risk that the circumstance” or result would occur and, “having regard to the circumstances known to him or her, it [was] unjustifiable to take the risk”.Footnote ¹³²

“Prejudice” has been defined only so that “embarrassment alone is not sufficient to prejudice Australia’s national security”.Footnote ¹³³ Prejudice to Australia’s national security could therefore encompass anything from harming Australia’s security interests to making Australia (or its officials) look bad or corrupt. “Advantage” has also not been comprehensively defined – the Criminal Code only specifies that “conduct will not advantage the national security of a foreign country if” it would “advantage Australia’s national security to an equivalent extent”.Footnote ¹³⁴ However, this still means that conduct may be criminalised where it would benefit another country, including Australia’s allies, but have a neutral effect on Australia. Conduct advantaging another country may also be criminalised where the advantage to Australia may not rise to the level of the advantage to another country.

C. Espionage-Related Offences

As outlined above, Australia has two espionage-related offences. The Solicitation Offence criminalises intentionally “soliciting or procuring, or making it easier to solicit or procure”, a person to engage in espionage, where this is done on behalf of a foreign principal.Footnote ¹³⁵ This offence targets the conduct of recruiters of spies, not the spies themselves. It is not necessary that the recruiter have in mind a particular act of espionage for an espionage offence to be committed by the targeted person, or for it even to be possible to commit the espionage offence.Footnote ¹³⁶

The Preparatory Offence makes it a crime to engage in conduct “with the intention of preparing for, or planning, an [espionage] offence”.Footnote ¹³⁷ It can also arise where an espionage offence is never committed, or whether or not the person has in mind a specific offence.Footnote ¹³⁸ This offence criminalises the earliest stage of a crime, even if the conduct may ultimately have an innocent explanation, provided that it could be shown from surrounding circumstances that the person means later to engage in espionage.

Although these offences are inchoate offences (or pre-crimes), they still attract general inchoate liability, with the exception of attempt.Footnote ¹³⁹ Inchoate provisions of the Criminal Code include: attempt;Footnote ¹⁴⁰ aiding, abetting, counselling or procuring;Footnote ¹⁴¹ joint commission;Footnote ¹⁴² commission by proxy;Footnote ¹⁴³ incitement;Footnote ¹⁴⁴ and conspiracy.Footnote ¹⁴⁵ This creates somewhat confusing and broad pre-pre-crimes, such as procuring someone to solicit someone else to commit espionage, or conspiracy to prepare for espionage. This last-mentioned offence would criminalise conduct far before the commission of any substantive offence (such as merely talking to someone else about doing something that may later lead to espionage) and therefore has the capacity to capture a wider range of conduct. It greatly expands the scope of Australia’s espionage laws.

D. Application of Australia’s Espionage Laws

Because there have been no recorded cases involving the 2018 espionage offences, the application of Australia’s espionage laws can best be understood by considering real-world scenarios in which they could arise. The Core Espionage Offence, for example, would criminalise the theft of Australian classified documents via cyber hacking by a foreign intelligence agent located overseas. Such conduct could also be prosecuted under Classified Information Espionage. The Core Espionage Offence could equally criminalise the publication of a story by a journalist that details allegedly corrupt or illegal conduct by the Australian military, such as Oakes’s and Clarke’s “Afghan Files”. Publication to the world at large would certainly qualify as communication to a foreign principal, while the nature of the story may amount to recklessness as to prejudice to Australia’s national security.Footnote ¹⁴⁶

Where a whistleblower communicates information to a journalist that may show Australia in a bad light, such as Witness K’s revelations that ASIS bugged the East Timorese Cabinet or Smethurst’s exposure of the proposed expansion of the ASD’s domestic surveillance powers, Communication Espionage may have been committed. It is the job of journalists to publish information to the public; so, communication of information to journalists may result in communication to a foreign principal and also establish an intention or recklessness as to prejudice to Australia’s national security on the part of the whistleblower. Mere passive receipt of this information by the journalist who then takes some preliminary investigative steps could amount to Communication Espionage.

Espionage on Behalf of a Foreign Principal could make it an offence for an Australian academic working for a public university overseas to conduct research into Australia’s military capabilities or economic relations.Footnote ¹⁴⁷ However, it would also, unsurprisingly, capture situations where a foreign agent obtains sensitive information in relation to Australia. Where the information relates to trade secrets, obtaining it would be criminalised under Trade Secrets Espionage. Trade Secrets Espionage could also arise, however, where a foreign researcher collaborating with Australian researchers communicates commercially valuable information, generated as a result of the collaboration, to foreign state-owned corporations not involved in the research.

The Solicitation Offence would capture a foreign agent who tries to bribe or persuade an Australian government employee to engage in espionage. However, it could also criminalise the conduct of an academic working for a foreign public university who seeks to collaborate with an Australian researcher working on a project involving intelligence policies, or an Australian journalist working for a foreign state-controlled media organisation who enquires about whether a source has information related to Australia’s security or diplomatic relations. If the journalist talks to other employees about obtaining this kind of information from a source, conspiracy to solicit espionage could have been committed.

The breadth of the Preparatory Offence means that it captures the conduct of foreign agents who take steps to engage in espionage. However, it could equally apply to Australian journalists, sources, academics and researchers by making it an offence, for example: to make a list of potential collaborators; to purchase a USB that may be used to collect and store classified documents; or to investigate which organisations may have access to certain sensitive information. The pre-pre-crime of conspiracy to prepare for espionage could similarly criminalise a wide range of behaviour, from asking a member of the defence force about the security systems used to protect military data to two academics’ discussing a potential research project on Australia’s international relations.

A. Language Reflecting the Modern Intelligence Environment

Unlike previous offences, the UK’s new 2023 espionage offences and Australia’s new 2018 espionage offences were drafted in modern language that reflects today’s intelligence environment. For example, instead of referring to “enemies”, the offences refer to “foreign power” (UK) or “foreign principal” (Australia). Both of these terms have been defined in a way that recognises that espionage is now conducted by a variety of actors, from foreign governments (even allies) and political parties to corporations, organisations and other entities that are owned or controlled by foreign governments.

Although these modern terms improve the potential effectiveness of the espionage laws, unlike Australia’s definition of foreign principal, “foreign power” does not include terrorist organisations or other non-state actors (who are increasingly engaging in espionage activities). The inclusion of these actors in the definition of foreign power was something that the Law Commission specifically recommended.Footnote ¹⁴⁸ Furthermore, in contrast to “foreign principal”, “foreign power” includes only governing political parties. This is a significant limitation of the UK’s laws, given that espionage can be (and often is) undertaken by non-governing political parties.

Despite these limitations, UK and Australian espionage offences both use modern terms to describe the form of information protected under the laws. Instead of using outdated, wartime terms, such as “sketch, plan, model, note, and secret official pass word and code word”, the UK’s 2023 offences refer to “any information, document or other article”, while Australia’s 2018 offences refer to “information and articles”. Although the National Security Act 2023 has not provided much guidance as to what constitutes information, documents or articles, these terms are broad enough to include many of the forms of information targeted by modern espionage (including electronically stored data and information). It is less clear, however, whether the terms extend to other things that can be targeted by espionage, such as samples and prototypes.

The definitions of information and articles under Australia’s Criminal Code are similar in scope to the terms used in the UK, in that they have the capacity to apply to the forms of information targeted by modern (cyber) espionage. However, unlike the UK’s, Australia’s definition of “article” clearly indicates that it includes “any thing, substance or material”.Footnote ¹⁴⁹ Despite this, the scope of information and articles goes beyond that of the UK, unnecessarily extending to opinions and untrue information. Leaving “information and articles” undefined, though clarifying that the terms do in fact include “things”, is perhaps a better approach that still ensures the laws will be effective.

B. Extraterritoriality

An advantage of the espionage frameworks in both the UK and Australia, and one of the reasons why the new laws are capable of being effective, is the territorial ambit of the offences. The espionage offences in both countries (except for Trade Secrets Espionage) apply to conduct committed by anyone anywhere in the world. The Trade Secrets Espionage offences have a slightly narrower territorial ambit than the other espionage offences, but they still have the capacity to apply beyond the borders of the UK and Australia, so long as there is some connection to those countries. For example, in the UK, the trade secret must have been in the possession or under the control of a UK person, while in Australia, the person committing the offence must have been an Australian citizen or resident. The new laws therefore have the capacity to capture espionage conducted remotely from outside the UK and Australia (as occurs through cyberespionage).

However, extraterritorial application of espionage laws does not necessarily result in someone who commits espionage abroad being prosecuted. This is because the person must be extradited to the UK or Australia (as the case may be) to face prosecution. Extradition is a complex process that requires international cooperation, with extradition requests being made through diplomatic channels. If an extradition request is made to a country that has an extradition treaty with the UK or Australia, then there are usually obligations on that country to consider the request. However, if no extradition treaty exists (or the treaty is not yet in force), it is up to the foreign country to decide whether to agree to the request and surrender the person. As a result, it may be difficult to extradite an alleged offender to the UK or Australia to face prosecution for espionage.Footnote ¹⁵⁰ There are numerous examples of crimes being committed in the UK by known foreign agents, but these agents face no prospect of being extradited for prosecution – for example, Russia has refused the extradition of the agents responsible for the Litvinenko and Salisbury poisonings.Footnote ¹⁵¹

While there may be difficulties extraditing a person to the UK or Australia to face charges of espionage, there are at least two benefits of extraterritorial criminal laws. First, such laws play an important role in furthering unilateral foreign policy objectives and communicating to other nations the kind of conduct that the country does not tolerate.Footnote ¹⁵² Second, laws that do not even provide for extraterritorial application where a hallmark of the criminal conduct is that it is typically engaged in extraterritorially a priori cannot be effective. Such application is necessary to ensure that the laws have the potential to allow for the prosecution of someone who committed espionage abroad – for example, if the person ever enters the UK or Australia (or another country with which the UK or Australia has an extradition treaty). Broad extraterritoriality may ultimately result in a person’s being extradited to a country in which the conduct did not occur and the person is not a citizen or resident.Footnote ¹⁵³ Espionage, however, is inherently a harm against the State, and such harm should be the determining factor in deciding whether espionage laws apply to a particular person – not that person’s citizenship status or location in the world.

C. Offences Targeting Different Aspects of Espionage

A further benefit of the espionage frameworks in both the UK and Australia is that they contain different offences which cover a variety of conduct related to espionage. This coverage enhances the potential effectiveness of the offences in the modern espionage context. For example, both countries have an offence for Trade Secrets Espionage. This type of offence targets a very specific type of information that is distinct from traditional national security information, yet that specific type is targeted by today’s espionage. It is targeted through the theft of trade secrets from companies to assist state-sponsored foreign entities in skipping or accelerating the “research and development” phase of product development, which ultimately benefits the country’s economy.Footnote ¹⁵⁴ A specific offence for this type of conduct is argued to be necessary because of the unique nature of this type of espionage,Footnote ¹⁵⁵ and its inclusion in UK and Australian law makes their espionage frameworks particularly capable of addressing the modern espionage threat.

Another aspect of the espionage frameworks in both countries that is especially advantageous is the inclusion of specific inchoate espionage – in Australia, the espionage-related offences (the Solicitation and Preparatory Offences), and in the UK, the preparatory offence. These offences are key to an effective legal response to the modern espionage threat.Footnote ¹⁵⁶

The Solicitation Offence (which could be created in the UK by pairing the inchoate offence of solicitation with any of the underlying espionage offences) ensures that the law is capable of holding those who recruit (or attempt to recruit) others to engage in espionage criminally responsible. This offence does not criminalise the conduct of the target, who may not have committed an offence or who may have been led to commit espionage through blackmail or bribes.Footnote ¹⁵⁷ Knowing that the law criminalises soliciting someone to commit espionage, not just the conduct of spies, may also be an effective deterrent for recruiters.

The preparatory offences criminalise the very early stages of committing an espionage offence, potentially before a specific offence is committed or even identified. They may also operate to deter any sort of conduct related to spying and give law enforcement agencies the power to investigate and charge someone before they commit espionage. The inchoate espionage offences therefore have the potential to be considerably effective at addressing modern espionage, both through deterrence and the criminalisation of a wider scope of conduct.

D. Summary

The espionage laws in the UK and Australia are capable of effectively dealing with modern espionage. This is because the laws in each jurisdiction use modern language that reflects the espionage that is engaged in today (although there are some limitations with how certain key terms have been defined in the UK). They also have wide extraterritorial application and include offences targeting different aspects of espionage (such as espionage of trade secrets, the solicitation of espionage and preparations for espionage). The next part considers the appropriateness of espionage laws in the UK and Australia, highlighting the importance of balancing effectiveness with appropriateness.

A. Clarity

Appropriateness requires laws to be clear to avoid uncertainty or ambiguity. Some laws may be intentionally drafted in an unclear manner – deliberately to widen the scope of conduct captured or to allow for changes over time in how certain criminal conduct is performed.Footnote ¹⁵⁸ While these rationales may be legitimate, they go to the effectiveness of criminal laws, not their appropriateness. Laws must be clear not only to ensure that citizens understand their obligations under the law and know whether they are committing an offence, but also so that jurors can effectively apply the law in cases that come before the courts. If laws do not do this, then they are not appropriate.

The complexity of Australia’s espionage framework and some aspects of the UK’s espionage framework, as well as the uncertainty of key terms in both jurisdictions, make their espionage laws unclear in certain ways and therefore not as appropriate as they could be.

B. Appropriate Scope

In addition to clarity, appropriateness requires consideration of whether laws are proper in scope. Again, wide-reaching offences may be effective, but this does not mean that they are appropriate. While governments may use broad offences to prosecute and deter innocent conduct that they deem to be distasteful (such as using espionage laws to target whistleblowers or journalists who reveal government misconduct, or protestors advocating for governmental change), this is an inappropriate use of the criminal law. Criminal offences should not capture genuinely innocent conduct or, if they do, they should provide adequate protections for innocent behaviour that may fall within the offences.

The espionage laws in the UK and Australia are not appropriate in scope because they have overly broad physical and fault elements, both frameworks include sweeping inchoate espionage offences (which are even more wide-reaching because they attract general inchoate liability), and neither country includes adequate defences for legitimate conduct that may fall within the offences. While other safeguards may be available in both the UK and Australia to protect those engaged in legitimate conduct, these safeguards have their limitations.