Australia's New Espionage Laws: Another Case of Hyper-Legislation and Over-Criminalisation

By Kendall, Sarah | University of Queensland Law Journal, June 2019 | Go to article overview

Australia's New Espionage Laws: Another Case of Hyper-Legislation and Over-Criminalisation


Kendall, Sarah, University of Queensland Law Journal


I INTRODUCTION

Espionage has been defined as 'the practice of spying or using spies, typically by governments to obtain political and military information'. (1) It has been used by nations throughout the ages to gather information on foreign states, with records of espionage dating as far back as Biblical times. (2) Espionage is considered necessary when performed by one's home country for the purposes of national security and unacceptable where it involves foreign nations spying on that country. (3) The latter is traditionally criminalised. (4)

Australia introduced its first national espionage offence in 1914 with the Crimes Act 1914. (Cth) ('Crimes Act'). (5) This offence was repealed in 2002 and replaced with four new offences (6) found in the Criminal Code Act 1995 (Cth) ('Criminal Code'). (7) These new offences increased the maximum penalty from seven years' imprisonment to 25 years' imprisonment for all offences. (8) In June 2018, the Federal Parliament pushed through the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth) ('Espionage Act') within three days. (9) This Act repealed the four existing espionage offences and replaced them with 27 new offences. (10) Not only are these offences broader than previous offences, but many penalties are also more severe. Interestingly, in 2017 the United Kingdom Law Commission recommended that changes be made to the United Kingdom's espionage laws that closely resemble the amendments made in Australia; (11) however, these reforms have been widely criticised by the media (12) and have not yet been implemented.

The rationale behind the introduction of Australia's 2002 espionage offences was to 'better deter and punish those who intended to betray Australia's security interests' and to reflect the 'modern intelligence environment'. (13) Similarly, the 2018 offences were justified on the basis that the 2002 offences were too narrow and had failed to evolve with the modern threat environment. (14) Then Prime Minister Malcolm Turnbull stated during the 2018 Espionage Bill's second reading speech that 'our espionage laws are so unwieldy that they have not supported a single conviction in decades, even as the threat [of espionage] reaches unprecedented levels'. (15) Justifications for the introduction of both the 2002 and 2018 offences therefore appeared to be that existing offences failed to capture modem espionage practices, deter espionage activity or secure convictions. If the 2002 offences successfully remedied those issues to better address espionage threats, why were the 2018 offences necessary?

Naturally, law-making in the area of national security is highly political and often in response to national and international security incidents. While it is important to acknowledge that political dynamics may be the real reason behind introduction of the 2018 espionage offences, now that the offences have been introduced, it is vital to assess whether they meet their objective purpose. This article therefore examines whether the 2018 espionage offences are necessary to effectively address espionage used in today's world. First, it will explore typical espionage methods used during the major twentieth-century wars before discussing espionage practices used today, highlighting that today's espionage is characterised by cyber espionage. Second, it will compare the original and 2002 offences to determine whether the 2002 offences effectively captured today's espionage practices, deterred others from committing espionage and secured convictions. Third, the 2002 and 2018 offences will be compared to determine whether the newly introduced offences are likely to improve on the 2002 offences and will therefore be necessary to effectively address espionage practices used today. Both existing and anticipated problems with the 2018 offences, such as their broad scope, extensive number and complicated structure, will also be discussed. …

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