The Times Australia
The Times World News

.
The Times Real Estate

.

Espionage is set to overtake terrorism as Australia’s top security concern – are our anti-spy laws good enough?

  • Written by Sarah Kendall, PhD Candidate in Law, The University of Queensland
Espionage is set to overtake terrorism as Australia’s top security concern – are our anti-spy laws good enough?

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

Australia’s domestic spy agency ASIO anticipates espionage – spying – will supplant terrorism as Australia’s principal security threat over the next five years[1]. They do not explicitly say why, but note this is “based on current trends” and that “espionage attempts by multiple countries remain unacceptably high”.

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

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

The espionage threat

According to ASIO[2], foreign espionage is:

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

Unlike the world wars or Cold War, foreign spies today[3] do not just want to steal military or intelligence information. They seek 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 head Mike Burgess
ASIO head Mike Burgess has warned of a growing espionage threat. Mick Tsikas/AAP

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

Espionage attempts are by no means a rare occurrence. ASIO warns they occur every day, in every Australian state and territory[4]. And they are not just by China. A wide range of countries are attempting espionage against Australia.

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

Australia’s espionage laws

To combat the growing threat of espionage, in 2018 the federal government introduced a complex scheme of 27 different espionage offences[5]. These include a suite of underlying offences, plus a preparatory offence and a solicitation offence.

Foreign spies – and those who assist them – face life in prison if they break one of these serious national security laws.

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

The underlying espionage offences

The underlying espionage offences criminalise dealing with information on behalf of, or to communicate to, a “foreign principal[6]”, 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'[7]

Here, “information[8]” means any information or thing. This means the laws apply no matter what kind of information is taken, from classified government information and sensitive samples of new products (like vaccines) to seemingly innocuous information about Australia’s relations with other countries. They also apply no matter how that information is taken – it could be in person or via cybertechnologies.

Some of the offences require the person to have intended to (or been reckless as to whether) they would prejudice Australia’s national security or advantage the national security of a foreign country. Here, “national security[9]” means traditional defence and intelligence matters. It also extends to Australia’s political and economic relations with other countries. So, the underlying offences would capture those who take information on behalf of another country and seek to harm our security, economy, or international relations – exactly what foreign spies do.

The preparatory offence

The aim of counterespionage is not to wait until espionage has happened, but to prevent espionage from occurring in the first place. With this in mind, the 2018 espionage reforms introduced a novel “preparatory offence”, which was modelled on similar terrorism offences.

The preparatory offence criminalises any act done to prepare or plan for espionage. It captures conduct far before the commission of any espionage offence, such as purchasing a laptop or googling the type of encryption used by the Australian Defence Force.

Google homepage
Googling certain terms could amount to planning for espionage, in the eyes of the law. www.shutterstock.com

To amount to espionage, though, a person doing these kinds of things would need to intend to commit espionage at some time in the future.

Where foreign spies or their associates are concerned, this offence might be easier to prove than the underlying offences. It also gives law enforcement the power to intervene before the spies take anything.

The solicitation offence

The espionage offences take aim at the earliest stages of espionage in another way. The “solicitation offence” makes it a crime to do any act, intending to obtain someone else to commit espionage. The offence can be committed even if the other person never engages in espionage.

The solicitation offence would apply to foreign spies who try to develop relationships with Australians to get them to hand over valuable information.

Are our laws enough?

Australia’s revamped espionage laws are broad enough[10] to capture modern – 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 impediment to prosecutions, especially where 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 could break espionage laws on social media without realising it[11]

Another problem is identifying who the spy is, and therefore who to charge. This is a big issue where a person engages in cyber espionage because 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 necessary to prevent espionage from occurring in the first place. These measures include robust and effective cyber security - not just for government agencies, but in our homes[12] and workplaces[13] too. They also include public awareness campaigns[14] about the nature of modern espionage. Every Australian must know what to look out for so that they do not inadvertently hand valuable information over to a spy.

Our espionage laws serve as a warning that broader does not necessarily mean better.

In addition to their questionable effectiveness, the breadth of the laws means they can capture entirely innocent conduct too, like social networking[15], media reporting[16], and academic research.

So, in attempting to capture spies, the laws may also catch innocent Australians.

References

  1. ^ five years (www.asio.gov.au)
  2. ^ ASIO (www.asio.gov.au)
  3. ^ foreign spies today (journal.law.uq.edu.au)
  4. ^ every Australian state and territory (www.asio.gov.au)
  5. ^ espionage offences (journal.law.uq.edu.au)
  6. ^ foreign principal (www.austlii.edu.au)
  7. ^ ASIO chief Mike Burgess says there are more spies in Australia 'than at the height of the cold war' (theconversation.com)
  8. ^ information (www.austlii.edu.au)
  9. ^ national security (www.austlii.edu.au)
  10. ^ broad enough (journal.law.uq.edu.au)
  11. ^ You could break espionage laws on social media without realising it (theconversation.com)
  12. ^ homes (www.cyber.gov.au)
  13. ^ workplaces (www.cyber.gov.au)
  14. ^ public awareness campaigns (www.asio.gov.au)
  15. ^ social networking (theconversation.com)
  16. ^ media reporting (law.unimelb.edu.au)

Read more https://theconversation.com/espionage-is-set-to-overtake-terrorism-as-australias-top-security-concern-are-our-anti-spy-laws-good-enough-170462

The Times Features

Best Deals on Home Furniture Online

Key Highlights Discover the best deals on high-quality outdoor furniture online. Transform your outdoor space into a stylish and comfortable oasis. Explore a wide range of d...

Discover the Best Women's Jumpers for Every Season

Key Highlights Explore lightweight jumpers for spring and summer, ensuring breathability and ease. Wrap up warm with cozy wool jumpers for the chilly autumn and winter season...

Uncover the Elegance of Gorgeous Diamond Tennis Necklaces

Key Highlights Diamond tennis necklaces are a timeless piece of jewelry that exudes elegance and sophistication. They feature a continuous line of brilliant-cut diamonds, cre...

Dental Implants vs. Dentures: Which Is Better for You?

When it comes to replacing missing teeth, two of the most common options are dental implants and dentures. Both have their advantages and disadvantages, so choosing between them ...

What Neck Pain Really Means (And Why It’s More Than Just Poor Posture)

Neck pain is often brushed off as something temporary — a tight spot after a long day at the desk or a poor night’s sleep. But when the discomfort keeps returning, it could be a ...

The Work of Gosha Rubchinskiy: Fashion, Culture, and Youth

From Designer to Cultural Architect Gosha Rubchinskiy is not just a fashion designer—he's a cultural force. Born in Moscow in 1984, Rubchinskiy began his career in fashion in t...

Times Magazine

The Essential Guide to Transforming Office Spaces for Maximum Efficiency

Why Office Fitouts MatterA well-designed office can make all the difference in productivity, employee satisfaction, and client impressions. Businesses of all sizes are investing in updated office spaces to create environments that foster collaborat...

The A/B Testing Revolution: How AI Optimized Landing Pages Without Human Input

A/B testing was always integral to the web-based marketing world. Was there a button that converted better? Marketing could pit one against the other and see which option worked better. This was always through human observation, and over time, as d...

Using Countdown Timers in Email: Do They Really Increase Conversions?

In a world that's always on, where marketers are attempting to entice a subscriber and get them to convert on the same screen with one email, the power of urgency is sometimes the essential element needed. One of the most popular ways to create urg...

Types of Software Consultants

In today's technology-driven world, businesses often seek the expertise of software consultants to navigate complex software needs. There are several types of software consultants, including solution architects, project managers, and user experienc...

CWU Assistive Tech Hub is Changing Lives: Win a Free Rollator Walker This Easter!

🌟 Mobility. Independence. Community. All in One. This Easter, the CWU Assistive Tech Hub is pleased to support the Banyule community by giving away a rollator walker. The giveaway will take place during the Macleod Village Easter Egg Hunt & Ma...

"Eternal Nurture" by Cara Barilla: A Timeless Collection of Wisdom and Healing

Renowned Sydney-born author and educator Cara Barilla has released her latest book, Eternal Nurture, a profound collection of inspirational quotes designed to support mindfulness, emotional healing, and personal growth. With a deep commitment to ...

LayBy Shopping