Review of Australia’s Espionage, Foreign Interference, Sabotage and Theft of Trade Secrets Offences

Submission Date: 4 July 2025

The Law Council acknowledges the need to ensure that Australia’s laws are sufficiently robust to guard against the undermining of Australia’s sovereignty and system of government by foreign adversaries.

In 2018, the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth) (EFI Act) made significant changes to a range of Commonwealth criminal offences, including espionage, foreign interference, sabotage and the theft of trade secrets. As noted in the Independent National Security Legislation Monitor’s (the INSLM’s) Issues Paper, these changes were introduced and passed at a time of increased awareness and concern about the risk of espionage and foreign interference in Australia.¹

When engaging with the reforms at the time of introduction, the Law Council made explicit references to its Policy Statement on Rule of Law Principles which points out that ‘offence provisions should not be so broadly drafted that they inadvertently capture a wide range of benign conduct’.² Despite the low numbers of prosecutions that have been made under the provisions introduced by the EFI Act to date, the potentially broad application of these measures remains a significant concern for the Law Council. We are committed to engaging constructively with these measures to ensure they are directed primarily towards conduct that would cause harm or be prejudicial to Australia’s national security.

To this end, the Law Council recommends the following:

• In the absence of refinements to key definitions as set out in this submission, consideration should be given to repealing preparatory offences contained in the EFI Act.
• If preparatory offences remain, further guidance is required to ensure their exercise is both proportionate and appropriate.
• Consideration should be given to modifying the Commonwealth Guide to Framing Criminal Offences, Infringement Notices and Enforcement Powers to provide further direction as to when and how it is appropriate to introduce preparatory or planning offences.
• The inclusion of ‘economic relations’ in the definition of ‘national security’ should be reconsidered entirely. If it is to remain, it should be amended to make reference to a threshold of ‘significant harm to economic relations’ to reduce ambiguity over coverage.
• Consideration should be given to amending the definition of ‘national security’ to refer to ‘diplomatic’ relations rather than ‘political’ relations.
• The ‘protection of the country or any part of it, or the people of the country or any part of it’ within the definition of ‘national security’ requires further clarification and guidance.
• Thresholds should be introduced in relevant offences to ensure that ‘prejudicing Australia’s national security’ and ‘advantaging the national security of a foreign country’ are appropriately calibrated.
• Issues with the degree to which an article or information ‘concerns’ national security are best dealt with by narrowing and improving the definition of ‘national security’.
• Consideration should be given to avoiding the current circularity in the definition of ‘national security’ and the offences that incorporate that definition.
• The inclusion of ‘public international organisations’ in the definition of ‘foreign principal’ should require a degree of direction or control by a foreign government or governments.
• Espionage offences should not rely on information being classified in accordance with a policy framework, and instead should have a legislated test that information, if leaked, would be reasonably likely to cause serious harm to, or prejudice, Australia’s national security.
• The term ‘political or governmental process’ should be defined for the purposes of foreign influence offences. This definition should clarify the extent to which statutory bodies are included, as well as interference with the functioning of the judiciary.
• Reference to ‘covert’ conduct in foreign interference offences should be amended to include reference to a threshold for the conduct element beyond simply the use of an encrypted service.
• The definition of ‘public infrastructure’ for the purposes of sabotage offences should be further clarified to ensure it is appropriately limited to a smaller subset of services or utilities. In doing so, regard could be had to the approach adopted in the Security of Critical Infrastructure Act 2018 (Cth).
• The definition of ‘damage to public infrastructure’ for the purposes of sabotage offences should exclude industrial disputes and legitimate protest action when referencing ‘limits or prevents access’.
• Theft of trade secrets offences should include an express circumstance element linking the information in question to a revised definition of national security.
• A public interest defence should be considered for relevant offences introduced by the EFI Act, with greatest consideration to offences with recklessness as the fault element.
• Further clarification is required as to when the defence at subsection 91.4(2) is available, especially in relation to what constitutes ‘authority of the Commonwealth’.
• The existing defence for information not obtained as a Commonwealth official should be extended to all espionage offences, noting it is currently only limited to elements of two offences in Division 91.

^{1 Independent National Security Legislation Monitor (INSLM), Review of Australia’s espionage, foreign interference, sabotage and theft of trade secrets offences (Issues Paper, May 2025).
2 Law Council of Australia, Policy Statement on Rule of Law Principles (2011), Principle 1.}

Last Updated on 19/08/2025

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