'Espionage Law in the UK and Australia: Balancing Effectiveness and Appropriateness'by Sarah Kendall in (2024) 83(1) The Cambridge Law Journal 62-98 comments
After extensive consultations, in July 2023 the UK’s Parliament passed the National Security Act 2023, which introduced sweeping reforms to counter-state threats laws. These included the overhaul of espionage and sabotage offences, the introduction of novel offences for foreign interference, the creation of prevention and investigation measures for individuals believed to be involved in foreign power threat activity and the introduction of the Foreign Influence Registration Scheme (which requires registration of “foreign activity arrangements”). Introducing the first significant reforms to counter-state threats legislation since 1939, the National Security Act was said to be necessary because the threat of foreign hostile activity against the UK’s interests had evolved since the early 1900s and was growing.
Just five years earlier, Australia also reformed its counter-state threats laws. Specifically, it modernised its national security laws (including espionage, sabotage and secrecy offences) and introduced unprecedented foreign interference offences, as well as the Foreign Influence Transparency Scheme. These reforms were said to be necessary to modernise the law so that it could better address the threat posed by today’s foreign actors, including those seeking to interfere with Australian democratic processes or to access critical information on Australia and its allies.
This article focuses on just one aspect of the national security reforms introduced in the UK and Australia – espionage offences. It engages in a comparative analysis of those laws to determine whether the laws in each country are effective and appropriate, using this analysis to emphasise the importance of laws that balance effectiveness with appropriateness.
Espionage against the UK and Australia is a growing national security threat that has – at least in Australia – outstripped the threat of terrorism. In July 2020, the UK’s Intelligence and Security Committee published its Russia report, which concluded that Russia currently poses a “significant threat to the UK on a number of fronts – from espionage to interference in democratic processes”. Just two months later, the Law Commission released its Protection of Official Data Report which found that, because of developments in technology, “the threat of espionage … is of a wholly different order than was the case even twenty years ago” In February 2023, Mike Burgess, Director-General of the Australian Security Intelligence Organisation (ASIO), described espionage and foreign interference as an “unprecedented challenge” and ASIO’s “principal security concern”. He warned that “more Australians are being targeted for espionage and foreign interference than at any time in Australia’s history”.
Due to the growing nature of the threat, it is imperative that today’s espionage laws are effective in terms of being capable of achieving their intended aim. The objective aim of espionage laws is to address modern espionage (although some governments may arguably have ulterior motives, such as silencing whistleblowers or protestors). Modern espionage generally involves the use of technology and the internet (cyberespionage) by foreign powers (even allies) to collect, store and communicate a range of valuable information, such as military, trade secret and scientific information.
Academics have argued that Australia’s new 2018 espionage offences are capable of effectively addressing modern espionage. Therefore, Australia’s offences may usefully be compared with the UK’s new 2023 espionage laws to determine whether those laws are also capable of effectively addressing the threat. However, Australia’s espionage offences have also been criticised for being uncertain and overly broad. While this may be what legislators intended, because such laws give law enforcement and intelligence agencies greater powers and flexibility to investigate and prosecute alleged espionage (especially as the nature of espionage may change over time), such laws are not appropriate criminal laws. In particular, laws that are broad and lack clarity have the capacity to capture conduct that should not be criminalised – in the espionage context, for example, the conduct of journalists, whistleblowers, academics and researchers. xx Although the concerns above have not yet played out in Australia, Australian whistleblowers and journalists have been investigated and, in some instances, prosecuted for other national security offences. For example, Witness K, a former Australian Secret Intelligence Service (ASIS) agent, and his security cleared lawyer, Bernard Collaery, were charged with secrecy offences for revealing that ASIS allegedly bugged the offices of the East Timorese Cabinet during treaty negotiations. Military lawyer David McBride compiled a report on alleged war crimes committed by Australian soldiers in Afghanistan, which he leaked to the Australian Broadcasting Corporation (ABC). He was charged with several offences, including unlawfully disclosing a Commonwealth document and theft of Commonwealth property. In 2019, News Corp journalist Annika Smethurst’s home was raided by the Australian Federal Police (AFP) after she published stories on proposed new domestic surveillance powers for the Australian Signals Directorate (ASD). These stories were based on a top-secret departmental memo and, while her conduct appeared to contravene secrecy offences, she was not charged. Just 24 hours later, the AFP raided the Sydney headquarters of the ABC in relation to a report, the “Afghan Files”, published by investigative journalists Dan Oakes and Sam Clarke. This report was based on secret defence force documents and revealed that Australian military personnel had committed severe human rights violations in Afghanistan. Oakes and Clarke were informed that they were under investigation for offences, including unlawfully obtaining information regarding Australia’s defence capabilities, receiving “prescribed” information and receipt of stolen goods, but they have not been charged. While Smethurst, Oakes and Clarke have avoided prosecution to date, the AFP has warned that it will continue to pursue cases like these because they involve a serious breach of national security.
While the examples above did not involve espionage offences, the conduct of those involved certainly could have constituted espionage under Australian law, and similar conduct in the future could result in charges of espionage. This highlights the importance of laws that are not just effective, but are also appropriate. Appropriateness can encompass a range of considerations, but relevant to this article are two considerations that reflect rule of law values and principles: (1) the clarity of the laws; and (2) whether the laws are appropriate in scope. Espionage laws that are unclear and/or overly broad may be effective but run the risk of being used to punish (or silence) legitimate conduct, such as whistleblowing.
Laws in the UK and Australia have been chosen for analysis because both countries have similar legal, political and cultural traditions, including strong respect for the rule of law. Furthermore, Australia frequently looks to the UK when conducting official inquiries and reviews and has modelled some of its national security laws and policies on those found in the UK. The UK has borrowed some aspects of Australia’s national security laws too and has looked to Australian law for guidance when determining how to reform its counter-state threats legislation. Additionally, useful comparisons can be made between legal frameworks that have both been introduced to tackle the same threat.
A final reason why the UK and Australia have been chosen for analysis is that both countries are members of the “Five Eyes” Intelligence Alliance. While this alliance requires the UK, Australia, US, Canada and New Zealand to share intelligence information, Julian Assange/WikiLeaks and Edward Snowden revealed that the global surveillance network was being used (at least by the US) to monitor domestic citizens and close allies, and to engage in industrial espionage. Their leaks sparked global concern over citizens’ privacy rights and highlighted once again the asymmetrical nature of the alliance, with the US setting the agenda. Steps towards strengthening espionage laws in the UK and Australia could therefore be at the behest of the US – so as to expand the scope of information the US has access to. However, it could also be a sign of rising geopolitical tensions between the Five Eyes and nations such as China and Russia, and of the potential lead up to war. Regardless of the political nuances surrounding why Australia and the UK have reformed their espionage laws, the Five Eyes do ultimately place espionage (and the legal response to espionage) at the centre of their dealings. A comparative analysis of espionage laws in two of the Five Eyes nations is therefore apt.
This article begins, in Part II, with an overview of “modern espionage”. This is followed, in Part III, with a discussion of the UK’s 2023 espionage laws and how they could be applied in practice. This discussion draws on analysis of the UK’s previous espionage offences and how those offences were applied in practice. Part IV provides an overview of Australia’s 2018 espionage offences, giving examples of how they could apply to real-world scenarios. Part V then compares and contrasts the laws in the two jurisdictions, analysing whether they are capable of effectively meeting the threat of modern espionage. A similar approach is taken in Part VI, which assesses whether the laws are appropriate in terms of their clarity and scope.
