Ruqayyah Snyder
Australia has been facing a growing threat of espionage, with cyber espionage becoming an increasingly prominent issue. In response, the Australian government has introduced a series of laws and proposals to combat espionage and protect national security. This includes the National Security Amendment (Espionage and Foreign Interference) Act 2018, which amended existing offences and introduced new ones, as well as proposals to grant the Australian Security Intelligence Organisation (ASIO) greater powers. With the increasing ease of accessing and sharing data, concerns have been raised about the extent of government surveillance and the potential invasion of privacy. As such, the effectiveness of anti-spy laws in protecting Australians from espionage is a topic of ongoing discussion and development.
| Characteristics | Values |
|---|---|
| Espionage laws | In 2018, the Australian government introduced 27 different espionage offences |
| Espionage definition | Espionage involves defence, political, foreign relations, or other security-classified information. It can also involve industrial or commercial information that affects national security. |
| Foreign interference definition | An activity carried out by or on behalf of a foreign government that may be coercive, threatening, deceptive, or clandestine. |
| Mass surveillance | Takes place in several network media, including telephone, internet, and other communications networks, financial systems, vehicle and transit networks, international travel, utilities, and government schemes. |
| Metadata access | In 2014, no warrant was required for organisations to access metadata information. During the 2015-2016 financial year, 333,980 authorizations for metadata access were granted to 63 enforcement agencies. |
| Online services | In 2025, online services will have to check users' ages, possibly via ID checks. |
| ASIO powers | The Australian Security Intelligence Organisation (ASIO) may be given the right to hack into and modify computers, as well as spy on whole computer networks. |
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What You'll Learn
Espionage and foreign interference laws
In June 2018, the Australian Government introduced the National Security Amendment (Espionage and Foreign Interference) Act 2018 (EFI Act) to combat the growing challenge of foreign interference. The EFI Act amended existing offences in the Criminal Code Act 1995 and introduced espionage-related offences. Espionage can involve defence, political, foreign relations, or other security-classified information. It can also involve industrial or commercial information that affects Australia's national security.
Espionage is defined as dealing with information and communicating it to a foreign government. This can cause harm to Australia's national interests, advance a foreign country's national interests, or both. Espionage can harm Australia's independence, economy, and national security. For example, stealing trade secrets would give a foreign country an advantage in the international market, undermining Australian businesses.
Foreign interference is an activity carried out by or on behalf of a foreign government. It may be coercive, threatening, deceptive, or clandestine, and it undermines Australia's sovereignty, values, and national interests. Foreign interference is different from routine diplomatic influence because it is hostile to Australia's sovereignty, values, and national interests, and is not conducted in an open or transparent way. To be considered a crime, foreign interference must be linked to a foreign government or its proxy.
Some of the actions criminalized by the EFI Act include covert, deceptive, or threatening activities by persons intending to interfere with Australia's democratic systems and processes, as well as supporting the intelligence activities of a foreign government. The Australian Federal Police (AFP) co-leads the Counter Foreign Interference Taskforce with the Australian Security Intelligence Organisation (ASIO) to investigate, disrupt, and prosecute EFI-related activities.
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ASIO's counter-espionage efforts
The Australian Security Intelligence Organisation (ASIO) is Australia's domestic intelligence and national security agency. ASIO is responsible for countering threats to Australia's national security, including espionage, foreign interference, sabotage, politically motivated violence, terrorism, and attacks on the national defence system.
One of the key challenges in countering espionage is the increasing sophistication and complexity of attacks, facilitated by advancements in technology. Foreign powers are engaging in hostile cyber espionage activities, targeting Australian Government and private sector systems. ASIO has disrupted 24 'major espionage and foreign interference' operations in three years, according to a speech by ASIO chief Mike Burgess. Mr Burgess also warned of the economic cost of foreign espionage, estimating it to be at least $12.5 billion a year for Australia.
ASIO has a history of counter-intelligence successes, particularly during the Cold War. For example, between 1961 and 1963, ASIO investigated Ivan Skripov, the First Secretary of the Soviet Embassy, and uncovered that he was refining Kay Marshall, an English-Australian woman, as an agent for Soviet intelligence. However, Marshall was, in fact, an agent of ASIO. As a result, Skripov was ejected from Australia and declared persona non grata.
In recent years, ASIO has continued to disrupt foreign interference operations and expel undeclared foreign intelligence officers. The organisation works closely with the Australian Federal Police (AFP) and other government agencies to coordinate counter-espionage efforts and enforce relevant laws.
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Mass surveillance in Australia
In 2013, more than 500 authors, including five Nobel prize winners, signed a global petition to protest mass surveillance after Edward Snowden's global surveillance disclosures revealed that Australians were being monitored by the National Security Agency's XKeyscore system. Snowden also revealed that Australian government intelligence agencies, specifically the Australian Signals Directorate, have access to the system as part of the international Five Eyes surveillance alliance. In August 2014, it was reported that Australian law enforcement agencies had been accessing Australians' web browsing histories without a warrant.
In 2015, 3,857 interception warrants were issued, and 63 enforcement agencies were granted 333,980 authorizations for metadata access. Google's transparency report shows a consistent trend of growth in requests by Australian authorities for private information, rising approximately 20% year-on-year.
In December 2014, certain universities in Australia delayed collaboration with the new Opal card system, citing privacy concerns. However, several other universities agreed to provide "student data" to the card network, which is made available to New South Wales government departments and law enforcement agencies.
Vehicles can be tracked by a range of systems, including automatic number plate recognition (ANPR), video and sensor-based traffic surveillance networks, cellular telephone tracking, and automated toll networks.
In June 2018, the Australian Government introduced the National Security Amendment (Espionage and Foreign Interference) Act 2018 (EFI Act) to combat foreign interference and criminalize espionage-related activities. ASIO, Australia's domestic spy agency, has warned that espionage attempts are occurring daily and will likely surpass terrorism as the country's principal security threat.
Australia's laws governing electronic surveillance are currently undergoing major reform to establish clear laws that enable law enforcement and intelligence agencies to access information to combat serious crimes and threats to national security. The reform includes the repeal of the Telecommunications (Interception and Access) Act 1979, Surveillance Devices Act 2004, and parts of the Australian Security Intelligence Organisation Act 1979.
The Australian government has also introduced two new pieces of legislation, the International Productions Order (IPO) Bill and the Identify and Disrupt Bill, to expand its mass surveillance mandate.
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Cyber espionage
In Australia, espionage and foreign interference are considered serious threats to national interests, including political systems, military capabilities, trade, economic interests, intellectual property, community safety, and democratic freedoms. To combat these threats, the Australian Government introduced the National Security Amendment (Espionage and Foreign Interference) Act 2018 (EFI Act), which amended existing offences and introduced new ones related to espionage and foreign interference.
AI-powered cyber threats and espionage are also on the rise in Australia, with attackers leveraging cloud-based AI platforms to create and distribute harmful software. This allows them to scale up their operations, avoid detection, and misuse victims' computing resources for unlawful purposes. Additionally, attackers are using AI to create malicious files that appear regular, such as images, videos, and audio files, which can then be used to extract hidden code, install malware, and gain persistent system access.
To counter these threats, the Australian government has introduced a complex scheme of 27 different espionage offences, including underlying, preparatory, and solicitation offences. The Australian Security Intelligence Organisation (ASIO) plays a crucial role in investigating and countering potential foreign interference and espionage threats.
The nature of cyber espionage and the sophistication of attackers pose significant challenges to Australia's security. The threats are constantly evolving, and the perpetrators often remain undetected for extended periods, causing severe economic and reputational damage.
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The legality of metadata access
In Australia, the Telecommunications (Interception and Access) Act 1979 requires telecommunications companies to retain certain metadata for a minimum of two years. This includes information about the subscriber (such as names, addresses, and other identifying details), account information, device details, the type of communication, and the location of equipment used. While this metadata is considered less sensitive than "content" like phone calls or emails, it can still reveal a lot about a person, including their work, home address, associates, and online activity.
The legality of accessing this metadata has been a contentious issue in Australia. On the one hand, law enforcement and intelligence agencies argue that they need access to metadata to combat terrorism and other crimes effectively. Indeed, during the 2015-2016 financial year, 63 enforcement agencies were granted 333,980 authorizations for metadata access. However, there are also significant privacy concerns surrounding the retention and access to metadata. The current legislation, which has been amended numerous times, contains loopholes and contradictions that allow for unauthorized access and potential abuse of personal information.
In February 2023, the Australian government acknowledged these concerns by accepting most of the Parliamentary Joint Committee on Intelligence and Security's (PJCIS) 22 recommendations for reforming the mandatory data retention regime. These recommendations aim to provide greater clarity to telecommunication providers, introduce additional safeguards for the use and storage of metadata, and increase transparency by imposing additional reporting obligations on law enforcement authorities.
Despite these proposed reforms, critics argue that the current metadata access laws are outdated and inadequate for protecting privacy in the digital age. They point to the ease of unlawful metadata access, the lack of protection for journalists and whistleblowers, and the potential for sensitive information to be exposed without a judicial warrant. As such, there are ongoing calls for a comprehensive overhaul of Australia's metadata retention and access regime to better balance security needs with individuals' privacy rights.
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Frequently asked questions
Yes, spying is illegal in Australia. In June 2018, the Australian Government introduced the National Security Amendment (Espionage and Foreign Interference) Act 2018 (EFI Act) to combat the growing threat of foreign interference. The EFI Act amended existing offences and introduced new ones, including the criminalisation of covert and deceptive activities intending to interfere with Australia's democratic systems.
The Espionage and Foreign Interference Act criminalises any activities that interfere with Australia's national interests, including political systems, military capabilities, trade, economic interests, intellectual property, and democratic freedoms. It also criminalises supporting the intelligence activities of a foreign government.
The penalty for espionage in Australia can vary depending on the specific offence. For example, Section 35P of the proposals seeks to create a new criminal offence with a maximum penalty of 10 years' imprisonment for revealing information about 'special intelligence operations'.
