Review of Australia’s espionage, foreign interference, theft of trade secrets and sabotage offences (Division 82 and Part 5.2 Criminal Code Act 1995)
In February 2025, the Independent National Security Legislation Monitor (the Monitor) commenced a review into Australia’s espionage, foreign interference, theft of trade secrets and sabotage offences (Division 82 and Part 5.2 of the Criminal Code Act 1995 (Cth) (Criminal Code)). The Monitor is required to review these provisions in accordance with s 6(1B)(a)-(b) of the Independent National Security Legislation Monitor Act 2010 (Cth) (INSLM Act).
Division 82 of the Criminal Code contains offences of committing sabotage, planning or preparing a sabotage offence, and for introducing a vulnerability into ‘public infrastructure’.
Part 5.2 of the Criminal Code contains offences for espionage (Division 91), foreign interference (Division 92), and theft of trade secrets (Division 92A). Part 5.2 also contains provisions relating to prosecutions and hearings of these offences, and the forfeiture of articles used in offending against the Part (Divisions 93 and 94).
Key Issues
In accordance with sections 6 and 8 of the INSLM Act, the Review will consider:
- The effectiveness and implications of the offences
- Whether the legislation contains appropriate safeguards for protecting the rights of individuals
- If Division 82 and Part 5.2 criminalise only that which it is necessary and proportionate taking account of the current threats to which they are directed
- Australia’s international obligations, particularly under the International Convention on Civil and Political Rights (‘ICCPR’) and any relevant security or non-interference agreements.
Review Process
The Monitor intends to release a public Issues Paper and invite submissions from the public and government agencies in April 2025. There will be approximately 5-6 weeks for written submissions to be made. During this period there will also be consultation and potentially round-table meetings.
The Monitor will likely hold public hearings in June (subject to the outcomes and response to the Issues Paper). Private hearings may also be held.
Once enough information has been gathered and analysed the Monitor will prepare a report for the Attorney-General. This report will be tabled in parliament.