Australia's national security watchdog calls for reform of espionage and foreign interference laws

Australia's national security watchdog is calling on the government to reform the nation's espionage and foreign interference laws, warning they can inadvertently capture legitimate activities and undermine the democracy they are meant to protect.

A major review of the laws, conducted by Independent National Security Legislation Monitor (INSLM) Jake Blight, was tabled in parliament yesterday, following consultation with government agencies and civil society groups.

The review assessed how the laws have worked since 2018 when Australia became one of the first countries to introduce dedicated foreign interference offences.

It found some of the espionage and foreign interference offences were overly broad and ill-defined, risking a chilling effect on media freedom," Mr Blight told the ABC.

"The threat from espionage and foreign interference is real and growing.

The report made 20 recommendations aimed at making the laws more effective and proportionate, including a new offence to counter transnational repression, changes to protect democracy and press freedom, and clearer definitions of national security.

A spokesperson for Attorney-General Michelle Rowland said the government was committed to ensuring Australia's criminal offences remained fit for purpose to address the risks posed by foreign interference, espionage and related activities.

Calls for action against transnational repression

The report found the government could do more to tackle the growing threat of transnational repression in Australia.

This involves cases of foreign governments reaching beyond their borders to intimidate, threaten, surveil, harass or punish people in Australia.

The report recommended a new offence targeting coerced repatriation, where individuals are pressured into leaving Australia because of threats or coercion from a foreign power.

It cited ASIO director-general Mike Burgess, who said at least four countries had plotted coerced repatriations in Australia.

The national security watchdog also highlighted the concept of "crime for hire", describing it as foreign governments effectively funding or directing people to commit crimes in Australia.

It recommended the government increase penalties for anyone acting on behalf of a foreign government who interfered with a person's right to protest or participate in democratic life.

These protections should extend beyond Australian citizens to non-citizens living in Australia, such as diaspora communities, the report said.

"We call that freedom of political communication in Australia. And that includes the voice of those who don't vote.

"Because that supports our democracy. It supports free and fair elections."

Spy laws' 'chilling effect'

The report raised concerns that the espionage and foreign interference laws were so broadly worded they risked a "chilling effect" on press freedom.

Mr Blight said some laws inadvertently captured "legitimate public interest journalism within espionage and foreign interference offences, and they should not".

The review found journalists could be prosecuted under the laws for revealing classified information, making information "available" to a foreign principal, or damaging Australia's reputation.

It also pointed to the definition of a "covert" act in these offences, which did not distinguish between a journalist protecting a source and someone selling submarine plans to a foreign government.

The review noted it was important to put beyond doubt that the term "covert" did not "capture forms of confidentiality or even secrecy that are routine in business, journalism and diplomacy".

It recommended the government amended the laws so public interest journalism, along with legitimate academic and business activities that required some degree of secrecy, were not captured in the first place.

'National security' definition questioned

Eight years after Australia's federal parliament passed the sweeping national security laws, this first major review gave them mixed marks for effectiveness, citing limited evidence to support claims the offences had a deterrent effect.

Civil society organisations had, however, made a number of submissions to the review, raising concerns that the laws could violate international human rights and civil liberties.

Acknowledging those concerns, the report recommended a clearer definition of the key term "national security" which underpinned the laws.

The report said the current definition of national security was circular and unclear, lacking the precision needed for serious criminal offences while failing to capture some nationally significant harms.

The report proposed replacing it with a more coherent definition focused on Australia's core national interests, such as defence and border protection.

There are 26 espionage, foreign interference and trade secret offences under the 2018 laws. The review recommended some be removed.

"Some of these offences are just so complex, and they're actually redundant. It doesn't make the law any better," Mr Blight said.They included redefining "national security" within the legislation based on national interests such as defence, and preventing the laws from unduly hampering university research and collaboration.

Southern Cross University national security expert Brendan Walker-Munro said he was pleased several of his recommendations had been reflected in the report.

They included redefining "national security" within the legislation based on core national interests such as defence, and preventing espionage laws from unduly hampering university research and collaboration.

Mr Walker-Munro said a new "coerced repatriation" offence would send a clear signal that foreign agents could not operate in Australia to force diaspora members, including foreign students, back to their home countries as a tool of repression or silencing.