Strong laws and a free press: the national security watchdog on rewriting Australia’s espionage offences

When the National Security Legislation Amendment (Espionage and Foreign Interference) Act came into force in 2018, it added 28 new offences to the Criminal Code covering sabotage, espionage, foreign interference and the theft of trade secrets. Almost eight years on, Blight has reviewed how they are working, and his verdict, delivered to Parliament on 23 July, is that the regime is over-built.

“I think they’re all problems,” Blight says, when asked whether the offences are too broad, too duplicative or too vague. “Some of the offences are too broad, especially the primary espionage offences … There needs to be a better hierarchy of offences.” Others do no work at all: after months of consultation with government agencies, “no one could come up with an example of something that would only be covered by that offence.”

His report makes 20 recommendations. Some strip offences out and simplify what remains; others fill what Blight describes as small but real gaps, most importantly around transnational repression, a threat he says was barely on the radar when the laws were drafted.

A new offence for coerced repatriation

The gap Blight is most concerned to fill is coerced repatriation. That is, foreign governments pressuring people in Australia into leaving, usually by threatening their families overseas. He recommends a bespoke offence and is quick to explain why the existing human trafficking laws do not already cover it.

Those laws, he says, were “designed to implement a people smuggling treaty that’s really about people being moved against their will across the border. So someone else arranging the travel is an essential feature.” Coerced repatriation does not fit that definition. “People arrange their own travel, but they do so because of fear of threats to their family overseas … There is that pressure to leave voluntarily under great duress. That’s the gap.”

“It’s absolutely a sentencing factor”

Blight also proposes a new offence that would lift the maximum penalty for any serious Commonwealth crime committed on behalf of, or at the direction of, a foreign power. But could this be seen as a sentencing factor dressed up as a separate offence?

“It’s absolutely a sentencing factor already,” Blight says before making his case for elevating it. “When you do something at the behest of a foreign principal, you harm the direct victim, but you also harm the sovereignty of the nation.” He says raising the maximum signals to the courts that Parliament regards this as a significant threat to sovereignty, and widens the range within which judges can exercise their ordinary discretion. Blight adds, “It also sends a really clear message to those who commit crime as a service. If you’re committing a crime as a service in Australia for foreign powers, you can expect a harsher penalty than you would get from just committing that crime off your own back.” The line that matters is between acting at a foreign power’s behest and merely agreeing with it: “Just sharing their views doesn’t infringe sovereignty in the same way that acting at their behest does.” He rejected submissions to drop the foreign power element to make the offence easier to prove: “These are very serious offences. The fact they’re hard to prove isn’t a problem.”

Keeping journalism out of the espionage net

Blight’s report also recommends pulling back on offences when they go too far, and public interest journalism is his clearest example. He recommends building a protection for journalism and academic publication into the espionage offences themselves, rather than leaving it as a defence.

“I don’t think it was ever the intention that espionage offences capture journalists,” he says, “but the way they’re drafted, they currently can.” He points to the breadth of the offence in s 91.2 of the Criminal Code Act: dealing with the information, the information reaching a foreign principal (which he notes happens “every time you post something on the internet”), and recklessness as to the harm to national security. “Those are the only three elements, and that’s a 20-year offence … And for me, that’s unreasonable, and it doesn’t reflect what espionage really is,” Blight says.

“Take the disclosure of war crimes, or of significant fraud in defence procurement: those things can harm Australia’s international reputation and the relationship between our defence force and other countries, but that isn’t espionage.”

“[W]e need to tighten the offences to be clear that espionage really is that covert action for a foreign government.

“When a journalist publishes a story about war crimes or about fraud in procurement … it just isn’t espionage.” The effect, he says, falls hardest on small outlets: “They haven’t got the giant legal budgets the big ones do, so they’re not going near national security articles. That’s having a chilling effect on the diversity of journalism we need in this country.”

The carve-out is not a blanket shield: ASIO has spoken publicly about foreign officials posing as journalists. It is “designed to protect those who are actually in the true business of journalism,” Blight says, and the prosecution must still prove a claimant was not genuinely a journalist.

Why a government “stamp” shouldn’t define a crime

Blight’s sharpest rule-of-law argument concerns security classification. Under the current espionage offences, whether conduct is criminal can turn on whether a document carries a classification – an administrative decision made inside government. He wants it removed, echoing his earlier Review of Secrecy Provisions in 2023. Classification is built for a different job, telling officials how to store information, and is applied by tens of thousands of officials, “with no record of reasons.” Making it the boundary of a serious crime, he argues, “allows government officials to set the boundaries of a crime. It allows the Department of Home Affairs to come up with a policy and to change it at any time.”

Blight notes that it does not make the stamp irrelevant: its existence “could definitely go to showing recklessness.” But it should not define the offence. He says the government accepted the equivalent recommendation in the secrecy review, and a bill is now before Parliament. “It’d be strange if they didn’t agree to the same recommendation in espionage.”

“Preparing to prepare”

Among the offences Blight would repeal are certain preparatory offences, most notably those relating to foreign interference. His objection rests on a line he is careful to draw: it is one thing to criminalise preparing for a serious crime, another to criminalise preparing to prepare.

Preparatory offences, he explains, entered Australian law after 9/11, when Parliament created a “plan or prepare” offence for terrorism, “for the first time ever in our legal system … but we didn’t really ever lay down any principles. It just felt right in that context. It was the vibe.” The offence was then copied across to espionage, foreign interference and sabotage. Blight says he went back to first principles and set a three-part test: the primary offence must have a genuine collective impact on the nation; it must not itself already be preparatory; and other options for mitigating the harm must be inadequate. “Murder is a bad crime,” he offers by way of contrast. “We don’t have a plan and prepare for murder.”

Foreign interference fails the test, he says, because the primary offence needs no actual interference, only “any conduct with the intention of influencing.” He points to Australia’s sole foreign interference conviction, that of Di Sanh “Sunny” Duong: “He set up a meeting, a photo opportunity with a minister in case that minister became more senior later on. That, to me, is planning to plan, or preparing to prepare.” The objection is structural, not about seriousness: “The primary offence doesn’t require interference. It only requires any conduct on the path to interference.”

The constitutional flags and what they mean for practice

Asked which offences he considers most constitutionally exposed, Blight is careful to stay within his remit. “It’s not really my role as monitor to give constitutional advice — the Commonwealth has a system for that.” But his flags point to federalism, not free speech: how far Commonwealth power reaches over state parliaments and courts, and whether “the external affairs power covers everything that might be in the mind of a person overseas.”

For solicitors advising clients while the law stands unchanged, Blight identifies two live exposures. The first is the foreign interference offence’s “covert” element, which he says remains unclear. He points to the prosecution’s closing address in R v Csergo and the High Court’s decision in Zhang v Commissioner of Police on whether covert conduct must be nefarious or merely secretive. “Businesses are often secretive about their commercial dealings. Think about what covert means for your client in its context.” The second is the breadth of the espionage offences for anyone advising journalists: “These offences are broader than you think. They clearly cover information that is not classified already.” And for the defence: “If you’re defending people acting on behalf of a foreign power, look out for this new offence that’s going to increase the penalties.”

The profession’s verdict

The INSLM’s report has drawn a warm response from the Law Council of Australia. In a statement on 30 July, President Tania Wolff said the review demonstrated “the vital role the [INSLM] plays in ensuring an appropriate balance between national security and civil liberties,” adding that Australia’s security environment had “changed significantly since these offences were first introduced eight years ago” and that the legislation “must be fit for purpose.”

The Council commended the recommendations as “a clear demonstration that a commitment to the rule of law and democratic values is a core pillar of Australia’s national security,” singling out the focus on the overly broad espionage offences and proposed repeal of certain preparatory offences — “including preparatory foreign interference offences.” It said it supports the majority of the 20 recommendations, and thanked Blight for his “consideration of the views of the legal profession and other civil society organisations”.

Looking ahead, Wolff said the Council “look[s] forward to continuing to work with the Australian Government as the recommended legislative changes proposed by the INSLM are progressed.”

What happens next

Blight’s term as Monitor ends in November, and he is hopeful the government will respond to the report before then. “They’ve responded promptly to my last two reviews,” he says, though he acknowledges this is “a complex review … a very long review,” and the policy responsibility sits with Home Affairs. He is most anxious that the government act on the press-freedom and transnational-repression recommendations. “We have these national security laws to protect our democracy. We don’t want these laws to undermine the democratic values that we’re trying to protect.”

But Blight is not done yet: his review of the definition of terrorism is due before he leaves. And he closes on the office itself: Australia, he says, is “being held up as a model internationally” for its independent review of “what’s often a very politicised area”: not just inspection or parliamentary oversight, but “impartial recommendations” from an independent monitor.