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  • The Federal Government has introduced a package of national security reforms aimed at combating foreign interference in Australia’s political and electoral systems. Two of the three Bills have been passed by parliament and the third awaits further debate.
  • This article focuses on the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 which amends Australia’s national security-related criminal offences.
  • The offences of espionage, secrecy and sabotage raise questions of compatibility with the implied freedom of expression under the Constitution.
  • Each offence relies on broad definitions with limited exemptions.

On 7 December 2017, the same day that the Commonwealth Parliament introduced marriage equality into Australian law, the government introduced three Bills of a very different nature. Collectively known as the foreign interference package, the government described the Bills as an effort to combat the threat of foreign states and actors interfering in Australia’s political and electoral systems. On 28 June 2018, after six months of debate and scrutiny, the Parliament passed two of the three Bills:

  1. the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (‘EFI); and
  2. the Foreign Influence Transparency Scheme Act 2018 (‘FITS’).

The ‘foreign interference package’

Each Bill in the package pursues the anti- foreign interference aim by addressing a different area of law. The EFI is concerned with the criminal law. It amends a number of national security-related offences in the Criminal Code, and introduces new types of offences. FITS introduces a U.S.-style foreign agent register, and imposes an obligation on certain people and groups engaging in political activity on behalf of foreign principals to disclose that relationship. Thirdly, the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017 (which is still before the Parliament) would overhaul Australia’s political donation and transparency regulation, banning most foreign donations and reforming our electoral law’s approach to third party actors, including civil society organisations.

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