National security overview

Bernie Lai, Foreign Affairs, Defence and Security

Key issue

Australia’s security environment is anticipated to remain complex, challenging and changing. Espionage, foreign interference, sabotage of infrastructure and terrorism continue to pose threats to the Australian community. There will continue to be statutory reviews and law reforms necessary to protect Australia’s national security from those threats.

Key threats and outlook

Espionage and foreign interference

According to the head of the Australian Security Intelligence Organisation’s (ASIO) 2022 Annual Threat Assessment, espionage and foreign interference has supplanted terrorism as ASIO’s principal security concern. ASIO has warned that foreign intelligence services and their proxies have been seeking to penetrate government, defence, academia and business to steal classified information, military capabilities, policy plans and sensitive research. Social media and messaging platforms have been denounced as breeding grounds for these covert activities.

Although the impact of the COVID-19 pandemic has made the operating environment more difficult for Australia’s adversaries, it has also increased the risk of cyber espionage by these adversaries, which is highly deniable and can be remotely executed. According to ASIO, cyber espionage remains the most pervasive approach adopted by Australia’s adversaries and represents the most significant threat (p. 2) to the Australian higher education and research sector.

Beyond espionage, ASIO has also warned of foreign interference potentially targeting almost all sectors in Australia ‘to build and leverage community and business relationships to covertly shape decision-making to Australia’s detriment’ (p. 20). In recent years, ASIO has publicly cited examples of foreign powers or foreign intelligence services’ attempts to cultivate candidates for an election in Australia, co-opt Australian politicians and recruit Australian Government security clearance holders. Diaspora communities and the higher education and research sector have been identified as particularly vulnerable to threats from foreign interference.

Sabotage of critical infrastructure

ASIO has anticipated that an act of sabotage in Australia by a foreign power becomes more likely when geopolitical tensions increase (p. 20). Foreign involvement or investment in Australia’s critical infrastructure, or concentrations of foreign ownership in key sectors, may increase a foreign power’s ability (p. 10,095) to access and control Australia’s critical infrastructure. This could adversely impact Australia’s economy, security and sovereignty. ASIO has also flagged the potential for Australia’s adversaries to pre-position malicious code in critical infrastructure, particularly in areas such as telecommunications and energy, to damage critical networks in the future (p. 20).

Terrorism

Australia’s national terrorism threat level has remained at ‘probable’. This means credible intelligence, assessed by our security agencies, indicates that individuals or groups have the intent and capability to conduct a terrorist attack. Any future attacks will likely be committed by lone-actors and involve readily available weapons and simple tactics (p. 2).

Since September 2014 when the ‘probable’ threat level was raised, there have been at least 9 terrorist attacks and 21 major counter-terrorism disruption operations in response to potential or imminent attack-planning in Australia. All of these attacks and most of these disruption operations have related to Sunni Islamic terrorism (p. 2), the threat of which in Australia continues to be shaped by the Islamic State of Iraq and the Levant (ISIL) and, to a lesser extent, al-Qa’ida. Meanwhile, ASIO has observed that the threat from right-wing extremism has grown, with the 2019 Christchurch attack remaining a source of inspiration for right-wing extremists in Australia and internationally (p. 3). See the article, 'Right-wing extermism in Australia', elsewhere in this Briefing book for further detail.

Despite the threat level, ASIO’s overall terrorism caseload has decreased amid the COVID-19 pandemic. This trend is common among Western countries and may be attributed to restrictions on movement and cross-border travel according to the Institute for Economics and Peace (p. 8), which has categorised Australia as a country with a ‘very low’ terrorism impact in 2022 (p. 14). Nevertheless, ASIO has stressed that the pandemic ‘has not substantially diminished the threat from terrorism’ (p. 2).

For the Australian Federal Police (AFP), its operational tempo for terrorism has remained high, even during the COVID-19 pandemic (p. 49). With individuals spending more time online (p. 49), the pandemic has provided extremists with opportunities to exploit individuals’ isolation, financial stress and resentment over government vaccination mandates and lockdown restrictions. This has led to an increase in radicalisation and specific-issue grievances, turning to violent extremism in some cases.

Further, ASIO is concerned about an increase in the radicalisation of young Australians. Australians as young as 13 who are vulnerable to terrorist propaganda designed to radicalise have been involved in onshore terrorism (p. 2)- in both extremist Islamic and right-wing circles. In 2021, minors represented nearly 15% of ASIO’s new counter-terrorism investigations and over 50% of ASIO’s priority counter-terrorism investigations each week.

In Australia’s counter-terrorism strategy 2022, the Department of Home Affairs notes the growing threat posed by convicted terrorist offenders after their release from custody, citing recent examples of attacks in New Zealand and the UK. According to both ASIO (p. 2) and the AFP (p. 9), the enduring power of extremist ideologies means that convicted terrorists are less likely to be rehabilitated. As at March 2022, fourteen convicted terrorists in Australia have finished serving their sentence since 2019 and a further 54 convicted terrorists are due for release in the next 2 decades, with 19 of them to be released between 2022 and 2027 (p. 12).

Key measures in the 46th Parliament

Combating espionage, foreign interference and sabotage of critical infrastructure

Major legislative amendments passed during the 46th Parliament included the:

Australian Security Intelligence Organisation Amendment Act 2020, which expanded the availability of compulsory questioning powers beyond terrorism offences to espionage, acts of foreign interference (and politically motivated violence)
Foreign Investment Reform (Protecting Australia’s National Security) Act 2020, which created new powers for the Treasurer to address new and emerging national security risks arising from investment proposals
Security Legislation Amendment (Critical Infrastructure Protection) Act 2021, which, among other things, expanded the scope of the Security of Critical Infrastructure Act 2018 from applying to 4 sectors to applying to 11 sectors, created a regime for entities responsible for critical infrastructure assets to report cybersecurity incidents to the Australian Cyber Security Centre and created a regime for the Australian Government to respond to serious cybersecurity incidents
Security Legislation Amendment (Critical Infrastructure Protection) Act 2022, which introduced a risk management program for entities responsible for critical infrastructure assets, and enhanced cybersecurity obligations for systems of national significance.

The Morrison Government also established a University Foreign Interference Taskforce (UFIT), a partnership between government and the university sector, to provide better protection for universities against foreign interference. In November 2021, the UFIT updated its ‘Guidelines to counter foreign interference in the Australian university sector’, which aim to support universities in strengthening their resilience to foreign interference risks.

Counter-terrorism

Major legislative amendments passed during the 46th Parliament included the:

Counter-Terrorism (Temporary Exclusion Orders) Act 2019, which introduced a temporary exclusion order that may prevent an Australian citizen aged 14 years or older who is overseas from returning to Australia for up to 2 years at a time, and return permits under which conditions may be imposed on the individual’s entry into Australia
Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019, which expanded the presumption against bail and introduced a presumption against parole for terrorist offenders in certain circumstances
Australian Citizenship Amendment (Citizenship Cessation) Act 2020, which introduced a new citizenship cessation system where the Minister for Home Affairs may cease the citizenship of an individual who engaged in specified terrorism-related conduct or was convicted of certain offences
Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Act 2021, which introduced an extended supervision order scheme to impose conditions on terrorist offenders proportionate to the risk they pose to community safety at the end of their custodial sentences
National Security Legislation Amendment (Comprehensive Review and Other Measures No. 1) Act 2022, which provided for ministerial authorisation for agencies to produce foreign intelligence on Australians who are, or are likely to be, involved with listed terrorist organisations.

The Morrison Government listed for the first time 10 organisations as terrorist organisations under the Criminal Code Act 1995 (Criminal Code), bringing the total number of listed terrorist organisations to 29 as at April 2022. The new organisations included:

Islamic State Somalia
Islamic State West Africa Province
Hizballah (in its entirety)
Neo-Jama’at Mujahideen Bangladesh
Sonnenkrieg Division
The Base
Hamas (in its entirety)
Hay’at Tahrir al-Sham
Hurras al-Din
National Socialist Order

Recent developments and lapsed/ongoing reviews

As part of its inquiry into extremist movements and radicalism in Australia, the Parliamentary Joint Committee on Intelligence and Security (PJCIS) tabled a 3-page interim report in March 2022. It did not complete the inquiry during the 46th Parliament, with its former chair, Senator James Paterson, citing ‘other pressing demands’ of the PJCIS and recommending that the 47th Parliament complete the inquiry. Given the change of government following the 2022 federal election, it is relevant to note that in December 2020 Labor originally called for an inquiry specifically focused on ‘right-wing extremism’ before the Morrison Government opted to recommend a more expansive inquiry into various forms of extremism ‘including, but not limited to … far right-wing extremist groups’. The PJCIS then adopted in full the terms of reference as recommended by the Morrison Government, with Labor MP Anne Aly reportedly stating that Labor reached a compromise with the Morrison Government to help launch the inquiry.

Whilst in opposition, Labor regularly singled out ‘the terrorist threat of right-wing extremism’ as an issue that the Australian Government must take seriously and respond to appropriately. The Shadow Home Affairs Minister, Kristina Keneally, called on the Morrison Government to refer to the PJCIS a review into whether Australia’s terrorist organisation listing criteria were fit-for-purpose in relation to right-wing extremism. Having indicated that ‘Labor would support measures to proscribe extreme right-wing organisations’, in August 2021 Senator Keneally criticised the Morrison Government for not having proscribed groups such as the National Socialist Network, The Proud Boys, Combat 18, and Blood and Honour (none of which have been proscribed under the Criminal Code to date).

Other PJCIS reviews that have lapsed until its new membership is appointed include its reviews of the Counter-Terrorism (Temporary Exclusion Orders) Act 2019, the Foreign Influence Transparency Scheme Act 2018, and the listing and re-listing of 8 organisations as terrorist organisations under the Criminal Code. The incoming PJCIS membership is also expected to resume the 2020–21 review of the administration, expenditure and financial statements of the 6 intelligence agencies that comprise the National Intelligence Community.

In March 2022, the Senate Legal and Constitutional Affairs References Committee tabled a report on its inquiry into the adequacy and efficacy of Australia’s anti-money laundering and counter-terrorism financing (AML/CTF) regime. The report recommends, among other things, that the Australian Government accelerates its consultation with stakeholders on extending AML/CTF reporting obligations to designated non-financial businesses and professions, such as lawyers, accountants and real estate agents, in line with the Financial Action Task Force recommendations.

In December 2021, the Senate Select Committee on Foreign Interference through Social Media tabled its first interim report on its inquiry into the risk posed to Australia’s democracy by foreign interference through social media. The interim report recommended to the Australian Government various initiatives to combat the threats of cyber-enabled foreign interference, disinformation and misinformation- both generally and during elections. In its April 2022 progress report, the committee recommended that the Senate consider whether to re-establish the committee in the 47th Parliament, with provision to access the documents and evidence of the now-dissolved committee, to enable the inquiry to be completed.

In the 2022–23 Budget, the Morrison Government allocated $19.8 million to establish a new national convicted terrorist offender register, to be designed in consultation with states and territories and to be administered by the AFP, to manage the risk posed by post-sentence terrorist offenders. In justifying the need for such a register, the AFP cited an example where it had to deploy about 300 police officers for 2 weeks with the state police ‘at a serious cost to the Australian taxpayer of about $3.8 million over one year’ to monitor a recently released terrorist offender (p. 9).

The Independent National Security Legislation Monitor (INSLM) is undertaking a review into Division 105A of the Criminal Code 1995 (Cth), which establishes a scheme for the continuing detention of terrorist offenders whom a court is satisfied pose an unacceptable risk of committing a serious terrorism offence if released into the community post-sentence.

The 2020 Comprehensive review of the legal framework of the National Intelligence Community found that Australia’s existing electronic surveillance framework was no longer fit-for-purpose. In response, the Morrison Government committed to reforming the current patchwork of laws into a single, streamlined and technology-neutral Act (p. 3). This proposed reform aimed to better protect individuals’ information and data, ensure law enforcement and security agencies have the powers they need to investigate serious crimes and threats to security, and clearly identify which agencies can seek access to specific information. The Department of Home Affairs released a discussion paper in December 2021 and is scheduled to release exposure draft legislation for public comment in 2022, with a view to finalising the Bill in 2023.

On 8 June 2022, in the case of Alexander v Minister for Home Affairs [2022] HCA 19, the High Court of Australia, by majority, invalidated the Home Affairs Minister’s power under section 36B of the Australian Citizenship Act 2007 to determine that a dual national ceases to be an Australian citizen, if the minister is satisfied, among other matters, that the person engaged in certain proscribed conduct demonstrating that the person had repudiated their allegiance to Australia. The High Court made the ruling on the basis that section 36B, which was introduced by the Australian Citizenship Amendment (Citizenship Cessation) Act 2020, reposed in the minister the exclusively judicial function of adjudging and punishing criminal guilt. The Albanese Government has stated that it ‘will examine the judgment and its implications in detail’.

Following the 2022 federal election, on 1 June 2022, Prime Minister Albanese announced Machinery of Government changes that would take effect on 1 July 2022. The Attorney-General’s portfolio would gain responsibility for criminal law enforcement and policy, including the AFP, which was part of the Home Affairs portfolio in the Morrison Government. The Australian Federal Police Association welcomed this move and commented in a media release on 2 June 2022:

… we believe that [the AFP as] the Commonwealth’s law enforcement agency should be closely aligned with the portfolio that makes the laws in Australia. This will also provide independence for the AFP. The AFP was buried within the Home Affairs portfolio. The Attorney-General sits a little to the side of government, and we welcome such an environment for the AFP …

It was also announced that the Home Affairs portfolio would gain responsibility for natural disaster response and mitigation, including the National Recovery and Resilience Agency, which was previously part of the Prime Minister and Cabinet portfolio.

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