Espionage charges in Australia · Division 91 of the Criminal Code (Cth).

The charge in summary.

The AFP announced the upgraded charges on 30 June 2026. A married pair, a woman aged 42 and a man aged 64, were first charged on 11 July 2024 with one count each of preparing for an espionage offence under section 91.12 of the Criminal Code (Cth). After assessing the evidence, the AFP took the charges further. At Brisbane Magistrates Court on 29 June 2026 each was charged with one count of conspiracy to commit espionage, contrary to section 91.1(1) by virtue of section 11.5(1) of the Criminal Code (Cth).

The work sits under Operation Burgazada, run by the Counter Foreign Interference Taskforce, which brings together the AFP, ASIO and other Commonwealth agencies. The investigation is ongoing.

The two people have not been named in the AFP material and the matter is before the court. The allegations are untested and both are entitled to the presumption of innocence. Everything below is about the legal framework, which applies to any person charged with an espionage offence.

What is espionage under Australian law?

Espionage is a Commonwealth offence. The offences sit in Part 5.2, Division 91 of the Criminal Code Act 1995 (Cth). They were rewritten by the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018, which repealed the old provisions and put a wider set of offences in their place.

At its plainest, espionage is dealing with information that concerns Australia's national security, where that information is or will be communicated or made available to a foreign principal. The most serious form in section 91.1 also requires an intention to prejudice Australia's national security, or to advantage the national security of a foreign country. Lesser forms drop that intention and ask instead whether the person was reckless as to that result.

The word deals with is defined broadly. It covers receiving, obtaining, collecting, possessing, copying, recording, concealing, communicating, publishing, or making the information available. A person does not have to hand a document to a foreign agent. Collecting or holding the information can be enough, if the other elements are made out.

What is the maximum penalty for espionage in Australia?

The penalties are among the highest in Commonwealth law. The section 91.1 offence carries a maximum of life imprisonment. That is the charge now before the Brisbane court. The next tier, section 91.2, covers dealing with information that is or will be made available to a foreign principal and carries 25 years. Section 91.3, which covers dealing with security classified information, carries 20 years.

The division also reaches conduct that stops short of the full offence. Soliciting or procuring an espionage offence under section 91.11, and preparing for or planning an espionage offence under section 91.12, are offences in their own right. Section 91.12 carries 15 years. That was the original charge against the pair before it was upgraded.

What do "foreign principal" and "national security" mean?

Both terms are defined in the Criminal Code (Cth), and both are wide. A foreign principal under section 90.3 includes a foreign government, a foreign public enterprise, a foreign political organisation, a public international organisation, an entity owned or controlled by any of those, and a person acting on behalf of any of them. It is not limited to a foreign spy agency.

National security under section 90.4 goes past defence. It takes in the defence of the country, the protection of its territory and people from espionage, sabotage and foreign interference, and the country's political, military and economic relations with other countries. Because the definition reaches economic and diplomatic relations, the information caught by the offence is broader than most people expect.

Can you be charged with conspiracy to commit espionage?

Yes, and that is the step taken in this matter. Section 11.5 of the Criminal Code (Cth) makes it an offence to conspire with another person to commit an offence. A conspiracy needs an agreement between at least two people to commit the offence, and at least one party must take a step to carry the agreement out. The prosecution does not have to prove the espionage was completed. The agreement, plus the step, is the crime.

A conspiracy is punished as if the substantive offence had been carried out. A conspiracy to commit a section 91.1 espionage offence therefore carries the same maximum, life imprisonment. A charge under section 11.5 also needs the consent of the Director of Public Prosecutions before it can proceed.

Does an espionage prosecution need the Attorney-General's consent?

Yes. Section 93.1 of the Criminal Code (Cth) says a prosecution for an offence in this Part can only start with the consent of the Attorney-General, or a person acting on the Attorney-General's direction. The reason is plain. These cases turn on national security and on Australia's relations with other governments, and the decision to prosecute is kept at that level.

The consent rule does not stop the early steps. A person can be arrested and charged, and a search warrant can be issued and executed, before consent is given. What cannot happen is the case moving past the charge to trial. That gate stays shut until the Attorney-General consents.

How is espionage different from foreign interference and treason?

The 2018 Act created three groups of offences that people often blur together. Espionage in Division 91 is about information: dealing with information that reaches, or will reach, a foreign principal. Foreign interference in Division 92 is about influence: covert, deceptive or threatening conduct done for a foreign principal to shape Australia's politics, institutions or public life. The first steals information. The second tries to bend decisions.

Treason, in section 80.1 of the Criminal Code (Cth), is older and narrower. It covers conduct such as helping an enemy engaged in armed conflict with Australia. The first person prosecuted under the 2018 laws was convicted of foreign interference, not espionage: see the sentencing in the Duong matter. The charge now before the Brisbane court is the first espionage charge under the new regime.

What we do for clients facing a Commonwealth national security charge.

The first point is the interview. A person whose home has been searched will often be asked to take part in a recorded interview. Nothing said in that room can be taken back. Advice must come before the interview, not after. Our note on the recorded police interview sets out the caution and the choices.

The second is the evidence. Espionage cases are built on documents, devices and communications, often gathered over long periods by the AFP and ASIO. Much of the material is security classified, which shapes how it is handled in court under the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth). The Crown still has to prove every element to the criminal standard, including the intention and the link to a foreign principal.

The third is procedure and timing. The Attorney-General's consent, the DPP's consent for a conspiracy charge, and the committal path all affect how a national security matter runs. Our guide to the first thirty days after charge sets out the early sequence, and our note on working with counsel explains how serious Commonwealth matters are run with a barrister from the start.

Frequently asked.

What is the maximum penalty for espionage in Australia?

The core espionage offence in section 91.1 of the Criminal Code Act 1995 (Cth) carries a maximum of life imprisonment. Related offences carry up to 25 years and 20 years, and preparing for or planning espionage under section 91.12 carries 15 years. A conspiracy to commit espionage is punished as if the espionage had been carried out.

Can you be charged with conspiracy to commit espionage in Australia?

Yes. Section 11.5 of the Criminal Code (Cth) makes it an offence to agree with another person to commit an offence, where at least one party takes a step to carry out the agreement. A conspiracy to commit espionage carries the same maximum as the espionage offence itself, which is life imprisonment for a section 91.1 offence.

Does an espionage prosecution need the Attorney-General's consent?

Yes. Section 93.1 of the Criminal Code (Cth) says proceedings for an espionage offence cannot go past the charge without the Attorney-General's consent. A person can still be arrested and charged, and a warrant can be executed, before consent is given, but the case cannot proceed to trial until it is.

What is the difference between espionage and foreign interference?

Espionage under Division 91 targets dealing with information that is or will be communicated to a foreign principal. Foreign interference under Division 92 targets covert or deceptive conduct done for a foreign principal to influence Australia's politics or institutions. The first is about information; the second is about influence.

When were Australia's current espionage laws introduced?

The current offences were inserted by the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018. That Act repealed the old espionage provisions and replaced them with a wider set of offences in Part 5.2 of the Criminal Code (Cth).

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 2 July 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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