Foreign interference in Australia · Division 92 of the Criminal Code (Cth).

The charge in summary.

The AFP says the person, arrested in Queensland, was charged with one count of attempting to engage in intentional foreign interference, contrary to section 92.2(1) of the Criminal Code (Cth), by virtue of section 11.1. The matter was listed in the Brisbane Magistrates Court. The work sits under the Counter Foreign Interference Taskforce, which brings together the AFP, ASIO and other Commonwealth agencies. The AFP says it is the first time it has charged a person of this kind with attempting to engage in foreign interference since the current laws began in 2018.

The person has not been named in this article and the matter is before the court. The allegations are untested and the person charged is entitled to the presumption of innocence. Everything below is about the legal framework, which applies to any person charged with a foreign interference offence.

What is foreign interference under Australian law?

Foreign interference is a Commonwealth offence. The offences sit in Part 5.2, Division 92 of the Criminal Code Act 1995 (Cth). They were created by the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018, alongside the rewritten espionage offences in Division 91.

At its plainest, foreign interference is conduct done for a foreign principal, in a way that is hidden or deceptive or backed by a threat, aimed at shaping Australia's politics, its democratic rights, or its national security. The conduct does not have to succeed. It is the covert or deceptive attempt to bend Australian decisions or support a foreign principal's intelligence work that the law targets.

The law draws a line between interference and influence. Open, declared lobbying or advocacy by or for a foreign government is influence, and it is lawful. It becomes interference when it is carried out covertly, through deception, or by threat, and it is done for a foreign principal against one of the interests the section protects.

How is foreign interference different from espionage?

The two are often blurred together, but they target different conduct. Espionage in Division 91 is about information: dealing with information that is or will be communicated or made available to a foreign principal, where that touches Australia's national security. Foreign interference in Division 92 is about influence: covert or deceptive conduct done for a foreign principal to shape Australia's politics, institutions or democratic rights, or to support a foreign principal's intelligence activities.

The penalties reflect that difference. The core espionage offence in section 91.1 carries up to life imprisonment. Intentional foreign interference in section 92.2 carries 20 years. Our separate note explains the espionage offences in Division 91 in more detail.

What must the prosecution prove for intentional foreign interference?

The section 92.2 offence has three moving parts, and the Crown must prove each to the criminal standard.

First, a link to a foreign principal. The conduct must be engaged in on behalf of, or in collaboration with, or directed, funded or supervised by a foreign principal. A private grievance, without that link, is not this offence.

Second, a purpose. The person must intend the conduct to do one of a set of things: to influence a political or governmental process of the Commonwealth, a State or a Territory; to influence the exercise of an Australian democratic or political right or duty; to support the intelligence activities of a foreign principal; or to prejudice Australia's national security.

Third, a quality to the conduct. It must be covert, or involve deception, or involve a threat to cause serious harm, or a demand with menaces. Ordinary open conduct, even conduct that favours a foreign government, is not caught unless it carries one of those features.

What does "foreign principal" mean?

The term is defined in section 90.3 of the Criminal Code (Cth), and it is wide. A foreign principal includes a foreign government or a part of one, 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, and it does not need a formal instruction. A person believed to be linked to a foreign government's services can be enough to found the link, depending on the facts.

Because the definition reaches state-owned companies and political organisations, the offence goes well past classic spy-versus-state cases. It reaches attempts to work Australian institutions through front bodies and intermediaries.

What does "covert or deceptive" conduct mean?

This is the feature that separates interference from lawful influence. Conduct is covert when it is hidden, when the fact that it is being done for a foreign principal is kept from view. It is deceptive when it is dressed up as something it is not, for example activity presented as independent that is in truth run for a foreign government. The offence can also be made out where the conduct involves a threat to cause serious harm, or a demand with menaces.

A worked example makes the line clear. A person who organises a rally openly on behalf of a foreign government is engaged in influence. A person who organises the same rally while hiding that a foreign government is behind it, in order to sway an Australian political process, may be engaged in interference. The hidden link, plus the political purpose, is what turns advocacy into an offence.

Intentional or reckless: how do sections 92.2 and 92.3 differ?

Division 92 has two main offences that cover the same conduct but ask for a different state of mind. Section 92.2 is intentional foreign interference. It requires that the person intended the conduct to influence, support or prejudice one of the protected interests. It carries 20 years.

Section 92.3 is reckless foreign interference. It applies where the person was reckless as to whether the conduct would have that effect, rather than aiming for it. Recklessness is a lower fault than intention, and the maximum is lower too, at 15 years. The first person convicted under the 2018 laws was convicted of the reckless offence, not the intentional one, and not of espionage: see the Duong matter.

Can you be charged if some of the conduct happened overseas?

Yes. The Division 92 offences carry extended geographical jurisdiction. Conduct can be caught even where part of it takes place outside Australia, so long as the offence is otherwise made out. That reach is deliberate, because foreign interference by its nature often involves travel and contact across borders.

A charge under section 92.2 can also be brought as an attempt under section 11.1 of the Criminal Code (Cth), which is the charge in this matter. An attempt is punished as if the completed offence had been carried out, so an attempt to commit the section 92.2 offence still carries 20 years. It is not a defence that the completed offence was impossible.

One more gate applies. Under section 93.1 of the Criminal Code (Cth), a prosecution for a Part 5.2 offence cannot proceed past the charge without the consent of the Attorney-General. 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 to trial until the Attorney-General consents.

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. Foreign interference cases are built on devices, communications and travel records, 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, the covert or deceptive quality, and the link to a foreign principal.

The third is procedure and timing. The Attorney-General's consent and the committal path both 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 foreign interference in Australia?

Intentional foreign interference under section 92.2 of the Criminal Code Act 1995 (Cth) carries a maximum of 20 years imprisonment. Reckless foreign interference under section 92.3 carries 15 years. An attempt is punished as if the completed offence had been carried out, so an attempt to commit the section 92.2 offence also carries 20 years.

What is the difference between foreign interference and espionage?

Espionage under Division 91 is about information: dealing with information that is or will be made available to a foreign principal. Foreign interference under Division 92 is about influence: covert, deceptive or threatening conduct done for a foreign principal to shape Australia's politics, institutions or democratic rights, or to support a foreign principal's intelligence activities.

What must the prosecution prove for intentional foreign interference?

The prosecution must prove the conduct was engaged in on behalf of, or in collaboration with, or directed, funded or supervised by a foreign principal; that the person intended the conduct to influence a political or governmental process, influence an Australian democratic or political right, support a foreign principal's intelligence activities, or prejudice national security; and that the conduct was covert, involved deception, or involved a threat of serious harm or a demand with menaces.

Can you be charged with foreign interference for conduct that happened overseas?

Yes. The Division 92 offences carry extended geographical jurisdiction, so conduct can be caught even where part of it occurs outside Australia. A prosecution for a foreign interference offence also needs the consent of the Attorney-General under section 93.1 before it can proceed past the charge.

When were Australia's foreign interference laws introduced?

The foreign interference offences were inserted by the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018. They sit in Part 5.2, Division 92 of the Criminal Code (Cth). The first person convicted under the new laws was convicted of reckless foreign interference, not espionage.

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 22 August 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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