Preparing for Espionage, Foreign Interference and Sabotage: Preventive Justice or Unjust Pre-Crimes?

The National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth) comprehensively reformed offences relating to key national security threats. This included the introduction of three new preparatory crimes — offences of preparing for espionage, foreign interference and sabotage. This article engages in critical analysis of these ‘pre-crimes’ (offences that criminalise conduct before the commission of a substantive offence) through the lens of preventive justice. This analysis reveals that the rationales for the 2018 preparatory offences are sufficient to justify their criminalisation, but that all three crimes undermine liberal values and can therefore be considered unjust. The article makes recommendations for the reform of these preventive offences. It also presents a refined preventive justice framework specific to pre-crimes in Australia (set out as a series of questions). It is intended that these questions will be applied by lawmakers, law reformers, scholars and others to guide the future development of — and critically analyse existing — pre-crimes in Australia.