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Last night, ASIO boss Mike Burgess made another powerful public statement in delivering the . Burgess stated that ASIO has seen “terrorists and spies […] talking about sabotage, researching sabotage, sometimes conducting reconnaissance for sabotage”.

He also highlighted the increasing focus on cyber (online methods) as a way that sabotage might be conducted. :

ASIO is aware of one nation state conducting multiple attempts to scan critical infrastructure in Australia and other countries, targeting water, transport and energy networks.

This would seem to align with recent reports of before being detected.

But what exactly is sabotage, and should we be worried?

The legal definition

“Sabotage” is a French term originally used to refer to during the Industrial Revolution. Since then, “sabotage” has been used to describe acts that undermine military power without a battle – destroying train lines, cutting telephone wires, or setting fuel dumps on fire.

However, the legal definition is a bit bigger than that.

In Australia, sabotage is both a under the Criminal Code and also a crime under state and territory laws. At the federal level, sabotage has three key elements:

1. engaging in conduct that results in “damage to public infrastructure”
2. intending to or risking the act will “prejudice Australia’s national security” or “advantage the national security of a foreign country”
3. an act on behalf of, in collaboration with, or with funding from a “foreign principal” (that is, a foreign government or one of its authorities, such as their intelligence service).

“Public infrastructure” is a broad concept, and includes anything belonging to the Commonwealth, defence and military bases and equipment, and telecommunications.

In some circumstances, it could also include banks, supermarkets, food, farms and other services provided to the public. Essentially, pretty much anything needed to run the country could be “public infrastructure”.

These are already , and must meet strict physical security and cybersecurity guidelines.

New South Wales, Victoria, Queensland, the ACT and the Northern Territory also have specific sabotage offences. Those offences capture deliberate acts to damage or destroy public facilities, where the person intends to cause to “government functions”, major disruption to the “use of services by the public” or major “economic loss”.

So what is ASIO doing?

ASIO’s annual threat assessment mentioned that sabotage has increasingly been discussed between . While Burgess did not name which countries have been involved, ASIO has been watching China, perhaps because a has been named as allegedly working on behalf of the Chinese government.

It also appears ASIO is watching “nationalist and racist violent extremists advocating sabotage”. This would also fit with recent increases in and .

Yet, there have been very few cases of sabotage pursued in the courts.

Unfortunately, who engage in espionage, foreign interference and/or sabotage. These include gathering the necessary evidence that might reveal how the spies were detected, in turn potentially compromising ASIO’s ability to operate in the future.

However, foreign agents can still be deterred from engaging in this kind of activity. Just last year, Burgess . In this year’s threat assessment, Burgess also said ASIO often puts foreign agents on notice – that ASIO knows what they’re up to – or it shines a “disinfecting light” on Australia’s adversaries so the public is aware of what they’re up to.

However, one of the cases mentioned by Burgess in the assessment – – probably won’t be identified. That’s strange on its own, as Burgess’ usual approach in these cases seems to be to “name names” – in going public, ASIO removes the one thing foreign agents need to operate: anonymity.

What more is needed?

ASIO will need to continue (and possibly even ramp up) its surveillance operations in Australia. That in turn will require the attorney-general , which is yet to get started.

That said, the Albanese government has started consultation on its , which will make sure our cybersecurity laws are up to scratch. The Australian Securities and Investments Commission (ASIC) has also already put boards and chief executives on notice that they will .

There are some niche areas in the law that might need some tweaking. Last year, we that demonstrated Australia’s laws might not protect an act of sabotage that was aimed at our natural environmental assets such as the Great Barrier Reef.

However, we may not need more laws – we just need to better use the ones we have. As in the context of counter-terrorism laws:

Australia’s counter-terrorism laws are already extensive […] If a criminal offence or power is needed to combat terrorism, Australia already has it and more.

More broadly, Australia needs to confront its “this won’t happen to us” attitude to national security. Chris Taylor, head of the Australian Strategic Policy Institute’s Statecraft and Intelligence Program, (a former boss of ASIO) when he said:

With the simple self-confidence which living in an island state breeds, Australians are sometimes doubtful that their country might be of interest to foreign intelligence services. “It can’t really happen here” is a stock attitude. It has, it does, it will.

Those words should resonate with us all.

The views contained in this article are those of the individual author, and it does not necessarily reflect the views of any organisation, department or agency with which the author may be affiliated.

This article was written in Sarah Kendall’s personal capacity as a PhD candidate at the University of Queensland School of Law. It does not reflect the views of any organisation with which the author is affiliated.