By Sarah Kendall* of 
Kira Korolev, 40, and her husband Igor, 62, have been accused of obtaining Australian Defence Force material to share with Russian authorities. Photo: YouTube / Facebook
Analysis - On Thursday morning, the Australian Federal Police arrested a Russian-born Australian couple for spying.
Police allege Kira Korolev, an Australian Defence Force (ADF) army private, undertook undeclared travel to Russia while on long-term leave. While there, she allegedly instructed her husband, Igor Korolev, to log on to her work account and access defence force material to send to her.
It is alleged the couple intended to provide the information to Russian authorities. The Korolevs have been charged with "preparing for an espionage offence", which could see them in jail for up to 15 years.
This is a significant case and one worth watching. Not only is it the first time that someone has been charged with an espionage offence since new laws were introduced in 2018, but it is only one of a handful of known espionage charges that have ever been laid in Australia. The Korolevs have also been charged with a standalone "preparatory" national security offence, which only existed in the terrorism context prior to 2018.
Espionage and the law
According to ASIO, espionage is the theft of information by someone acting on behalf of a foreign power, or intending to provide information to a foreign power which is seeking advantage over Australia.
Espionage has been a crime in Australia since the First World War.
In 2018, Australia completely overhauled its espionage offence framework to better address the threat of modern espionage. Espionage today targets a wide range of information from many different people (not just those in intelligence or the military). It can be engaged in by any foreign power, not only those considered to be "enemies", and is increasingly conducted using cyber-espionage.
The 2018 offences include "underlying" espionage offences, a "solicitation" offence and a "preparatory" offence. A standalone offence of "preparing for espionage" did not exist prior to 2018.
There has only ever been one recorded case in Australia in which a person has been prosecuted for an espionage offence.
In R v Lappas, a Defence Intelligence Organisation employee was convicted of the 1914 offence of "making a sketch, plan, model or note that might or was intended to be useful to an enemy". He had passed annotated documents that revealed sources of ongoing intelligence to a third party, who was to sell them on to a foreign power. The attempted sales were unsuccessful.
While Lappas faced up to seven years in jail, he was sentenced to two years.
Australian Federal Police arrested a 62-year-old man in Brisbane, charged with preparing for an espionage offence. Photo: Supplied / Australian Federal Police
Pre-crimes on top of pre-crimes
The Korolevs are the first people to be charged under the 2018 espionage law reforms.
Unlike Lappas, who was found to have committed an offence similar to the 2018 underlying offences, the Korolevs have been charged with "preparing for espionage ".
"Preparing for espionage" is a broad offence that makes it a crime for a person to engage in any conduct. However, in doing so, they must intend to prepare for an underlying espionage offence. If found guilty, a person faces up to 15 years in jail.
The similar offence of "preparing for terrorism" has a maximum penalty of life in prison. It has been the foundation of a number of successful prosecutions in which defendants have been sentenced to very lengthy periods of imprisonment.
Standalone preparatory offences such as preparing for espionage or terrorism aim to prevent harm from occurring in the first place. However, they expand the criminal law beyond its traditional bounds because they punish people for crimes that may occur in the future, not for substantive crimes that have already been committed. For this reason, they can be considered "pre-crimes".
Preparatory crimes are a type of "inchoate" offence: an offence relating to a substantive crime that has not been committed. Other inchoate offences in the Commonwealth Criminal Code include attempt, incitement and conspiracy. Each inchoate offence has different elements that must be proved.
Because "preparing for espionage" is a standalone offence, the general inchoate offences in the Criminal Code can "attach" to the preparatory offence to create "pre-pre-crimes". For example, a person could be charged with "conspiracy to prepare for espionage".
This kind of offence broadens the scope of the law even more by criminalising conduct a further step removed from the commission of any substantive offence.
These offences can be easier to prove than both the substantive offence and the preparatory offence, yet defendants could still face many years in jail. For example, the offence of "conspiring to prepare for terrorism" has been routinely used in the terrorism context in Australia and has supported sentences of up to 28 years in prison.
The Korolevs have been charged with "preparing for espionage", but could conceivably have been charged with "conspiring to prepare for espionage" given two parties were involved.
Authorities are still investigating whether the couple did in fact share information with Russian authorities. If they did, police have confirmed that further charges could be laid. This includes charges for underlying espionage offences, which carry maximum penalties of 15 years to life in prison.
Legal test case
The Korolev case will be one of the most significant national security cases to watch. If it proceeds to trial, it will provide an opportunity to clarify the operation of Australia's 2018 espionage offences and resolve some of the key issues with the offences.
For example, many key terms and phrases used in the espionage offences are not clearly defined or are defined with significant breadth. This creates offences that are unclear and have the potential to be inappropriately wide-reaching.
For example, many of Australia's espionage offences could apply to the legitimate conduct of journalists, sources or academics. Even where the person's conduct is more obviously nefarious, there are uncertainties as to how the offences operate.
Some of the issues with the espionage offences also extend to other offences that were introduced in 2018, such as the secrecy, foreign interference and sabotage offences.
Apart from clarifying the operation of the law, the Korolev case joins only a small number of other known cases in Australia in which a person has been charged with spying. So keep your eyes peeled - you'll be watching history in the making.
* Sarah Kendall is an adjunct research fellow at the University of Queensland.
