ADF Offensive Cyberspace Operations and Australian Domestic Law: Proprietary and Constitutional Implications

DOI10.1177/0067205X19875011
Publication Date01 Dec 2019
AuthorAndrew Williams,Hywel Evans
SubjectArticles
Article
ADF Offensive Cyberspace
Operations and Australian
Domestic Law: Proprietary
and Constitutional Implications
Hywel Evans* and Andrew Williams**
Abstract
An Australian Offensive Cyberspace Operations (OCO) capability has emerged as an important
sub-component of national power. While significant academic literature exists concerning OCO’s
place within the international law of armed conflict, and international law in general, literature
regarding domestic law is scarce. Nevertheless, an understanding of the domestic law governing
the Australian Defence Force’s (ADF’s) authority to conduct OCO is necessary as the gap in the
research potentially exposes the Government and individuals to legal risks that are not well
understood. The aim of this article is to analyse the proprietary and constitutional implications of
ADF OCO to inspire further research at a time when the Comprehensive review of the legal
framework governing the National Intelligence Community is underway. The qualitative research
analyses statutory and case law authorities to argue that Australian proprietary and constitutional
law creates important implications for ADF OCO. The analysis suggests that these implications
oblige the Commonwealth to be careful in balancing its legislative and executive power to provide
the ADF with the legal authority to conduct OCO. The research finds that OCO impinges upon
the proprietary rights of others, requiring legal authority which, if created under statute, generates
an obligation to compensate proprietors under just terms. However, if the authority arises under
the executive power, then the obligation to compensate may not apply. Further, such executive
powers may exist under a royal war prerogative. As a corollary, we suggest that in an escalated
conflict environment, the ADF may be able to conduct OCO without any legislative amendments
to the criminal law although express immunities would be preferred.
* Lieutenant Colonel, AustralianArmy Royal Australian Corps of Signals; admitted to the Supreme Courtof the Australian
Capital Territory.The views expressed in this article are those of the two contributors, and not necessarily those of the
AustralianArmy or the Department of Defence.The article contemplates whatis legally possible only and not currentADF
capability or futureintended capability or policy. The author maybe contacted at hd.evans@connect.qut.edu.au.
** Lieutenant Colonel, Australian Army Royal Australian Corps of Signals; 2017 Chief of Defence Force Fellow; PhD
candidate at UNSW Canberra Cyber. The author may be contacted at andrew.williams3@student.adfa.edu.au.
Federal Law Review
2019, Vol. 47(4) 606–630
ªThe Author(s) 2019
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DOI: 10.1177/0067205X19875011
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I Introduction
It has been almost two decades since the Commonwealth of Australia first posited the need for the
Australian Defence Force (ADF) to consider threats in cyberspace.
1
Public discourse on the
Australian Offensive Cyberspace Operations (OCO) capability has emerged in more recent times
following statements by former Prime Minister Malcolm Turnbull.
2
This includes an ability for
Defence to conduct OCO targeting others’ computers through ADF operations and also as national
operations against cyber criminals.
3
The recent Australian Strategic Policy Institute (ASPI) policy
brief on Australia’s OCO capability provides limited discussion on domestic law requirements,
recommending minor legislative amendment while noting the Australian Signals Directorate
(ASD) seeks legal advice during approvals processes.
4
The lack of public discourse and superficial
academic discussion on this subject warrants further investigation to ensure thorough understand-
ing of the domestic law implications governing this nascent national cyberspace capability.
The ASPI cites a draft Australian definition for OCO, namely ‘activities in cyberspace that
manipulate, deny, disrupt, degrade or destroy targeted computers, information systems, or net-
works’.
5
The achievement of such authorised ADF OCO necessitates offensive actions in cyber-
space, which involve the imposition of malicious code on the processes, memory and disks of other
persons’ computing devices, almost certainly without the fully informed consent of the persons in
possession of those devices.
6
These impositions may be overt, such as a denial of service attack,
7
they may be covert, such as a virus delivered by phishing, a Trojan or other deceptive means,
8
or
they may be clandestine, such as a worm introduced from another trusted device.
9
Each offensive action involves a physical change to the configurations of the circuitry within
electronic chips of another’s computing device.
10
This constitutes an interference with a portion of
the possessory rights inherent in that device.
11
ADF OCO and associated offensive actions, being
sanctioned by and conducted on behalf of the government of a state, could therefore be conceived as
an acquisition of the property of others which benefits the state. Without lawful excuse, it could be
construed as a state trespass against the possessory rights of the persons possessing those devices.
Protections generally constraining the governmental acquisition of private citizens’ property are
found in several common law countries’ constitutions. The protections restrict how a government’s
lawful excuse to acquire property could arise. In the United States, no ‘private property [shall] be
taken for public use, without just compensation’.
12
In India, ‘[n]o person shall be deprived of his
property save by authority of law’ and any law authorising that deprivation must provide ‘com-
pensation at a rate which shall not be less than ...market value’.
13
In Papua New Guinea, ‘no
interest in or right over property may be compulsorily acquired, except ...on making just com-
pensation ...on just terms by the expropriating authority ...’.
14
Given the unwritten nature of the
United Kingdom’s constitution, its constraints are more complex.
15
In Australia, the legislative power of the Commonwealth includes the power to compulsorily
acquire property ‘on just terms from any ...person for any purpose in respect of which the
Parliament has power to make laws’.
16
Other legislative powers are subject to this constraint,
including the Defence power.
17
The executive power of the Commonwealth, however, may not be
so restricted.
18
As Australian Defence policy professionals, it is the implication of this legislative
‘just terms’ constraint, and the interplay between legislative and executive power, that we believe
requires further discussion on the risks and opportunities for ADF commanders and their subordi-
nates conducting OCO.
The application of legislative or executive power in undertaking OCO and associated offensive
actions may have broad ranging domestic law ramifications, including potential criminal liability
Evans and Williams 607

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