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.
Public discourse on the
Australian Offensive Cyberspace Operations (OCO) capability has emerged in more recent times
following statements by former Prime Minister Malcolm Turnbull.
This includes an ability for
Defence to conduct OCO targeting others’ computers through ADF operations and also as national
operations against cyber criminals.
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.
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-
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.
These impositions may be overt, such as a denial of service attack,
they may be covert, such as a virus delivered by phishing, a Trojan or other deceptive means,
they may be clandestine, such as a worm introduced from another trusted device.
Each offensive action involves a physical change to the configurations of the circuitry within
electronic chips of another’s computing device.
This constitutes an interference with a portion of
the possessory rights inherent in that device.
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’.
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’.
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 ...’.
Given the unwritten nature of the
United Kingdom’s constitution, its constraints are more complex.
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’.
Other legislative powers are subject to this constraint,
including the Defence power.
The executive power of the Commonwealth, however, may not be
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
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