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

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.