Be alert but not very alarmed as ASIO rediscovers bad, as opposed to friendly, foreign spies

Feb 28, 2023
Australian Security Intelligence Organisation ASIO Director General Mike Burgess poses for a portrait ahead of his annual speech at ASIO headquarters in Canberra, Tuesday, February 21, 2023. Image:AAP/ Mick Tsikas

The Director General of the Australian Security and Intelligence Organisation (ASIO), Mike Burgess, is an intelligence professional whose views about threats to national security should be considered carefully, and on their merits.

But I am not sure that he deserves the benefit of every doubt. Sarah Kendall, a PhD candidate from the University of Queensland, seemed to suggest he did in a recent issue of The Conversation. Her article began with appropriate scepticism, asking why, if there was unprecedented espionage and foreign interference occurring in Australia at the moment, as Burgess suggested, none of the “nests” or “hives” of spies he said had been identified had been prosecuted. Instead the alleged spies had been “disrupted” – in one case “confronted” and the spies involved had been removed from the country.

As Ms Kendall observed, Australia has some of the most robust (and voluminous) counter-espionage laws in the world. There have been 82 new laws since 2001, generally at least one whenever the (most conservative) government of the day has wanted to ramp up national security paranoia. There are 27 laws focused particularly on espionage, and another nine new crimes (extraterritorial in effect) of foreign interference. Whenever new crimes, powers or strong but meaningless statements of firm resolve are proposed, one can always be sure that Labor, if in opposition, will have tried to water any proposal down very very slightly, but not ever (perish the thought) to question the need for action going past anything deemed necessary by legislators in any other democracy. And that national security officials, particularly Burgess or those who have preceded him, will give evidence attesting that the laws are utterly essential, but involve the maximum concession to individual rights and liberties. And that any minimal legal accountability measures are the maximum that can be allowed without putting the very fabric of our civilisation at risk.

There has never been a national security measure – including Chinese-style covert surveillance from cameras at every lamppost- that Burgess has opposed. (The lamppost idea was a joint production some years ago from Burgess and Home affairs chief-Mike Pezzullo, public disclosure of which led to a frenzied, if unsuccessful, leak inquiry.)

With all of these extra laws and powers – including extraordinary powers of interception, surveillance, bugging without warrant and burglary – why are there not prosecutions? As ASIO shyly admitted when it became obvious 40 years ago that there had to be an open inquiry into Russian attempts to lure lobbyist David Combe into their fold, publicity might work positively on the agency’s reputation and standing, including silencing some of those who always publicly doubted the need for a security service, or the professionalism (and political neutrality) of those who were in it.

ASIO may now have powers, once unimaginable even in wartime, but there are still, apparently, foolish and naïve sceptics doubting the need for an ASIO, whether on the Charles Spry, Bob Hope or (especially) Mike Burgess model. These are people whose publicly expressed doubts might be silenced by an exemplary prosecution.

When it comes to using the criminal justice system, ASIO is usually gun-shy. It’s that niggling little thing called proof.

According to Burgess in his threat assessment statement this week, “I am concerned that there are senior people in this country who appear to believe that espionage and foreign interference is no big deal. It’s something [they think] that can be tolerated, or ignored or somehow safely managed.

“Individuals in business, academia and the bureaucracy have told me ASIO should ease its operational responses to avoid upsetting foreign regimes. Of course they are entitled to their views, but the reasons they offer for them are flimsy, such as ‘all countries spy on each other,’ ‘we were going to make the information public anyway,’ ‘It’s no different to [sic] lobbying or networking, ‘, ‘the foreign government might make things difficult for us,’ and so on.

“In my opinion anyone saying these things should reflect on their commitment to Australia’s democracy, sovereignty and values – because espionage and foreign interference is [sic] deliberately calculated to undermine Australia’s democracy, sovereignty and values.”
In her Conversation essay, Ms Kendall is rather more prepared than I would be to take Burgess at his word about the grave dangers confronting us. If there are no prosecutions, even with gaps in ASIO powers, it must be because going the prosecution route is “challenging in practice’’.

It might be, for example, that it can be difficult to identify who the spy actually is, particularly if the espionage is occurring online. Prosecution could be difficult because a cyber-spy is spying from the security of their home country. Or it might be difficult to get all of the evidence necessary to prove espionage, or political interference, beyond a reasonable doubt. Perhaps, for example, when data is located on foreign servers. Another possibility is that prosecution could require disclosure of the specific information the spy was trying to obtain, or that proving an intention to prejudice national security might involve disclosing ASIO surveillance or methods. “Disclosing information like this in court – a public forum – could have serious consequences for our national security,” she opines, without referring to the extraordinary, and largely successful ways in which intelligence agencies have made a farce of open justice, due process, the right to see and cross-examine evidence or to have counsel of one’s choice.

“Ultimately,“ she concludes sadly “it is not possible to say why suspected espionage cases are not pursued. Diplomatic considerations may play a role in such cases, as well as information about how espionage offences operate in practice. Because of these limitations, extra measures are necessary to combat the growing menace of espionage. Not only does this include adequate cyber-security measures, it requires every Australian to be aware of what the threat can look like and ensure that they do not hand over information sought by foreign actors.”

This may be the sort of post hoc ergo non propter hoc argument that prevails in a submission from ASIO or Home Affairs. It is equivalent to saying, “the fact that we are not catching many spies is proof that we need more money and more powers to do so, because we are sure they are out there. Our lack of any evidence for this conclusion is proof the enemy is very cunning and smart, so we should ratchet up the vigilance, the witch-hunts and the loose accusations.’’

Actually, there are other potential reasons for failures to prosecute. First, ASIO, and not a few other intelligence agencies have a long record of cocking up prosecutions – of simply not having the evidence to sustain the charges, or the overblown statements, at the time of arrests, from heads of security agencies. Look, for example, at the complete collapse of ASIO’s prosecution of Georg Sadil for allegedly being the ASIO mole. Or (though this is not to ASIO’s discredit) the collapse of terrorism charges laid by the AFP against Mohamed Haneef. The deductions that intelligence agents and over-enthusiastic cops regularly make from incomplete information, wishful thinking and tunnel vision are among the reasons why a completely transparent and accountable open justice system is essential. Only it can prevent serious injustice.

It’s not whether the critics have Australian democratic values, as Burgess impertinently asks. It’s whether ASIO has.

Australian spooks often shy away from using the open justice system established as the norm in democratic systems with values – against the resistance of those who suggest that national security triumphs over ordinary process. Judges and juries are often repulsed by what national security agencies have been doing in their name. look at the prosecution of Bernard Collaery for allegedly disclosing the bugging of the East Timorese cabinet during border treaty negotiations – done for the benefit of Woodside Petroleum. Or the prosecution of David McBride for disclosing, before it was commonly known, that Australian soldiers in Afghanistan were committing war crimes – with the Defence department and senior officers doing little about it.

Other circumstances, in jurisdictions not a million miles from Australia’s, have included brutal torture, punishing interrogations, rendition programs, sabotage of refugee boats, and programs of assassinations of people thought to be associated with enemy groups. The Australian intelligence community is not immune from morally dubious and shameful conduct, and ruthlessness is not confined to the other side. Secrecy may sometimes be justified about active intelligence operations, when the aim would be defeated by publicity. But secrecy is never justified when its own effect is to conceal serious iniquity, even when done in our name allegedly for our benefit. The men and the women we send to do our dirtiest work should be allowed moral compunctions, if only to save them from later PTSD.

The threat of espionage and foreign interference is real and needs to be monitored and countered. But foreign activity must cross certain lines before it is unequivocally spying. The ASIO assessor must also recognise that the US, UK, Israel or for that matter Ukraine, spend far more time attempting to influence politicians and the Australian public than say, China, India or Indonesia. Not all of the propaganda and influence- mongering is harmless, coming from people sharing our commitment to democratic ways.

A man such as Mike Burgess who built his career at ASD listening in to the private and secret conversations of foreigners and officials of foreign countries, is fully aware that most intelligence gathering by ASIS and our military is by definition illegal in the country we are spying on. But he’s given to expressing deep indignation at the idea that other countries are doing much the same to us. Australia spies on its neighbours, including China, with more vigour and resources than that directed against us This is the more so when one considers our unique (for our region) access to Five Eyes and Japanese intelligence, the almost-free result of a $200 billion investment made by our allies.

Our friends and our enemies spy on us; we return the favour. Our allies are as interested as our notional enemies – China say – in filching our commercial secrets, our intellectual property, and inside early knowledge of events, political, social and economic, to come. They are also, of course, interested in strategic information, but that is only a fraction of their interest.

Experience has shown that all too many security officials are naïve about the ways of, and the risks to, business, politics and the lifestyles of our political and managerial classes. America and Britain, in particular, have bugged government and commercial trade negotiations, briefing their own companies and businessmen about our bottom lines, to our disadvantage. We have no reputation in international circles for outwitting them, or returning the favour.

Clandestine efforts to promote points of view, or to influence decision makers, may differ from conventional lobbying. But the business of cultivating contacts, doing favours, engaging in transactions and swapping secrets is common to both. ASIO is far too quick to assume that any sort of interchange with nations such as China is inherently suspicious. It has made a fool of itself imagining risks from innocuous research, or the abuse of Tic-Toc or closed-circuit cameras.

It has also been too slow to appreciate that a good deal of Australian politics, policy and business, including the making of representations to government and lobbying and advocating points of view, involves serious national security risks. That’s even where there is no interchange of military or diplomatic secrets. That’s because politics has become significantly corrupted in recent years. With contracting in and out, privatisation and the award of contracts and grants to mates, cronies and party donors without proper tenders and processes. The last decade has normalised a good deal of political and administrative behaviour that would once have been thought inherently dodgy and lacking integrity. In other areas, including defence, immigration and health contracts, managerial incompetence, dependence on consultancies and a culture of pleasing the minister rather than the public interest has seriously compromised the capacities of agencies and even government as a whole to operate properly.

These problems have caused far more damage to the national interest, including the lives of Australians, than any espionage or foreign influence, or terrorism the national security system has uncovered. ASIO might feel constrained by its mandate about legal limits on its security remit. But it is worth remembering that a good deal of our human-intelligence is gathered from our neighbours, including China, by bribery, blackmail, and locally illegal activities. The susceptibility of overseas officials and managers to pressure of any sort is of deep interest to our intelligence machine. Why does not the agency charged with protecting our secrets recognise that the susceptibility of our own people is as much of a danger, and a matter of national security concern.

Would foreign, and maybe local spies be reading the journalists’ mail if it were not for ASIO’s vigilance?

Burgess had a war story this week about the special vulnerability of the media. This is interesting given that most of the Australian mainstream media is controlled by, a foreign propaganda organisation, frequently briefed by ASIO, and increasingly devoted to promoting slavish adherence to far right ideas originating in the US Republican Party. A further significant amount of defence and foreign affairs commentary on national security matters independent of comes directly or indirectly from the intelligence and defence industry through the Australian Strategic Policy Institute, which should register as a subsidiary of the international arms industry. Much of it is devoted to inciting war on China.

The media is being targeted, the watchers are being watched, reporters are being reported on, and the press is being pressed, Burgess says. There have been repeated attempts to hack into the computers of Australian media outlets. (Imagine the damage that could be caused by finding the intellectual centre and moral compass of, say, the Melbourne Herald Sun or Sydney Daily Telegraph.) ASIO assesses that the hackers want early warning of stories relevant to the foreign government, the identity of journalists’ sources, particularly of those critical of a regime, ways to shape the reporting, and insights that will help them influence, coerce, or recruit journalists. Spies, like journalists, cultivate sources, build trust, and generate feelings of indebtedness that can be exploited later. Sometimes one doesn’t know who is using whom.

“These unconscionable attacks on journalism and media freedoms are prime examples of why espionage is a threat to our way of life,’’ Burgess says.

He instanced a ‘lackey’, well-connected in government and political circles, Australian born and not publicly associated with the foreign county, engaging in “elite capture”. This lackey promoted a “study tour” to a foreign country. This would have allowed its espionage folk to ingratiate themselves with the visiting journalists and identify any vulnerabilities of character.

“Almost certainly the journalists’ phones, laptops and tablets would have been targeted,” Burgess said. If left unattended, even in a locked hotel room safe, the spies would have downloaded data and potentially installed malware giving them ongoing access to contacts, stories, emails and calls. ASIO intervened before the study tour was arranged and no harm was done. Phew!

It made me wonder whether he was talking of one of the scores of study tours organised by Israel, the US, Britain, Germany or the European Community, or perhaps by the Australian Department of Foreign Affairs to Indonesia or India. DFAT, perhaps blind to the risk of such intercourse, usually smiles on such interchanges.

I expect he really meant China. I led such a study tour in 2016 as chairman of the Asia-Pacific Journalism Centre, established to encourage and help Australian journalists to get to know countries in our neighbourhood, and to introduce Asian and Pacific journalists to Australia. APJC has organised interchanges with Indonesia, East Timor and Laos, as well as China, often with assistance from DFAT.

Mercifully, I expect that Burgess could not have been referring to this study tour, because it went ahead. As far as I could observe, without any of the participants, even me, being compromised. No Beijing gold was offered, although I learnt a good deal about Australia-China resources economics, its steel factories, and practical constraints and censorship by Chinese journalists and the communist state. And about Chinese ballet, magicians, and nightclubs controlled by the Russian mafia.

When I was editor of The Canberra Times, I was frequently visited by editors and journalists from other countries, including possible enemies, whose trips to Australia has been sponsored by DFAT or defence. Burgess’s comments this week made me casually wonder whether ASIO, or some like service, might have been giving their briefcases, laptops and other electronic devices the same searches he expected the Chinese, or the Russians, or the Indonesians – perhaps even the Israelis – visit upon Australian hacks. Or whether, horrors, ASIO officers, or the AFP, might do even to Australian journalists, if they got an opportunity while rumbling through our underwear drawers. We wouldn’t want it said that our spooks were less sophisticated, cunning or ruthless than theirs, would we?


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