For sake of justice and truth, spy case matter for courts

Annual Threat Assessment 2023 - Director-General of Security

Annual Threat Assessment 2023 - Director-General of Security

ASIO director-general Mike Burgess has successfully established his annual threat assessment address as a highly effective exercise in raising awareness about his agency’s role and the various threats it seeks to protect us from.

However, this year’s event generated more than the usual curiosity, with the revelation a former Australian politician had been recruited by a foreign spy network and betrayed their country. Moreover, they leveraged their political access to draw a family member of a former Australian prime minister into the spy ring.

The targeting of our politicians by foreign intelligence services is nothing new. Indeed, the establishment of ASIO as a dedicated domestic security service was born out of CIA and MI6 concern that Soviet infiltration of Australia’s departments of defence and external affairs had become so extensive as to include the personal staff of external affairs minister HV Evatt.

Throughout the Cold War, interactions between ASIO and Australia’s political elite were often fraught; hence the decision in 1979 to legislate a specific obligation for the director-general to protect the organisation from politicisation or bias. In this context, Burgess finds himself in a difficult position: choose not to reveal a treacherous former MP and risk suspicions of giving special treatment to politicians, or choose to reveal them and risk aspersions against ASIO of political meddling.

The agency appears to have landed on a middle position: acknowledge that an elected representative had been cultivated by a foreign power – demonstrating ASIO’s willingness to investigate all Australians regardless of their position – but stop short of naming the individual to avoid any accusations of politicisation and a lengthy court process. But, as Joe Hockey suggested last week, Australian politicians will now be subject to a deluge of scurrilous speculation that will only serve to impugn our representatives.

The Australian people, having been informed that one of their elected representatives was a traitor, are right to expect this person is punished. ASIO has the ability to contain and curtail the activities of spies it catches, but unlike other nations we do not give intelligence agencies the right to issue punishments, such as imprisonment. This can only happen via the courts. By testing the alleged offences and prosecuting charges in a court, we would develop a valuable deterrent to other would-be-traitors, especially those in or around elected offices who may believe they can use their power to circumvent the law.

Giving this alleged spy a fair trial would also provide a powerful counterpoint to the arbitrary and opaque judicial systems of authoritarian states, such as the closed court of the Chinese Ministry of State Security, which recently levelled a death sentence against Australian Yang Hengjun for alleged espionage. Australia will always be on stronger ground to demand fair trials from other nations in relation to alleged espionage offences when we also exercise this due process.

The reasons given to the press for not initiating a prosecution is that doing so could reveal sources and technical capabilities our agencies want to hide from foreign adversaries. I am sympathetic to this argument. Human sources risk their lives for Australia and deserve the highest level of protection. Unique technical capabilities, such as those for surveillance and interception, can take years to build but moments to erase once exposed. But in this case it should fall to a judge to weigh up the potential impact a trial would have on agencies as against the impact not doing so may have on our democracy.

The flurry of gossip and speculation around this case makes ASIO’s decision not to prosecute the politician-turned-spy unsustainable. There is now a high chance of accusations being made under parliamentary privilege. If this should occur, the chance of a fair trial will evaporate as the whole affair descends into a partisan quagmire from which Australians will be unable to discern the truth.

Dr William Stoltz is an Expert Associate at the ANU National Security College.
This article originally appeared in The Australian on 4 March 2024.

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For sake of justice and truth, spy case matter for courts

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