March 24, 2024
Australia’s intelligence chiefs have asked the government for new laws to stop former spies marketing their skills abroad, fearing current provisions are allowing foreign adversaries to gain invaluable knowledge of Australian tradecraft.
Asio is seeking specific consolidated legislation requiring that former spies gain explicit permission before they offer themselves as trainers, in light of what it says is the serious and growing threat of espionage and foreign interference.
“In the face of this threat and the need to protect Australia’s secret sensitive information and capabilities, the need for this cannot be overstated,” the intelligence agency’s deputy director general, Ewan Macmillan, told the parliamentary joint committee on intelligence and security during a recent hearing on military secrets. “In response, we must harden and we must adapt.”
Macmillan was speaking in the context of a similar ban being pushed through parliament to stop military personnel conducting training that could help foreign adversaries. He said no such stand-alone provision existed for intelligence officers.
“The discomfort we have and the concern we’re raising is that we think there should be something done about that particular vulnerability and inconsistency,” Macmillan said.
The defence amendment (safeguarding Australia’s military secrets) bill was prompted by twin imperatives. It addresses potential gaps in the law identified following the arrest of former United States marine and now Australian citizen Daniel Duggan, who faces charges for allegedly training Chinese military pilots in South Africa. It also fulfils a US requirement that Australia’s law mirror its own on the transfer of secrets and on export controls as part of the Aukus nuclear submarine deal.
The government is rushing the military legislation through parliament in the hope of having it passed and the relevant paperwork completed in Washington before Congress rises for the northern summer. The House of Representatives passed it this week and the Senate will debate it on Monday.
Because of that timeline, the government opted not to incorporate provisions covering intelligence officers in the same legislation.
Instead, it says it is considering Asio’s request, acknowledging the critical role intelligence officers play in protecting national security.
The parliamentary committee agreed that such provisions should cover intelligence officers and recommended the government determine how they should be legislated. It also recommended assessing existing laws to ensure the restrictions extended to training paramilitary organisations and militias too.
“The biggest threat to national security faced by Australia is from sophisticated foreign actors, who try to engage with citizens within government, military, academia and business to obtain classified information,” the committee chair, Labor MP Peter Khalil, told Guardian Australia. “These actors have offered Australians hundreds of thousands of dollars to help authoritarian regimes improve their combat skills.”
The shadow home affairs minister, James Paterson, said Asio’s warning must be taken seriously.
“The damage to our national interest would be profound if a former intelligence official passed on their insights and inside knowledge to a foreign power,” Paterson said. “We urgently need a regime similar to that proposed for former ADF personnel and defence officials to plug this gap and the government should not delay legislating it.”
The Australian Institute of Professional Intelligence Officers offered Asio’s proposal qualified support.
The institute’s president, Dr Phil Kowalick, said protecting secrets, expertise and knowledge related to intelligence capabilities was critical. But he warned that such expertise in analytical tradecraft was already accessible in training courses globally so applying such restrictions in practice could be difficult.
“At first blush, the proposed restrictions would likely pick up those widely studied and applied techniques, as well as those related to the tradecraft, [aiming] to be protected,” Kowalick said. “It would be difficult to draft legislation that distinguishes what is and is not covered in the complex mix of freely available and protected methodologies and tradecraft while not infringing on what can and should be taught in recognised and reputable education and training programs.”
Kowalick said the intelligence community should be consulted on any such restrictions to ensure they were necessary and effective.
The Washington-based Australian National University professor of international security and intelligence studies, John Blaxland, said there were already laws restricting what former spies could do with their knowledge. But he said Asio’s request suggested there was a question as to whether they are watertight enough to ensure prosecution.
“Beyond the procedural concern, there is a message to former officers about what’s acceptable and not when it comes to transferring marketable skills and knowledge to those who may well want to use them against Australia’s interests,” Blaxland said. “It’s conceivable that those who’ve been out for a few years – maybe in another line of work – have forgotten the imperative of maintaining their obligations.”
