It appears that ASIO is unable to bring about the prosecution of an unamed former politician who betrayed Australia because no laws were broken. Had the betrayal been committed after the introduction of the National Security Amendment (Espionage and Foreign Interference) Act 2018 (EFI Act), it might have been a different story.

Shadow Home Affairs Minister, James Paterson, provided a sober assessment of calls to out the politician who committed the betrayal. As the EFI Act (and therefore no crime) existed at the time, a defamation action from the traitor would be highly likely. While everyone wants to know who the traitor is, doing so would ultimately compromise ASIO’s operational tactics.

This is not the first time in ASIO’s history that those who wish to harm our nation could not be charged because no law was broken.

Following the Petrov affair in 1954, when the head of Soviet spy operations in Australia defected and blew the lid on traitorous Australian communists, the Royal Commission into Espionage did not recommend anyone for prosecution despite evidence to the contrary.

Like now, political turmoil ensued. Fergan O’Sullivan, the then Labor Opposition Leader Doc Evatt’s press secretary, had created a dossier on members of the press gallery who might be sympathetic to communist causes. Notwithstanding the political nature of his role, his scandalous actions were not illegal at the time.

The commission suspected five other communists of betraying Australia, but given no crimes had been committed, there was no way to charge the perpetrators for what were otherwise actions detrimental to the security of all Australians.

Two of the suspects could not be charged without exposing the details of a top-secret code-breaking operation, reflecting the challenges of naming the perpetrator in the present case.

We are ignoring the lessons of history and repeating past mistakes it seems.

Before ASIO was created, Australia’s security situation was so poorly regarded by the Americans and the British, our most important Cold War allies, that Peter Butt, director of the 2001 Fortress Australia documentary, claimed that the Americans had given Australia the same security classification as the Soviet Union at the time.

Since its inception, ASIO has had an uneasy relationship with executive government, particularly under Labor, despite its origins stemming from the Chifley Labor government in 1949.

Historian Jenny Hocking’s depiction of ASIO in her biography of Lionel Murphy highlighted the infamous 1973 Melbourne raid by the then Attorney-General as a way of bringing the otherwise rogue agency under the executives’ heel. Murphy was not entirely against ASIO – at the 1971 ALP Federal Conference, he used his casting vote to ensure that a future Labor government was not committed to abolishing ASIO.

The biggest challenge for national security and indeed all types of policing operations is to enable legal yet effective actions so these same agencies can perform their essential functions without disclosing their tactics and techniques.

One way to overcome this problem is to draft pre-emptive laws that are more closely aligned with trends identified by the intelligence community.

A function of the Parliamentary Joint Committee on Intelligence and Security, established under the Intelligence Services Act 2001 (IS Act), is to ensure ‘national security legislation remains necessary, proportionate, and effective by conducting statutory reviews’. The problem with this approach is that the committee can only ever look backwards.

A major criticism of the committee is that it tends to advocate for the intelligence community rather than provide an oversight function. Incorporating an advocacy role for the committee in the IS Act would strengthen our security operations. This could include joint drafting of legislation with the intelligence community to keep up with current threats rather than the review model which is often years behind those who threaten our national security.

Of course, there is always a need to balance national security with civil liberties, two key aims that can at times seem mutually exclusive in liberal democracies. But greater oversight could be achieved by improving the resources of and providing greater powers to the Inspector-General of Intelligence and Security, rather than the assumed shared role that underpins the current model.

Unfortunately, we are so keen to see traitors pay that we can’t see that our spies are actually in a fight.

ASIO director-general Mike Burgess has stated that the agency’s workload is greater than ‘at any time in Australia’s history’. Pre-emptive legislation that can be used to prosecute those involved in future threats might be one way to address what one recent editorial referred to as the ‘half-truths and secrets’ of the spy game that come to light when there is a need to educate the public about a current threat.

There will be circumstances where prosecuting offenders might compromise spy tactics, but the federal government has a responsibility to ensure that security legislation appropriately pre-empts future threats. The EI Act has so far enabled charges to be made in separate incidents against alleged foreign interference offenders, but not in the recent case.

Australia’s national security capabilities have come a long way from their amateurish post-war beginnings. But with the Aukus arrangements, and hopefully an Australian nuclear industry imminent, the federal government must devise a way to balance executive oversight with the practical realities of countering foreign interference.

Legislation for national security must adopt a forward-looking rather than a reviewing approach if we are to avoid repeating the mistakes of the past yet again.

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