Amid warnings of 'spy hives', why isn't Australia using its tough counter-espionage laws more?

Australia is facing an unprecedented threat of espionage and foreign interference. According to ASIO chief Mike Burgess in his annual threat assessment this week,

More Australians are being targeted for espionage and foreign interference than at any time in Australia’s history.

To drive home just how serious the threat is, Burgess also said ASIO had identified a “hive of spies” seeking to steal sensitive information in the past year. This major spy network was disrupted and the spies involved were removed from the country.

But why weren’t the spies prosecuted? Australia has some of the most robust counter-espionage laws in the world, so why aren’t they being used more often to target actual incidents when they happen?

The espionage threat

Burgess said in his threat assessment that intelligence and government officials are no longer the only ones being targeted.

Foreign spies from multiple nations are seeking to glean information from judicial figures, journalists, academics, bank workers, doctors, police, defence contractors, and former members of the defence force. They do this by fostering relationships with these people, which they can later try to exploit.

Foreign spies today want more than just intelligence and defence information, too. For example, Burgess said they also want information on

our defence capabilities, government decision-making, political parties, foreign policy, critical infrastructure, space technologies, academic and think tank research, medical advances, key export industries and personal information, especially bulk data.

No matter who or what is being targeted, espionage is extremely damaging. It can undermine our security, sovereignty, economy, democracy and social fabric.

Read more: Why Australia’s tough national security laws cannot stop foreign interference in our elections

The legal response to espionage

In 2018, the Coalition government made targeting the growing threat of espionage and foreign interference a top priority, pushing through a complete overhaul of the country’s security laws.

It replaced the four existing espionage offences with a complex scheme of 27 different offences, with penalties of up to life in prison. It also introduced nine new crimes of foreign interference. These offences apply both within and outside Australia.

This suite of new laws has been used sparingly to date. No one has been charged with an espionage offence and only one person has been charged with a foreign interference offence.

The laws have also been criticised as another example of hyper-legislation, which refers to the large number of laws. Additionally, concerns have been raised that the laws are overly broad and have the potential to criminalise innocent conduct.

Read more: Australia has enacted 82 anti-terror laws since 2001. But tough laws alone can't eliminate terrorism

The aim of the reforms, the government maintained, was to modernise our espionage laws so they would be able to capture the type of spying our adversaries engage in today. This includes spying that occurs online – cyber espionage.

For example, one of the espionage offences makes it a crime for a person to deal with national security or classified information where this will be communicated to a foreign government. The person must also intend for their conduct to prejudice Australia’s national security or provide an advantage to the national security of another country.

This offence would certainly capture the conduct of the hive of spies described by Burgess, which was ultimately removed from Australia.

So why weren’t the spies prosecuted?

While the espionage offences are sufficient to target those engaging in modern espionage, prosecuting spies is challenging in practice. Here are four potential reasons why:

1) Identifying the spy

Traditionally, espionage is a covert endeavour. As such, it can be difficult to identify who the spy actually is. This is especially so if the espionage occurs online, as foreign spies can use anonymising technologies to hide their identity. If spies can’t be identified, they can’t be prosecuted.

This apparently wasn’t an issue in the case of the hive of spies, as ASIO had identified who was involved.

2) Extraditing the spy

If the foreign spy engaged in cyber espionage, they could have done so from the comfort of their home country. If this person was identified, they would then have to be extradited back to Australia to face prosecution. This can be a challenging process that does not always succeed.

Because the hive of spies was located in Australia, extradition was not an issue.

3) Collecting evidence

To prosecute a foreign spy for a specific crime, evidence must be collected that proves each element of the offence beyond a reasonable doubt. Sometimes, this evidence may be difficult to obtain – for example, in cases where data is located on foreign servers. Other times, prosecutors might not think their evidence is sufficient to meet the threshold of “beyond a reasonable doubt”.

We don’t know what kind of evidence was available to prove the hive of spies committed an espionage offence, so it is possible this influenced the decision not to prosecute.

4) Disclosing national security information

Because espionage offences are concerned with national security, this could require disclosure of the specific information a foreign spy was trying to obtain. And to prove the spy “intended to prejudice Australia’s national security”, a court might need to hear about intelligence gathered by ASIO through surveillance. This could reveal ASIO’s methods of intelligence collection.

Disclosing information like this in court – a public forum – could have serious consequences for our national security.

In fact, Burgess warned this week foreign spies are “seeking to use litigation as an intelligence collection tool”. He further cautioned

there is a narrow set of circumstances where particularly sensitive information cannot be publicly disclosed in parliament, court or the media.

However, the National Security Information Act can be used to protect national security information by ensuring it is not disclosed to the defendant or revealed in open court.

In fact, this law was even used – controversially – to conduct an entirely secret trial of a former Australian spy, Witness J.

Because of this, this probably wasn’t a reason why the hive of spies was not prosecuted.

Ultimately, it’s not possible to say exactly why suspected espionage cases are not pursued. Diplomatic considerations may play a role in some cases, as well as limitations in how the espionage offences operate in practice.

Because of these limitations, additional measures are necessary to combat the growing threat 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 they do not hand over information sought by foreign actors.