What are the Authorities hiding?
“I am aware of the foreign interference and espionage act because my agency was involved in them with others. And then some time after that the counter foreign interference agency was stood up which involves my agency, the Federal police and other agencies.”
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In estimates I asked Mike Burgess, the head of ASIO, why he hasn’t sought to refer the politician who in his words “sold Australia out” to foreign spies.
ASIO and both major parties are claiming nothing can be done because the espionage act was introduced after the politician sold us out.
This is a lie.
S142.2 of the 1995 Commonwealth Criminal Code Act makes it an offence for a public official to dishonestly obtain a benefit for himself.
What’s worse is that a barrister has written to ASIO and the AFP advising them of this act.
Despite this, ASIO and the AFP have done nothing to bring this traitor to account.
It’s just another example of how there is one rule for politicians and bureaucrats in this country and another set of rules for the battlers.
The Head of ASIO and the AFP should be sacked for this. They refused to look into Edward Holmes who worked with the Chinese and Americans in regards to Gain-of-Function and now they are refusing to look into this.
Furthermore, why aren’t the opposition making a song and dance about this. What are they covering up?
Here’s an overview of the role and powers of ASIO:
The Australian Security Intelligence Organisation (ASIO) is Australia’s primary national security agency, responsible for protecting the country from various threats.
ASIO’s Duties and Responsibilities:
ASIO’s primary functions include:
1. Collecting and analyzing intelligence on security threats
2. Conducting investigations and surveillance
3. Advising governments on security matters
4. Conducting security assessments for government agencies
5. Countering terrorism, cybercrime, and foreign interference
Investigating and Prosecuting Politicians:
ASIO has the authority to investigate individuals, including politicians, suspected of:
1. Treason
2. Espionage
3. Foreign interference
4. Terrorism
5. Cybercrime
Under the Australian Security Intelligence Organisation Act 1979, ASIO can:
1. Collect intelligence on individuals or organizations suspected of security threats
2. Conduct surveillance and monitoring
3. Interview individuals
4. Conduct searches and seizures (with warrants)
Prosecution:
While ASIO investigates, it does not prosecute. The Attorney-General’s Department, Australian Federal Police (AFP), and Commonwealth Director of Public Prosecutions (CDPP) handle prosecutions.
Relevant Laws:
1. Australian Security Intelligence Organisation Act 1979
2. Crimes Act 1914 (treason, espionage)
3. Telecommunications (Interception and Access) Act 1979
4. Surveillance Devices Act 2004
5. Foreign Influence Transparency Scheme Act 2018
Investigating Former or Current Politicians:
ASIO can investigate politicians if there is reasonable grounds to suspect involvement in security threats. However, investigations involving politicians require:
1. Approval from the Attorney-General
2. Consultation with the Prime Minister
3. Oversight from parliamentary committees
Examples:
1. The 2019 investigation into Senator Sam Dastyari’s links to Chinese government agents
2. The 2020 investigation into alleged foreign interference in Australian politics
Oversight and Accountability:
ASIO is accountable to:
1. Parliament’s Joint Committee on Intelligence and Security
2. Inspector-General of Intelligence and Security
3. Australian Human Rights Commission
Related links:
https://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/cca1995115/sch1.html
https://amp.theguardian.com/australia-news/2024/feb/28/australian-politician-sold-out-to-foreign-regime-after-being-recruited-by-spies-asio-boss-says
Legal and Constitutional Affairs Legislation Committee
04/11/2024
Estimates
ATTORNEY-GENERAL’S PORTFOLIO
Australian Security Intelligence Organisation
Senator RENNICK: Mr Burgess, in your annual threat assessment on 28 February, you stated that this politician sold out their country, party and former colleagues to advance the interests of a foreign regime. You then went on to say that several individuals should be grateful that the espionage and foreign interference laws are not retrospective. I’m just curious; are you aware of section 142.2 of the Commonwealth Criminal Code Act, which says: ‘A Commonwealth public official commits an offence, if the official engages in conduct with the intention of obtaining a benefit for himself or herself’? How does that ex-politician who sold out his country not fall into this category? And why is ASIO claiming that this official can’t be prosecuted?
Mr Burgess : Firstly, I’m not aware of that law. I’m not a law enforcement agency so I wouldn’t expect me or my agency to be across that. We don’t do prosecutions.
Senator RENNICK: Okay. I understand that you’ve received correspondence from barristers to make you aware of that particular legislation. So I’m a bit surprised that you’re claiming that you’re not aware of it, because—and I’ve tabled it—correspondence has been sent to you. Anyway, now that you are aware of it, are you prepared to actually prosecute this politician on the basis that they sold out their country?
Mr Burgess : Again, I’m not law enforcement. I have no ability to prosecute anyone.
Senator RENNICK: So you can call—
Senator Watt: Senator Rennick, I suspect you might be able to get some answers to that—the DPP will be giving evidence around this time tomorrow night. And, obviously, the AFP will be giving evidence at this stage tomorrow afternoon. Perhaps they might be able to assist you.
Senator RENNICK: Okay. Let me put this question to you, Minister, or Mr Burgess. Do you believe that it’s in the public interest that this particular politician is prosecuted and is subject to trial by jury so that the Australian people can make an assessment on whether or not a crime has been committed?
Senator Watt: I think as a general proposition I’d say I think it is in the public interest that the AFP and the DPP are able to independently make a judgement on whether an individual should be prosecuted for any offence. But I’m not going to be telling them who to prosecute. That’s not really how our justice system works in this country.
Senator RENNICK: If you’re not going to tell them—if the government is not going to tell them who to prosecute now that you’re aware of this legislation, who is?
Senator Watt: I think we’d be getting into a pretty dangerous world if we had politicians telling the AFP who they should prosecute. I think the whole point of having an independent police force and an independent prosecution agency is so they can make those judgements independent of politicians telling them who to prosecute.
Senator RENNICK: Okay. That’s fine. I note that Mr Burgess was referring to the espionage and foreign interference laws, so he seemed to be aware that that legislation came into place after the event occurred. As head of that intelligence agency and espionage et cetera, I would have thought you’d still know the Criminal Code Act in regards to public officials not receiving benefits from foreign officials. So, yet again, I’d question your knowledge of the law. I would have thought that was one of your requirements as head of Australia’s intelligence agency, to be aware of these laws.
Mr Burgess : I understand your point. Again, I’m not law enforcement. The purpose of raising that was to give an example of what foreign interference looks like in the political system I am aware of the espionage and foreign interference laws that were passed, because my agency was involved in them with others and then, sometime after that, the Counter Foreign Interference Taskforce, which involves my agency, the Australian Federal Police and other agencies, was stood up. Since that time, that taskforce has been very much focused on countering foreign interference, including through the use of law enforcement capabilities to counter that, but that is a matter for the Australia Federal Police as they operate independently in their role.
Senator RENNICK: So you don’t think it’s your role, given that this involves foreign interference, to refer it to the Australian Federal Police?
Mr Burgess : Well—
Senator RENNICK: I would have thought it was, because it’s foreign interference, and we know that the Criminal Code says you cannot take benefits, personal gain—
Mr Burgess : I don’t think it’s my role to determine which part of the law should be used against anyone even in historic cases. I’m not aware of this correspondence you’ve made available here today. This is a letter to someone else, not to me. Now that you’ve raised it, I’m sure the police can take it under consideration.
Senator RENNICK: Would you like to see this person prosecuted? Do you think it’s in the national interest?
Mr Burgess : My view on this is simple: I’m not
Senator RENNICK: I’ll retract that statement and ask you another question as I was asking for your opinion. Was this particular politician ever a minister or a lobbyist?
Mr Burgess : I’m not going to comment on that.
Senator RENNICK: You can’t comment on that?
Mr Burgess : No.
Senator RENNICK: You don’t think it’s in the national interest that we know if this person was a lobbyist? I’m more interested if they’re a lobbyist.
Mr Burgess : I’m not sure what’s behind your question. If they’re doing foreign interference today, they’ll fall squarely into the remit. As I’ve said in that threat assessment, this problem has been dealt with.
Senator RENNICK: Well, it hasn’t really, because this person hasn’t been prosecuted and there’s a section of the act that says this person can be prosecuted.
Mr Burgess : I’ll leave that for others, but from my point of view, the espionage and foreign interference laws were not in place and, therefore, what they were doing at the time was not unlawful. If others can determine that it was unlawful, then that’s a matter for others, not for ASIO.
Senator RENNICK: To be clear: you’re saying you have got authority with the espionage laws but not the criminal code?
Mr Burgess : There is legislation that makes acts of foreign interference unlawful—either the preparation for the act of foreign interference or the act of foreign interference itself. Of course, to do that, the police actually require evidence, including the link to the foreign power directing it, and that can be difficult. I’m not commenting on the particular example I gave; I’m just saying that that is the law that we have today and, where that law is used, it’s the Australian Federal Police, not ASIO, that actually takes that up.
Senator RENNICK: That’s my question: you did raise it. You raised it back in February and, as other ex-politicians have said, they consider that as being unfair on them because there’s now a question mark over all ex-politicians. Don’t you think it’s in the national interest that this person is identified so that people know exactly who betrayed their country—or ‘sold out the country’, in your words. Isn’t that in the national interest?
Mr Burgess : I will leave it for others to judge whether there’s something to be prosecuted here or not. Again, I’m not a law enforcement agency.
Senator RENNICK: Your own words were:
Several individuals should be grateful the espionage and foreign interference laws are not retrospective.
Mr Burgess : Yes, that’s a judgement, but whether that’s acted upon or not is not a matter for Director-General of Security.
Senator Watt: I think the point Mr Burgess was making—and, obviously, he can tell me if I got this wrong—was that, had the espionage and foreign interference laws been in force at the time this act occurred, that person could have been prosecuted under those laws. But, because the act occurred before those laws were in force, they couldn’t be prosecuted under those laws. You’ve raised a separate question, which is under more general federal criminal law—whether someone could be prosecuted for those offences—and that’s something that’s really outside ASIO’s bailiwick. I would have thought that’s probably a decision for the AFP or the DPP, because they administer Commonwealth law generally. That’s why I was suggesting maybe you’re better off putting those questions to those agencies when they appear tomorrow.
CHAIR: Senator Rennick, we’re going to run out of time.
Senator RENNICK: Okay. This is my last question. How do you go about referring this particular issue to the AFP? Can I do that as a senator?
Senator Watt: I think anyone can.
Senator RENNICK: Can I refer to the AFP and ask them to investigate?
Senator Watt: Yes.
Senator RENNICK: Thank you.
