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ASIO's economic espionage


Shredded page containing the words 'top secret'The recent revelations that ASIO raided the offices of Timor Leste's lawyers and detained its star witness just before its case against Australia (alleging that it bugged Timor's cabinet office during the negotiations in the run-up to the signing of the CMATS deal over division of oil reserves) highlights, once again, the question of the linkage between national and commercial interests.

Attorney-General George Brandis will not say why ASIO raided the offices of Bernard Collaery and, indeed, the ASIO offices executing the warrant allegedly refused even to show it to those present in his offices at the time. Nevertheless, if the raids do relate to the upcoming arbitration, it would be hard to see how they come within the powers of ASIO, the functions of which, by s.17 of the ASIO Act are clearly restricted to security (i.e. threats to borders or from espionage, sabotage, political violence and the like).

In short, ASIO's governing statute does not permit it to engage in economic espionage. Unfortunately, however, the distinction between government and commercial interests is growing increasingly hard to draw — especially when there are no significant controls on people moving between government and corporate worlds. The Australian foreign minister who signed the deal with Timor which is currently in question, Alexander Downer, is now a lobbyist for Woodside petroleum — the company exploiting the oil reserves which are the subject of the CMATS.

The Snowden revelations published in the Guardian and elsewhere reveal that this is not an exclusively Australian problem: the US and its allies have also allegedly been spying on foreign competitors in Brazil while the Five Eyes intelligence-sharing alliance is reported to have spied on G8 and G20 meetings. The Anglophone spies, in short, seem to have gone well beyond their remit of protecting national security — participating in activities which undermine the very ideals of free trade in an open market for which their countries claim to stand.

The problem of commercialisation lies not only with the spies' targets but with the spooks themselves. Traditionally, spy agencies were clearly arms of government with chains of command directly accountable to political leadership. While spies themselves may have had a variety of motivations for acting as they did, national agencies were the places where their information ultimately went and was acted on. While much of the discussions of the Snowden revelations has centred around national security and terrorism, the assumption that a national government is overseeing intelligence collection and can hold it accountable no longer holds.

Not only have politicians in the US and Britain been discovering how little they knew about their agencies' activities, with at least one senior US intelligence official openly admitting that he lied to Congress, it is worth noting that Snowden was not, at the time of his revelations to the Guardian, a government employee at all but was employed by Booz Allen Hamilton, a private firm incorporated under the law of Delaware, USA.

In this capacity, he had access to a trove of secret documents from around the world including those of Australia's Defence Signals Directorate, Britain's Government Communications Headquarters, the United States' National Security Agency, New Zealand's Government Communications and Security Bureau and Canada's Communication Security Establishment. One is almost nostalgic for the days of the Cold War when at least you knew who was supposed to have access to secret information and who was trying to wrest it from them.

All of this conflation of the interests of business, their unelected shareholders and governments leads to worrying possibilities. The last word on these should probably go to Mussolini who famously said, 'Fascism is when you cannot slide a cigarette paper between corporations and government.'

Justin Glyn headshotJustin Glyn SJ is a student of philosophy and theology in Melbourne who holds a PhD in international and administrative law.

'Top secret' image from Shutterstock

Topic tags: Justin Glyn, ASIO, East Timor, Alexander Downer, Edward Snowden, Mussolini



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Existing comments

It beggars belief that Brandis did not order, suggest, or provoke this raid by ASIO. Just look at his record of highly inappropriate intervention in the Thompson case.

Ginger Meggs | 04 December 2013  

This ASIO raid, interfering with due legal process, is the kind of thuggery we came to expect from the Soviet-era KGB. How low have we sunk as a nation when this can happen here? The ASIS whistleblower has, quite rightly, put the interests of his community as a whole before those of the government, and he deserves our appreciation and support. As for Brandis and his troglodyte colleagues, let those who voted for them now search their souls.

Peter Downie | 05 December 2013  

I wonder what would happen if we shut down all of the intelligence gathering agencies?

David | 05 December 2013  

The ASIO world is not confined by s. 17, Justin. ASIO may also be authorised to collect foreign intelligence at the request of the Minister for Foreign Affairs or the Minister of Defence. Such requests are on the basis of warrants specifying the facts and grounds certified by the Director-General of Security, approved by the Attorney-General and reviewed by the Inspector-General of Intelligence and Security on a routine basis.

Gerard Walsh | 05 December 2013  

Thank you Justin for a timely and informative response to a disturbing situation in our Australian life. The blur between political and economic boundaries bodes ill.

M. Confoy | 05 December 2013  

Thanks for that correction, Gerard. The way I read those sections, they still seem to require that the Minister be satisfied that a matter of "security" be engaged before issuing the warrant. Is there a broader power which is not limited to security?

Justin Glyn | 05 December 2013  

The collection of foreign intelligence within Australia is carried out under section 27A and B of the ASIO Act 1979 (as amended) and section 11A, B or C of the Telecommunications (Interception) Act 1979. It is done at the request of either the Minister for Foreign Affairs or Minister for Defence on behalf of ASIS and DSD.

Gerard Walsh | 05 December 2013  

The bitterness and hatred towards the democratic western world which includes USA, England and Australia by some section of the community is really deplorable. It is the western world that has always fought for freedom and democracy, and produced good living standards for its people as well as trying to help the rest of the world

Ron Cini | 06 December 2013  

The assessment by the ABC's FactCheck seems to directly contradict your argument that spying for economic and commercial interests would be unlawful. The ABC FactCheck focuses on the functions of ASIS rather than ASIO and argues that ASIS's functions include spying for Australia's economic well being and that this could include spying to support commercial interests in competitive negotiations. Is it simply a matter of ASIS being able to legally do what ASIO cannot do? The Link to the ABC FactCheck: http://www.abc.net.au/news/2013-12-04/unlikely-alleged-east-timor-spying-illegal-under-australian-law/5134138

Ray Polglaze | 06 December 2013  

Thanks for the best satire of the year Ron.

Marilyn | 06 December 2013  

Dear Ray Thanks for your comment and the very useful article to which it linked. I think that it may be helpful to distinguish between ASIS' original spying and ASIO's subsequent raids. With regard to the original spying, I suggest that deciding whether the raids were lawful requires us to ask the question as to whether and when companies' economic interests are the same as the national interest. Are Australian national interests really no different to the commercial interests of Australian shareholders/directors - regardless of the diplomatic and reputational damage the country may suffer by favouring business interests? Where do we draw a line? Also, even if ASIS' activities may have been lawful (if not honourable), ASIO's powers (detaining people and searching lawyers' offices within Australia) seem to me to be a rather different proposition. ASIO spies internally and is therefore governed by a different statute (because its functions are supposed to be tied to "security"). Given that ASIO can and does detain Australians and search their offices, the question of whether it can act in the government's commercial interests seems to be worth answering as a standalone issue.

Justin Glyn SJ | 07 December 2013  

Come on Ron, now pull the other leg. The western world, like all other 'worlds', has always fought for privileged access to scarce resources. The good living standards that it builds for its own people are paid for by the exploitation of the people and environments of other worlds, and as each resource is bled dry, the western world takes it capital and moves on to another target. Any instance of 'trying to help the rest of the world' is either an accidental spin off of exploitation, or the conscientious work of a few dissidents.

Ginger Meggs | 07 December 2013  

Justin's article and his subsequent reply to Ray are very illuminating. We have Kevin Rudd and Ric Smith to thank in 2008 for expansion of national security definition to cover national economic interests. Some may therefore think that arguments with a small weak neighbour over division of ocean resources are a matter of national security and therefore legitimate ASIS espionage targets? I do not share that view and neither do Justin nor Ray. This is something to build on. Perhaps someone in relevant parts of our govt reads such articles and letters. This seems to me the nub of the issue Brandis should consider..

Tony kevin | 08 December 2013  

Here are examples of the economic espionage *by* the Australian government to benefit government business partners, stealing IP from the private sector - stealing from companies not powerful enough to fight them in the courts: http://www.crikey.com.au/2013/12/02/revealed-the-government-agency-stealing-ideas-from-businesses/

Brendan Jones | 08 December 2013  

Put it together with universal cross border financial data exchange via FATCA inter-governmental agreements plus mutual tax enforcement and no one has privacy or can avoid being crushed by governments, who are entering into coalitions to spy on all aspects of their citizens' lives. This is the mark of the democratic totalitarian corporate State.

Terry Dwyer, Dwyer Lawyers | 30 May 2014  

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