ASIO has revealed an Australian politician betrayed the nation. Here’s what we know

When Mike Burgess speaks, people listen.

It’s not that the Australian Security Intelligence Organisation’s (ASIO) boss is a recluse — compared to his predecessors, he’s much more media friendly and savvy.

And it’s the revelation from his annual threat assessment speech on Wednesday night, that a former politician was cultivated by foreign spies, that’s set tongues wagging in Canberra.

The questions on everyone’s lips: who is this person, and what consequences will they face for their actions?

Who is the former politician?

Mr Burgess was very careful and guarded in his language, when describing the politician.

He didn’t give much away.

All we know is that they’re a retired politician, who was recruited several years ago by a group of foreign spies from an unnamed country referred to by ASIO as the “A-Team”.

There’s no detail as to age, gender, political affiliation, when they retired, whether they were a frontbencher or a backbencher.

The accusation from Mr Burgess that this individual tried to bring a member of a prime minister’s family into the “orbit” of the spies suggests they were pretty well connected – although, that could be many people in politics.

“A foreign government has attempted to infiltrate at the very top of Australian politics,” Home Affairs Minister Clare O’Neil told the ABC’s Afternoon Briefing.

“Every politician in this country needs to understand that the work they do and the information they have is incredibly valuable to foreign governments and there will be attempts to use friendships, to use networks, to use technology to try to find out that information.

“We all have to do a better job of protecting ourselves.”

Aren’t there foreign interference laws to deal with this sort of behaviour?

Yes, there are.

The Turnbull government proposed a sweeping overhaul of espionage and intelligence laws in 2017, and they passed parliament the following year.

At the time, then-prime minister Malcolm Turnbull said the laws were not focused on one country alone – although, the relentless ambition of China is often cited as a key driver of the measures.

There were a few key elements to the legislation.

A registry was created, where people working or acting on behalf of a foreign power needed to declare what they were doing.

The definition of espionage was also broadened to modernise the range of other activities that could be seeing as interfering with the nation’s affairs.

And new offences were created targeting foreign influence of the nation’s political class.

So why haven’t there been charges in this case?

This is where it gets interesting.

The latest legislation only came into effect in 2018. The type of behaviour that Mr Burgess was describing, if covered by the new offences and definitions, may well have occurred prior to that.

When revealing the laws in December 2017 and asked whether they would apply retrospectively, then attorney-general George Brandis had a simple response: “no.”

Of course, espionage laws were on the Commonwealth books prior to 2018 – in a slightly different form.

“I think this is old fashioned espionage, and I think it’s been a crime in Australia since 1914,” Michael Shoebridge from Strategic Analysis Australia told ABC NewsRadio.

“So even though Mr Burgess told us this happened some years ago, before the espionage laws were strengthened, it still would have been a crime at the time — and I can see no reason that there shouldn’t be a prosecution.”

Shadow Home Affairs Minister James Paterson, a former chair and current member of the parliamentary joint committee on intelligence and security (PJCIS), said it was “a regret” the individual wouldn’t face legal consequences.

“I think it would be very powerful and important if someone has betrayed their country, particularly someone who has the honour of representing their country in the parliament, that they face legal consequences and very serious ones for that,” he said.

“But the reality is the laws weren’t there when this conduct occurred.”

What happens if the incident happened after the new laws came into force?

If the conduct happened after the 2018 laws came into effect, there’s a debate as to whether it meets certain legal thresholds and whether ASIO would want to pursue the matter through the courts.

You’d think that if Mr Burgess was prepared to identify that a former politician had been involved in an espionage mission, the evidence he’s relying on is pretty rock solid.

But running a case like that through the courts could pop the hood on ASIO tactics and methodology, which the agency would likely want to keep under wraps – even if that evidence was subject to wide ranging security-based suppression orders in court.

The benefit of a prosecution looks like it’s been weighed up by Mr Burgess, who also noted that he didn’t believe the former politician would “be stupid enough to repeat what they’ve done in the past” after they were tapped on the shoulder.

“So problem neutralised, harm in some elements was done.”

Why reveal a former politician was involved then?

This is a point that has angered some – particularly the former treasurer and former ambassador to the United States, Joe Hockey.

He said to make such an assertion, and not name the individual, smears the entire political class.

“I say this very respectfully — I’m a politician, I’m not remotely offended by what the director-general has shared here,” Ms O’Neil rebutted.

“It’s very important that political leaders, business leaders and in fact ordinary Australians understand they are likely to be the targets of this behaviour.

“This is the modern world that we live in.”

Clare O’Neil says she’s not offended the traitor politician has been left unnamed, opening the floor for widespread questioning.(ABC News: Nick Haggarty)

Shadow Foreign Minister Simon Birmingham reckons more information is needed, and suggested Ms O’Neil use parliamentary privilege to name the individual.

“There absolutely would be benefit in ensuring not all politicians carry some sort of smear upon them and so the home affairs minister should make a statement to the house providing as much detail as possible,” he said.

“I have a fair idea who it is, but I won’t publicly speculate,” Shadow Home Affairs Minister James Paterson noted.

It’s worth noting Senator Paterson, as a PJCIS member, is covered by national security legislation blocking him from revealing briefings from intelligence agencies.

Senator Birmingham is too.

Mr Burgess is clearly trying to make a point here about the shifting threat to Australia’s national security – moving from terrorism, which is still present, to foreign interference and influence.

By throwing out this example, he’s got people talking, and in carefully crafting his remarks he’s said a lot without saying much at all.

It’s sending a rocket up politicians, past and present, that they’re in the sights of foreign spies and need to be careful how they act in future, as well as ensuring ASIO gets the support it needs from government to continue its crackdown on foreign interference.