Kylie Moore-Gilbert, a Middle East expert from the University of Melbourne, has now been held by the Iranian government for almost two years.
She was arrested in September 2018 and then convicted of spying and sentenced to ten years’ jail. She has denied all allegations against her, and the Australian government rejects the charges as baseless and politically motivated.
Until recently, Kylie has been in solitary confinement in Iran’s Evin prison, run by the Iranian Revolutionary Guard Corps. But this week, she was transferred to Qarchak, which is notorious for its brutal treatment of prisoners.
Kylie is a colleague and a friend. For the past two years, I have been keeping silent in the hopes a quiet diplomatic approach would secure her freedom.
But it is hard to overstate how horrific this week’s development is. Australia needs to do more.
I am a Middle East analyst, who specialises in the Persian Gulf. In fact, Kylie and I first met because we both work on state-society relations in Bahrain. I can see, examining the treatment of other foreign political prisoners in Iran, that Kylie has been treated exceptionally poorly.
Media reports indicate Kylie was able to speak to her family about a month ago and Australian diplomatic staff have also been in contact.
However the Department of Foreign Affairs and Trade’s statement this week – that they are “urgently seeking further consular access to her at this new location” and “hold Iran responsible for Dr Moore-Gilbert’s safety and well-being” – suggests Australia was not consulted before her transfer to Qarchak.
On Wednesday, The Guardian reported a recording of Kylie out of Qarchak. Speaking Persian, she says:
I can’t eat anything. I feel so very hopeless […] I am so depressed.
Is this all two years of diplomacy has bought us?
Australia must do more
I am not speaking out now to challenge this quiet diplomatic approach regarding Iran. I am speaking because I believe more public pressure must be placed on the Australian government to ensure it is living up to its own rhetoric.
DFAT claims Kylie’s case is “one of the Australian government’s highest priorities, including for our Embassy officials in Tehran”.
But the amount of secrecy involved in the process means we cannot know if this is true.
Even though the situation is sensitive, there are avenues Australia can pursue on behalf of Kylie.
Based on my analysis of publicly reported cases, around one in three foreign political prisoners in Iran over the past five years have been released via a prisoner swap. This reportedly includes Australian tourists Jolie King and Mark Firkin who were arrested in Iran last year.
Based on publicly available knowledge, Australia does not currently hold any Iranian prisoners. However our key ally, the United States, does.
The politics are not straightforward
It must be acknowledged that the politics around this case are very complicated. Relations between Iran and the US and far from friendly – especially after the assassination of Iranian Revolutionary Guard Corps commander Qassem Soleimani in January 2020.
There is another problem, too.
Despite Australia maintaining constructive relationships with Iranian President Hassan Rouhani and Foreign Minister Mohammad Javad Zarif, they are not the key to securing Kylie’s freedom.
The Iranian political system is fragmented and parts of the army, judiciary and intelligence agencies report to Iran’s Supreme Leader, Ayatollah Ali Khamenei.
Rouhani and Khamenei’s relationship is also poor and Khamenei’s influence has grown since Kylie was first incarcerated. Iran will hold presidential elections in 2021 and as Khamenei seeks to secure Iran’s future, he may attempt to empower a more hardline president.
This means Australia must think outside the box to secure Kylie’s release. The solution to this crisis is undoubtedly a diplomatic one – and we clearly need to spend more diplomatic capital than we’re already using to fix it.
But it will become more difficult if we do not put sufficient resources into her release before the next presidential election.
This case is relevant for all of us
COVID-19 also makes Kylie’s situation more urgent. My assessment is the Australian government must urgently push for Kylie’s immediate transfer out of Qarchak prison, to a safe location where her consular access and health can be protected.
There is precedent for foreign detainees to be transferred to house arrest in embassies while cases are resolved.
Beyond the harrowing personal situation, Kylie’s case is also relevant to all of us. It fits a wider pattern, where the space for academic research is being narrowed in authoritarian states. This is occurring not just in Iran but in countries such as China, the United Arab Emirates and Saudi Arabia.
If this research cannot be conducted, or if the Australian government fails to protect its researchers who need to do fieldwork in these countries, this allows authoritarian states to silence criticism.
And then set the narrative about their internal politics as they see fit.
The federal government has announced it will spend more than a billion dollars over the next ten years to boost Australia’s cyber defences.
The announcement can be seen as a mix of the right stuff and political window dressing – deflecting attention away from Australia’s underlying weaknesses when it comes to cyber security.
What is the funding for?
Morrison’s cyber announcement includes a package of measures totalling $1.35 billion over ten years.
This includes funding to disrupt offshore cyber crime, intelligence sharing between government and industry, new research labs and more than 500 “cyber spy” jobs.
As Morrison explained
This … will mean that we can identify more cyber threats, disrupt more foreign cyber criminals, build more partnerships with industry and government and protect more Australians.
They key aim is to help the country’s cyber intelligence agency, the Australian Signals Directorate (ASD), to know as soon as possible who is attacking Australia, with what, and how the attack can best be stopped.
Australia’s cyber deficiencies
Australia certainly needs to do more to defend itself against cyber attacks.
Intelligence specialists like top public servant Nick Warner have been advocating for more attention for cyber threats for years.
The government is also acknowledging publicly that the threats are increasing.
Earlier this month, Morrison held an unusual press conference to announce that Australia was under cyber attack.
While he did not specify who by, government statements made plain it was the same malicious actor (a foreign government) using the same tools as an attack reported in May this year.
This type of threat is called an “advanced persistent threat” because it is hard to get it out of a system, even if you know it is there.
All countries face enormous difficulties in cyber defence, and Australia is arguably among the top states in cyber security world-wide. Yet after a decade of incremental reforms, the government has been unable to organise all of its own departments to implement more than basic mitigation strategies.
New jobs in cyber security
The biggest slice of the $1.35 billion is a “$470 million investment to expand our cyber security workforce”.
This is by any measure an essential underpinning and is to be applauded.
But it is not yet clear how “new” these new jobs are.
The 2016 Defence White Paper announced a ten year workforce expansion of 1,700 jobs in intelligence and cyber security. This included a 900-person joint cyber unit in the Australian Defence Force, announced in 2017.
The newly mooted expansion for ASD will also need to be undertaken gradually. It will be impossible to find hundreds of additional staff with the right skills straight away.
The skills needed cut across many sub-disciplines of cyber operations, and must be fine-tuned across various roles. ASD has identified four career streams (analysis, systems architecture, operations and testing) but these do not reflect the diversity of talents needed.
It’s clear Australian universities do not currently train people at the advanced levels needed by ASD, so advanced on-the-job training is essential.
Political window dressing
The government is promoting its announcement as the “nation’s largest ever investment in cyber security”. But the seemingly generous $1.35 billion cyber initiative does not involve new money.
The package is also a pre-announcement of part of the government’s upcoming 2020 Cyber Security Strategy, expected within weeks.
This will update the 2016 strategy released under former prime minister Malcolm Turnbull and cyber elements of the 2016 Defence White Paper.
The new cyber strategy has been the subject of country-wide consultations through 2019, but few observers expect significant new funding injections.
The main exceptions which may receive a funding boost compared with 2016 are likely to be in education funding (as opposed to research), and community awareness.
With the release of the new cyber strategy understood to be imminent, it is unclear why the government chose this particular week to make the pre-announcement. It obviously will have kept some big news for the strategy release when it happens.
The government’s claim that an additional $135 million per year is the “largest ever investment in cyber security” is true in a sense. But this is the case in many areas of government expenditure.
The government has obviously cut pre-planned expenses in some unrevealed areas of Defence.
Meanwhile, the issues this funding is supposed to address are so complex, that $1.35 billion over ten years can best be seen as an incremental response to a radical threat.
Australia needs to do much more
According to authoritative sources, including the federal government-funded AustCyber in 2019, there are a number of underlying deficiencies in Australia’s industrial and economic response to cyber security.
These can only be improved if federal government departments adopt stricter approaches, if state governments follow suit, and if the private sector makes appropriate adjustments.
Above all, the leading players need to shift their planning to better accommodate the organisational and management aspects of cyber security delivery.
Yes, we need to up our technical game, but our social response is also essential.
CEOs and departmental secretaries should be legally obliged to attest every year that they have sound cyber security practices and their entire organisations are properly trained.
Without better corporate management, Australia’s cyber defences will remain fragmented and inadequate.
Much of the media commentary on the government prosecution of Witness K and his lawyer Bernard Collaery has focused on government duplicity in suppressing the trial until it had its oil and gas treaty signed with Timor-Leste.
But this focus on government hypocrisy has neglected the accountability of the director of public prosecutions, Sarah McNaughton. The prosecution policy of the Commonwealth says:
The decision to prosecute must not be influenced by any political advantage or disadvantage to the government.
McNaughton’s job is to be the key politically independent actor in the process. She must be a check on state political revenge.
This is why the case should of course be in open court, so the public can see how the DPP justifies its independence in the case.
The reason people are worried about the case is that it has the appearance of state revenge against Witness K, who complained through proper channels about the illegality of the bugging he was asked to do, but a decade on served the public interest by blowing the whistle.
Alexander Downer was foreign minister when our international intelligence services were moved away from their counter-terrorism work to focus on commercial espionage on behalf of oil magnates who later offered him a lucrative consultancy. Witness K went public after Downer started working for the consultancy.
So, let the public see in open court whether this is, or is not, a coin-for-the-crown-case that rightly provoked a whistleblower, and not a political revenge case.
Public confidence has been shaken
An even greater concern is that K’s lawyer, Collaery, has been swept up in the government’s prosecution.
From assault to complex commercial crimes, it is common for both sides to make allegations of criminality against the other. We expect the DPP to show independence in assessing who is the greatest victim of crime in complex cases like this. That person will be the least likely to be prosecuted.
The prosecution policy of the Commonwealth also requires the DPP to take into account the views of crime victims in deciding how to manage its deliberations, not only about whether to prosecute. In this case, the public needs to see what kind of victim support services are being provided to Collaery.
For example, the DPP should be asking the government as one of the alleged offenders to make one very public announcement. This is that Australia will continue to abide by the spirit of the International Court of Justice order that the government keep sealed the documents it seized from Collaery’s office in 2013.
The Commonwealth should also assure the public that it will continue to desist from spying on Collaery’s legal work and any bugging or invasion of Collaery’s office.
Further, the prosecution policy says the government should avoid cases that “undermine the confidence of the community in the criminal justice system”.
That confidence has already been shaken by this case. It will be further shaken if much of it were heard in secret. “Openness” and “accountability” are specified in the policy, binding the DPP to “maintain the confidence of the public it serves”.
Citizen confidence that counter-terrorism laws would not be used against civilians is a public issue. It seems these laws are now hanging over Witness K and Collaery, who most Australians view as patriots rather than terrorists.
Question of resources and timeliness
Lastly, the prosecution policy emphasises that prosecutorial resources are limited. Only those cases most worthy of prosecution should go forward.
Banking and insurance crimes are a real threat to the security of our financial system. These are the kinds of cases where the “public interest” test demands more focused resources, not cases against public-spirited civil servants.
Another element of the prosecution policy is that the passage of time since the alleged offence occurred should also be taken into account.
In this prosecution, the passage of time has been taken into account in the wrong way, delaying prosecution until a political interest of the government has been realised.
Rarely have the courts in our country faced such a moment of truth for our justice values.
What’s the rush? If you believe Federal Attorney-General Christian Porter, unless two pieces of security legislation are in place in the remaining two weeks of parliament before the winter recess, the country will be in peril.
This was the line Porter was taking yesterday on the release of the Advisory Report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill.
His argument is nonsense. Labor should also be taken to task for being party to a hasty process that appears on the face of it to be expedient. Labor’s persistent concern is to avoid being wedged on security issues.
Under the proposed legislation, bodies such as Amnesty International that have been critical of Australian government policies may be vulnerable.
Porter wants two separate tranches of legislation – the Espionage and Foreign Interference Bill and a Foreign Influence Transparency Scheme Bill – to be passed before the Super Saturday byelections on July 28.
Porter’s argument appears to be that unless the legislation passes in the concluding two weeks of the midyear session of parliament, those byelections will be conducted in a perilous atmosphere. He said:
There’s an unprecedented level of foreign intelligence activity in Australia and that means more foreign agents and more foreign power using more tradecraft and more technologies to engage in espionage and foreign interference and the attempted foreign influence of our democratic processes.
And that increase in volume is detectable even in the period of time that this piece of legislation has been under consideration by the committee.
No reasonable person would argue against the need for beefed-up legislation to deal with challenges to democratic processes such as those witnessed during the recent US election.
Russian cyber interference in the US political process is hardly in question, nor attempts by Russian agents of influence to suborn the system. The question is to what degree?
What is proposed in Australian legislation foreshadowed by Prime Minister Malcolm Turnbull late last year is a new and far-reaching suite of laws aimed at limiting foreign interference.
An initial version of the bill was poorly drafted. It represented an unreasonable threat to individual liberties and freedom of expression.
It was particularly antagonistic to journalists operating in the security space. Long jail terms for publication of unauthorised security material were incorporated.
The insertion of a public interest amendment has somewhat alleviated that risk.
Fairfax Media’s publication overnight of leaked documents dealing with alleged war crimes by members of the Special Air Service might have fallen foul of such provisions, and may still do so.
Media coverage of the draft amendments to the Espionage and Foreign Interference Bill has been relatively favourable. However, this might have less to do with the merits of the legislation than with relief the bill is less threatening to legitimate inquiry than an earlier draft.
In all, parliament’s Joint Committee on Intelligence and Security made 60 recommended amendments to the Espionage and Foreign Interference Bill.
Most of these recommendations are cosmetic, except those relating to journalistic inquiry. They include the need for security certifications to be validated before proceedings could be initiated for an espionage or secrecy offence, and a review of the legislation by the National Security Legislation Monitor after three years.
Urging quick action on the Espionage and Foreign Interference Bill, Porter argued that a second bill, the Foreign Influence Transparency Scheme Bill, was required to complement the main piece of legislation.
This refers to legislation that sought to proscribe involvement in Australian political processes not just by foreign governments and their agents, but by entities like GetUp, which has drawn part of its funding from foreign sources.
The scope of this proposed legislation – which is yet to be agreed by the JCOIS – has now been limited to foreign governments, foreign-related entities, foreign political organisation and foreign government-directed individuals.
Foreign companies would be excluded from this provision unless it could be demonstrated they were closely connected to a foreign government or political organisation.
In such cases, government-dominated companies, even those associated with friendly nations, would be required to register under the proposed law.
In efforts to guard against interference by individuals or companies who might be connected with a foreign government, the Attorney-General’s Department would be empowered to issue “transparency notices” to identify such individuals or companies.
An appeals process against these findings would be available through the Administrative Appeals Tribunal. Porter said:
It’s vital that our national security legislation and framework reflects the modern challenges that we face … that framework remains dangerously incomplete while these two remaining and critical bills remain unlegislated.
As interested parties digest the provisions of the proposed amendments, it’s likely more objections will be raised, such as those by Claire O’Rourke, one of Amnesty’s Australian representatives.
O’Rourke told The Guardian that under the Foreign Influence Transparency Scheme Bill charities like Amnesty that hold the Australian government to account on its human rights record could face criminal charges. She said:
This is clear government overreach and a cynical exercise by both sides of politics to shield themselves from the scrutiny of Australian society, including charities.
The upshot of all this? Quite simply, more time is needed to review proposed amendments.
Australia’s intelligence services have been happy — at least in principle — to share raw data about the communications of Australian citizens with espionage partners in the U.S. and Britain, according to the latest NSA leak published by the Guardian.
Australia is part of the so-called Five Eyes alliance, which was set up in the turbulent 1940s as a way for a core group of English-speaking nations to share signals intelligence with one another and to avoid spying on one another. The other members are the United States, United Kingdom, Canada and New Zealand.
The latest piece of surveillance-related information, brought to light by NSA whistleblower Edward Snowden, records a meeting held by the five countries’ intelligence services in 2008. At that meeting, the services discussed how comfortable they were with sharing metadata – the fragments of recorded information that tell the spooks who contacted whom and when.
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