‘‘In the end,’’ Tony Abbott declared this week, ‘‘leadership is about preserving national unity.’’ So, to strengthen cohesion in the face of new terrorist threats, the Prime Minister junked a promise to repeal the law that makes it an offence to ‘‘offend, insult, humiliate or intimidate’’ people on the grounds of race.
‘‘I don’t want to do anything that puts our national unity at risk at this time, and so those proposals are now off the table,’’ is how he explained the dumping of plans to repeal section 18C of the Racial Discrimination Act.
On one interpretation, the link was logical: a plan that was overwhelmingly unpopular in ethnic, indigenous and mainstream communities was being jettisoned in order to promote a rational discussion about how best to respond to the radicalisation of those who take part in terrorist activities abroad.
Here was Abbott as consensus leader, bowing to the will of the people on one divisive issue and pledging that all voices, especially those of Australian Muslims, would be heard in framing new meassures to counter the growing threat of home-grown terrorism. Had there been a post-budget epiphany?
But on another interpretation, the link was inappropriate and troubling: a plan that could unleash bigotry in the name of free speech had been dumped and, almost as a quid pro quo, those who had opposed it were being asked to accept less freedom of speech and movement to demonstrate their membership of ‘‘Team Australia’’.
As Ghaith Krayem, secretary of the Islamic Council of Victoria, expressed it: ‘‘The effect of what the Prime Minister has done is put the Muslim community in a position where we are seen to be un-Australian by not supporting the government on the anti-terror stuff, and that they had to, in effect, buy us out by conceding on 18C. It’s just an atrocious way for a prime minister to behave.’’
If the sceptics were leaning towards this second interpretation immediately after Abbott made his announcement on Tuesday, they were even more uneasy by week’s end. Among their ranks were Muslim community leaders, academics, free speech advocates, civil libertarians and respected authorities on counter-terrorism laws.
So how did it all go so wrong? The explanation has to do with process, presentation and politics, and begins early in the week with two well-informed leaks to Sydney’s Daily Telegraph that certain government insiders believe emanated from the Prime Minister’s office.
The first reported that Australians who travel to Syria or Iraq will have to prove to authorities on their return that they were not involved in terrorism, in an apparent reversal of the onus of proof. The second announced that cabinet’s national security committee had decided that the phone and internet records of everyday Australians would be held for two years.
Even if the leaks did not come from the Prime Minister's office, they raised serious questions. ‘‘It undermines everything,’’ an exasperated government source said. ‘‘Are we taking national security or the cabinet process seriously?’’
Both stories were confirmed when the Prime Minister stood with Attorney-General George Brandis and Foreign Minister Julie Bishop on Tuesday and announced new measures to give security agencies ‘‘the resources and legislative powers needed to combat home-grown terrorism and Australians who participate in terrorist activities overseas’’.
But the lack of detail prompted criticism, with barrister Bret Walker, the former independent monitor of national security legislation, among those to express concern that the proposed Counter-Terrorism Foreign Fighters Bill held out the possibility of a ‘‘really inappropriate piece of criminal law’’.
The difficulty for those accused under the law, as Walker sees it, will be in producing the evidence to convince a judge that, ‘‘on the balance of probabilities’’, they were in the designated place for a legitimate purpose. Other concerns include the plan to toughen a preventative detention regime that has never been used and that two independent inquiries have recommended should be repealed.
Then came the promise to extend the offence of ‘‘advocating the commission of a terrorist act to include the promotion or encouragement of terrorism’’, when incitement to commit atrocities is already an offence. ‘‘If we have to pile law on law, then I suppose that won’t do much harm,’’ says Walker. ‘‘On the other hand, engagement in political discussion, including the utterance of things to which many people would be bitterly opposed, that would be extremely problematic and probably a breach of our international obligations in relation to freedom of opinion.’’
But most contentious of all was the announcement by Brandis that legislation for metadata retention had been approved in principle ‘‘and is in development from today and will be introduced in Parliament later this year’’. Problem was, Brandis struggled to explain what metadata was, in a Sky News interview that quickly went viral.
It then emerged that Malcolm Turnbull, the most tech-savvy member of cabinet, had not been brought into the national security committee conversation, and only became aware of the plan when the Telegraph story was brought to his attention.
Turnbull has since tried to limit the damage, convening a meeting with Brandis of the security agencies and assuring Australians that only data that is already kept would be covered by the plan – the only difference being that security agencies want it kept for two years. Walker does not see this as problem, provided the agencies require a warrant to access information.
How the issue plays out from here depends on the consultation process and the legislation that Brandis ultimately produces, but the relief among Coalition MPs, especially those serving multicultural electorates, that 18C is secure has been replaced by nervousness that something potentially more divisive than its repeal is now in store.
It was Brandis who gave the most plausible explanation for the 18C retreat in the now infamous Sky interview with David Speers. ‘‘I accept the Prime Minister’s view that the government needs to focus on a smaller number of core priorities and that was the reason for his decision,’’ he said.
The consensus of the cabinet and the entire government party room is summed up by an MP who says the 18C repeal plan was ‘‘a dog that had to be put down’’. The collective concern now is that another, more dangerous dog has been let off the leash.
Michael Gordon is political editor of The Age.