For several reasons Australian national security policy is more fraught than it should be:
- The risks of terrorist violence are hard to relate to experience - roughly speaking in Australia more people are killed or injured in domestic violence each week than have been killed or injured by terrorist violence in the past 20 years.
- Governments have been too intolerant of public debate about national security - questioning their proposals is too readily dismissed as "being soft on terrorism".
- Politicians have magnified public anxieties and there's too much political following and not enough political leadership.
- The need for secrecy is exaggerated and the willingness to explain is too limited - a big fence is needed to protect Parliament House but the need can't be explained.
- The Department of Home Affairs is failing because it cannot do otherwise - no rationale has been provided for this organisation because there isn't one.
The small signs say a lot. Think about the secretary of the Department of Home Affairs who complimented the "risk savviness" of a woman who wore flat soled shoes to an AFL grand final so she could quickly scoot away if there was an atrocity at the event. One may laugh at such a silly mindset until it's remembered it's possessed by one of the government's principal national security advisers. Brows might furrow further when it's remembered that this official's minister is Peter Dutton, who thinks the misbehaviour of a certain class of persons is deterring Melbournians from going to restaurants.
After the 9-11 atrocities, an American writer pointed out those using violence as a political tactic want three things - recognition, reaction and reward. Many governments have obliged these expectations extravagantly. The Bush "war on terror" allowed murderers to parade as soldiers. The demands of celebrity have turned the leaders of terrorist gangs into pin-up boys and the grandiosely publicised killings of some of them have made them martyrs, whose usefulness may be more effective dead than alive. Finally, the greatest reward for modern terrorists has been the unwillingness of democratic governments to rely sufficiently on the strength of existing laws to control the menace but to curb hard won civil liberties in the name of "making people safe".
So bastions of democracy undermine themselves. Their claims about strong responses to terrorist threats are signs of weakness showing a lack of faith in the strength and resilience of longstanding laws and institutions. So it has been in Australia.
In his excellent new book Secret: The Making of Australia's Security State (Melbourne University Press, 2019), Brian Toohey pungently describes how these new laws are creating a "national security state" with "a juggernaut that has already shredded civil liberties". The author says he hopes his book is a "modest counter-narrative to the official accounts of Australia at war and the role of its intelligence services and foreign-run bases". In fact, it is an important historical analysis of Australian national security by the most well-informed and conscientious public commentator in the field.
Toohey pursues the truth relentlessly. He deals firmly and fairly with the falsifiers, dissimulators and cover-up merchants he encounters. At the same time, he readily acknowledges virtue when he finds it. He says that Sir Robert Menzies "usually showed a genuine commitment to the great English legal traditions protecting individual liberty against intrusions by the state - unlike most Australian prime ministers since 2001". He notes that after the Sydney Hilton Hotel bombings in 1978, "the Fraser government did not introduce special terrorism legislation...". And he commends the acumen of the then deputy head of the Prime Minister's Department, Mike Codd, who in 1978 made plain his unease about calling in police to track down leaks of cabinet submissions, including one on national security. The inclinations of Menzies, Fraser and Codd are a stark contrast with today's leaders who are ever ready with new restrictive laws and a willingness to call in the cops at the drop of a hat.
Part seven of Toohey's book is especially telling. He bemoans the "dismantling of the Menzies legacy", the former prime minister's view that "The greatest tragedy that could overcome a country would be for it to fight a successful war in the defence of liberty and lose its own in the process." Toohey says that while Whitlam, Fraser and Hawke "mostly held the line against Australia becoming a security state", since then:
- There has been a vast increase in phone intercepts and access to stored telecommunications data.
- Police have raided politicians' offices in Parliament House and seized thousands of documents.
- Legislation has been introduced to make it a potential criminal offence to be in possession of government documents.
- Seventy-five new terrorism laws have been introduced since 2001 involving greater powers to hold people in custody, jail terms for refusing to answer questions, preventative detention and making murders by a terrorist more serious than other murders.
Toohey also provides a telling critique of the Department of Home Affairs and its leadership.
And Toohey is right about the momentum a secretive national security machine generates. It has become a juggernaut bringing forth ever more legislative proposals compromising civil liberties. Thus, in another strike against the judgment of the Home Affairs Minister and his department, recent proposed identity matching legislation using a data base including all people with passports, drivers' licences or photographic identification has been pulled up by the Parliamentary Joint Committee on Intelligence and Security. The Human Rights Commission was not alone in warning the bill would "impinge on a number of human rights in ways not demonstrated to be necessary or proportionate to achieving its objectives".
Secrecy fortifies power and it appears as if the lessons of the claims made in the name of "on water matters" are being applied more generally.
The Prime Minister, who may have invented the "on water matters" blanket, is setting the tone and style. His all too frequent response to awkward questions to which honest, frank replies might be politically embarrassing, is to change the subject, abuse an innocent bystander, allege the matter is just gossip or blame the blasted "Canberra bubble".
It's infectious. So the audit office is denied information it would normally have expected to obtain as a matter of course. A journalist is pursued. The queues on freedom of information requests bank up while senior officials who should know better allege, without the slightest evidence, that FoI legislation is imperilling the quality of policy advice to government. The "system" seems to be less open and accountable.
In a recent submission to the committee, Michael Shoebridge, the director of defence strategy and national security at the Australian Strategic and Defence Policy Institute and a former deputy head of the Australian Signals Directorate, says that: "Done well, national security enables democracy as it protects our people and our democratic institutions from coercion and allows us to operate a free and open society governed by parliament and law in an environment of healthy, open debate.
"The purpose is to have a free and open society, though not to have national security for itself ... With this in mind, the balance has shifted too far towards not disclosing material that ... could and should be disclosed not just to journalists but to the Australian public. It's time to re-invigorate a healthy public disclosure culture so that more information leaves through the front door."
Shoebridge says that "A strong security culture operates best when it is combined with a healthy disclosure culture." We are some distance from that ideal.
What can be done?
First, it might be hoped that the current review of national security legislation can bring forward proposals to rebalance current policies, laws and operations.
Second, the ASIO and the AFP should be transferred from Home Affairs to the Attorney-General's portfolio, so intelligence gathering and law enforcement functions can operate with appropriate independence.
Third, as Shoebridge suggests, national security officials should attempt to build closer relationships with the media, including by offering regular briefings. That would be better than setting the police onto them and trying to get them behind bars.
Fourth, the question of whether people should be prosecuted for possible offences of national security laws should be left entirely to the Director of Public Prosecutions and no minister should be involved in such decisions, as the Attorney-General now is.
Fifth, proposals for new security laws should be widely published in draft form with full statements of reasons in support with adequate time for public consultation and discussion.
Sixth, given the extraordinary growth in the resourcing of security agencies, any bids for increases in their budgets should be subject to the utmost scrutiny.
Seventh, and most importantly, ministers and governments must be more prepared to lead rather than follow public sentiment. They should be open and honest about risks and steps that might be taken to minimise them. If they sense that the level of public anxiety is out of kilter with known reality, they should try to calm it down.
Finally, citizens should take the trouble to better educate themselves about national security. Toohey's book is a good place to start.
- Paddy Gourley is a former senior public servant. firstname.lastname@example.org