opinion Any proposal by the government to increase its own power should be treated with scepticism. Double that scepticism when the government is vague about why it needs that extra power. Double again when those powers are in the area of law and order. And double again every time the words “national security” are used.
So scepticism – aggressive, hostile scepticism, bordering on kneejerk reaction – should be our default position when evaluating the long list of new security powers the Federal Government would like to deal with “emerging and evolving threats”.
The Attorney-General’s Department released a discussion paper last week (PDF) detailing security reform it wants Parliament to consider.
The major proposal – although explored little in the department’s paper – is the Gillard Government’s proposed data retention laws. These laws would require all internet service providers to store data about their users’ online activity for two years. They have been on the table for some time.
But there are many other proposals. The department wants the power to unilaterally change telecommunications intercept warrants. It wants the threshold for those warrants to be significantly lowered. It wants the ability for security agencies to force us to hand over information like passwords to be expanded. There’s much more. These reforms add up to a radical revamping of security power. They raise troubling questions about our right to privacy, our freedom of speech, and the overreach of regulatory agencies. And they suggest one of the most substantial attacks on civil liberties since John Howard’s post-September 11 anti-terror law reform.
Public policy is like comedy – timing is everything. The lack of timing here is revealing. These proposals come nearly a decade after the first flurry of anti-terror activity, and long after most analysts have concluded that the serious threat of terrorism – keenly and rashly felt at the turn of the century – has subsided.
The government claims that a new environment of cybercrime and cyber-espionage necessitate wholesale reform of the law. These claims are massively overstated. Cybercrime exists more in the advertising of security companies than it does in reality, as I argued in the Sunday Age earlier this year.
Cyber-espionage too is worse in theory than reality. In their recent paper Loving the Cyber Bomb?, two American scholars, Jerry Brito and Tate Watkins, point out that these claims have all the hallmarks of threat inflation driven by self-interested security agencies. As they write in the American context, “The rhetoric of ‘cyber doom’ employed by proponents of increased federal intervention, however, lacks clear evidence of a serious threat that can be verified by the public.”
Certainly, our Attorney-General’s Department offers no such clear evidence. Perhaps there is evidence. But most of the Government’s case is presented as innuendo and hypotheticals. Brito and Watkins suggest this hyperbole has a parallel with the sort of threat inflation that led up to the Iraq War. The conclusion – more power – leads directly from the premise – an evolving threat. But we’re a long way from the realm of evidence-based policy here.
Yet even if we took the government at its word about the dark and dangerous online environment, there would still be much to be concerned with. Fairfax papers reported in April that ASIO now privately believes environmentalist groups are more dangerous than terrorists. This surely says more about the diminished status of terrorism than the rise of green activism. But it also underlines the often political nature of national security enforcement.
The line between lawful and unlawful political dissent is less clear at the margins than we like to admit. Enthusiastic agencies and thin-skinned governments can easily forget there is any difference at all. (During the Second World War, John Curtin’s Labor government even directed ASIO’s predecessor agency to investigate the Institute of Public Affairs – its ideological opponent, and an organisation that was urging the formation of a non-left political party.)
ASIO isn’t the only agency we have to worry about. There are at least 16 Commonwealth and state bodies approved to intercept telecommunications right now. Even the scandal-ridden Office of Police Integrity in Victoria would benefit from these new powers. Ministers in the Gillard Government have jumped to defend the Attorney-General’s proposals. And the Coalition is “examining the issues carefully”.
Yet given the bipartisan submission to the previous government’s expansion of the security state, it would not pay to be too optimistic. This is largely because governments are usually passive recipients of the phenomenon of threat inflation, not the drivers of it. Security agencies are easily able to convince politicians they need more support and power, and that any scepticism about pressing national security matters is reckless, even negligent.
The scepticism, unfortunately, has to be left to the public whose civil liberties are at stake.
Chris Berg is a Research Fellow with the Institute of Public Affairs. His new book is In Defence of Freedom of Speech: from Ancient Greece to Andrew Bolt. He tweets at @chrisberg.