Be sceptical of vague new ‘National Security’ powers


This article is by Chris Berg, a research fellow with the Institute of Public Affairs. It was first posted on ABC’s analysis and opinion site The Drum and is reproduced here with permission.

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.


  1. While I agree there are many stones not even found, let alone unturned, I dislike the parallel made between the US inter-department warfare and our own government departments.

    We have a different system of government. Departments change and power shifts all the time. There are always fighters in departments who “truly believe” in their departments goal. But these are usually taken care of in due course. ASIO is government controlled. If the government say “you’re getting a funding cut”, the hard heads can make all the noise they want, but if the governments own advisors get the advice the funding amount is not necessary, they’ll continue.

    Try doing that to the CIA in the US. Apart from anything, these departments are protected under the constitution. The CIA IS the government, for all intents and purposes, when it comes to National Security. They also have to DEA. FBI. Homeland Security and any other acronym you can expect or think about. They have warfare between them because they compete for power, perpetuated by funding as a whole, often as part of the “black-budget” which requires no audit. Why wouldn’t they fight like dogs to access this untapped resource of money and power??

    ASIO is one of few government departments charged with security. They are not competing for funding or power from multiple similar departments. Nor are they competing for a “black budget” where they can spend, regularly, what they like without justification. They have a job, they have funding and they are looking to achieve their goals in the best, most efficient and cheapest way possible.

    While I do agree we have to look at carefully at ideas like “environment activism is the new terrorism”, part of what this inquiry IS doing is exactly that- Are these measure necessary?

    While I don’t agree with Doom & Gloom-like scenarios from security agencies, ignoring the threats that ARE out there too, is just plain ignorant and stupid.

    • I agree with Seven (as I normally do – I’m pretty sure hes speaking my language … ).

      Having been in the Defence Force, Intelligence – I can comfortably say that its unlikely our security forces are going to turn out anything like the CIA / DEA / ICE / FBI – whatever the hell you want to call them.

      Most of those organisations seem to be ‘within the government framework’ but generally do whatever the F%^$ they want. Or at least it seems that way from an outsiders perspective.

      Now that I’m in Telco, rather than being responsible for gathering or stealing data, I’m now charged with protecting it. As a Network Engineer, a good portion of my job is security.

      What I’d suggest here, is to be skeptical. Be skeptical. Understand why it is they want these abilities. They’ve become quite skilled at gathering intel up until now, whats with the sudden push ? Where I’m inclined to agree, is the storage of data. As a Telco, you can imagine how much data we see all the time. While it’s mostly displayed as 0’s and 1’s, it does mean something. We do see files and things that come up as strange or possibly malicious, that we cant deal with because of privacy issues. In some instances (carefully chosen ones of course) I’d be willing to agree that data storage could work. Say things like text messages promoting bombings, threats on the PM or other dangerous things. The current policy is to alert AFP to it – if they do anything thats up to them … but theres no guideline. No framework.

      Whats to say the current system is inadequate and we’re just not getting anything more than AFP / ASIO / ASIS just skirting the line or crossing it – but not getting caught.

  2. Context:
    The IPA is a right biased think tank that loves the free market and dislikes the Gillard government.

      • Renai, actually the comment is an accurate reflection of reality. They are a right-biased, free market promoting organisation. From wiki:

        The Institute of Public Affairs (IPA) is a public policy think tank based in Melbourne, Australia. It advocates free market economic policies such as privatisation and deregulation of state-owned enterprises, trade liberalisation and deregulated workplaces, climate change skepticism (through its environmental subsidiary the Australian Environment Foundation), and the accountability of non-government organisations (NGOs).[citation needed] In its own words, the Institute believes in “the free market of ideas, the free flow of capital, a limited and efficient government, the rule of law, and representative democracy.”

        Unusual for me to agree with Muso1 but in no way was he exaggerating.

        It doesn’t mean that the opinion piece is wrong on this occasion however.

          • Yes, that’s them. Major sponsors include; Telstra, Phillip Morris, British American Tobacco and BHP Billiton. Strong links between them and the more Neo-Liberal of the Liberal Party.
            Similar to a local CATO institute, an attempt, sometimes successful more often not (IMO) to apply some intellectual rigor to free market doctrines.

        • Stephen,

          thanks for your comment. The IPA is not best described as “right-wing”, with all the negative connotations that come with that label. It is best described as an organisation promoting “liberal” policies — not liberal as in Liberal Party but liberal as in liberalism.

          It is a legitimate organisation commenting on Australian policy in a variety of areas. I do not wish this comment thread to become a debate about the IPA’s values, so please do not continue to discuss the organisation’s background. I would neither tolerate a debate in a thread about Stephen Conroy alleging that his thought process comes from a “left-wing” background. Stick the issues being discussed, please — those issues being the government’ national security inquiry.


  3. Its unfortunate the Libertarian views have never really been debated between the two major parties.

    Since the late 90’s at least both major parties have been jumping at the chance to give the military and intelligence more power, IIRC the Federal government had to pass legislation to allow the Australian military to be deployed on native soil during peacetime for the Olympics. Prior to that the Military could only be deployed for military reasons overseas.

    I think slowly Australians are recognizing that we are loosing our Freedoms, the Greens are fairly libertarian, now also the SEX party and Pirate party, all trying to stand up for person freedoms. Unfortunately i think other than censorship, which most of us can get riled up about, we still have a long way to go before personal freedom becomes a partisan issue between the major parties

    • I would argue that we don’t have that far to go until personal freedom becomes just an abstraction spoken of in political speeches but not seen in practice. Think of all the things you need and do in your life and how many of those things now require licenses or permission from the public sector or that you identify yourself to same. Consider also how many now carry severe penalties for minor infractions of arbitrary boundaries. Remember also that this OzLog light proposal dovetails in with the data sharing legislation passed a year or so back that gives almost any public servant, both domestic and international, access to data on almost any pretext and the carbon cops legislation which gives some public servants extraordinary powers to enter premises, compel witnesses and seize assets.

      My prediction based upon past performances; the greens will be half in, half out. labor and the national liberal coalition will combine to pass the bill – as they did with data sharing – then give themselves a round of applause – as they did with data sharing. The national liberal coalition will go to the next election – I hear they are pitching a strong free speech policy – thinking no one has noticed.

  4. I am new to the arcane labyrinthine nature of foi requests, wouldn’t it be possible to find out if asio use section 313 for blocking if you simply asked individually if each department OTHER than asio has ever used it?

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