Section 35P of the National Security Amendment Bill prompted the usual suspects, and some who should know better, to fits of frothing about Australia’s police state and jackboots in the night. Once again, as we have seen so often when ASIO is mentioned, hysteria was trumping history
Unimaginable things can happen now, things that Australians have only read about in books. Now officials can break the law with immunity from prosecution—and without having to answer to a court. They can act in total secrecy. They will decide what they do and to whom and when. They do not have to ask permission. They will choose when to interfere in your life and when they won’t. Sometimes they will do it because it is necessary to fight crime. Sometimes because they enjoy it.
—Alison Bevege, Sydney Morning Herald, Age, September 29, 2014
This passage from the Fairfax Press discussing the powers allegedly given to Australian intelligence officers under the new National Security Amendment Bill was written by a journalist who argues it turns Australia into “Stasiland”, an equivalent of the former communist regime of East Germany.
Unfortunately, her appraisal of the new legislation was not alone. In her wake came a horde of supporters from the news media and politics. Speaking on behalf of his members, the secretary of the journalists’ union MEAA, Chris Warren, declared:
This Bill criminalises legitimate journalist reporting of matters in the public interest. It overturns the public’s right to know. It persecutes and prosecutes whistleblowers and journalists who are dealing with whistleblowers. It imposes outrageous surveillance on journalists and the computer networks of their media employers.
Although Labor did not vote against the legislation, much the same response was made in the House of Representatives when it was debated. Independent MP Andrew Wilkie said it was exploiting fears about terrorism to turn Australia into a “police state”. Greens MP Adam Bandt said the legislation would prevent journalists from reporting that ASIO had killed people in special operations. In fact, he said, journalists could go to jail for ten years for simply reporting the existence of special operations.
Even some prominent conservatives joined the fray. Foreign editor of the Australian, Greg Sheridan, described the bill as “a terrible piece of legislation that fundamentally alters the balance of power between the media and the government”. It did this by giving the government the ability to declare a particular topic a “special intelligence operation” and thus prevent journalists from publishing classified information leaked to them by a public servant. Human Rights Commissioner Tim Wilson agreed the legislation restricted press freedom.
At St James Ethics Centre, director Simon Longstaff said the government was justifying its curtailment of liberty on the grounds of the need to keep the Australian people safe. “The government’s assumption is that the Australian people lack the courage and commitment to choose liberty over security; that we are not brave enough to defy the terrorists’ threats and accept the cost of our freedom.”
Most of this commentary was nowhere near the mark. The legislation was targeted not primarily at journalists but at public servants. As one of the few informed analyses, by University of Queensland legal academic Rebecca Ananian-Welsh, pointed out, the offending clauses were designed as a response to the actions of dissident public sector employees like Edward Snowden, who illegally downloaded and disseminated American intelligence information to the world’s press. In a piece for The Conversation last July, long before the recent controversy arose, Ananian-Welsh wrote: “The bill makes it clear that the Australian government is seeking to protect itself against a Snowden scenario. The provisions place severe limits on ASIO officers’ capacities to handle intelligence information as any mishandling will risk criminal penalty.” She quoted George Brandis’s speech in the bill’s second reading:
As recent, high-profile international events demonstrate, in the wrong hands, classified or sensitive information is capable of global dissemination at the click of a button. Unauthorised disclosures on the scale now possible in the online environment can have devastating consequences for a country’s international relationships and intelligence capabilities.
In a bid to hose down the commotion, Brandis himself entered the debate on October 14 with an opinion piece in The Australian. He observed that complaints about the legislation had come “not just from the usual suspects of the paranoid fantasist Left but from reputable conservative commentators including Greg Sheridan”.
He pointed out that the new law was not directed at journalists but had general application. He said counter-espionage and counter-terrorism, by their very nature, required covert operations. And covert operations, such as the penetration of terrorist cells, should be kept secret. Such operations were in the national interest and so should be protected by the law. “To make it unlawful to disclose that which must remain secret does not seem unreasonable,” he observed. “To suggest otherwise fails the common sense test.”
Moreover, his legislation was nothing new, Brandis said. It simply extended to ASIO a protection in force since 2010 to operations by the Australian Federal Police and other law enforcement agencies. He said the recent hubbub missed the point. Far from turning Australian intelligence services into a local version of East Germany’s Stasi, the new provisions were merely an extension to ASIO of a legitimate and pre-existing legal regime, under which there had so far been no prosecutions.
In retrospect, the whole outburst resembles a return of the attitudes about Australian intelligence officers that emerged more than sixty years ago during the Cold War. These notions have long lain deeply embedded in Australian culture, and have now re-emerged just at a time when we don’t need them.
In response to the formation of ASIO in 1948 and the successful entrism of the Communist Party into the labour movement, party supporters developed what turned out to be the effective tactic of ridicule. Anyone who suspected a body like a trade union, a peace organisation or an education association might be infiltrated or controlled by the party—as many of them at the time were—could be accused of “looking for reds under the bed”.
Judging by Greg Haines’s review in this edition of Meredith Burgmann’s collection of memoirs by old Sixties leftists, Dirty Secrets, many of the generation who came of age in that decade still think the same. They deride ASIO’s bumbling efforts at surveillance. Former High Court judge Michael Kirby observes in the book:
Looking back at my story, my little file in ASIO, you can see how futile, how pathetic, how wasteful of resources it was to be following me around and taking solemn notes of what I was saying to the Council for Civil Liberties, or to other bodies.
In Kirby’s case this might have been true, but most of the memoirs in Burgmann’s book are written by people who were members of the Communist Party or its front organisations, and were true believers in the party’s objective of socialist revolution. At a time when world communism had gained control of more than one quarter of the population of the world, it was no joke. It was a formidable movement that deserved the surveillance ASIO gave it.
Nonetheless, you can still find much the same sentiments alive and well today among a number of younger left-wing academics who have recently colonised the field of terrorism studies. In a book published last year, Spooked: The Truth About Intelligence in Australia (UNSW Press), the dominant attitude of its authors is the same as that of Michael Kirby—ASIO is pathetic, wasteful and a bit of a joke. Only today instead of communism, the intelligence community’s main target is terrorism.
The book’s lead author, Christopher Michaelsen, lecturer in law at the University of New South Wales, is confident ASIO has got it all wrong again: “Although portrayed as an unprecedented security issue, Islamist terrorism hardly constitutes a threat of significant concern for Australia.” Similarly, the book’s editor, Daniel Baldino, Head of Politics at the University of Notre Dame, Fremantle, thinks today’s public attitudes deserve feeble jokes:
while the word “terrorism” triggers a range of strong emotional reactions, and despite the horrors of 9/11, a lot more people will die annually from traffic accidents and lung disease than of terrorism. Maybe we should declare a bonus war on cars and cancer (although sending a drone after cancer might be unwarranted overkill).
It is not easy to say which is the worse of these views: the witless complacency of people paid to study the issue at a time when ASIO surveillance is uncovering Islamic terrorist cells plotting homicide in our major cities; or their inability to see how bogus is the comparison between deaths from accidents and disease, which are morally neutral, and deaths from murder and terrorism, which are morally culpable and demand justice.
The supercilious attitude of the authors of Spooked, coupled with the kneejerk hostility to George Brandis’s new security laws, confirm how deep-seated the culture of contempt for our intelligence services remains today. And this is at a time when the most practical and successful response to domestic terrorism has proven to be ASIO’s intelligence surveillance and homeland security. Yet again, our intellectual class has proven itself not part of the solution but part of the problem.