In a country that’s half insane, In a country that’s banned the rain… A Bill of Rights will not fix Security Policy

It’s a well-known dance.  The government announces a new national security policy, then the media and the usual human rights organisations breathlessly inform us that this is Orwellian, Kafkaesque, and the last piece of evidence we need to support their preferred policy option (usually some Bill of Rights or a Federal Independent Commission Against Corruption).  After a few days, we go back to normal when a Kardashian posts a ‘problematic’ selfie to Instagram or something similarly edifying.

Why does the debate happen like this?

First, incentives.  There is a lot to gain from mainstream politicians looking ‘tough’ on national security issues.  I’m increasingly worried that there is no cruelty that wouldn’t play out well in the electorate.  A fringe political party could advocate a ‘Give them a gun and send them back to their own country’ refugee policy and I reckon they’d be a contender for a Senate seat.  So politicians do better if they hover above the debate rather than lead it or engage with it: ‘Terrorists bad, Australian values good, get on with the job, the end.’

Second, also incentives.  Journalists need readers, so they’ll say whatever confirms the prejudices of their audiences or whatever really, really outrages their audiences for the hate-read crowd.  ’14 days detention without charge?  You’ll never guess which press gallery journalist thinks we should stick them in an oubliette and forget about them!’  ‘You’re clever and smart.  Human rights legislation is appropriately fluffy and sweet.  Here’s why you’re clever and smart for thinking that.’  If people really wanted to read something informed and thought-provoking, they’d read books.

Third, also also incentives.  Getting academics and policy experts into the policy debate is difficult because their lives are much better if they avoid public life entirely.  Especially if the subject matter is controversial, and doubly especially if the academic is female.  Policy experts similarly have nothing to gain by entering the public debate.  At the first threshold, there’s the problem of remaining apolitical (in both the objective and subjective senses).  And then there’s a public that has been trained to reject whatever policy experts say.  And by ‘reject’, I mean up to and including ‘violently reject’.  Public servants who have their name in the public about sensitive subjects end up subjected to a huge amount of craziness.  Far better to keep the head down and get on with the job rather than engage the public.

So who does that leave for public debate?  Journalists and advocates.  This week, Junkee published a deranged piece about the latest national security announcements.  The author of the piece was a former Greens adviser and the sole ‘expert’ used to support absolutely strange claims was similarly a former Greens adviser.  At no point did Junkee reveal the obvious conflict of interest.

That paucity of expertise means that you are always going to have the same public debates.  When the government declares a new policy, the media publishes the views of cranks who think that the government has gone too far.  When an incident occurs, the media publishes the views of cranks who think that the government is failing to do enough.  There’s no winning.  There’s nothing gained by publishing an article that says: ‘Actually, we are satisfied.  This is a good balance.’

Consider the latest argument that says the problem with national security policy is that the ‘agencies’ are ‘getting their way’ and we need a Bill of Rights to keep them in check.  The most famous Bill of Rights in the whole fucking world is that of the United States of America and the stuff that their government can do would make the most hawkish Australian commentator sweat.  The Bill of Rights is not even a little bit of a barrier to security agencies there, so why would it work in Australia?

It’s such a fantastically stupid proposal that it is difficult to understand the mind that would pen the argument.  We are the only democracy in the world without a national human rights framework, and yet we are also the jurisdiction with one of the most moderate national security frameworks.  The reason for that is complex, but it has a lot to do with a High Court decision from the 1980s called A v Hayden.  The public, parliament, and the public service came together to set out what sort of culture we wanted from our security agencies.  The challenge is to preserve that culture.

No argument is ever given for how a Bill of Rights would curtail national security overreach and the United States’ experience suggests that exactly the opposite would happen.  Weirdly, quite sensible policy options are not available in the US because the Bill of Rights won’t allow it, but more extreme measures are available through legal trickery and chicanery.  Because it’s topical at the moment, consider the decision in Korematsu v US from 1944 which, despite the existence of the Bill of Rights, still allowed the executive (without even going through congress!) to detain all Japanese-American citizens.

Further — and I cannot stress this enough — human rights frameworks are more commonly used by companies to avoid regulation by the State than they are for fluffy, feel-good reasons.  Australia is a world leader in regulating the tobacco industry because they haven’t been able to use rights frameworks to thwart legislation.  See also court decisions in the US and Canada which have relied on rights frameworks to protect the owners and producers of virtual child pornography:

The court held, 6 to 3, that the Child Pornography Prevention Act is overly broad and unconstitutional, despite its supporters’ arguments that computer-generated smut depicting children could stimulate pedophiles to molest youngsters.

“The sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people,” Justice Anthony M. Kennedy wrote in the majority decision. Nevertheless, he said, if the 1996 law were allowed to stand, the Constitution’s First Amendment right to free speech would be “turned upside down.”

So what would control a parliament and promote a better public debate about national security?  An informed public.  What’s the biggest barrier to an informed public?  The uselessness of our media.

I’m not even kidding on that point.  My biggest concern at the moment is a problem that arises when there’s an unforeseen emergency.  There are enough grey areas in the law where it is not entirely clear to what a government’s authority extends resulting in a gap between what the government (on a very conservative interpretation of the current law) can do and what the public thinks the government should do.  Which should prevail?  Rule of Law folk say that the strict law should prevail, but the average person on the street thinks that the government should protect their interests, even if it’s not strictly lawful for it to do so.

If we had intellectually serious debates in the media that were widely accessible to people, this would be less of a problem.

This week, we really needed the media to get across three questions:

1. What is the current law?
2. What changes to the law are proposed?
3. How should people engage with thinking through the balance of concerns?

Instead, the media presented the proposals as if they were radically new, springing fully formed into the world.  Understanding the Federal-State divide on national security policy is difficult, but it was the responsibility of journalists to make the issues clear to the public.  Instead, journalists ripped into strawman arguments and the government’s policy proposal went unscrutinised by the public.  It is disgraceful.

Bring on that Kardashian selfie, I guess.