Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

Oh, I’ll build you a kingdom In that house on the hill… Is Australia the most secretive democracy?

Look, no.  Not even close.

Prof George Williams, Dean of Law at the University of NSW, wrote an article claiming that Australia is the world’s most secretive democracy.  I’d like to share a link to the article, but it’s behind a paywall.  It’s almost the perfect example of the self-serving nature of the media’s ‘Right to Know’ campaign: media companies want to make more profit.  News Corp posted a $200m profit; shortly before it was bought by Nine, Fairfax posted an $80m profit.

There are two parts to the claim and it’s worth exploring them in full.

First, there’s the overt claim: Australia is the world’s most secretive democracy.  There is no evidence to support this claim.

In the Press Freedom Index published by Reporters Without Borders, Australia is ranked 21st in the world.  Maybe all the world’s democracies are ranked in the top 20……. no.  We are ranked higher than France (32), the UK (33), and the US (48).

In the Centre for Law & Democracy’s Right To Information rating, Australia is ranked 67th.  This sounds bad, but we’re higher than Norway (78), Switzerland (79), France (107), and Germany (120). Given that Afghanistan was ranked number 1, we might wonder if the thing that unites advanced democracies is a lower position in the CLDR’s RTI table.

Without any evidence to support the claim, it should be dismissed as mere pub-talk.  It defies reason to compare Australia with the United States and come to the conclusion that we are the more secretive and have less democratic control over the Executive.

Second, there’s the interpretive element: Australia has introduced a lot of secrecy laws that undermine democracy.

Back during the Gillard years, there was a meme going around that the government’s ability to pass more than 300 pieces of legislation was indicative of its negotiation skills.  The argument was obvious nonsense, confusing the quantity of the legislation with its quality.  Passing legislation is not an end in itself.

A similar error of reasoning is apparent in Prof Williams’ argument.  It doesn’t matter how many pieces of legislation were passed, what we want to know is its content.

Australia took a very different legislative strategy to that in the United States or the United Kingdom because the legal frameworks are quite different.  In 2002, the Australian State and Territory governments entered into an agreement to pave the way for conferring legislative competence upon the Commonwealth to develop national security law.  That conferral occurred in 2004.  Further changes were approved in 2012 to allow for closer collaboration with New Zealand, and a review in 2017 indicated a need to align State and Territory legislation with Commonwealth legislation more closely.

The result is a necessary drip feed of legislation.  Australia has a very robust programme of legislative review for national security law, and recent legislation which did not follow the ordinary process has been extremely worrying for reasons not really discussed sufficiently in the Press.  Far from being worried that we’ve had more than 80 pieces of legislation, we should be asking why other jurisdictions are making wholescale changes with such broad strokes.  Do they really have the oversight mechanisms in place to ensure democratic control of national security agencies?

Australians deserve a better discussion about national security law that isn’t fuelled by hyperbole and pearl-clutching.  Academics need to play an important role in improving that discussion.  Sensationalist noise behind paywalls is not providing Australians with the debate that they need to have.

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