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…

Tell me your secrets and ask me your questions… Public confusion over the ASIO Bill

One of the questions to which I keep returning in my research is: ‘Which public?’

When we talk about ‘public opinion’ in law, whose opinion matters?  The basic view (and the view to which I cling dearly) is that we should be interested in the amorphous gestalt called the ‘general public’.  But, of course, we often feel really uncomfortable with their opinions.  If you asked the ‘general public’ if there should be any restrictions on the State’s ability to go after terrorists, we find that they are way happier to herald a police state than any policy official working in national security.

Over the past few months, I’ve been worried about a different group: the hyper-engaged.  Initially, I was interested in ‘right wing terrorism’–by which we mean something to do with White (capital letter intentional there) actors towards non-white society.  One thing we know about this group is that they are really engaged in particular kinds of media.  If we blur our vision a bit so that we’re no longer interested in the terrorist aspect, there seems to be growing divides between your ordinary, disinterested citizen (who might see a few headlines of a newspaper in a staff room, or thirty seconds of political factoid between celebrity gossip and weight loss pills on morning television), the ‘ideal’ citizen (who is a critical consumer of mainstream media content), and the hyper-engaged citizen (who spends most of their time on Twitter getting red and nude about something they’ve read in a blog by a freelance content-writer).

These groups are on a spectrum, and I suspect that most of Twitter lives somewhere between the second two categories.  And this might help to explain why there’s such a massive disconnect between the content of the Australian Security Intelligence Organisation Amendment Bill 2020 and the commentary on Twitter.

If this had been a Bill from the Labor Party, there probably would have been low grade sniping between the rusted on Greens and ALP Twitter accounts.  As far as Bills go in national security law, this wasn’t that controversial.  As I wrote back in May, developing the Bill took three years.  You can follow the whole development cycle starting from the report of the Independent National Security Legislation Monitor right through to the most recent report of the Parliamentary Joint Committee on Intelligence and Security.  Surprisingly little of the material was classified (and ASIO put their classified content into a separate submission so that the public had a better understanding of their position in an unclassified submission).

As I noted back in May but didn’t elaborate much, there’s an ongoing question about the extent to which different intelligence agencies and law enforcement agencies should have similar powers.  I continue to be on the side of restricting the use of physical force to police, but should there be differences in questioning powers?  If so, why and how?

If the Australian Criminal Intelligence Commission separately has powers that look like they’re performing a similar function as the ASIO powers, shouldn’t these powers be as similar as possible with the same sorts of oversight?

Take the question of age.  Criminal Code Act 1995, s.104.28 has a minimum age of 14 for control orders. Terrorism (Police Powers) Act 2002 (NSW), s. 25F has a minimum age of 14 for investigative detention.  If we think the appropriate age limit for these powers is 14, why shouldn’t ASIO’s questioning power have the same limit?

Of course, we can reasonably ask the alternative question: should the age limit for all of these other powers be increased to 16?  But then we’re stuck with another question about how to address the issue of radicalised 15 year-olds (like the one who shot Curtis Cheng in 2015).

Surveillance devices is the other topic that has set off the Internet but, again, without the contextual information for a person to develop an informed view.  If other agencies are able to authorise the use of devices on the say so of a senior officer, why should ASIO have different restrictions?  Or, to flip it, do we think that the use of devices should require a higher standard of administration?  If the latter, why and what’s the tradeoff? (Answer: reduced capacity to surveil people suspected of planning terrorist activities).

As I wrote back in May, if this debate is worth having it is worth having well.  There was very little (if any) media commentary that provided illumination for the ‘ideal’ citizen, and most of the commentary was over in weird little ‘independent news’ blogs, or from political Twitter accounts that had obvious axes to grind.

If we are going to go down the path of overhauling surveillance laws (which I very selfishly hope we don’t because I’m writing an article at the moment to explain the current state of Telecommunications (Interception and Access) Act 1979), then we need a better level of public debate.

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