Welcome to the newest member of the Future Wise team – Kate Galloway. Kate is a legal academic at Bond University, with interests in property law, legal education and the intersection of the law and society. She also writes a regular column for Eureka St, and blogs on her own blog at https://kategalloway.net/ You can also follow her on twitter at @katgallow.
I read with concern a report that ASIO has requested powers to detain and interrogate terrorism suspects for up to a week, free of judicial oversight. This raises a number of issues about the normalisation of growing state power in Australia.
The first problem is that the head of ASIO even asked this question. The operation of our system of government depends on the balance between three ‘arms’: the parliament, the executive (including the police and security services), and the courts. This is known as “separation of powers” and it works to protect the liberty of the citizen through the delicate balance between the exercise of power by each arm of government. We know the government is powerful, but this is fine, so long as individuals are protected from its inappropriate exercise.
In the real world, the three institutional sources of power overlap in various ways. But it is an essential principle of the way that we are governed, that the functions of making law, enforcing the law, and punishment occur separately. We don’t want any single entity playing all these roles (judge, jury, and executioner, so to speak). Our laws therefore adhere to what we call ‘due process’. This is a series of checks and balances that minimise the potential to deprive a person of their liberty where that is not absolutely necessary, and fully in accordance with law.
It is essential that our protective service officers understand the operation of this system. They have a distinct and limited role to play as part of our system of governance. For citizens to be protected from the excesses of state power, each arm of government must work in concert with the others and not cross boundaries into the role of any other. Yet the head of ASIO is proposing crossing that boundary, removing the role of the courts.
The second concern is his reported support of laws that were more ‘efficient’. Efficiency is an ostensibly desirable state. It implies putting resources to their best use, reducing waste and overlap. However its application in the context of due process is a sign of risk for civil liberties, and the erosion of the protection against undue state power.
Part of the role of due process is to check and to double-check the correct and just application of law – and this is inherently inefficient. It is probably very frustrating for a police officer, who believes that they have the right suspect, to submit to what looks like box ticking. I think this is probably why police frequently seek more power – it must seem to make their jobs easier, more ‘efficient’. This misses the very point of due process, and the application of the separation of powers. Each of us as citizens needs to be sure that we are not subject to raw and unchecked police power alone. And that is the nature of the ASIO request. We need the inbuilt ‘inefficiency’ of layers of process – due process – to protect us from the misapplication of power. The head of ASIO should know this.
Efficiency is the discourse of the market. Yet it is increasingly found in government, including in police and security services. In 2014 for example, the Queensland Police Service introduced ‘scorecards’ or KPIs in an attempt to reduce crime. This might make sense in terms of sales targets in the private sector, but it hardly lends itself to policing. I think the language of efficiency, the language of business, is infecting policing and consequently eroding principles of civil liberties and effective governance.
The third concern with the ASIO submission is my fear that Australians have already been primed to think that it is OK. The last couple of years have seen the state make significant inroads into our personal freedoms. A new law allows the revocation of citizenship – initially for anyone caught in a proscribed (‘terrorist’) jurisdiction, but then only for dual citizens – without judicial oversight. No one wants to stand up for a ‘terrorist’ so such laws, significantly eroding due process, are relatively easy to get away with. But they lay the groundwork for further erosion of civil liberties – such as the ASIO proposal.
We saw the introduction of the notorious data retention laws in 2015, whereby government has made an ambit claim over our telecommunications data. Subsequently, the 2016 Census saw the Australian Bureau of Statistics implement a data linking system that will connect our personal census data with other government datasets dismantling the very foundation of Australia’s privacy regime. The Census has morphed from counting how many people live where, into a Big Data product to be commercialised. We have ceased to be citizens, and have become product.
The refrain in all these scenarios is the same. You, the citizen, are safe. Your data is safe. And the clincher for detention laws and revocation of citizenship: if you have done nothing wrong you have nothing to fear. Yet all of these examples show the willingness of the state to impose upon the boundaries we expect as individuals, and as people.
In each case the state misunderstands both its function, and the role of governance to uphold the integrity of the citizen against state power. In each case, government withholds from us a token of our freedom, leaving us at the mercy of state enterprise. Together, these instances and more are the government normalising its encroachment onto our person, where government has forgotten its purpose.
It is OK for those with personal power and authority to acquiesce to these changes. I saw many on social media utterly unconcerned at the Census data linkage, for example. They ‘have nothing to hide’. Likewise, I am unlikely to succumb to arbitrary detention and interrogation. That is hardly the point. ASIO has now honestly declared that it cares not about constraints on its power and the due process of governance in this country. If its proposals become law, our system of governance is fundamentally breached and each of us is diminished in the absence of the normal protections against state power.