At the centre of the 2022/23 pre-election budget was a splash in defence spending, including $10 billion over the next decade in new cyber capabilities. The centrepiece, named Project REDSPICE, represents the largest single investment for the Australian Signals Directorate (ASD)—the intelligence and security agency—since its founding in 1947. The ASD, whose yearly funding is set to double in the coming years, remains one of the most secretive government agencies, and has a range of expansive powers. Despite what Treasurer Josh Frydenberg called the ‘biggest ever investment in Australia’s cyber preparedness’, no further details have been provided on the covert practices of the agency, nor how it will provide assessments of these new cybersecurity efforts.
In a speech supporting the move, Defence Minister Peter Dutton used the fearmongering language which has become synonymous with national security debates, stating that ‘ominous clouds are forming’ and comparing the current world order to ‘our forebears of the 1930s’. While cybersecurity is essential in the digital age, the budget move speaks more to the prospect of a ‘khaki election’ as the Liberals centre their election campaign on national security and wartime sentiment.
In Australia, the expansion of surveillance programs under the guise of national security is nothing new. Since 9/11, Australia has passed ninety-two national security laws, far exceeding any of its Western allies, and surveillance is now at the core of national security, intelligence and policing in a virtualised world. The ASD announcement is but the latest in a long line of controversial surveillance measures applied in recent years that claimed to make Australians safer. However, contrary to the tendency for governments to politicise national security, lessening the rights of citizens in the process, voters need to be wary of how surveillance often makes them less secure, not more.
A string of controversial national security laws
Last year, the Australian Government passed one of its most expansive surveillance bills to date. The Surveillance Legislation Amendment (Identify and Disrupt) Bill granted three new powers to the Australian Federal Police (AFP) and the Australian Criminal Intelligence Commission (ACIC). These warrants allow for the ‘modifying, adding, copying or deleting data’ in serious online crimes. These powers are aimed at—but not limited to—national security threats, child abuse material, and prohibited imports such as weapons and drugs. ‘Serious commonwealth offences’—defined as resulting in three or more years’ jail—means the bill can extend to the likes of activists, protest organisers, whistle-blowers and journalists.
The warrants, typically only acquired through a judge or magistrate, can also be approved by the Administrative Appeals Tribunal (AAT). The AAT has faced a series of controversies. A 2019 investigation by Inq found the Federal Government had filled the supposedly independent body with ‘sixty-five former Liberal staffers, ministers, candidates and donors over the past six years.’ Nearly half of these appointees had no legal qualifications. The bill’s explanatory memorandum makes no mention of independent reviews or parties who can challenge or investigate the issuing of these warrants, meaning there is no investigatory process to validate lawful application.
The bill raced through parliament. Introduced on a brisk August morning, it passed the House by dinnertime. On this day, Independent MP Helen Haines expressed her concerns in Parliament:
Members of the crossbench were not given any briefing on this bill. We did not get an explanatory memorandum … this is an urgent bill according to the speeches that I’ve just heard late into the evening, just now, and I want to make it very clear that as a Member of this Parliament, I’ve had no opportunity to consider it at all.
In 2018, the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill gave Australian intelligence and police forces access to encrypted messaging through tech companies such as Telegram and WhatsApp. It was criticised by various tech companies and human rights groups, and moved the United Nations Special Rapporteur to say that ‘it unduly undermines human rights including the right to privacy’.
In 2015, the Telecommunications (Interception and Access) Amendment (Data Retention) Bill required telecommunication to hold customer metadata for two years. This includes personal information such as user contacts, GPS movement and web history. Metadata can be accessed when a user is under suspicion of breaking any laws. In 2019, it was revealed that authorities had obtained data from 3000 users without authorisation, including invalid warrants targeting journalists. A Commonwealth Ombudsman report found that, in four years, only nine of the 1,713 times the ACT police accessed location data were lawful.
A common thread along these bills is how swiftly they pass through parliament. According to a GetUp report, on average Australia’s ninety-two counter-terrorism laws took, ‘a little under 2.5 days in the House of Representatives and just over two days in the Senate to be approved’. This points to sweeping bipartisan dealings, despite major civil liberties at stake.
Shades of government secrecy
In Windows into the Soul, sociologist and surveillance expert Gary T Marx details the dominant role surveillance plays in contemporary society. Surveillance is used in response to threats but, according to Marx, it is a threat itself, making it full of ‘moral dilemmas and trade-offs’. On the one hand, secrecy is essential for surveillance to be effective; on the other, the public has a right to know what role these intrusive systems play. The framing of national security issues tells citizens they must choose between security and freedom, but recent years have seen freedom and privacy on the chopping block time and again, dissolving the rights of everyday Australians in the process.
A loss of digital rights can majorly impact daily life. Recently, several Australian police forces trialled facial recognition software called ‘Clearview AI’, which breached the Privacy Act. An investigation found it was ‘collecting Australians’ sensitive information without consent’ and ‘collecting personal information by unfair means’. The AFP did not undertake a privacy impact assessment as required. Political parties on social media apps like Facebook can use microtargeting to influence voters and sway election outcomes. Location tracking and metadata can monitor people more than ever. Surveillance can also rid people of intellectual privacy (web histories, messages, habits), target public figures, threaten free speech, and subject people to discriminatory profiling based on their race, religion, or national identity. The secrecy of national security and surveillance programs makes it difficult for citizens to even know if their rights have been compromised. The evidence that has trickled down to the public indicates more than meets the omnipresent eye.
In 2019, the home of News Corp journalist Annika Smethurst was raided after she reported on a ‘top-secret’ proposal to grant the ASD greater surveillance powers. It proposed access to the personal data of Australians, such as emails, texts and bank records, without leaving a trace. Dutton called the leak ‘nonsense’ but also said such powers could improve national security.
Whistle-blowers and data leaks have brought forth much of what is known about surveillance in the West. The Edward Snowden leaks in 2013 sent shockwaves when they exposed the US National Security Agency (NSA) conducting mass surveillance programs on its citizens. The leaks included over 15,000 Australian intelligence files. These revealed that ASD had produced 310 reports based on NSA’s PRISM program in twelve months. While it is illegal for the ASD to spy on Australian citizens, PRISM could provide access to Australian user data through foreign servers. The leak also revealed that ASD had offered to share the metadata of ordinary Australian citizens with the US. These give rare insights into the Five Eyes intelligence alliance, which Snowden called ‘…a supra-national intelligence organisation that doesn’t answer to the laws of its own countries’. The Coalition claims the new ASD funding will allow Australia to deepen its commitment to Five-Eyes.
The Department of Home Affairs, which combines several agencies such as customs and immigration, counter-terrorism, law enforcement and cyber-security, is shrouded in this veil of secrecy. In 2017, the ‘Super Ministry’ was formed against the advice of various security agencies, human rights groups, and the National Security Committee members at that time, including Attorney-General George Brandis, Foreign Minister Julie Bishop and Defence Minister Marise Payne.
Home Affairs has been negligent with Freedom of Information requests. A report by the Australian Information Commissioner found more than half of FOI requests had been processed outside of the statutory processing period. In 2019, The Guardian also reported, ‘its delayed handling of FOI requests had led to almost 8,000 requests being automatically refused.’ When Home Affairs underwent a $5 million review, the report was not made public. Its only evidence, presented by Dutton in Parliament, was a one-page document.
The Centre for Law and Democracy, which provides global rankings on countries ‘right to information’ laws, currently ranks Australia 66th.
The khaki election
What the Government places under the vague umbrella of national security, and what actually makes citizens safer can be two different things. Since 9/11, the ‘hyper-legislation’ of national security has consistently sought to undermine the need for accountability, transparency, and judicial oversight within the government, while permitting invasive and hostile handling of citizens’ rights. Trading away privacy and liberty under the guise of national security does not improve the lives of Australians, nor make them safer. Instead, it places them at risk of draconian laws and tyrannical governments that erode the freedoms they are supposed to protect.
The primary goal of national security is to protect citizens, but too often this is only pursued through defence spending and programs of mass surveillance. To truly keep citizens safe, governments must address all threats to Australians, whether it be climate change, corruption, economic insecurity, or simply pursue a more equal society. The latest budget and several pieces of legislation in recent years point to citizens’ rights being obstructed by this highly politicised national security culture, with alarming levels of bipartisanship and minimal public debate. With the May federal election approaching, voters should be wary of the fear-inducing narratives, emotive language, and political gaslighting that often drive national security debates, particularly in such times of global instability. In a virtual landscape, the loss of civil and digital rights is a threat to all parts of Australian life.
Image: Oliver Cole