PEN Melbourne: Defending freedom of expression. Promoting literature. Over the past year, PEN Melbourne has produced two essays that examine deep concerns around recent legislative challenges to freedom of expression in Australia. In the first essay, Freedom of speech and Australia’s Racial Discrimination Act, Dr Tim Soutphommasane, Race Discrimination Commissioner, explored the issues around the proposed changes to Australia’s Racial Discrimination Act in 2014. These amendments were later dropped by the government. In this second essay, Dr Ben Eltham interrogates and responds to the Australian government’s recently introduced ‘anti-terror legislation’ and the ‘metadata bill’. These two important contributions to the wider discussion about freedom of expression and press freedoms in Australia have been commissioned with the generous support of the Copyright Agency Cultural Fund.

‘I think it would also be fair to say that we should have made more of a fuss at the time.’

It was April 2015. In a brightly lit Australian National University lecture theatre, Seven West Media’s Bridget Fair was lamenting the passage of a terrorism law. Depending on how you count such things, it was either the sixty-fifth or sixty-sixth anti-terror law passed by Australia’s parliament since 2001. This one had far-reaching implications. Among other things, it criminalised the conduct of journalism.

Fair was speaking at public hearings held by the Independent National Security Legislation Monitor, the public officer charged with ‘monitoring’ Australia’s increasingly restrictive and punitive counter-terror laws.

The inquiry is ongoing. Officially, it is charged with probing ‘section 35P of the Australian Security Intelligence Organisation Act 1979, concerning offences for the disclosure of information relating to a “special intelligence operation”.’ The bureaucratic tone of the inquiry’s job description is par for the course in the Kakfaesque domain of Australian national security law, where it is now illegal to report on the activities of Australia’s spy agencies.

Under Section 35P, recently amended by the National Security Legislation Amendment Act (No. 1) 2014, anyone who discloses information about a special intelligence operation can go to jail for five years. There are no protections for journalists, and the law applies even to someone who inadvertently discloses information about something they hadn’t realised was a special intelligence operation. Don’t stumble upon a spy mission, or you could go to jail.

What is a ‘special intelligence operation’? It’s quite an important question. If you happened to know enough about an operation to realise it was special, you might well find yourself in a lot of trouble.

A special intelligence operation is defined by Australian law as:

an operation: (a) in relation to which a special intelligence operation authority has been granted; and

(b) that is carried out for a purpose relevant to the performance of one or more special intelligence functions; and

(c) that may involve an ASIO employee or an ASIO affiliate in special intelligence conduct.

Does that clear everything up? In the Helleresque jargon of the Act, a special intelligence operation is just about anything involved with intelligence. There is no further definition of what’s so ‘special’ about a special operation. There is no limit on the number of special intelligence operations ASIO can declare. ASIO agents on a special operation are immune from essentially all civil and criminal liability. ‘Special intelligence’ is pretty well anything ASIO says it is.

What would a journalist who suspects she might have stumbled onto a special intelligence operation do? According to the government, the answer is to call ASIO’s media department. Almost unbelievably, the onus is now on investigative journalists to ask the spooks whether the thing they’re investigating might be special spy business. Actually, the onus is on anyone who encounters an unfolding event: journalist, blogger, or simply your mate with a Twitter account. As Griffith University’s Mark Pearson notes wryly, ‘one can imagine that ASIO media hotline getting considerable traffic in coming months and years.’

According to News Corporation’s veteran managing editor Campbell Reid, the laws are now so restrictive that it may be that journalists simply can’t report on an intelligence operation, even one that was completely successful in apprehending terrorists. Reid was also giving evidence to the independent monitor’s inquiry in April. ‘The fear that I have is that important information that could help parents understand the threat that their children could be placed under is now shut down, and potentially shut down for ever,’ he told the inquiry. ‘So this extraordinarily dangerous episode in Australian society could effectively be censored for all time.’

The media executives were particularly worried about the future for whistleblowers, the rare and courageous people inside the military and government who disclose information to journalists about wrongdoing. ‘If you are a whistleblower or a member of the public,’ Reid continued, ‘or, as in most stories of any kind of an investigative nature, a series of people with pieces of information, the situation we’re in now is that every piece of this information simply makes it too dangerous to talk to a journalist.’

How has it come to this?

For much of the last decade, George Williams has been one of Australia’s leading legal scholars. His specialty is Australia’s growing thicket of laws dealing with counter-terrorism and surveillance. Needless to say, he’s been a busy fellow.

In 2012, Williams wrote a review of the counter-terror laws enacted in the decade after the September 11 attacks. He concluded that ‘powers and sanctions once thought to lie outside the rules of a liberal democracy except during wartime have now become part of the Australian legal system.’ Williams’ latest book, co-written with Andrew Lynch and Nicola McGarrity, is entitled Inside Australia’s Anti-Terrorism Laws and Trials. For those of us who care about basic freedoms of speech and association, it makes for uncomfortable reading.

For instance, let us examine the Counter-Terrorism Amendment (Foreign Fighters) Act 2014. This omnibus amendment to many existing terror and security laws included an amendment to the criminal code that created a new offence: advocating terrorism. As Williams and his co-authors write, ‘advocacy, for the purposes of the offence, means counselling, promoting, encouraging or urging terrorism.’

It shouldn’t take more than a moment’s consideration to envisage the rather significant restrictions this new law places on certain types of speech. Unlike existing definitions of ‘incitement’ in the Criminal Code, the new offence does not require the prosecutors to prove that a defendant intended for his or her speech to incite a specific terrorist act. Instead, the ‘advocacy’ provision now applies to a much broader range of speech, requiring prosecutors to prove simply that the defendant was reckless in their urging of a terrorist act or offence. Considering the perennially controversial definition of what constitutes ‘terrorism’, and the blurred and confused nature of irregular warfare in conflict zones such as Syria, it is obvious that the new law could be very restrictive indeed. Williams, Lynch and McGarrity argue that it could apply to those writing in favour of rebel groups opposing the brutal Assad regime. The new offence, they observe, inevitably spirals uncontrollably outwards to a ‘larger, unresolvable debate about the legitimate use of violence.’

For those not intimately acquainted with the legal details, one of the mot remarkable aspects of Australia’s new terror laws is the before-the-fact criminality they establish. Williams, Lynch and McGarrity call it ‘pre-inchoate liability.’ Such liability extends well beyond the existing definitions of conspiracy, into the realms of vague premeditation. You could also, if you were uncharitable, call it ‘thought crime.’

Take, for instance, Faheem Lodhi. In 2006, Lodhi became the first Australian convicted of a terrorist offence. He had made the grievous mistake of associating with Willy Brigitte, a French national who had trained with Lashkar-e-Taiba in Pakistan. He had also gathered some highly suspicious documents together, such as maps of electricity grids, aerial photographs of Holsworthy Barracks, handwritten notes on how to make home-made explosives, and a CD-ROM of jihadist material. He had then made some injudicious attempts to acquire some chemicals, particularly nitrates, which could have been used to make a fertiliser bomb.

While a jury found Lodhi guilty, the conduct of Lodhi’s trial was hardly open and transparent. Much of the evidence was given in secret – a full six days of closed testimony. As the Sydney Morning Herald’s Natasha Wallace reported in 2006, ‘of the first day of the transcript provided yesterday, the first eight pages and the last eight are entirely blacked out. It is not possible to tell who all the witnesses are and what parts are just legal argument in between evidence.’ The judge in the trial, Anthony Whealy, admitted in his judgment that ‘there is no evidence to indicate precisely what Brigitte’s role was to be in relation to any terrorist activity.’ However, he quickly added, ‘I am satisfied beyond reasonable doubt that the relationship was not an innocent one.’

As Jeff Sparrow pointed out in a fine essay on the topic this year, Lodhi had no bomb, no target and no concrete plan. He had some maps, some recipes, and he’d tried to acquire some chemicals. The judge freely admitted that ‘it is clear that the planning was at a very preliminary stage.’ Indeed, he added that ‘I am not satisfied beyond reasonable doubt that the offender intended that he himself would necessarily assemble the bomb or that he would be the bomb carrier when it came time to place it at or near the ultimate target.’ Nonetheless, Justice Whealy decided that ‘I am satisfied beyond reasonable doubt that the offender’s intentions in obtaining the list of chemicals was in contemplation for an action that he intended would be carried out to advance the cause of violent jihad.’

‘Contemplation for an action’ – those were the judge’s own words. And the appeal made clear that this was guilt enough: as the distinguished jurist Chief Justice Spigelman of the New South Wales Supreme Court wrote in his appeal judgment, ‘what has been made an offence includes conduct where an offender has not decided precisely what he or she intends to do.’

In 2014, in one of his few substantive attempts to justify the raft of new terror laws his government was enacting, Prime Minister Tony Abbott told parliament that ‘regrettably, for some time to come, the delicate balance between freedom and security may have to shift.’

He continued:

There may be more restrictions on some so that there can be more protections for others. After all, the most basic freedom of all is the freedom to walk the streets unharmed and to sleep safe in our beds at night. Creating new offences that are harder to beat on a technicality may be a small price to pay for saving lives and for maintaining the social fabric of an open, free and multicultural nation.

The problem with this argument, as Williams, McGarrity and Lynch point out, is that is it by no means certain that less freedom adds up to more security. It may well be, as they write, that ‘a dimunition of liberty may even be counterproductive.’ The authors argue that while Australia needs counter-terror laws, the ones we’ve ended up enacting are poorly drafted, poorly monitored, lack checks and balances, and are disproportionate to the threat they counter. ‘Elements of the national security legislative framework require urgent repair or even repeal,’ they conclude.

Of course, no such redress is on offer. The major parties are busy passing new laws, rather than curbing the overreach of old ones.

The fate of the immediate past independent monitor, Bret Walker SC, is instructive. Walker spent three years in the role and authored four fat reports on Australia’s terror laws. They were given short shift by both the Labor and Coalition governments. Almost all of his recommendations were ignored – even those that would have strengthened some aspects of the legislative framework. In the end, Walker was left to lament that ‘when there is no apparent response to recommendations that would increase powers and authority to counter terrorism, some skepticism may start to take root about the political imperative to have the most effective and appropriate counter-terrorism laws.’

Walker left his post as independent monitor in April 2014. It took the Abbott government a full eight months to appoint his replacement, Roger Gyles QC. In that time, the government drafted and passed two new counter-terror bills, including the one that outlawed reporting on special intelligence operations.

Consider some of the following facts.

The United States government’s National Security Agency has a program called XKeyscore. This program ‘collects nearly anything a user does on the internet’, according to top secret documents leaked by Edward Snowden. Back in 2008, XKeyscore had over 500 dedicated data centres globally, networked in a ‘massive distributed Linux cluster.’ By 2012, the NSA was aiming at 10 million HTTP intercepts a day. The NSA’s overarching objective, as directed by General Keith Alexander, the Strangelovian eminence at the top of the NSA hierarchy, is simply to ‘collect it all.’ A multi-billion dollar operation with tens of thousands of employees (how many is still classified, along with the agency’s budget) the NSA may be the most far-reaching internal security body in world history, putting such notorious historical rivals as the Stasi, the Gestapo and the Okhrana to shame. In his famous interview with Glenn Greenwald and Laura Poitras in a Hong Kong hotel room, Snowden claimed that ‘I, sitting at my desk, could wiretap anyone, from you or your accountant, to a federal judge or even the president, if I had a personal email.’

You can see why the spooks love such tools. One of the presentations leaked by Snowden shows a hypothetical search enquiry by an NSA operative. ‘For this example, I’m looking for everyone in Sweden that visits a particular extremist web forum,’ the slide helpfully explains. XKeyscore can provide the answers. A separate program called DNI Presenter can watch Facebook chats in real-time.

In 2013, the Guardian published details of a presentation Snowden leaked that discussed PRISM – the NSA’s program for accessing the messages, emails and phone calls of some of the largest tech companies in the world. Subtitled ‘The SIGAD used most in NSA reporting’, the document has the logos of Microsoft, Google, Yahoo, Facebook and Skype arrayed jauntily across the top of every page. It’s hard not to spot the resemblance to a set of lab notes. There are case studies and methodology primers. In one slide, showing a diagram of ‘upstream’ and ‘downstream’ intelligence sources, the slide annotates: ‘you should use both.’

The NSA has some able allies, too, including the domestic spy agencies of the four English-speaking democracies that together make up the ‘Five Eyes’ network of international surveillance. The other four chords of this pentagonal web are the United Kingdom, Canada, New Zealand and Australia. Originally formed in the Second World War to listen into enemy radio transmissions, the agreement is still in operation and is the legal basis underlying the vast intelligence flows shared between the various spy agencies of the five countries. It’s a revealing quirk of twenty-first century geopolitics that the five democracies with the worst records for spying on their citizens are all settler nations that have explicit commitments to individual liberties enshrined in their constitutions and laws. The trouble is, all these nations also have wide-ranging legislative approval of spying. Indeed, laws might even be said to be a significant part the problem.

The widespread imposition of routine, total surveillance by these five democracies is not the result of a powerful military acting without sanction, or a rogue network of spies. It is entirely legal, and is the formal policy of the various national governments. The spy system has been set up at the behest of the legislatures of those nation-states. The USA has its PATRIOT Act, passed in the fevered days after the September 11 terrorist attacks. Canada has a range of laws pertaining to surveillance. And so, of course, does Australia.

Australia’s Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015, recently passed with the overwhelming support of both the major parties, certainly gives one pause to consider the relevance of the adjective ‘Orwellian.’ Here is a law that requires telecommunications providers to collect and store vast amounts of data about their customers – that is to say, you and I – for a period of at least two years. No fewer than 19 separate law enforcement agencies can access the data without a warrant, or judicial oversight of any kind, and the Attorney-General can give other agencies access with the stroke of a pen. Section 187AA, which sets out bluntly the ‘information to be kept’, runs to two and a half closely typed pages, and looks like this:

Kinds of information to be kept TopicThe subscriber of, and accounts, services, telecommunications devices and other relevant services relating to, the relevant service Description of information The following: (a) any information that is one or both of the following: (i) any name or address information; (ii) any other information for identification purposes; relating to the relevant service, being information used by the service provider for the purposes of identifying the subscriber of the relevant service; (b) any information relating to any contract, agreement or arrangement relating to the relevant service, or to any related account, service or device; (c) any information that is one or both of the following: (i) billing or payment information; (ii) contact information; relating to the relevant service, being information used by the service provider in relation to the relevant service; (d) any identifiers relating to the relevant service or any related account, service or device, being information used by the service provider in relation to the relevant service or any related account, service or device; (e) the status of the relevant service, or any related account, service or device.

That’s just one sub-clause of the law; other ‘topics’ include the date, time and location of a communication, its source and destination, and what type of message it was (‘Examples: Voice, SMS, email, chat, forum, social media.’) When faced with such newly legislated state powers of control and surveillance, it’s understandable that civil libertarians, journalists and ordinary citizens get concerned.

How bad is it? It’s pretty bad, actually. The level of surveillance that the Australian state can now legally conduct on its citizens is certainly as total as anything that pertained in the first and second world wars, or at the height of the Cold War in the 1950s. What this means for the future of individual liberty within our democracy is anyone’s guess, but it’s hard to find an informed observer who is comforted. The ill-informed, on the other hand, remain blissfully ignorant.

And that’s perhaps the most remarkable aspect of the Australian debate. In what is either a reassuring indicator of the stability of Australian society, or a remarkable demonstration of the way surveillance organisations can hoodwink legislatures and the general public, the metadata debate has been characterised by a surprising lack of interest from the mainstream media and the general public, most of whom did not find out about the laws until they had been passed. The Liberal-National Coalition has shown itself to be an enthusiastic supporter of tougher terrorism laws, notwithstanding their occasional homilies to freedom in front of party faithful. But so has the Australian Labor Party. While the metadata bill clearly worried many on the left of the ALP, in the end it was too complex, too technical and too abstruse to incite a backbench uprising. That left only the Greens and other minor parties and independents to oppose the bill, which they did, to negligible effect. It’s interesting that the only committed opposition to the bill came from the far left and far right of the political spectrum, a development which might be taken for broad consensus, but may also represent the narrowing of the electoral base of the major parties.

Early in his remarkable book, The File, Timothy Garton-Ash describes an uncanny moment examining the file kept about him by the Stasi:

Person-description of connection ‘Beret’

SEX: female

AGE: 30-35 years

HEIGHT: 1.75m-1.78m

BUILD: slim

HAIR: medium-blonde, curly

DRESS: dark blue cloth coat, red beret, blue jeans, black boots

ACCESSORIES: dark brown handbag

Garton-Ash is transfixed: suddenly he is transported back to East Berlin in 1979.

I remember the slovenly gilt-and-red Ganymed, the plush Operncafe and the blue-shirted, pimpled youths in the thirtieth anniversary march-past, their paraffin-soaked torches trailing sparks in the misty night air. I smell again that East Berlin smell, a compound of the smoke from old-fashioned domestic boilers burning compressed coal-dust briquettes, exhaust fumes from the two-stroke engines of the little Trabant cars, cheap East European cigarettes, damp boots and sweat. But on thing I simply can’t remember: who was she, my little red riding-hood?

After re-reading his diaries, Garton-Ash realises he has forgotten a love affair. There is even a letter, enclosing a photograph. ‘Touseled hair, high cheekbones, a rather tense smile. How could I have forgotten?’ Years later, in our own country, readers of ASIO’s files from the 1950s and 1960s have described similar reactions: the realisation that the state knew their past lives better than they did. The bittersweet play of forgetfulness, overlaid with the uncanny discomfort of the state-sponsored aid to memory, asks us difficult questions about the relationship of the citizen to the state.

Any discussion of mass state surveillance inevitably defaults to the example of the Stasi. The scale of the Ministry for State Security’s operations remains astounding. At the fall of the German Democratic Republic in 1989, the Stasi was East Germany’s largest employer. An estimated 173,000 informants were on the Ministry’s books: one for every fifty adults. Thousands of officers were devoted just to monitoring phones; thousands of letters a day were routinely opened; 20,000 phone calls were logged in East Berlin alone in 1989. When the Gauck Agency released the Stasi files it had seized, the archive was said to feature 180 kilometres of files. Several politicians were forced to resign, including Josef Duchac, Premier of the state of Thuringia.

Such power certainly allowed for savage repression of individuals, including the execution of many innocent people after their denunciation by informants. The intrusiveness of the Stasi was legendary. Surveillance teams would regularly break into suspects’ houses to plant bugs and photograph files, and would often leave subtle markers of their presence in a deliberate attempt to intimidate their targets. Stasi agents operated with essentially no legal checks, and with complete freedom to monitor all aspects of the their subjects’ lives. The Stasi also interfered, ending careers and ruining lives with a secret file and a discreet chat. A close reading of the Stasi’s actions in the 1970s and 80s suggests that it played a sophisticated game, trying to calibrate its repression so as to maintain party control, but without provoking greater resistance. Even where charges were laid for crimes such as ‘illicit contact’ and ‘public degradation of state officials’, two of the favourite charges against dissidents and would-be emigrants, sentences were often light.

The irony is, of course, that the Stasi was utterly ineffective at its primary task: preventing the fall of the German Democratic Republic. Like the edifice of Communism itself, the Ministry disintegrated in just a few weeks in late 1989. Not only did it not predict the collapse, it made no meaningful effort to arrest the revolution when the critical moment arrived.

No-one quite knows why. As even the Stasi’s best-known historian, Jens Gieske admits, ‘it almost seems a mystery that the GDR’s internal armed forces gave in to defeat without a fight, a reaction that fundamentally contradicted their interests in the narrow sense.’ The Stasi, the most feared and effective internal surveillance agency of the Eastern Bloc, crumbled away in the general confusion of the 1989 revolution. In the end, the Stasi’s fatal weakness may have been exactly its faultless loyalty: as East Germany’s rulers lost their nerve, the Stasi followed orders and stood down. No counter-coup was mounted. By the time state prosecutors and even police moved against the Stasi to stop it from burning files, it was clear that the revolution would sweep the agency away. The occupation of the Stasi headquarters on 15 January 1990 was both inevitable and, like so much that is miraculous about the fall of Communism, remarkably peaceful.

ASIO is not the Stasi, and there is no evidence that the agency is routinely interfering in ordinary citizen’s lives. But it has accrued Stasi-like powers of surveillance. The question then becomes: what will the effect of the new surveillance regime be on online culture? How will it affect Australian public discourse? If East Germany has taught us anything, it is that the sustained and total surveillance of an entire population is not without consequences: political, cultural and especially moral. What will the consequences be in our own society? We are just at the beginning of the new surveillance era, and it is impossible to determine just how it may play out.

There is a sense in which broad surveillance powers are a potential harm, rather than an actual one. If the state merely monitors but doesn’t detain, limit or repress, are our liberties truly at threat? After all, as the saying goes, the innocent have nothing to fear. At this moment the nation-states of the Five Eyes have not jailed large numbers of internal dissidents, moved to break up political associations, or repressed large swathes of civil society. No media organisations have been shut down, even if certain websites have been proscribed and mosques and chatrooms are routinely monitored.

So the question becomes: would governments and their domestic intelligence agencies use such powers for repression? Even if collectively the answer is no, in a disconcerting number of individual instances, the answer is yes. The US, the UK and Australia have all seen journalists and whistle-blowers prosecuted and even jailed after falling into the tentacles of the security state. Edward Snowden would certainly be prosecuted were he to return to the United States; Chelsea Manning languishes in a military jail in Fort Leavenworth. It is true that such outrages are nothing compared to what goes on in Russia, in Sri Lanka or in Iran. Nonetheless, it cannot be denied that power is being abused, and that liberties are being limited.

There have already been plenty of individual abuses of terror laws here in Australia, from Mohammed Haneef to Izhar ul-Haque. Haneef was detained without charge for twelve days. His legal rights were denied. But his eventual charge – of providing resources to a terrorist organisation – was without substance. He had given his SIM card to a second cousin, later implicated in the 2007 Glasgow airport attack. That SIM card was said to have been found at the scene of the attack. In fact, it wasn’t. Haneef was found to have done nothing wrong. A subsequent inquiry found that ‘it appears that Dr Haneef spent three weeks in custody as a consequence of very ordinary, unremarkable familial interaction.’

Perhaps the more concerning cases are those where there is no obvious miscarriage of justice, and yet individual liberties have been trampled on. The case of Alan Kessing, a whistleblower in Customs, is instructive. In 2005, The Australian published a secret report about airport security obtained from Kessing. He was charged and convicted under section 70 of the Crimes Act and received a nine-month suspended sentence. According to the ABC’s Media Watch, metadata showed he had called The Australian from a payphone near his house. It’s hard to see how prosecutions such as this are a good thing for Australian democracy. Whistle-blowers remain critical to exposing corruption and malfeasance in public life.

In the First and Second World Wars, the belligerent powers all censored, repressed and jailed internal critics and enemies. The justification at the time was war, and it remains war. That tells us something about the way our rulers approach the world, because there is no resemblance between the irregular proxy wars now being fought against Islamic terrorists, and the total wars of the first half of the twentieth century. Terrorists have the ability to strike lethally and without warning in western democracies. But the uncomfortable truth is that they kill very few western citizens, and retain no credible capacity to defeat or depose a modern state.

Whether you think the US and Australia are substantially unfree might therefore depend on your view of power. If, like Michel Foucault, you see power as more than merely the application of force to achieve political and social compulsion, then you might be inclined to question just how free our much-prized modern democracies really are. Could it be that the vast apparatus of surveillance constructed at such expense could also be exerting subtle effects on our everyday political activities? Or is it rather more metaphysical? Is surveillance helping to construct power itself through the constituent action of its moving parts? In other words, is surveillance a ‘microphysics of power,’ in Foucault’s muscular phrase?

The nagging concern must therefore be that, in contrast to the terrorism they are meant to combat, society-wide surveillance networks may well pose a greater threat to the contemporary conditions for liberty and democracy. By surveilling the private sphere, they also harm the public sphere – assisting the corrupt and hollowing out the basis for trust in communication. The slow erosion of such freedoms thus assists broader inequalities in our polity, insidiously crimping long-established freedoms of speech, association and assembly, and callously ruining innocent lives.

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