Leaders in western democracies are quick to declare in times of national security emergencies that the threat of terrorism cannot change our way of life.



It really is time to cut the crap. Terrorism has changed our way of life, and in profound ways.

Take the two most recent examples.

When political leaders have agreed to a uniform regime that permits children as young as 10 to be detained without charge for 14 days, and when that framework is championed by the most progressive political leader in the country, the Victorian premier Daniel Andrews, things have changed.

When the prime minister in quite unguarded fashion talks about the benefits of mass surveillance through CCTV, combined with a new national face matching database, to use his words – “the power of being able to identify, to be looking out for and identify a person suspected of being involved in terrorist activities, walking into an airport, walking into a sporting stadium” – things have changed.

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We should not pretend otherwise. All the Churchillian rhetoric, while well intentioned and fashioned to soothe, insults the intelligence of the electorate.

We also need to acknowledge that the change to our way of life is all in one direction: enhancing the powers and reach of the national security state, bit by bit, increment by increment.

The current field evidence suggests Australia’s cops and spooks are adept at disrupting threats, and keeping the community safe. It suggests they are doing an excellent job in very difficult circumstances.

Yet despite their success, agencies are also very accomplished in convincing politicians that they need more power, more tools, more discretion.

There is so much rolling momentum behind beefing up law enforcement capability in this country that Malcolm Turnbull now regularly declares there is no place for “set and forget” when it comes to national security.

So this is the dynamic we are in, and given the complexity of the threat environment, I really can’t see it changing.

Given that’s our underlying reality, given federal Labor shows little inclination to argue the toss on the various proposals, given the states are all on the same song sheet, so public debate and dissent and scrutiny is minimal – we need some structural, countervailing measures in the mix to ensure privacy and liberty are also at the table when significant decisions get made.

It’s absolutely true in the Facebook age, when many consumers voluntarily surrender all manner of personal information to corporations, that privacy isn’t what is used to be.

It’s also true that Australians, chilled souls that we are, don’t appear particularly exercised about our lack of basic human rights protections, and seem broadly tolerant of activist government, seeing that as consistent with our political custom and practice, which, of course, it is.

But law abiding citizens who like living in a liberal democracy with personal rights, freedoms and responsibilities, and a modicum of personal privacy, do need to be aware of a couple of things, particularly in the current environment.

Australia doesn’t have an exceptional human rights record. We don’t have comprehensive protections for liberty under Australian law. There is also a weak culture of public accountability.

Australia does not have a bill of rights. So rather than sit, like boiling frogs, as law enforcement expands and intrudes, I think the time has come to have a serious conversation about whether we need one.

We also need serious oversight of the security apparatus, from watchdogs with bite.

Saying we need better protections for liberty is not, for one minute, an argument that security agencies are overstating the threat. The terrorism threat is very real, both here and around the world. We all know it. It would be stupid to suggest otherwise.

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I also don’t take the cynical view that political leaders automatically turn up the volume on national security and law and order to try to boost their political stocks when times are tough.

Perhaps some politicians really are that craven, that besieged, or that desperate, but in general terms I don’t think leaders are expanding the national security apparatus on some crude political calculus, to throw some raw meat at talkback and tabloids.

I think our political leaders are deeply worried about the current risks and threats and the kinetic nature of national security challenges. No one wants a major attack on their political watch. No one wants to have to console grieving families, or face a barrage of questions about how agencies lacked powers to act at critical times.

Politicians who have to grapple with the worst case scenario as they consider where to draw these policy lines are going to be inclined to say yes when security agencies come to them with a wish list, and law enforcement is not generally in the business of championing a diminution in their powers.

So this brings me back to structural counterbalance.

At Thursday’s meeting of leaders in Canberra, we saw evidence of at least one productive dynamic where human rights were at the table when a policy decision was made.

The Australian Capital Territory has Human Rights Act – the first in Australia. Because of that legislative protection, the ACT had to enter an agreement with the commonwealth referring to additional controls and protocols about the use of data from Canberra.

The ACT chief minister, Andrew Barr, told reporters his agreement on biometric face matching was “explicit in terms of how we will participate and explicitly references our Human Rights Act”.

The intergovernmental agreement makes it clear that the ACT “will allow access to its data via the face identification service for the purposes of national security and community safety only”.

The ACT is also not participating at this stage in a system of driver’s licence facial recognition where one inquiry is matched with many of the highest matching facial images.

The agreement signed by Barr and Turnbull notes “the importance of human rights, specifically the right to privacy”.

“Any participation in the capability by the Australian Capital Territory will be consistent with the human rights principles as set out in the Human Rights Act 2004 ACT,” the agreement says.

You might call that two-fifths of bugger all, but as a law abiding citizen, I would call it a start.

