If a law can be abused, it will be. This is as true of laws enacted in the name of national security and anti-terrorism as any other law. Why is this simple reality so hard for politicians to grasp?
Australia has slowly but steadily been morphing from an irreverent democracy with a deeply entrenched larrikin attitude to authority, into a national security-cum-surveillance state. In one of the most famous and cited poems from the Nazi era, Pastor Martin Niemöller wrote about the inactivity of German intellectuals following the Nazi rise to power and the purging of their chosen targets, group after group: the communists, trade unionists, and Jews. Because all these were examples of the ‘Other’, ‘I’ did not speak out. ‘Then they came for me, and there was no one left to speak for me’, he concluded in a speech in Frankfurt on 6 January 1946.
Not only have pretty much all branches of the Australian media ignored the persecution of the likes of Julian Assange (an Australian citizen towards whom the Government of Australia has an irrevocable duty of care), Edward Snowden and Chelsea Manning. As well, they have failed to speak truth to power in the case of Witness K and his lawyer Bernard Collaery with respect to the shameful bugging of East Timor cabinet meetings by Australian spooks in order to benefit the commercial interests of a private company; and allowed a creeping invasion of once inviolate civil liberties and political freedoms.
In this year’s ANU survey of Australians’ trust in various institutions, published on 23 October, the media was triumphantly near the bottom with only around 20 per cent reposing trust in them, a lower figure even than the federal government at about 28 per cent. (Gratifyingly, trust in universities is high at almost 80 per cent.) Given typical Aussie contempt for politicians, this is saying something.
Consequently, when the AFP raided the homes and offices of Annika Smethurst of the Murdoch press and the ABC, public support and sympathy for the journalists and the cause of press freedom was somewhat muted. This allowed PM Scott Morrison to parrot yet another marketing slogan as solemn public policy: ‘No one is above the law’. Isn’t that what poor Witness K believed and tried to act on, only to have his life turned into a Kafkaesque nightmare?
And now we have former PM Tony Abbott ensnared in laws passed by the Coalition government to catch panda huggers like Sam Dastyari, Bob Carr and university-based China researchers who show any sympathy for Beijing’s point of view on China–US tensions. On 8 August, Abbott received a formal letter from Sarah Chidgey, deputy secretary of the Integrity and International Group of the Attorney-General’s Department and part of the team administering the Foreign Influence Transparency Scheme Act that came into effect towards the end of last year. Abbott was scheduled to speak at the Conservative Political Action Conference (CPAC) on 9 August. On the 8th, Chidgey wrote a letter reminding Abbott that as a former cabinet minister, he has ‘a lifetime obligation to register any activity’ he undertakes ‘on behalf of a foreign principal’.
It could not have happened to a nicer person.
After another reminder, Abbott wrote back on 30 October: ‘I decline to register and I suggest that you rethink the making of such misplaced and impertinent requests in the future.’ Inquiries by The Australian established that 8 bureaucrats tasked with safeguarding our fragile democracy against foreign subversion had sent out one formal notice, to Andrew Cooper who co-hosted CPAC, on 21 October. ‘I just wanted to run a conference’, he told The Australian. He was ordered to provide copies of an extensive list of documents, transcripts, audio and video recordings, summaries etc. by 5 November, or face criminal prosecution and risk imprisonment.
‘I will not be complying with this notice’, Cooper said. ‘I established LibertyWorks to argue against this type of government control over speech and citizens… It feels like the Stasi is holding me in 1950s East Berlin’.
Attorney-General Christian Porter was reported to be ‘incandescent with rage when he learned’ of this. Abbott forcefully rebuts the very idea that he is an agent of a foreign principal: ‘I spoke for myself, that’s all. Any suggestion that I was speaking on behalf of a foreign entity is absurd’. Good on the two gentlemen for uncompromisingly rejecting the diktat from Chidgey.
To return to Morrison’s ritualistic mantra of the importance of the rule of law, some laws are imperfect, reflecting human failings. Some get overtaken by events or fall victim to genuinely unforeseen and unforeseeable circumstances. And some are intentionally malicious, designed to trap political opponents or at the very least to wedge them (Soft on terrorists! Obstructing our best honest efforts to protect Australians!). Nelson Mandela spent years incarcerated on Robben Island for violating South Africa’s apartheid-era laws, just as Alexander Solzhenitsyn spent time in the Gulag under Soviet-era laws.
The Morrison-Dutton-Pezullo regime has been working overtime to outlaw many legitimate efforts to investigate government policies and activities and make criminals of lawful citizens. To make the enforcement of any law subject to the discretion of the AG (or any other minister including the PM) is to make it hostage to human fallibility and prejudice. Janet Albrechtsen was on the mark in The Weekend Australian:
The evil nature of totalitarianism is not what happens outside the law. It happens when the law, or a veneer of legality, is used, often in the name of national security, to control what good people do… bad laws in the hands of overzealous bureaucrats are even more chilling.
Maybe they should add Pearls and Irritations to their regular readings. For it was well ahead of the curve on this issue. Tony Kevin described the original draft of the foreign interference law as ‘Orwellian’ and highlighted the critical importance of clarity on who is a foreign principal and the range of lawful activities that would require registration as agents of foreign influence – precisely the trap into which Abbott and Cooper seem to have fallen.
Mark Beeson and Clinton Fernandes drew attention to the reality that US influence in our society and over our politicians and commentariat is far more pervasive than Chinese influence. And Quentin Dempster presciently warned that the ambit of the law ‘is so broad and undefined that it could criminalise harmless foreign communication’. More than half the country could be required to register in order to avoid criminal prosecution, with innocent discussions with someone’s Mum living abroad being criminalised!
Ramesh Thakur was formerly Assistant Secretary General of the UN. He is now Emeritus Professor at the ANU.