“Balance” is the great cliché of national security debates in Australia, relentlessly invoked by politicians of both major parties as they have proceeded to significantly extend the powers of law enforcement and intelligence agencies and curb the rights of Australians.
Nicola Roxon declared this week that she wants to “strike a balance between ensuring we have the investigative tools needed to protect the community and individual privacy”. She was echoing her department’s paper on the current national security reform proposals, which refers several times to the balance “between protecting privacy and enabling agencies to access the information necessary to protect the community”.
It’s a standard phrase from governments looking to give themselves more powers. “The government believes that this strikes the right balance in providing adequate protection while ensuring that procedures are flexible and responsive,” said duty minister Joe Ludwig during the recent Senate debate over the cybercrime bill. The opposition nodded in agreement. Governments “have striven to maintain the right balance between the means and the ends”, said Liberal Brett Mason. Former attorney-general Robert McClelland frequently used “balance” in his justification of extensions of powers for law enforcement and intelligence agencies.
However, as UNSW academic Christopher Michaelsen has shown in a study of the “balance” concept, balance in national security is a deeply flawed approach, regardless of how often politicians use it. As Michaelsen notes, it ignores the relative weighting needed to properly assess different interests, assumes a zero-sum game, ignores the interconnections between liberty and security, ignores how more draconian laws will affect certain parts of the community more than others and ignores how more draconian laws could lead to an increase in risks to national security, not a decrease.
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There are two other points to note on the balance furphy in the particular context of the government’s proposals.
First, if there is any “balance”, it’s one that in Australia has been continually reweighted in favour of the state and its law enforcement and intelligence agencies. Rather in the manner of workplace “flexibility”, this is a balance that only tips one way — in favour of security. Since 9/11, Australian governments have regularly scaled back citizens’ rights and extended state powers. So frequently have they updated the powers of law enforcement and intelligence agencies that they’re now crowding in on one another — the new data retention powers established by the recent Cybercrime Act have barely come into existence before the government is proposing to give itself new ones. Not once have governments curtailed or reduced their powers in the name of balance.
Oh, and don’t forget, we’re still awaiting a “cyber white paper” that the government promised by “mid-year”, which may contain further proposals relating to internet regulation.
Second, just what exactly are we balancing? In a 2011 paper, US academic John Mueller and University of Newcastle’s Mark G. Stewart discussed the cost of the US “war on terror” and how to determine whether it had been justified. One of the points made by Mueller and Stewart is that considerable expenditure has been undertaken by governments to achieve miniscule reductions in already very low risks of major terrorist attacks.
The same logic applies to additional infringements of privacy. The government’s discussion paper states that “[s]ince 2001, four mass casualty attacks within Australia have been disrupted because of the joint work of intelligence and law enforcement agencies. Since 2001, 38 people have been prosecuted in Australia as a result of counter‐terrorism operations and 22 people have been convicted of terrorism offences under the Criminal Code Act 1995 …” So, by the government’s own lights, the current surveillance and intelligence-gathering laws have enabled several operational successes.
Any further amendments to those laws are therefore likely, even on the best-case scenario, to reduce the risk of a successful terrorist attack by a negligible additional amount beyond the reductions already achieved by existing laws — indeed, probably beyond reductions achieved by laws existing before 2001. The “balance” proposed by the government is between a minuscule additional reduction in risk, perhaps calculable in the hundredths of one per cent, of terrorist attack, and a major extension of state surveillance of the life of every Australian.
Of course, the changes are aimed at other wars than the war on terror — ID theft, cybercrime, espionage, organised crime. But the same issue applies to each: if politicians and bureaucrats want to speak of “balance”, they need to explain how much safer we’ll be at the cost of such draconian laws. The government’s discussion paper of course does no such thing. It barely even mentions some of the more draconian proposals, let alone attempt to justify them in terms of reduced risk.
Even if you accept the flawed logic of “balance”, we’re given no basis on which to properly judge what we’re trading away compared to what we’d gain.