Here’s the likely outcome of the AFP raids on Annika Smethurst and the ABC: after a couple of days of jumping up and down, the media will move on. News Corp will go back to supporting any increase in security agency powers proposed by the Coalition. Nothing will change. And security bureaucrats and politicians know that. There will be more raids, in the future, and the same cycle will play out.
Some journalists and commentators might grumble that Labor has failed to do its job in opposing the endless extensions of security powers and the readiness of the government to call in the flatfoots when embarrassed. Just so, but as Crikey noted yesterday, the moment Labor actually tries to play the role of opposition on such matters, it cops “soft on terrorism” from the media. There are no votes, and not even any nebulous goodwill, for Labor in doing its job properly.
And if the media, distracted by the next shiny thing, loses interest in depredations of the police state, Australia has few civil society bodies to pursue the issue. Digital Rights Watch, EFA, civil liberties bodies and lawyers’ groups will complain. But we lack a body like the American Civil Liberties Union (ACLU) or the Electronic Frontier Foundation (EFF) in the US that will proactively litigate against governments suspected of breaching basic rights. Moreover, we lack the legal framework for such challenges: there are no mechanisms that can be used to restrain the powers of government against its citizens, beyond the “implied freedom of political communication” invented by the High Court to protect TV station revenues in the 1990s.
Is there anything the media could do, now that it has realised that we’ve turned into a police state that will attack the media if it plays its role of holding the powerful to account? Even if outraged media executives extracted from the government a commitment that there would be no more raids, or that leak investigations would no longer target journalists, or that senior bureaucrats would lose their power to sool the coppers onto media organisations, that wouldn’t address the problem, which is that there is no structural restraint on national security laws and agencies.
In Australia, we’re reliant on the goodwill of security bureaucrats and their ministers not to abuse their massive powers. Unlike in other Anglophone countries, there is no real oversight of them by parliament — not while the Parliamentary Committee on Intelligence and Security remains unreformed. They can hide behind “national security” and “that’s an operational matter” to block Senate committee probing. And remember, these raids are the result of senior bureaucrats and government ministers responding to being embarrassed. Imagine what it would be like if someone genuinely malicious, with an agenda of corruption or other criminal intent, had access to such power? A system that relies on the goodwill of its operators to not inflict damage on society is a disaster waiting to happen.
What’s needed is a constitutional, or entrenched, bill of rights that would provide a systemic protection — one that would enable the media and civil society groups to litigate against government agencies to prevent them from abusing basic rights, or obtain redress if they do.
For people like me who’ve long opposed a bill of rights, this is something of a bitter pill to swallow. But the refusal of our major parties to protect basic rights demonstrates that our existing system has failed. And yes, it’s problematic that a bill of rights is — wrongly — automatically associated with the left and identity politics. In fact, a bill of rights, in acting as a check on government, is as much a libertarian and conservative mechanism as a progressive one. And it is about protecting not merely individual rights but the institutions that play a key role in our democracy. The media is a crucial element of any healthy democracy; a bill of rights that protects the workings of a free press would be a fundamentally conservative document, one aimed at protecting the institutions that have served our democracy well over the last century. As the example of the United States demonstrates, a bill of rights is not merely compatible with a deeply conservative polity that champions freedom; it is crucial to it.
A concerted media effort to change the debate around a bill of rights in Australia, and shift it from the political margins, where it is the plaything of leftwingers determined to push identity politics, to the political centre where it can protect us against our governments in ways that our major party politicians refuse to, would represent a real chance of curbing the police state that we have developed in Australia. It just needs some clear thinking and focus from journalists, editors and producers.