Like Abbott, Turnbull Is Using National Security For Political Gain


A new announcement shows the Turnbull government can be just as draconian and self-interested as the Abbott government was, writes Ben Eltham.

Is the new Coalition government of Malcolm Turnbull really that much kinder and gentler than the administration of Tony Abbott? So far, an analysis of the policies of the two governments says no.

In policy terms, Turnbull has changed little from the Abbott years. There has been a modest reset on higher education policy. But Direct Action is still with us. So is the push to wind back penalty rates for workers. And the government appears to be as rock solid as ever in its tough line on refugees.

Yesterday in Question Time, Prime Minister Turnbull was trumpeting the government’s abolition of the carbon tax and its incarceration of asylum seekers. “We have fulfilled our election pledges of abolishing the carbon tax, of abolishing the carbon tax,” he told the House of Representatives. “We have been able to once again restore the security of our borders.”

It sounded awfully like the sort of thing Tony Abbott (who watched on from his new perch on the back bench) might have said. All that was missing were the familiar three-word slogans.

So perhaps it’s not surprising that the government is continuing with its legislative program on national security. 2014 saw a raft of onerous new anti-terror laws passed by the Parliament. One of them – the mandatory retention of email, phone and social media metadata by telecommunications companies – came into effect today. It’s a sad indictment on the diminished levels of public debate in Australia that many ordinary voters are only just finding out that the government has set up a nation-wide internet spying program, with the whole-hearted support of the Labor opposition.

Like so many of the Abbott government’s laws, the data retention bill was complex, poorly drafted, and difficult to implement. It has already thrown the telecommunications sector into confusion.

A survey by the Communications Alliance found that 84 per cent of internet service providers were not ready to start spying on their customers. Australia’s largest telco Telstra has reportedly applied for an extension to the regime, meaning even it will not be ready.

According to John Stanton of the Communications Alliance, most ISPs haven’t even heard back from the Attorney-General’s Department. “It is no surprise that many service providers won’t be compliant when the legislation comes into force,” Stanton told Delimter’s Renia LeMay. “Many of these because they are still waiting to hear from Government as to whether their implementation plans have been approved.”

With Australia’s largest ISPs non-compliant on the first day, the metadata retention policy has descended into farce. Let’s hope “the terrorists” are not planning any bomb plots today – it will be April before the spooks will be able to get their hands on the incriminating data.

Of course, the targets of this bill are not really terrorists or radicalised youth, whatever the platitudes of the government. Like most of the Abbott government’s security laws, the point of metadata retention was not really to surveil terrorists. Instead, it was all about a power grab by the intelligence agencies, egged on by a government all too keen ring the national security alarms.

As we’ve argued here at New Matilda, many of these counter-terror laws will do nothing to make our nation more secure. They are essentially “security theatre”: good for publicity, but useless for preventing terrorist attacks. You can file the latest announcement on national security – extending control orders to children as young as 14 – in exactly the same category.

What are control orders? They allow police and national security agencies to lock up suspects without charge. As such, they already represent a very significant dilution of one of the common law’s most fundamental rights: the right to the presumption of innocence. Control orders can be applied without the normal criminal safeguards, such as arrest, charge, and trial. As the Attorney-General’s Department informs us, a person can be placed on a control order if “it substantially helps prevent a terrorist attack.”

That’s pretty vague. It’s also presumptive of guilt. How do we know if the control order will really prevent a terrorist attack? No-one can see into the future, least of all Attorney-General George Brandis. Control orders can also be applied if a person has:

  • trained or participated in training with a listed terrorist organisation, or
  • engaged in a hostile activity in a foreign country, or
  • been convicted:
    •  in Australia of an offence relating to terrorism, a terrorist organisation or terrorist act, or
    • overseas for an offence that would, if occurred in Australia, be a terrorism offence within the definition of the Crimes Act.

It may well make sense to keep known, dangerous terrorists under control order. If this is true, however, there can’t be too many of them in Australia – because authorities have hardly ever used control orders. Since their creation in 2005 by the Howard government, control orders have been used only twice: in 2006 for David Hicks and Jack Thomas, and in December last year for two men in relation to Operation Appleby.

The examples of Hicks and Thomas should give us pause for consideration. Neither was convicted of any terrorist charge. Hicks was not found guilty of any Australian offence (he confessed to a US charge of aiding terrorists, which was itself eventually ruled to be invalid by the US Supreme Court of Appeal). “Jihad Jack” Thomas was also cleared, after the Victorian Supreme Court threw out his conviction in 2006.

In hindsight, it appears that the control orders placed on Hicks and Thomas were more about politics than security. One of the reasons that control orders are not used very much is that they appear to be quite resource-intensive.

As former National Security Legislation Monitor Bret Walker told the ABC today, control orders are expensive and time-consuming – but not necessarily effective.

“Somebody who is prepared to do terrible things as happened just recently is not likely to be somebody who will feel obliged to comply with a control order,” Walker told ABC Radio this morning. “So we do have to be careful about just adding layer after layer of law in relation to dealing with people who probably require to be surveilled, investigated and in appropriate cases – charged.”

We are yet to find out if the men placed on control orders after Operation Appleby were connected to 15-year old Farhad Jabar, the boy alleged to have shot New South Wales police employee Curtis Cheng on October 2. An 18-year old man is currently being held by the Australian Federal Police – without charge – in connection to the Cheng shooting.

But the obvious point needs to be made: a control order would not have prevented Jabar shooting Cheng. The teenager does not appear to have been tracked or surveilled by law enforcement agencies. If we didn’t know he was a potential terrorist, then we can hardly have slapped a control order on him.

But, of course, yesterday’s announcement is not really about preventing another terrorist attack. It’s about making George Brandis and Malcom Turnbull look tough. Another pointless counter-terror law. More national security theatre. How different is the Turnbull government, really?

Ben Eltham is New Matilda's National Affairs Correspondent.