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Charting political space: surveillance and the rule of law.

Experience shows that for a free society to exist, intelligence organizations must be subject to administrative supervision and amenable to legal process. - Lionel Murphy(1)

"National Security" As An Institutionalized Concern For Nation-States is a relatively recent phenomenon. The internal security organizations that we are now so familiar with were established in the first half of this century. The British internal security body (MI5) was established in 1909 and its charter formed the basis for the charter of its Australian counterpart, the Australian Security Intelligence Organization (ASIO), when it was established in 1949. In this way, the establishment of ASIO as Australia's domestic intelligence organization followed the British model, which maintained a distinction functionally and operationally between security and general law enforcement, while at the same time linking these through the special branches of the state police forces.(2)

In its early formulation, the notion of what constituted a threat to national security was viewed in terms of radicalism. The well-documented tendency of internal security bodies "to think of anyone they chose to call `left-wing' as subversive" (Hope, 1977: 128) had its roots in this early period, marked by the spread of communism and the international instabilities of two World Wars.

This early incarnation of security in Australia had three unique features: it was based on a functional and philosophical distinction between policing and security activities; "national security" was seen as an arm of defense; and it focused most clearly on communism and communists. In the Australian instance, there were crucial political and legal imperatives to be met by effecting such a clear distinction between security and policing operations, and by the defense orientation of security threats. Yet we also need to address the fundamental question of what role there ought to be for an internal security organization in the wake of the end of the Cold War.

An examination of the Australian experience reveals a slow but steady shift in the security bureaucracy away from an "exceptional" - and hence marginalized - structure and toward an incorporation of its key elements into the broader criminal justice process. In particular, the distinctive feature of the security function, that of intelligence collection and analysis, has become comprehensively merged with domestic policing. This raises fundamental policy questions that are yet to be adequately addressed concerning the nature of intelligence material and the appropriateness of its collection and integration across a wide range of civil authorities.

The enormous transformation that internal security has undergone over the last two decades, and through which each of its earlier features has been dissolved and reconstituted, centered first on the notion of "terrorism" in the 1970s and more recently on the less marginal "politically motivated violence." It is this latter shift in national security discourse in particular that has enlarged the possibilities of domestic surveillance, taking that surveillance into the previously contested area of general law enforcement.

The Second Wave of Security

The contemporary national security threat of terrorism proved to be a turning point for internal security services in Australia and elsewhere. The need for counterterrorism measures not only spearheaded a renewal of domestic countersubversion operations following strong criticisms of such operations during the mid-1970s, but was also unique in effecting qualitative changes in the nature of the bureaucratic security sector itself. A former Director-General of ASIO, Mr. Tudor Harvey Barnett, recently described the development of the counterterrorist capacity as "security growing a new limb."(3) It Was, however, much more than simply developing another aspect to the existing role of security.

Domestic counterterrorism measures comprehensively restructured the institutional and operational aspects of national security. It did so through five main developments: the use of exceptional legislative or their regulatory measures, an expanded and interactive intelligence base, the development of pre-emptive controls on political activities, the involvement of the military in civil disturbances, and the development of a strategy of media management in times of crisis.(4)

This article will concentrate on the merging of security and policing intelligence through their overlapping counterterrorist capacities. As Farson has noted (1991: 67), counterterrorism is "the zone where persons with coercive capacity must work closely alongside those with the information to prevent political acts of violence from occurring."

ASIO's primary function, which has remained largely unchanged since its inception in 1949, remains "to obtain, correlate, and evaluate intelligence relevant to security."(5) Several Australian reports have recognized the political dangers inherent in allowing this function to become too closely aligned with that of law enforcement. The New South Wales Privacy Committee recognized in the 1970s the "high degree of risk involved" in police intelligence collection. The committee argued that such a risk "must be countered by ... an ordinary obligation on the Police Force to ensure that it is only used for the purposes for which it is collected" (White, 1978: 37).

Similarly, Justice Hope's 1977 Royal Commission on Intelligence and Security (RCIS) noted in relation to ASIO's intelligence material that "since much of the information is highly sensitive ... it is of the greatest importance that its records system ... is secure, and that access to the records and to the information they hold is strictly controlled" (Hope, 1977: 102). Hope went on to argue that ASIO's intelligence "should be kept quite separate and distinct from the records of any other service. Thus, if a computer system is used, ASIO should not record its intelligence in a computer that is also used by, e.g., a police or other law enforcement service" (Ibid.: 104).

These same issues were addressed by the Canadian Senate's Special Committee on the Canadian Security Intelligence Service, which noted that there are "fundamental differences between a system established for enforcement of the law and a system established for the protection of security" (Canada, 1983: 5). The committee 41so argued that "there is inherent in the combination of law enforcement and security duties the danger of the creation of what the McDonald Commission referred to as a `political police... (Ibid.: 7).

"Security Policing"

This traditional distinction between law enforcement and security surveillance functions has gradually been eroded from two quarters: first from the expansive shift in the national security discourse itself, and second from developments in surveillance technologies. Developments in computerized intelligence collection have led to a massive increase not only in the extent of intelligence collection on individuals, but also in the extent to which this material is shared between security and police organizations. Only in recent years has intelligence collection been considered an essential element of Australian police operations, reflecting the impact of technological developments - the computerization of data collection and storage on policing. These technological developments have been accompanied by a profound shift in policing strategy, from an essentially reactive strategy to a pre-emptive style of policing through which the police function becomes no longer largely that of merely responding to crime. Policing in this regard, in its intersection with traditional national security intelligence activities, sits squarely Within what Brodeur (1983: 513) describes as "high policing," reaching out for potential threats."

Brodeur suggests that "high policing" constitutes a general paradigm for policing ... a definite pattern of relations between a set of goals and the means to achieve them." Furthermore, he suggests that "uncontrolled changes presently taking place in information technology are increasingly leading police forces to operate under this model" (Ibid.: 512). Although there can be no doubt that there has been "a drift toward high policing," as Brodeur notes, I would question his claim that the existence of computerized criminal information systems is "the hub of the issue" (Ibid.: 515). it would appear that what characterizes policing in this pervasive and systematic surveillance mode is not so much a technological shift as a philosophical one. This shift has been achieved essentially by the imposition of a security-based philosophical approach to such intelligence collection of pre-emption, a military-based doctrine according to which the state needs to anticipate threats, a crisis mentality in which peacetime is only a time before wartime. Brodeur's "high policing" is perhaps more properly described as "security policing."

Between Policing and Security: Permanent Commissions of Inquiry

Although this article argues that the restructuring of security around the threat of terrorism was a critical element in the development of this nexus between security and law enforcement the concomitant developments in new technologies of surveillance and information processing have also been important factors. In the Australian context, this movement within and between the security and law enforcement bureaucracies has been strengthened by a unique recent development outside, yet on the margins of, the traditional institutions of the criminal justice system. This is the creation of "non-judicial bodies," such as the National Crime Authority (NCA), the New South Wales Independent Commission Against Corruption (ICAC), and the Queensland Criminal Justice Commission (CJC). All of these bodies operate as permanent inquisitorial chambers through which intelligence and other evidence that would not be admissible in a court can be used in an institutionalized, yet non judicial, setting to investigate allegations against named individuals. Those accused in this way have not been charged with any offense and yet may be summoned to appear before these bodies. There they are provided none of the protections afforded to an accused through the traditional court process.

Cohen noted more than a decade ago that the establishment of such permanent commissions of inquiry in Canada "is quite without precedent" and that "bound up in such a notion are such fundamental issues as the introduction of inquisitorial processes into the Canadian criminal justice system and the potential destruction of hitherto sacrosanct, fundamental rights" (Cohen, 1982:645). Cohen was perhaps one of the first to recognize that the establishment of such commissions, or nonjudicial bodies, is intricately linked to the expansion of the intelligence function of policing.(6)

This expansion is, of course, an essential element in the increasingly pro-active nature of modem policing. "Rather than viewing the police role as largely reactive, it is asserted that pro-active police involvement in society is necessary, and therefore this conception is predicated upon an expanded police intelligence function" (Ibid.: 628). Yet it is this problematic relationship between intelligence and evidence that has been overcome in the Australian instance by the establishment of permanent commissions of inquiry operating under different evidentiary requirements and without formal protections for those called before them.

Intelligence and Admissibility

Although there are clear areas of overlap between security and law enforcement bodies in their intelligence collection functions, few writers have tackled this notion of integrated domestic intelligence practice from the perspective presented by Farson (1991: 66). Farson argues that:

while important distinctions can be made between criminal and security intelligence gathering, these may not be as marked as the police and those responsible for them have presumed. This is particularly so where police and security agencies overlap in the functions they perform (Ibid.).

Yet this expanded and interactive intelligence function is not without its problems in terms of the viability of intelligence material as evidence within the criminal justice process. The key questions are whether "information thus collected [would] meet evidentiary standards" (Ibid.: 70) and to what extent intelligence can be used within the broader, not necessarily court-based, judicial system.

Intelligence is a pre-emptive concept. It is an interpretation, a prediction, and, as such, it is most fundamentally a construction. "[I]nterpretation and prediction [are] the keystones of intelligence" (Sommers, 1986: 27). There is a critical distinction to be made between "information" and "intelligence." The British Data Protection Committee (the Lindop Committee), for instance, described information as "hard, factual data such as name, date of birth, physical description, and previous convictions." The committee distinguished this from intelligence that "may be speculative and unverified, such as notes about places frequented, associates, and suspected activities" (State Research, 1979: 80, emphasis added).

Intelligence that "may be speculative and unverified" thus has no evidentiary value. It is not admissible in court and intelligence is not corrected with any intention that it would be tendered in evidence in this way. This limited purpose of intelligence material is well known and unremarkable within police and security circles. The policy in Britain in relation to telephone interceptions, for instance, has long been:

that the product of interception is used only for the purpose of assisting the organizations concerned to pursue their investigations; it is not tendered in evidence, Although interception often leads to the obtaining by other means of information which can be used in evidence (Elliott, 1982: 356).

ASIO and the Rule of Law - A Background

Although domestic intelligence gathering and analysis are now recognized as an integral part of both security and law enforcement functions, this has not always been the case. ASIO was established in 1949 by administrative edict in the form of a Prime Ministerial memo to the Director-General of Security. This memo was more a

Dr. Jenny Hocking is a Lecturer at the National Centre for Australian Studies, Monash University, Clayton, Victoria 3168, Australia. This paper was first presented at the 11th International Congress on Criminology, "Socio-political Change and Crime: A Challenge of the 21st Century," August 22-2, 1993, in Budapest, Hungary. The author would like to thank the anonymous reviewer for Social Justice whose comments were of great help in statement of general principles than the specification of functions for the new security body. With the later enactment of the ASIO Act in 1956, ASIO was placed on a legislative footing and the functions set out in its original charter transferred into law.

This initial establishment of the domestic security organization outside legislative authority is not unusual in the security sphere and has continued in more contemporary developments. Indeed, the major counterterrorist organization in Australia was established in 1976 with no public authorization and with no subsequent legislative oversight, much less any parliamentary debate over its establishment and functions. This body, the Protective Services Coordination Centre (PSCC) has been noted by Royal Commissioner Justice Hope as having:

no single document to which reference can be made as the source of its authority, and its authorized functions are hard to identify. Some, although authorized, do not have the authority of a Cabinet decision, and the documents which constitute its charter are not widely available within government. This situation needs to be rectified so that the PSCC's area of activity is clearly set out (Hope, 1979: 62).

In relation to ASIO, this question of the valid area of its activity has been tested in several ways. The first of these is a constitutional matter concerning the federal/state division of powers in Australia. The Australian Constitution effects a division of powers between the federal and state bodies, the key one for these purposes being that between defense and civil law enforcement. Military powers are exclusively vested in the federal body, with s.114 precluding the states from raising or maintaining any armed forces "without the consent of the Parliament of the Commonwealth."

Corresponding to this delineation between defense and civil powers has been the traditional perception of "law-and-order" issues as matters for the states, to be dealt with by their respective police forces and according to their civil laws. This constitutional issue underscores political concerns that ASIO should not impinge into the area of civil law enforcement, which is covered by state policing. Indeed, from the time of ASIO's establishment, the constitutional basis for the organization has necessarily been put largely in terms of the defense power, s.51(vi). This section vests in the Commonwealth the power to legislate in respect of "the naval and military defense of the Commonwealth."

Justice Hope, for instance, described the defense power as the "principal power" on which the Commonwealth could base the establishment of ASIO. In a very real way, this constitutional bind led to a limiting of ASIO's early activities around a defensive notion of threats to security. ASIO's original charter reflected this constitutional requirement in the justification it gave for ASIO's establishment, being the defensive requirements of internal security, in the following terms:

The Security Service is part of the Defense Forces of the Commonwealth.... Its task is the defense of the Commonwealth from external and internal dangers arising from attempts at espionage and sabotage, or from actions of persons or organizations, whether directed from within or without the country, which may be judged to be subversive of the security of the Commonwealth.(7)

Although undefined in the first ASIO Act of 1956, "security" was described in terms of three elements: espionage, sabotage, and subversion. The key point is that in its internal security operations, ASIO's focus was necessarily a defensive, outward-looking one. Even "subversion," undoubtedly the most contentious of ASIO's interests, was viewed in terms of threats to Australia's defenses "and our capacity to defend ourselves" (Ibid.: 53). During the parliamentary debate over the 1956 ASIO Bill (by which time it had become clear that ASIO's operations were in no way centered on these defensive elements), it was argued that ASIO "is as much an arm of the defense forces of this country as is the navy, the Air Force, or the Army." Indeed, ASIO had earlier been described by the Prime Minister, Robert Menzies, as Australia's "fourth branch of the Defense Force" (Ibid.).

It can be argued, therefore, that ASIO's original charter, which stressed the defensive aspects of its functions, should be interpreted as limiting those functions to matters relevant to security in its narrowest interpretation, that is, to matters that are directed toward the overthrow by violent or otherwise unlawful means of the established system of government. "Its executive powers were meant to be limited, and it was intended that it should be kept strictly within the bounds of essential counter-espionage" (Whitlam and Stubbs, 1974: 27).

By the mid-1970s, however, it was clear that a strictly defensive orientation was not being adhered to and that ASIO's operations had moved into the structure of internal policing. This latter was the result of two factors in particular: first, an unofficial agreement reached in 1949, with no reference to political authority, between the state police special branches and ASIO and, second, ASIO's own broad conception of "subversion."

With the publication of Justice Hope's Royal Commission report in 1977, it was evident that ASIO had in the past departed from "principles of propriety, including legality, to which ASIO should have regard when fulfilling its functions," and that in some areas "its operations were or may have been in breach of the law" (Hope, 1977: 70). Yet Hope recommended that these same actions be legalized in the future by the introduction of "Special Powers" to ASIO in a new ASIO Act, thereby legitimizing its past transgressions and ensuring their continuation. Used in this way, the legal process becomes inverted and the passage of law is sought to provide a post hoc justification for criminal activity by an agency of the state, rather than as the source of its limitation and empowerment.

The capacity for the security bureaucracy to operate essentially without concern for the rule of law has long-term ramifications for the legal system. Increasingly, it appears that agents of the state are not constrained by the law and need show no future concern for the laws that ostensibly empower and delimit their operations. We can also see this in the massive illegal telephone tapping operation carried out by NSW police for 16 years between 1968 and 1984. Despite the clear and repeated breaches of federal laws, and the subsequent perjury by some of the police involved before a commission of inquiry, 106 NSW police members were granted immunity from prosecution over these illegal activities.

In each case, whether for security or policing agencies, an erosion of the concept of law is created as separate from bureaucratic will. As Borosage argues "the repeated (often cynical) employment of such doctrines slowly erodes the concept of law as separate from will, both procedurally (the legislature must empower) and substantively (there are constitutional limits which must be obeyed)" (Borosage, 1976: 169). This leads to a growing perception that the requirements of legislative empowerment and constitutional limitation need no longer be observed - precisely the argument put by counsel for ASIO to the High Court of Australia in 1980 and during a subsequent appeal in 1983.

Security and Justiciability

Justice Hope's laissez-faire approach to security service illegalities no doubt fueled ASIO's appeal to the High Court of Australia in 1983 that its activities ought to be considered "non-justiciable," that is, outside the purview of the courts and therefore beyond questions of legality and constitutionality. The High Court on that occasion rejected ASIO's submission and found that "the ASIO Act does not oust the jurisdiction of the courts to review the legality of the acts of the organisation, and it is not the effect of the Act to commit to the Organization itself or its Director-General the final determination of what activities it can undertake within its charter" (Australian Law Journal Reports, 1983:42). Justice Murphy's judgment in the majority decision against such immunity was the most strongly worded:

During argument, important questions were agitated - government exemption of its agents from observing the law, the doctrine of superior orders, the extent to which government action might be fettered by contract, the relevance of national security.

The Executive power of the Commonwealth must be exercised in accordance with the Constitution and the laws of the Commonwealth. The governor-general, the Federal Executive Council, and every officer of the Commonwealth are bound to observe the laws of the land.... I restate these elementary principles because astonishingly one of the plaintiffs asserted through counsel that it followed from the nature of the executive government that it is not beyond the executive power, even in a situation other than war, to order one of its citizens to kill another person. Such a proposition is inconsistent with the rule of law. It is subversive of the Constitution and the laws. It is, in other countries, the justification for death squads.(8)

Lest we imagine that the High Court ruling on the justiciability of ASIO's activities thereby limited ASIO's surveillance to within definable parameters, consider the further aspect of this ruling, which addressed the meaning of the phrase "relevant to security." The High Court ruled that:

what is relevant to security...is not restricted to matters relating to a person who is a risk to security or to matters establishing that a person is a risk to security, and the Organization is not bound to cease to obtain intelligence about a particular person unless its initial investigations establish that he is a security risk (Australian Law Journal Reports, 1983).

This ruling has therefore legitimated the collection of material, not only on individuals and groups who have been judged a potential security risk, but also on those who have in fact been judged not to be a security risk. As the Australian Law Journal (1984:68) observed, "on this analysis no one in Australia would be exempt from surveillance by ASIO."

No One Is Exempt

The security role of the state police special branches had been covert until the 1970s. Former South Australian Labor Premier Don Dunstan stated that he was unaware of the existence of the state's special branch until 1970, although he had been State Attorney-General between 1965 and 1968. It was not until 1975 that Dunstan was informed of the nature of special branch's activities, and specifically of the cooperation between ASIO and the special branch in the maintenance of files on "security risks." That so much is now known of special branch operations is due to the revelations in Acting South Australian Supreme Court Justice White's report into the security records of the South Australian special branch.

The White report was a more revealing and more condemnatory record than the RCIS and provided the most far-reaching assessment of special branch activities yet seen. The impact of White's report was significant for three reasons: it revealed the extent of the special branch's maintenance of files on matters of "pure politics"; it resulted in the immediate dismissal of the South Australian Commissioner of Police, Harold Salisbury, who had, by his own admission, deliberately mislead the premier on the nature of those files; and, it discredited the information on both the South Australian Special Branch and the relationship between ASIO and state special branches, which had been passed on to Justice Hope for use in his report.

Dunstan received White's report at the end of 1977. As he was about to leave South Australia for a short holiday, he "looked at it briefly, realized that it was pretty hair-raising, and locked it away until I returned to the office in the New Year" (Dunstan, 1984:285). Even the introduction to the report was "hair-raising." In it White summarized his major findings, stating that he had found:

a mass of records (indeed, the greater part of Special Branch records) relating to matters, organizations, and persons having no connection whatsoever with genuine security risks. A significant proportion of the files relates to political, trade union, and other sensitive matters. Grave difficulties have been encountered in past attempts to define domestic subversion and grave mistakes have been made by Special Branch in attempting to apply vague and erroneous concepts to particular organizations, persons, and activities (White, 1978:9).

The various communist parties and their supporters made up the largest areas that White considered to be of legitimate concern for special branch records. Of the remaining files, the holding of which was not considered justified, White noted that files were maintained on "all ALP [Labor Party] candidates and elected members.... There are no corresponding files about Liberal Party or Country Party personalities." On trade unions, he noted: "There is an armful of files about the ACTU"; on demonstrators: "Most of this information seems irrelevant to security purposes"; on peace movements: "Most, if not all, of the activity [on file] was peaceful and nonsubversive. Even prayer meetings for peace were watched and recorded"; on the Council of Civil Liberties: "All of the members...are on file.... Long before the Council was formed, the public utterances of many prominent persons who advocated any form of civil rights or liberties were indexed."

Although long suspected by Labor politicians and supporters, these revelations were astonishing enough. Yet the report was perhaps more important in the links it clearly detailed between the internal security organization (ASIO) and state police forces. Of special branch's general consideration of "subversive," White noted that:

organizations and persons were conceived to be "left-wing," and suspected by Special Branch of holding or supporting "subversive" views by reason only of the fact that such organizations or persons adopted policies or opinions which were "radical" or "to the left" of an arbitrary centre point fixed by someone in Special Branch. I have no doubt that the arbitrary centre point was established by Special Branch with the assistance of ASIO (Ibid.: 10).

It was because of this link between ASIO and special branch that the nature of the latter's files is so significant, for the information contained in these files provides the basis for ASIO's vetting system and flows beyond this to the security services with which ASIO conducts information exchanges. Although much of the material White uncovered may appear in itself innocuous, it does not remain so when considered in conjunction with ASIO's records and the use to which they are put. As White pointed out, "material which I know to be inaccurate, and sometimes scandalously inaccurate, appears in some dossiers and on some cards. Some of this information appears to have been used in `vetting' procedures."(9)

The ramifications of White's findings were volcanic. In the weeks that followed the release of the report, it became obvious that Australia's security services were again to be critically reassessed just when the findings of the Hope RCIS appeared to have laid earlier criticisms to rest. The South Australian premier, after dismissing the Commissioner of Police, announced that its special branch would be closed down. Other states expressed concerns over the lack of accountability shown by special branch activities. In NSW, the Labor Premier Neville Wran announced that an inquiry would be held into the links between ASIO and special branch in that state and, in particular, into allegations supported by the Hope report that sections of the media had been given special access to politically sensitive files.

At the federal level, the controversy was affecting ASIO itself and the Director-General met with the Attorney-General, who instructed him to draw up plans to destroy any files no longer regarded as relevant to security. The federal government was reportedly planning to introduce strong legislation later in the year to cover cooperation between ASIO and the special branches. There was no doubt that the chain of events in South Australia had precipitated a new crisis in Australia's security arrangements, and one that threatened ASIO's very existence.

Yet not only did ASIO emerge from this crisis intact, with greatly expanded powers and a diminution of ministerial responsibility in key areas, but an entirely new security bureaucracy was also being established at the very time this crisis was being played out. The main rhetorical success through which ASIO reasserted its role, and through which was developed a covert and unaccountable level of security bureaucracy with a central role for the military during peacetime, was the emergence of "terrorism" as the basis for domestic security operations. The creation of what Donner (1980:456) has described as "a climate favorable to the renewal of countersubversion" centered on this contemporary security phenomenon.

What Is "Terrorism"?

The concept of "terrorism" was presented for the first time as a discrete legal entity in Australian legislation in the ASIO Act of 1979. This act provided the first major legislative revision of ASIO's functions and powers since its for-mation 30 years earlier. Central to the new legislation was there definition of the concept of "security." Whereas the 1956 legislation mirrored ASIO's original charter by describing security as "the protection of the Commonwealth and the Territories of the Commonwealth from acts of espionage, sabotage, or subversion," it did not give any further meanings to the components listed as comprising "security." The 1979 Act, however, broadened the term "security" to include "espionage, sabotage, subversion, active measures of foreign intervention, or terrorism." The 1979 Act then not precisely defining in all cases) "terrorism," "subversion," and "active measures of foreign intervention" in further detail.

Although a detailed discussion of the distinctions between terrorism and subversion is beyond the scope of this article,(10) the essential difference is that "subversion" is restricted to three components in the act, whereas the concept of "terrorism" is a more open-ended one in that it is described only as including four types of activities. Yet the public and parliamentary debate at the time centered on die definition of subversion and, in particular, on the concern that it should not impinge on the expression of political dissent or agitation. "Subversion" was described as "the loosest and vaguest of all the different concepts making up the definition of `security'" (Evans, 1984: 453). ASIO itself has recognized that "the study of subversion is probably SIO's most controversial and least understood function and there has long been conjecture about the methods and extent of intelligence collection in that area and their intrusion into personal privacy" (ASIO, 1985: 9).

In contrast, the common perception appears to have been that "terrorism" is unquestionably a relevant area for security concerns and a more clearly definable one. Yet in many ways this concept is more broadly cast than the more contentious one of subversion. Not only is the legislative definition itself not exclusive, but the substantive element of the definition of "terrorism" is also far broader than the comparable element of "subversion." Compare parts (a) of these two terms. "Terrorism" includes:

(a) acts of violence for the purpose of achieving a political objective in

Australia or in a foreign country (including acts of violence for the

purpose of influencing the policy or acts of a government in Australia or

in a foreign country).

"Subversion" is defined in this part as:

(a) activities that involve, will involve or lead to, or are intended or likely

ultimately to involve or lead to, the use of force or violence or other unlawful

acts (whether by those persons or others) for the purpose of overthrowing

or destroying the constitutional government of the Commonwealth or of a

State or Territory.

The key qualifiers in these two concepts are respectively: "terrorism" ("for the purpose of influencing the policy of a government") and "subversion" ("for the purpose of overthrowing or destroying the constitutional government). There is no doubt that terrorism is not only broader than subversion, but that it is also more closely aligned to legitimate political agitation and demonstration. This is particularly evident in section (a) of the definition of terrorism, which introduces an elision between terrorism and politically motivated violence. Indeed, in a later report Justice Hope noted that this section of the act's definition of "terrorism" was "wide enough to include, for example, a violent demonstration designed to induce the Australian Government to protect some part of the environment, to change its policy in relation to the mining of uranium, or to repeal or amend provisions of the Trade Practices Act 1974" (Hope, 1984: 92).

From within ASIO itself, a strong view was presented to Hope that such activity "is said not to be something which could properly be regarded as a `security' matter. It is a public law and order matter, and thus a matter primarily for the police to handle" (Ibid). Furthermore, ASIO has no clear power to collect intelligence in such a wide-ranging category. This is a problem recognized by Justice Hope in his observation that "ASIO has been actively concerned with intelligence about terrorism and terrorists for some time, but its power to do so is not beyond argument in all cases" (Hope, 1977: Vol. 60). The traditional distinction between domestic security and law enforcement in Australia ought to be reflected in the distinct activities of ASIO and state police forces. Indeed, the publication in 1978 of Justice White's Report into Special Branch Security Records highlighted the need for a clear line of demarcation between ASIO's security intelligence function and the criminal intelligence function of the police.

"Politically Motivated Violence": Defining the Threat in Terms of Its Object

Along with the general acceptance of a counterterrorist surveillance function for ASIO, there has been, since the problems of the late 1970s regarding ASIO's countersubversion activities, a decline in "subversion" as the main rhetorical support for ASIO's security operations. Yet ASIO's terrorism brief enabled its operations to expand into the broader area of "politically motivated violence."

ASIO's role in this area is by no means unproblematic and raises several concerns that Hope considered in his 1984 report. The nub of the necessary legal considerations lies in the related questions of constitutionality and federal versus state powers raised by ASIO's involvement in this field. Hope argued that two aspects in particular needed attention:

(a) the range of violent activities that are appropriate for the attention of a

security intelligence service like ASIO (on the one hand, for example,

crimes of violence are normally regarded as matters appropriate for the

police alone, while on the other hand ... violence directed to the overthrow

of the system of government is regarded as a subject appropriate for the

attention of a security intelligence service); and

(b) the related question of the authority for, and die appropriateness of,

ASIO as a Commonwealth body becoming involved in areas where

maintenance of the peace and enforcement of the law are often a matter for

State and Territory governments rather than the Commonwealth (Ibid.: 86).

In political terms, the main problem arising from the movement of ASIO's operations into a broader politically motivated violence arena concerns ASIO's involvement in the pre-emptive policing of "mass issues." Whereas politically motivated violence must be seen, as is any other violence, as a matter for the police to deal with, it is also now considered a matter appropriate for interest by ASIO in certain circumstances.

Politically motivated violence can thus be seen to be an area where police

and security roles overlap, where there are cases for proper security concern,

but where it is difficult to give an adequate general description of the

violence that falls into the security category (Ibid.).

This shift in focus into the policing arena was formalized in 1986 with the quiet passage of an amendment to the 1979 ASIO Act. Every substantive section in the existing act was either amended, repealed, or replaced in what was a thorough renegotiation and expansion of ASIO's special powers. The new concept of "security" as defined in these amendments dropped both subversion and terrorism as areas of security interest and replaced these with the even less focused "politically motivated violence." The problem introduced by this development is not only the usual one of the ambiguity of key terms upon which ASIO's exceptional powers of surveillance, tapping, taping, bugging, intercepting mail, photographing, filming, entering, searching, and removal of material all depend. It is the extraordinarily open-ended executive power contained in the provision that "politically motivated violence" includes acts that "threaten or endanger any person or class of persons specified by the Minister ... to the Director-General."(11) With this provision ASIO was moved firmly out of security and into the civil arena.

The "naming" by the Minister of a class of person to be considered "threatened" under these amendments clearly leads to the implementation of ASIO's surveillance mechanisms against those who constitute the perceived "threat." Furthermore, subsequent guidelines from the Minister to the Director-General of ASIO showed the immense breadth of power implied under this provision. First, the guidelines recognized that "acts or threats against ... persons specified by the Attorney-General need not be politically motivated, in the generally accepted sense of those words, to become matters of security concern"; and second, that "investigations in such situations may require a higher degree of intrusion into the privacy of persons suspected of involvement than would normally be appropriate."(12)

This, of course, has turned the notion of a "threat to security" on its head and defines it not in terms of its subject, but rather in terms of the executive "naming" of the object of the threat. This represents the ultimate security victory in the fine irony it generates given the failed attempts to pass the Communist Party Dissolution Act in 1954. This act is the best-known attempt to outlaw political activity in Australia and was ruled unconstitutional by the High Court of Australia in 1956. If passed, the act would have narrowed the legitimate spectrum of political space through the "naming" by executive government of suspected communist sympathizers on the basis of secret security intelligence.

Yet despite the constitutional overturning of this earlier attempt to delimit acceptable political activity, ASIO's legitimate legislative bounds are now executively controlled and not restricted to matters of genuine security risk. The very notion of "national security" lends itself to executive initiative and bureaucratic innovation, but the use of the ministerial guidelines has provided an important means of ratifying what is in effect executive discretion. This has moved ASIO's internal surveillance operations into the previously contested site of domestic policing.

Conclusion: An End to Internal Security?

As the methods of security have been brought into the sphere of civil policing, it ought to come as no surprise that there are now moves toward closing down the Australian domestic intelligence body, ASIO. Internal intelligence collection has come full circle, from being seen both institutionally and functionally as distinct from policing, as an exceptional structure used only for advisory purposes rather than prosecutory ones, to being an integral part of the criminal justice system. In the Australian example, the security paradigm has come into focus most clearly with the establishment of nonjudicial bodies. That this has led to duplication of the intelligence functions of the security body is pointed to by recent suggestions that oversight of the major federal nonjudicial body, the National Crime Authority, ought to be placed under the auspices of die Inspector-General of Security - an office reserved in every other respect for the oversight of intelligence organizations.

What distinguishes the state's response to the threat of terrorism from earlier security developments has been its ready incorporation into existing civil structures through an expanded prerogative of the executive and the normalization of its exceptional response mechanisms within the criminal justice system. The result has been a merging of security intelligence collection and that of law enforcement agencies such that previous distinctions between these operations are no longer recognized. Contemporary representations of terrorism can be seen as forming a nexus between an exceptional, national security response that operates outside the traditional criminal justice process and an exceptional response that is nevertheless incorporated into this process.

NOTES

(1.) Murphy (1982) in Ely and Ely (1986:75). (2.) Farson (1991: 66) notes two models for conducting domestic intelligence gathering: the British, which splits domestic security functions between a security service and police special branches, and the U.S., which gives the FBI "a joint mandate to conduct criminal and national security investigations." (3.) T.H. Barnett in an interview with the author on July 2, 1993, in Melbourne. (4.) See Hocking (1993) for a discussion of all these components in the Australian example and Hocking (1992) for a detailed analysis of the relationship between government and the media in counterterrorism. (5.) See ASIO Act 1976, s.5(1(a). (6.) For a fuller discussion of the role of nonjudicial bodies in this development, see Hocking (1992). (7.) See the 1949 Charter of ASIO, quoted in Hope (1977, Vol. II, Appendix 4A). (8.) See Murphy (1984) in Ely and Ely (1986: 69). (9.) Ibid.: 11. "Vetting" refers to the practice of providing a security check on applicants for public service positions. (10.) For a detailed discussion, see Hocking (1993: Chapter 4). (11.) See ASIO Act, Amendment Act 1986 s.4(d). (12.) Attorney-General's Guidelines in Relation to the Performance of the Australian Security Intelligence Organization of Its Functions Relating to Politically Motivated Violence (1988).

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Title Annotation:Justice and the World-System
Author:Hocking, Jenny
Publication:Social Justice
Date:Dec 22, 1994
Words:7485
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