Academic journal article Social Justice

Charting Political Space: Surveillance and the Rule of Law

Academic journal article Social Justice

Charting Political Space: Surveillance and the Rule of Law

Article excerpt

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. …

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