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Civil liberties in a grave new world

  • 09 August 2013

Since the Second World War, Western democracies have championed human rights, decrying the abuse of civil liberties in undemocratic states. A defining feature of the Cold War was trenchant Western criticism of the pervasive surveillance of citizens in authoritarian Eastern Bloc states. In stark contrast Western democracies took great care in seeking to balance national security and civil liberties, often reflected in detailed legislation circumscribing the powers of intelligence agencies and upholding the rights of individuals.

Australia operates under a Westminster system of democratic governance that is intended to provide checks and balances against the concentration and abuse of power. Justice Robert Marsden Hope showed great foresight in crafting Australia's unique intelligence architecture, institutionalising the separation of information collection and analysis, national and foreign intelligence, and advisory and decision-making functions.

While Hope recognised that national security agencies need to operate under the cloak of secrecy to be effective, he established mechanisms to ensure proper oversight and accountability. He emphasised the intrinsic fallibility of intelligence advice (intelligence always involves an element of interpretation and subjectivity) and its limited utility as evidence in legal proceedings or as the sole basis for executive action.

Since the turn of the millennium three major technology-enabled developments have significantly altered the balance between national security and civil liberties. The first is that virtually universal access to information and communication technology has empowered individuals and groups to communicate and organise. This development, most graphically illustrated in the social revolutions in the Middle East (the Arab Spring), seems to represent the disaggregation of power from traditional state institutions to the broader community and diverse media outlets.

The second development is that technology has dramatically increased the capacity of the state to remotely surveil its citizens under the aegis of national security. As revealed by US National Security Agency contractor Edward Snowden, ubiquitous electronic linkages and a largely unregulated cyberspace make it technically possible for the state to monitor and collect virtually every single piece of personal digital data created knowingly or unknowingly by every citizen, potentially rending existing legislative frameworks regulating national security activities obsolete.

The third and arguably most significant development has been the rise of the threat of international terrorism, with violent individuals or groups able to engender global fear through the leverage of extensive real-time media coverage. Terrorism explicitly seeks to elicit a disproportionate state response, catalysing major social and political change. The 'global war on terror' in response to