Balance between security and civil liberties is crucial

THE Abbott government has embarked on a large expansion of our anti-terrorism laws, including a bill that critics suggest could see journalists imprisoned for reporting intelligence abuses or mistakes revealed by a whistleblowing intelligence officer.

The government argues the legal changes will strengthen our ability to arrest, monitor, investigate and prosecute returning foreign fighters, prevent extremists departing and broaden the criteria for terrorist organisations to include those that encourage terrorist acts.

Later this year the government has flagged plans to introduce new laws that will involve data retention, with possible civil liberties and privacy implications.

Legislation is also proposed that will enhance the ability for agencies to capture, store and share biometrics in order to improve the identification of terrorists, and other persons of interest.

Authoritarian states pay heed to their citizens’ civil rights only to the extent that they serve the interests of their regime.

At the opposite end of the spectrum, in a completely libertarian society, individual rights would be given absolute privilege over any societal common good. But in the real world, where there are always constraints operating on democratic governments, there will inevitably be compelling public interest reasons why security will need at times to take precedence over values like privacy or freedom of the press.

In the case of the calls for greater scrutiny and transparency over our intelligence agencies, for example, we will need to protect intelligence sources and methods. As a democratic society, we will need to adjust our policies and security laws to take into account the threat environment we face.

We should permit a greater degree of tolerance for national security measures if the threat level goes up, and readjust once the threats have subsided. While it’s impossible to reliably measure the exact scope of the terrorist threat, there’s certainly no clear evidence that we should downgrade our security measures right now.

We will need to adjust these measures where we may have veered too far one way by, for example, excessively interfering with civil liberties: in the past ASIO kept tabs on some Australians more for political, than national security reasons.

If you read the contributions to the national security debate from civil liberties groups then you would think our rights have never been, are now, nor ever will be adequately protected.

Some on the right, by contrast, seem to suggest that our public safety demands more and more limits on our liberties.

Occasionally too we get political leaders trying to sell us the line that we can “have it all”: that we don’t need to trade off liberty and security, but rather can maximise both simultaneously. But in both law and policy, there will always be some degree of tension between these values.

In a democratic society there’s no value that can be maximised: think here, for example, of the values of equality and freedom. In striking the appropriate balance in our legal measures for countering terrorism we should avoid excessively swinging the national security legal “car” from one side of the road to the other.

The main point to keep in mind is that we must always compare the gains we make in national security benefits against any real harm done to our civil liberties. This means that it’s very important that the legal profession engage on these issues so we achieve the right balance.

Dr Anthony Bergin is deputy director, Australian Strategic Policy Institute.