In 1922 German political theorist Carl Schmitt wrote a seminal essay arguing that sovereignty is defined by the power to suspend state law during times of extraordinary threat to national security. The government can then neutralise that threat unencumbered by the laws that normally balance state power with civil liberties.
“The sovereign is he who decides the exception”
After 9/11, Schmitt’s thesis, not in name but in concept, became the foundation for the Bush Administration’s so-called ‘War on Terror’ (WOT) and US foreign policy for the next 20 years. It provided the juridical reasoning for the US government-sanctioned use of torture, or ‘enhanced interrogation techniques’ by military and intelligence agencies during the WOT on the basis of national security, which contravened domestic legislation and international human rights conventions to which the US was signatory.
In Australia, as in the US, there have been concerns about civil liberties being eroded by the passage of new surveillance and detention laws in order to help law enforcement and intelligence agencies prevent terror attacks. But public and political discourse suggested this was largely perceived as a justified rebalancing of national security risks and democratic freedoms, to protect citizens from the extraordinary threat at hand.
Today, reeling from successive COVID-19 lockdowns, closed borders and a delayed vaccine rollout, this trade-off is being interpreted very differently by many Australians. Current legislative efforts to neutralise the exceptional threats we face are subject to greater scrutiny as to their impacts on civil liberties – for example, the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 (TOLA), used in the recent AFP/FBI organised crime bust, Operation Ironside and currently under review by the Parliamentary Joint Committee on Intelligence and Security concerning “whether the Act contains sufficient safeguards for protecting the rights of individuals.”
The balance between security and liberty is an ongoing and necessary part of a democracy. But current concerns are fuelled by growing mistrust in government among parts of Australian communities. The protests that coincided with the ‘state of emergency’ passed by Victorian parliament in 2020 are a key example of this mistrust bubbling over, with citizens objecting to increased policing powers to enforce public health orders. It’s also where mainstream distrust of ‘oppressive’ and ‘unlawful’ government policy was seeded within the Australian far right.
What Has Changed?
Right wing (RWE) and Islamist violent extremism, along with organised criminals, are increasingly exploiting the relatively un-policed nature of the Internet to recruit new followers and conduct business. The recent Operation Ironside crime bust conducted by the Australian Federal Police (AFP) and partner agencies demonstrated the vast and resilient organised crime networks operating domestically but embedded within broader, globalised business models. It also highlighted the significant role police access to encrypted messaging apps can be in leading to arrests and seizures. Yet recent legislation passed which proposed[i] to increase online police and intelligence powers to disrupt and prevent these threats has left Australians divided, concerned by potential unintended consequences and privacy ramifications.
According to the AFP, instrumental to Operation Ironside’s success was the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 (TOLA), which was used “for the first time in combination with the legal authority from the FBI.” TOLA has withstood significant public, industry and political criticism, fueled by potential privacy considerations and ramifications for the tech industry, now legally required to decrypt and supply data to police and intelligence agencies in exceptional circumstances. A parliamentary review into the bill is pending.
The great irony is that the global rise of RWE/neo-Nazism – which has also been seen in Australia – has accelerated during COVID-19 due to grievances concerning restrictions on personal freedoms by mandatory public health orders. In Australia, these groups have achieved some level of coordination and coherence by coalescing around the idea of oppressive governments using police to enforce COVID-19 lockdowns. This concern has legitimate basis, found in the democratic argument which seeks to ensure government and law enforcement are not excessively empowered. But this is weakened by the proliferation of conspiracy theories rife with RWE ideology and narratives which the groups propagate and weaponise in online forums. Typical examples include disinformation campaigns against public health orders and the vaccine rollout, such as the well-trodden lie that ‘COVID-19 is a conspiracy by the Jewish elite to enable mass vaccinations for profit or, using poison, to eradicate the white race.’
Recent polling suggests trust in Australian federal and state governments has increased across the mainstream population during the pandemic, while a smaller cohort remains distrustful. Further, there has been a consistent downward trend in this metric since the 2007 poll, indicative of a general, long-term decrease in trust in government. These trends dovetail with the surge in RWE ideology, given that anti-government sentiment is often a foundational element.
The vibrant debate about the federal government’s efforts to increase policing and intelligence agency powers is symptomatic of a healthy democratic political system, built on robust public discourse. But the growing number of people radicalising through RWE, which in 2021 has grown to 40% of ASIO’s counter-terrorism caseload, indicates that something is amiss for at-risk individuals and groups for whom anti-government and other RWE ideologies resonate.
What’s at stake here is trust that the sovereign power of the federal government is exerted to protect the freedom as much as the security of Australians.
The implication for government and law enforcement efforts to stem growing RWE radicalisation enabled by anti-government sentiment, is that CT policing efforts, while necessary, are fundamentally not addressing the factors driving radicalisation. They need to be reframed to account for RWE grievances. Instead, CVE efforts aimed at fostering community resilience to RWE ideologies and the COVID-era mis/disinformation campaigns enabling them are critical.