Bergin, Anthony; Woolner, Derek --- "Australia's Approach to Homeland Security - Problems and Prospects" [2003] ALRCRefJl 5; (2003) 82 Australian Law Reform Commission Reform Journal 17

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Reform Issue 82 Autumn 2003

This article appeared on pages 17 – 25 of the original journal.

Australia’s approach to homeland security: problems and prospects

By Anthony Bergin and Derek Woolner*

The changing nature of the international security environment, especially the emergence of globalised terrorism, must now be taken as posing the possibility of serious threats to Australians in their own homeland and overseas.

Since the 11 September 2001 attacks in the United States and the 12 October 2002 Bali bombings, Australia has responded with a number of changes to improve internal security in Australia. These include:

• legislative changes — amongst others, establishing offences of terrorism, seeking to control funding of proscribed organisations, and providing additional powers to the Australian Security Intelligence Organisation (ASIO);

• grouping agencies relevant to homeland security within the Attorney-General’s Portfolio by transferring to it Emergency Management Australia;

• improving the safety of commercial passenger aviation, including instituting the use of Aviation Security Officers (‘sky marshals’), and enhancing passenger and baggage security checking;

• creating additional Australian Defence Force capabilities, particularly the East Coast Tactical Assault Group and the Incident Response Regiment to respond to chemical, biological and radiological incidents;

• tightening border control measures, including enhanced maritime and air surveillance patrols and tougher visa controls;

• provision of additional manpower and financial resources for the Australian Federal Police (AFP);

• increasing coordination at the Commonwealth/state level, formalised with the signing of the Inter-Governmental Agreement on Australia’s Counter-Terrorism Arrangements, which created the National Counter-Terrorism Committee (NCTC) that met first on 13–15 November 2002;

• concluding Memoranda of Understanding on counter-terrorist coordination with overseas governments, including Indonesia;

• provision of additional staffing to meet the increased demands associated with higher levels of awareness, including a $15 million public education campaign;

• provision of the funding to implement these and other initiatives, amounting to some $1.3 billion over five years; and

• better integration of the security apparatus with law enforcement through the creation of the Australian Crime Commission, which incorporates ASIO on the Board to facilitate sharing of intelligence between states, AFP and the Australian intelligence community.

Yet, without being critical, it can be said that such moves represent only the beginning of efforts to develop enhanced homeland security in Australia. The terrorist risk to Australia is now officially ranked as ‘heightened’, upgraded from ‘low’ before 11 September. There is an almost limitless range of potential targets, a wide variety of attack mechanisms and the possibility that any successful attack could be catastrophic. In these circumstances, homeland security is a problem belonging to no single government or agency and its development lies through the combined efforts of all levels of government, the community, and both public and private sectors.

Producing the synergies required for such effective multi-sectoral interaction is a significant undertaking and one whose success cannot be guaranteed. Developments are proceeding in many areas to address specific problems but the nature of these interactions has not been fully explored, the pathways for action to and from the highest to lowest levels of responsibility not adequately developed, and the need for procedures to maintain persisting vigilance and adapt to changing threats not yet translated into planning. Many areas can be identified as requiring considerable effort to strengthen Australian homeland security.

For convenience, the resolution of ongoing issues as discussed in this paper is grouped under three areas — intelligence, deficiencies and organisation. The paper then raises several contentious issues in current Australian counter-terrorism planning and concludes with a recommendation for the establishment of a dedicated cabinet-level Minister for Homeland Security.

Intelligence

The Bali bombings of 12 October 2002 focused attention on the adequacy of Australia’s intelligence structure to meet the challenges of an era of globalised terrorism. Australia’s external intelligence agencies have largely focused on the activities of governments and the use of technological means relevant to penetrating modern communications. This is likely to be of less utility in gathering information on globalised terrorism. Generating intelligence about terrorists’ planning activities overseas is difficult. The link between countering its implementation within Australia is more tenuous, yet more directly relevant, than the intelligence process focused on foreign government instrumentalities.

Reshaping for the new environment. A number of suggestions for reshaping Australia’s national intelligence arrangements to more adequately meet emerging needs have been made. They range from the formation of a counter-terrorism ‘task force’ drawn from the relevant agencies, the creation of a new super-intelligence ‘czar’, or improved electronic connectivity between agencies, to a rationalised amalgamation of the approximately 20, extended-hour ‘watch rooms’ currently operational in Canberra.

The less technologically-advanced communications employed by global terrorist groups implies that intelligence gathering requires a greater reliance on human source collection. Some moves in this direction have already been indicated, with finance being allocated to increase the number of Commonwealth officers located overseas, particularly in police and immigration.

For example, $12.3 m over four years has been allocated to increase the network of immigration compliance officers located in 23 overseas offices. ASIO has established the Joint Counter-Terrorist Intelligence Coordination Unit to better utilise human intelligence passed through Commonwealth agencies. However, developing an effective intelligence loop incorporating input from the public and from private enterprise is a central problem in developing intelligence for homeland security.

Distribution of intelligence. Passing intelligence between various agencies remains a significant issue. Problems to do with the protection of classified information — the Commonwealth’s more detailed procedures not being matched by most state agencies — is one cause of restricted distribution of information held by the Commonwealth. The formation of specialised counter-terrorist squads in New South Wales and Victoria may indicate a means of overcoming this problem. The issue is likely to remain at significant levels, however, in relations between the public and private sectors. It seems a widespread view of business that insufficient information about potential threats is being passed on by the Commonwealth. This could lead to commercial operations balancing the safety of staff and commercial survival on grounds different to national security intelligence and small organisations without internal security sections having little information on which to judge such decisions.

Systemic integration. Such disputes seen to indicate a need for greater systemic integration and co-operation in intelligence gathering and distribution. The primacy of local communities in observing early indicators of potential terrorist activities and reporting to neighbourhood police is critical, as is the need for effective feedback and positive direction to such local actions from national agencies.

There is room for improvement in information sharing between state police forces and national intelligence agencies, especially as state police forces are better placed to establish working intelligence relationships with the private sector in their own states.

Extended international co-operation. The co-operation being built with the Indonesian police in the investigations of the Bali bombing has been of a very high order. Given the international reach of modern terrorism, closer international co-operation in the distribution of intelligence, whether from post-attack investigations or prior knowledge, is an important element of Australian homeland security.

Deficiencies

There are a number of areas where it appears that significant difficulties represent a current limitation on the effectiveness of Australian homeland security. These lie frequently in difficulties in achieving adequate operational performance or in solving inherent dilemmas.

Numbers and capacities. There are some fundamental pressures on modern societies which mean that features developed for their improved performance are a potential source of weakness in a terrorist attack.

A decade and a half of increasing exposure to globalisation has changed Australian institutions as much as it has the economy. The corollaries of globalisation, core business focus, downsizing, managerialism, full capacity utilisation and so on may have increased efficiency but have also enhanced insecurity. The capacity of globalised terrorism to produce catastrophic effects, demonstrated by the 11 September attack, indicates that they can place institutions under severe, perhaps at times fatal, strain.

The continued functioning of a range of businesses from IT, energy and electricity, and finance after a hostile act might not be guaranteed by their own security measures. Increasingly, businesses have become dependent upon other organisations to which some vital function has been outsourced. The business may no longer have the expertise to cope should an outsourced function be disrupted by terrorist attack or for other reasons.

In the public sector, the same process has left little surplus capacity to deal with emergencies. At its worst this was illustrated by conditions in the Bali Hospital after the 12 October 2002 attack. However, the real crisis that a terrorist attack could bring to the public hospital system comes in the many weeks during rehabilitation after such an attack. Public hospitals, now characteristically running at a supposed 100 percent capacity, can no longer provide sufficient intensive care beds for normal functions as well as treating the victims of a terrorist attack. Similarly, Australia’s laboratory network was about to be overwhelmed when the spate of ‘anthrax’ copycat letters ended in late 2001.

Preparing to counter such a situation may involve overthrowing the orthodoxy of recent decades. Financing an emergency trauma theatre at select hospitals around Australia, for example, would be a difficult proposition for the nation's treasuries, but may prove necessary if having the capability to deal with a potentially catastrophic terrorist attack is to be developed.

Areas of low performance. Among the challenges facing the development of homeland security are a number of areas where security performance has not yet reached the levels that would seem to be required in the aftermath of 11 September. These include:

Containerised marine freight, of which at present only about five per cent is examined. A number of X-ray facilities are being introduced and some supplementation is being achieved through the internal security procedures of a small number of approved freight forwarders. Nevertheless, considerable effort will be required to reach even the basic level of security of 40 per cent of containers exported to be checked before arrival, a level to be demanded by the US within two years.

Aerial freight transport and general aviation remain largely unregulated. Whilst the former is a comparatively small market and aircraft in the latter generally pose little threat of the type shown in the 11 September attacks, balancing increased regulation against the demands of addressing vulnerability will remain a difficult judgment.

Medical capacities were shown to be easily overwhelmed by the Bali bombings. A lesson would appear to be that, were such an event to occur in Australia, facilities at the point of impact would have to be supported by a well planned and rehearsed medical evacuation capability (to distribute trauma patients amongst hospitals nationally) and by additional ancillary services such as counselling.

Organisational Issues

Federal/state coordination. Co-ordination between federal and state instrumentalities is crucial to the effectiveness of homeland security. It might be expected that, in most circumstances, the Commonwealth should be in the best position to co-ordinate intelligence about possible terrorist attacks whilst state agencies will provide the bulk of response forces. Current arrangements for co-ordinating counter-terrorist operations have evolved steadily on the basis of experience gained over the years since the Hilton bombing of 1978.

However, it appears that these arrangements have been recognised as inadequate in the new environment and several changes are required. Prevention of terrorism must now be seen as equally a responsibility of state police. This may be assisted by the intention to post AFP officers to the counter-terrorist command centres being established by NSW and Victoria and probably later in other states. It will take some time to indicate how successful are such moves in improving federal/state coordination.

Communication between response agencies. Outside of police forces, it appears that much could be done to improve co-ordination between agencies involved in consequence management. There remain gaps in consequence management capabilities, nearly all of which are provided by state agencies, and there is need for considerable work to be done in the area of critical infrastructure. In addition, work is required to enhance the interoperability of consequence management agencies with each other. For example, it appears that bodies such as fire brigades, ambulances, other emergency services and the Australian Defence Force (ADF) are restricted in their abilities to communicate directly with each other in an emergency.

Public/private interface. It is here that the greatest organisational development seems to be required. There is the difficulty of establishing effective, ongoing intelligence relationships with the private sector. There is divergence between the basis of government policy making and commercial risk evaluation. Government overseas travel warnings are issued as the result of judgments vastly different to those of a private business needing to remain commercially viable in a listed country. Then there is the significant question of who pays for security measures.

Industry has been widely consulted by government in areas such as critical infrastructure vulnerabilities but few ongoing arrangements have emerged. Many industry groups are themselves looking to develop their own counter-terrorist solutions and remain uncertain of whom in government to approach. One sign of a start is the intention of the NSW Police Force to develop liaison arrangements with the private security industry.

There is widespread recognition of the importance of the private sector’s role in homeland security. There is also recognition that the importance and diversity of private sector vulnerabilities to terrorist action contributes heavily to the difficulties of homeland security. However, without effective organisational structures to address these issues, there is a danger of creating a situation where everybody’s problem is nobody’s responsibility.

Persistance. One of the greatest threats to homeland security is the facility with which democratic societies tire of the disciplines of ongoing terrorist alerts and slacken their vigilance. But the rise of global terrorism defines a new strategic era, probably lasting for several decades, as did the Cold War. One of the greatest dangers to homeland security is public apathy providing terrorists with options to renew their activities.

This is not solely an issue for the public sector. The homeland security perspective of private enterprise may wain in the face of ongoing demands for corporate viability. There is more than enough opportunity for commercial risk assessment to triumph over national interest. Yet security against terrorism could also become a crucial issue in the survival of many companies, so that security persistence must remain a concern for senior management.

These considerations dictate that the structures built for homeland security should be designed for persistence. Elementary though this seems, the fact is that the agencies and personnel that will be called upon when a threat arises will at other times be fully occupied. After almost two decades of economic rationalism the law enforcement and responder agencies are more than fully occupied with day-to-day responsibilities and will probably focus on homeland security only when forced by an intelligence alert or successful attack.

As with waning public awareness, absorption of agencies and personnel in day-to-day activities risks allowing terrorists to slip under the nation’s guard. The prospect that homeland security could be breached after a period of apparent quiet constitutes a serious problem that is difficult to address whilst the attitude of government and people is to maintain ‘business as usual’.

Preparedness. Persistence is best ensured through preparedness. Counter-terrorist training already occurs at various levels through exercises but the full range of homeland security involvement is seldom tested by ongoing multi-agency and multi-jurisdictional exercises. There is a particular priority for the inclusion of local agencies and authorities who, although most likely to be in the forefront of any attack, are (significantly both in the US and Australia) to date the least in receipt of attention and funding.

There is much that can be done by more extensive utilisation of information technology both at the Commonwealth level (for instance, for better interfacing of the 20 extended-hour watch rooms in Canberra) or between sectoral levels, say in the transfer of classified intelligence between Commonwealth and state agencies. The same observation applies to a more systematic exploitation of research and development particularly with regard to work on combating the use of weapons of mass destruction by terrorists.

Ideally, an integral component of this preparation would be efforts to create unity amongst the agencies involved in homeland security. There is a need to avoid divisions between agencies based on agency issues rather than national security goals. There appears some way to go before such an objective is achievable.

Public education. These factors would seem to indicate that the persistence of homeland security should be supported by widespread attempts to maintain public awareness. Emergency preparedness can save lives — potentially a lot of lives. Alerting the nation about terrorist risks is an act of prudence. Just as we ought to have plans on the shelf to deal with local vulnerabilities like fire and flood, we need security plans and we should review them regularly. Like other areas of national security policy, it would be beneficial to publish a White Paper on homeland security. This could inform the public of the broad nature of the global terrorist threat, of the policy options considered by government and of the nature of its response.

Similarly, it would be useful to make available, in several forms, information on how citizens can alert appropriate authorities of possible terrorist activity. These could usefully follow the model of the UK Resilience, the operating name of the Cabinet counter-disaster coordinating office in the United Kingdom, which makes available on the internet a series of sites such as ‘Handling a Crisis — Who does what?’ A start has been made here with public advertisements and an information kit sent to all households in February this year, but this does not amount to an on-going public education strategy, which needs to be developed.

Many of the measures recommended in the government’s booklet to prevent and mitigate the consequences of a terrorist attack have broader national benefits. The tools that save lives and property in the wake of a terrorist attack are largely similar to those used in the event of a major industrial or transport accident or a natural disaster.

To date there has been no explanation of how our national alert system operates and what the public should do as conditions change. While no system can tell families precisely what to do — that will depend on local plans and actions — the government could explain the process of how we move from our current state — medium alert – to high and then drop down when things turn quiet.

To date no agency has been designated to be responsible for leading the implementation of an on-going public education campaign on possible threats and what citizens can do to help police and others prevent attacks and reduce their health risks in response. While it is a start, a one-off package to householders is not sufficient. An official or agency needs to be resourced to be responsible for this critical public education function that will assist in reducing the risk that terrorists will bring their fight to Australian soil.

Contentious Issues

Whilst refining the implementation of homeland security understandably occupies most attention at the moment, it will be decisions on several fundamental issues that will eventually shape the nature of Australian arrangements.

Policing or national security? Perhaps the most central of these is whether global terrorism is seen as primarily an issue of national security or as an extension of criminal policing. This distinction is not esoteric, as it underlies decisions on the allocation of roles. It is, for instance, central to the institutional dispute about the proposed amendments to the ASIO Act, with police forces seeing some of the ‘national security’ provisions of the current Bill as undermining roles identified as essential for the effectiveness of police operations. It is also a judgment involved in the continuing policy that the ADF will be used only as an adjunct to, and under the command of, the police.

To some extent, the outcome of this issue reflects society’s values. Debate in the United States has produced some argument for various extra judicial approaches to countering global terrorism. The British approach, through 30 years of IRA terrorism, has been to maintain the rule of law. In practice this has forced tight co-ordination between national intelligence bodies and the police in order to maintain the admissibility of evidence in court.

Liberty versus safety? This approach has not disqualified changes to United Kingdom law that have been thought by some to be draconian and have allowed proven miscarriages of justice. In Australia, legislative changes have been introduced since 11 September 2001 as a means of helping prevent terrorist actions, through easing procedures to allow prosecutions, to seize the finances of terrorist organisations or, as proposed in drafted amendments to the ASIO Act, to allow the detention of persons with possible information about such organisations.

Yet, such actions have the potential to destroy the liberty of citizens and thus lose the very thing that homeland security is meant to preserve. The extent to which it is necessary to abandon precepts of individual liberty in order to support homeland security will remain a central issue for Australia as homeland security policies evolve.

Who pays? Who shoulders the cost of anti-terrorism measures is now shaping up as a key economic and political issue. Should it be federal, state or local governments, the private sector or individual stakeholders? For example, the Managing Director of the Tourism Task Force described the Government’s intention to levy on industry the costs of the forthcoming program of airline baggage screening as government ‘outsourcing [of] its national security responsibility’. Virgin’s Chief Executive argued that ‘security is the government’s responsibility’ not an aviation issue. He questioned whether the Government would now start looking at taxes for nightclubs, shopping malls and football games.

Generally speaking, the principle that has been adopted is that the users, providers and owners of the property or service pay for the costs of security. The costs of airport baggage screening are expected to be passed on to travellers. The alternative is that the public at large pays, through taxation.

The argument is one that involves issues of equity, efficiency and effectiveness. A de-facto government subsidy for anti-terrorist measures may well waste money and create a bidding contest to gain anti-terror funding support. Self reliance provides an incentive for companies to innovate in their anti-terrorism protection.

Yet homeland security cannot be left solely to market forces. That approach will not always offer adequate protection across the community and may leave vulnerabilities that terrorists might exploit. The public should expect that government will set minimum standards and regulations in areas such as codes for skyscrapers and food safety, where there may be terrorist threats. Certain threats such as biological attacks require a response with specialist equipment, which would be difficult to achieve without direct government intervention.

Similarly, there is almost no traditional risk insurance available against terrorism for commercial properties and infrastructure in Australia. Lack of adequate information to price the risks associated with terrorism has resulted in a market failure and prompted the government to intervene. An Australian Reinsurance Pool Corporation will be established to provide reinsurance cover for losses arising from a declared terrorist incident. The federal Treasurer has stated that the reinsurance scheme would wind down once appropriate commercial cover was available.

Who is responsible?

Who is responsible for Australian homeland security? The Attorney-General’s Department website states that the Attorney-General, Daryl Williams, is ‘responsible for national security. ...Arrangements to prevent, respond to and investigate threats or incidents of terrorism... are important elements of national security arrangements.’ The site, updated the day after the Bali bombing, contains an organisational chart showing the input of agencies involved in homeland security as passing through the Attorney-General’s Department to the Attorney-General, in turn feeding to the Commonwealth Cabinet and state co-ordination agencies. This arrangement was changed on 30 October 2002, with the Department of Prime Minister and Cabinet assuming responsibility for policy co-ordination but the diagram remains on the site, which has since been redesigned to coincide with the Government’s public leafleting campaign.

Current arrangements. The Australian approach to homeland security is based on extensive co-ordination between Commonwealth agencies, the Commonwealth and the states and local government, and between the public and private sectors. Most of the agencies involved, such as the police, are already fully occupied on other tasks. Some analysts argue that global terrorism, especially when using suicide bombers inured to deterrence, cuts across so many traditional boundaries that it cannot be handled otherwise than by the creation of a wholly new agency. That is the approach the United States has taken but for many reasons, including cost and effectiveness, it is probably not the best option for Australia.

While many officials are working hard to make co-ordination work, the Federal Government has decided, and the states have agreed, that the Cabinet will be the commanding body for homeland security. In practice the National Security Committee of Cabinet (NSCC) would be central both in making policy decisions and in homeland security operations. This is justified because, in some circumstances, decisions usually falling only to the Prime Minister may be required during a counter-terrorist operation. Yet within the NSCC no one Minister is responsible for homeland security. After the recent changes, the Prime Minister speaks for policy development and the Attorney-General for operational aspects.

But neither can be across both fields all the time. The Prime Minister is more than occupied, while the Attorney-General is credited with some 29 portfolio responsibilities, only five of which are directly relevant to homeland security. Somewhat more, six portfolio responsibilities of a total of 26, are those of the Minister for Justice and Customs. However, this Minister is not a member of the NSCC, except when invited, so these six areas will normally fall to the Attorney-General. The Cabinet has changed some aspects of its secretarial support but not the focus of its members. This is understandable, but not appropriate in the context of a security challenge so major and unprecedented that it has significantly rearranged existing paradigms.

A Cabinet Minister for homeland security. Cabinet could strengthen the role given it under the Intergovernmental Agreement on Australia’s Counter-Terrorism Arrangements by allocating overall control of that agenda as the sole task of one of its members. Appointing a Minister For Homeland Security at cabinet level will provide unity of command; in a co-ordinated system someone is needed with the authority to oversee the entire jigsaw and the time to drive the pieces into the right places.

Much needs to be done and, given the heightened security alert, there is no reason to be tardy. Inter-governmental agreements need to be pushed more vigorously to the local level. Much needs to be done to strengthen co-operation between the public and private sectors. Existing arrangements have to be kept vital, probably over decades, until global terrorism is controlled and vigilance maintained against the daily pressures of other priorities and public apathy.

A dedicated Minister would provide a single focal point for assessing and developing the wide range of elements that compose homeland security, from intelligence to public health. A critical role would be responsibility for public education. Australians have heard a lot about potential threats but, despite the recent public advertisements and information booklet sent to all households, very little about what they can do to enhance their own security.

A dedicated Minister would not require a new bureaucracy. The title of Special Minister of State has been used before to designate a minister with a special role outside the normal departmental system. Senior staff, who might be charged with oversight of select functions such as intelligence, would report to a minister with executive authority, rather than dwelling on the irregular pattern of Cabinet meetings. Essential matters therefore would be pursued with greater speed, corporate knowledge developed and applied and a dedicated minister would ensure improved public accountability.

With Australian lives on the line, such a step will provide better co-ordination, cooperation and central direction and move us closer to security in our homeland.

* Associate Professor Anthony Bergin is Head, Australian Defence Studies Centre, (ADSC), University of New South Wales at the Australian Defence Force Academy and Derek Woolner is Director, Defence Analysis Program, ADSC.