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Joo-Cheong Tham[*]
Significant change is required before it could be said that the rule of law adequately applies to ASIO.
The ‘war on terrorism’ as waged in Australia has placed the Australian Security Intelligence Organisation (ASIO) at the forefront of this offensive. For instance, the recent ‘khaki’ budget increased ASIO’s annual budget by nearly one-third.[1] Further, the most controversial of the anti-terrorism laws is that proposing to confer on ASIO powers to detain without trial or charge.[2]
Given the importance of ASIO in the ‘war on terrorism’, a critical question is this: assuming the continued existence of ASIO,[3] how can its character and operations be reformed to be more compatible with progressive principles? This article addresses a narrow aspect of this broader question, that is, how can ASIO be reformed to be more compatible with the rule of law.[4] This is done largely with the aim of opening up lines of inquiry.
This article firstly canvasses whether the rule of law should be considered a progressive principle. After concluding that a measured view of the rule of law has a modest place among progressive principles, the article embarks on a preliminary discussion of the relationship between ASIO and the rule of law. The key thesis of this section is that the secrecy that cloaks ASIO’s operations means that ASIO is always to some extent outside the rule of law. Hence, from the perspective of the rule of law, ASIO’s mandate and powers should be restricted to what is clearly justifiable. The following section then considers how the rule of law can apply to ASIO’s discretionary powers. Two key areas of reform are briefly discussed, namely, the reduction of ASIO’s discretion in relation to the interpretation of its mandate and the structuring of ASIO’s discretionary powers with reference to human rights considerations.
To glibly state that the rule of law is a progressive political principle might very well be an instance of propaganda activity. It might very well be tantamount to peddling ‘ruling-class chatter’.[5] Account must be taken of the risk that this principle carries of being ideological in the sense of camouflaging and legitimising actual power relations and substantive injustice.[6]
This risk must be taken seriously in relation to ASIO. Merely placing ASIO within the province of the law is not necessarily an advance. For one, the legalisation of ASIO’s operation might be aimed at expanding, not restricting, ASIO’s powers. For instance, Justice Hope in his first report on ASIO found that the legality of ASIO’s practices with respect to listening devices, mail interception and entering and searching premises was not beyond doubt.[7] Put more plainly, Justice Hope found that such practices were probably tainted with illegality. However, his Honour proceeded to recommend statutory amendments which, in his words, ‘will or may extend the legal powers exercisable by ASIO’.[8] In this instance, the law, far from constraining ASIO, was a vehicle for expanding ASIO’s powers.
At the same time, the risks that the rule of law as a political principle carries should be kept in perspective. It is true that progressive-minded people should not be beguiled by the notion of the rule of law. As Joseph Raz has cogently argued, the rule of law is not the rule of good law.[9] For example, the rule of law is entirely compatible with ‘(a) non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities and religious persecution’.[10]
However, the fact that the rule of law is or can be ideological does not mean that it is worthless doctrine. Indeed, the criticism that the rule of law is ideological necessarily presupposes that this notion has some, albeit limited, value. The argument is simple and convincing: if the rule of law is to effectively perform its role as ideology in masking and legitimising certain social relations and exercises of power, it must offer something. As Marxist historian, E.P. Thompson puts it, ‘[i]f the law is evidently partial and unjust, then it will mask nothing, legitimize nothing, contribute nothing to any class’s hegemony’.[11]
In this, there are two significant values that the rule of law promotes. First, in insisting that governmental action be based on openly promulgated laws, it offers individuals a limited freedom from arbitrary governmental action. This negative freedom, in turn, might provide them a modicum of freedom in planning their lives.[12] More significantly, insofar as the rule of law subjects governmental bodies to statutory law, it advances democratic aspirations. It does so in at least two ways. First, in a parliamentary democracy, statutory laws capture, however imperfectly, the democratic wishes of the citizenry. Secondly, openly promulgated laws provide some transparency in governmental action. Such transparency facilitates greater democratic participation.
As with any other political ideal, the rule of law is open to various interpretations ranging from the formal to the substantive.[13] At the core of these interpretations, however, is the principle of legality, that is, all, including governments, are subject to the law. In this, being subject to the law does not merely mean that statutes or common law doctrines theoretically apply to all entities. The law must have ‘bite’ in that it can be effectively enforced. In relation to governmental action, an indispensable mechanism in ensuring this ‘bite’ is the effective ability of affected persons to enforce the law against governmental bodies in independent forums, whether they are courts or tribunals.[14]
It is obvious then that ASIO is always to some extent outside the rule of law. Key to understanding this inevitability is the secrecy that cloaks ASIO’s operations. This wall of secrecy has two aspects. First, it prevents the disclosure of information relating to ASIO. Most important is the criminal prohibition that, unless authorised by the Director-General of ASIO, ASIO officers and people associated with ASIO cannot communicate any information in relation to ASIO.[15] Further, unless authorised by the Director-General of ASIO or the Attorney General, all people are prohibited from publishing or causing to be published information making public the identity of an ASIO (current as well as former) officer or a person associated with ASIO.[16] Secondly, this wall of secrecy also prevents people obtaining information relating to ASIO. The covert nature of ASIO’s operations makes this plain. So does the exemption of ASIO from the Freedom of Information Act 1982 (Cth).[17]
Whatever legal rights individuals have, the secrecy that cloaks ASIO’s operations means that people affected by ASIO’s operations cannot, in practical terms, enforce the law against ASIO because the legislative framework effectively prevents them from knowing that they were so affected. For example, an individual whose telephone was being illegally tapped could not sue ASIO for acting illegally because they would not know of the tapping. From the perspective of the rule of law, this partial insulation of ASIO from the rigours of this principle dictates that ASIO’s operations must be restricted to what is clearly justifiable.
The imperative of restricting ASIO’s operations should take place at various levels. It should extend, for instance, to ASIO’s organisational culture. More importantly, from a legal perspective, it should take place at two levels: ASIO’s mandate and powers. It is the former that should command the greatest attention because it is the base that gives rise to the superstructure of ASIO’s powers. Further, there is little doubt that since the present Act was legislated in 1979, ASIO’s mandate has expanded. For instance, in 1986, the ASIO Act was amended so that ASIO’s mandate embraced the provision of protective security advice and the obtaining of foreign intelligence.[18] The latest attempt to expand ASIO’s mandate is contained in the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill which seeks to extend ASIO’s mandate to the so-called terrorism offences.[19]
Justice Hope’s formulation of the ‘principal reason for the existence of ASIO’ as ‘a defensive need which is not otherwise fulfilled’[20] provides a good starting point in restricting ASIO’s mandate. This formulation can be broken down to two separate elements. First, there is the identification of a defensive need. Such needs should be identified with as much precision as is possible. Such precision is needed not only to limit breaches of the rule of law but also to provide workable criteria to measure ASIO’s effectiveness. Moreover, principles need to be devised for the identification of such needs. For instance, should the mere spreading of so-called subversive ideas be considered a danger to be defended against?
The second element is that such needs must be ones which are not otherwise fulfilled. There are important lines of defences, apart from ASIO, which might address such needs. In a democracy, an important line of defence is the open debate of ideas. For one, subversive ideas, whatever that means, should be combated, if at all, by counter-arguments and not by surveillance.[21] Another line of defence is constituted by the police and their enforcement of the criminal law.
Even if ASIO were effectively subject to the principle of legality, ASIO would still have considerable room to manoeuvre because of the discretion it wields. This discretion extends to the interpretation of ASIO’s mandate as well as the exercise of its powers. With the former, discretion stems, among others, from the vagueness of ASIO’s mandate which is largely delimited by the nebulous concept of ‘security’.[22] The latter is expressly conferred by statutory provisions dealing with ASIO’s intrusive activities like the use of listening devices[23] and also arises from ASIO’s largely unregulated ability to collect information through open sources and informers.[24]
What then does the rule of law have to say in relation to such discretion? If we followed one strand of the literature, the answer would be nothing much. According to this strand, governmental discretion is incompatible with the rule of law. Most famously, Hayek propounded that:
Stripped of all technicalities, (the rule of law) means that government in all its actions is bound by rules fixed and announced beforehand — rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge.[25]
Given that discretion inherently breeds uncertainty, Hayek proposed that ‘administrative authorities should have no discretionary power’.[26] According to this interpretation of the rule of law, the only tenable position when confronted with discretionary power is steadfast opposition.
In his seminal work, Discretionary Justice: A Preliminary Inquiry, Kenneth Davis dubbed this interpretation as ‘the extravagant version of the rule of law’[27] and rightly criticised it for neglecting the reality of and need for discretionary powers.[28]
To a large part, Davis’ work was aimed at adapting the rule of law to the question of discretionary powers.[29] In this adaptation, discretionary powers should be based as far as possible on openly promulgated rules, standards and principles.
According to Davis, ‘(h)alf the problem is to cut back unnecessary discretionary power. The other half is to find effective ways to control necessary discretionary power.’[30] The first half was the task of confining discretion, that is ‘fixing the boundaries and keeping discretion within them’.[31] The second half of the problem gives rise to questions of structuring, that is controlling the manner of the exercise of the conferred discretion,[32] and checking discretion, namely, providing supervision and review of discretionary decisions.[33]
This typology is useful in approaching ASIO’s discretionary powers from the perspective of the rule of law. It raises an important agenda of inquiry, research and reform. Two important aspects of this vast agenda should be briefly discussed, one of which relates to confining ASIO’s discretion and the other to structuring the exercise of its discretions.
As noted above, ASIO’s mandate is largely delimited by the statutory concept of ‘security’.[34] Importantly, this concept embraces ‘the carrying out of Australia’s responsibilities to any foreign country’ in relation to various matters including politically motivated violence and espionage affecting the foreign country.[35] The point to be made is that we know very little of the foreign countries to which such responsibilities are owed and the character of such responsibilities. Neither the ASIO Act nor the guidelines issued by the Attorney General advert to these questions.[36] In this context, the resolution of these questions is left in the hands of ASIO. It is up to ASIO, for instance, to determine the extent to which its mandate embraces assistance to the CIA.
This is seriously objectionable not only on the basis that ASIO has the power to interpret its own mandate but also because of the serious risk that ASIO’s operations become a conduit for the advancement of foreign interest. A critical reform then is to particularise these responsibilities to foreign powers, preferably, in a statutory form and in so doing cut down the unnecessary discretion that presently lies in ASIO’s hands.
Secondly, ASIO’s discretions should be structured in a manner that takes into account human rights considerations. The present framework governing the exercise of ASIO’s discretions does operationalise this in very limited fashion. For example, the ASIO Act does state that it is not intended to ‘limit the right of persons to engage in lawful advocacy, protest or dissent’ and that ASIO’s functions shall be interpreted accordingly.[37] The Attorney General’s guidelines in relation to politically motivated violence takes this slightly further by prohibiting investigations ‘where the only basis for the investigation is the exercise of a person’s right of lawful advocacy, protest or dissent’.[38] Further, these guidelines, as well as those relating to the obtaining of intelligence relevant to security, require ASIO to consider questions of privacy when collecting information.[39]
The present framework has one obvious limitation. Considerations of democratic dissent should not be confined to what is lawful. Many acts of legitimate dissent are technically unlawful especially acts of civil disobedience.[40]
Further, it is in this area of unlawful dissent that ASIO’s actions pose a grave threat to a vibrant democracy. This threat arises from the fact that ASIO is always a secret political police. This incontrovertible fact can be simply read off the terms of the ASIO Act. Broadly speaking, the concept of ‘security’ is directed at threats towards the Australian state. These threats will be seen as emanating from what ASIO perceives to be the fringes of the political spectrum.
The question then is not whether ASIO is a secret political police because it clearly is. The more important question is which part of the political spectrum does ASIO police. In the past, a huge swathe of this spectrum was considered fair game for ASIO. In the words of Justice Hope, ‘in the past, ASIO officers have shown a tendency to think of anyone they chose to call “left wing” as subversive’.[41] My impression is that the danger of ASIO being a secret political police does not currently assume such a form. Nevertheless, ASIO will always be directing its attention at people it considers to be outside mainstream politics. This is why pictures of demonstrators at the 2000 World Economic Forum are found in the latest ASIO annual report.[42]
It is critical then that the danger (and reality) of ASIO being a secret political police be tamed by guidelines which require ASIO to consider questions of democratic dissent beyond what is merely lawful. Difficult questions, of course, arise as to when the illegal character of a dissenting act renders it illegitimate. Nevertheless, it is clear that merely confining legitimate dissent to what is lawful is untenable.
This reform could be pursued by pressuring the Attorney General to issue guidelines to this effect.[43] Further, the Inspector-General of Intelligence and Security could be persuaded to initiate an inquiry into the appropriateness of ASIO’s procedures as they relate to democratic dissent.[44]
This article has demonstrated that ASIO fails to conform to the rule of law in various ways. It inherently does so because of the secrecy that cloaks its operations. As for the parts of its activities and legislative structure that are amenable to the discipline of the rule of law, significant change is required before it could be said that the rule of law adequately applies to ASIO.
The rule of law, after all, is a modest political principle. If ASIO fails on this modest measure, how would it fare against the more demanding standards of democracy and equality?
[*] Joo-Cheong Tham teaches law at Victoria University.This article was presented to the ‘War on Terrorism: Democracy Under Challenge’ conference hosted by the Law School, Victoria University on 9 August 2002.email: JooCheong.Tham@vu.edu.au© 2002 Joo-Cheong
[1] The ‘khaki’ budget increased ASIO’s budget from 65 million dollars to 82 million dollars: Attorney-General’s Department, Portfolio Budget Articles (2002) 473, available at <http://www.ag.gov.au/publications/ Budget2003/welcome.html> on 31 July 2002.
[2] Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (Cth). The government has proposed amendments to the original Bill which adopt various recommendations of the Joint Parliamentary Committee on ASIO, ASIS and DSD’s report on the Bill (Parliamentary Joint Committee on ASIO, ASIS and DSD, An Advisory Report on the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (2002)), see Daryl Williams, Attorney-General, News Release: Labor Refuses to Engage on Community Safety, 19 September 2002.
[3] The question whether a security service should exist at all is, of course, controversial. For arguments advocating the abolition of ASIO, see the articles contained in Pat Flanagan (ed.), Big Brother or Democracy? The Case for the Abolition of ASIO, 1980.
[4] Commentators have identified the rule of law as a key political principle to govern ASIO’s operations, see Hocking, Jenny, Beyond Terrorism: The Development of the Australian Security State, 1993, p.196 and Lee, H.P. Hanks, P.J. and Morabito, V., In the Name of National Security: The Legal Dimensions, 1995, pp.16-7. The principle of legality was also identified by Justice Hope as one of three fundamental principles to be observed by ASIO: Royal Commission on Intelligence and Security, Fourth Report: Volume 1 1978, pp.70-3. On the importance of the rule of law in the ‘war on terrorism’, see Justice Michael Kirby, ‘Australian law — After 11 September 2001’ (2001) 21 Australian Bar Review 253, 264. See also McCulloch, Jude,‘War at Home: National Security Arrangements post 11 September 2001’ [2002] AltLawJl 30; (2002) 27(2) Alternative Law Journal 87.
[5] Shklar, Judith, ‘Political Theory and The Rule of Law’, in Allan Hutchinson and Patrick Monahan (eds), The Rule of Law: Ideal or Ideology, Carswell, 1987, p.1.
[6] See, for example, the collection of essays in Hutchinson and Monahan, above.
[7] Royal Commission on Intelligence and Security, above, ref 4, pp. 82-6, 92-3.
[8] Royal Commission on Intelligence and Security, above, ref 4, p.79.
[9] Raz, Joseph, ‘The Rule of Law and its Virtue’ (1977) 93 Law Quarterly Review 195, at 195-6.
[10] Raz, Joseph, above, ref 9, p.196.
[11] Thompson, E.P., Whigs and Hunters: The Origin of the Black Act, Allen Lane, 1977 edition, p.263. For a recent left-wing endorsement of Thompson’s argument, see Sypnowich, Christine, The Concept of Socialist Law, Oxford University Press, 1990, pp.69-70 and Sypnowich, ‘Christine, Utopia and the Rule of Law’ in David Dyzenhaus (ed.), Recrafting the Rule of Law: The Limits of Legal Order, 1999, pp.178, 184.
[12] The most famous proponent of this line of reasoning is, of course, Friedrich Hayek. See Hayek, Friedrich, The Constitution of Liberty, University of Chicago Press, 1960. The qualified tone of my argument clearly indicates that I do not subscribe to Hayek’s exaggerated belief in the importance and value of the rule of law. In this, the freedom that the rule of law promotes is limited in two important respects. It is confined to governmental action and does not extend to exercises of power by private bodies like corporations. Further, it is an instance of negative freedom and does not ensure that individuals will have the positive freedom to plan their lives.
[13] For a discussion, see Craig, Paul, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’, (1997) Public Law 467-87. For an attempt to transcend the distinction between formal and substantive conceptions of the rule of law, see Dyzenhaus, David, ‘Recrafting the Rule of Law’, above, ref 11, pp.5-10.
[14] Chief Justice Murray Gleeson, Courts and the Rule of Law, speech given as part of the University of Melbourne Rule of Law Series, 7 November 2001, p.5 (copy on file with author). In Dicey’s formulation of the rule of law, the ‘ordinary courts’ had a monopoly over the enforcement of the law, see Dicey, A.V., Introduction to the Study of the Law of the Constitution, 1959 edn, p.202. That the rule of law should be so rigidly confined should be doubted, see Gleeson, above, pp.15-6.
[15] Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act), s.18.
[16] ASIO Act, s.92.
[17] Freedom of Information Act 1982 (Cth), s.7(1), and Part 1 of Schedule 2.
[18] Australian Security Intelligence Organization Amendment 1986 (Cth).
[19] These offences are primarily found in the Security Legislation Amendment (Terrorism) Act 2002 (Cth). This Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 seeks to expand ASIO’s mandate by extending the definition of ‘politically motivated violence’ to include the so-called terrorism offences, see clause 4.
[20] Royal Commission on Intelligence and Security, above, ref 4, p.14.
[21] For a similar argument, see McKnight, David, Australia’s Spies and their Secrets, Allen & Unwin, 1994, p.297.
[22] The concept of ‘national security’ has been criticised for ‘its intrinsic tendency to be productive of, or to serve as a justification for inanities’: Editors, ‘Scope and content of concept of national security’, (1984) 58 Australian Law Journal 67, at 68. See generally Lee and others, above, ref 4, Chapter 2. For ASIO’s mandate or functions as the Act terms it, see s.17 of the ASIO Act.
[23] These are termed special powers by the Act: Division 2, Part III.
[24] Apart from being loosely confined by the statutory functions of ASIO, the collection of intelligence through such methods is only regulated by guidelines issued by the Attorney-General: Attorney-General’s Guidelines in relation to the performance by the Australian Security Intelligence Organisation (ASIO) of its function of obtaining intelligence relevant to security (Security Guidelines), available at <http://www.asio.gov.au/About/Content/attorney.html> on 3 January 2002.
[25] Hayek, Friedrich The Road to Serfdom, Dymock’s Book Arcade, 1945, p.72.
[26] Hayek, Friedrich, above, ref 25, p.213.
[27] Davis, Kenneth, Discretionary Justice: A Preliminary Inquiry, 1969, p.30.
[28] Davis, Kenneth, above, ref 28, pp.36-42.
[29] The line of inquiry identified by Davis has been further pursued by D.J. Galligan, Discretionary Powers: A Legal Study of Official Discretion, 1990.
[30] Davis, above, ref 27, p.51 (emphasis original).
[31] Davis, above, ref 27, p.55.
[32] Davis, above, ref 27, p.97.
[33] Davis, above, ref 27, p.142.
[34] ASIO Act, ss.17(1)(a)-(ca).
[35] ASIO Act, s.4.
[36] There are two sets of guidelines which have been issued, namely, the Security Guidelines, above, ref 24 and Attorney-General’s Guidelines in relation to the performance by the Australian Security Intelligence Organisation of its functions relating to politically motivated violence (Politically Motivated Violence Guidelines), available at <http://www.asio.gov.au/About/Content/attorney.html> on 3 January 2002.
[37] ASIO Act, s.17A.
[38] Politically Motivated Guidelines, above, ref 36.
[39] Politically Motivated Guidelines, cl 3.2, 3.6, 3.9; and Attorney-General’s Guidelines in relation to the performance by the Australian Security Intelligence Organisation (ASIO) of its function of obtaining intelligence relevant to security cl 2.12-2.13.
[40] Bailey, Peter, Human Rights: Australia in an International Context, Butterworths, 1990, pp.296-7.
[41] Royal Commission on Intelligence and Security, above, ref 4, p.130.
[42] Australian Security Intelligence Organisation, Report to Parliament: 2000-2001, 2001, p.17.
[43] ASIO Act, s.8A.
[44] Inspector-General of Intelligence and Security Act 1986 (Cth), s.8(a)(iv).
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