The unfinished canvas: national security and the Australian communications sector
Susanne Louise Lloyd-Jones
A thesis in fulfilment of the requirements for the degree of Doctor of Philosophy
Faculty of Law
January 2018
UNIVERSITY OF NEW SOUTH WALES THESIS/DISSERTATION SHEET
Surname or Family name: LLOYD-JONES
First name: SUSANNE Other name/s: LOUISE
Abbreviation for degree as given in the University calendar: PhD
School: LAW Faculty: LAW
Title: The unfinished canvas: national security and the Australian communications sector
Abstract 350 words maximum: (PLEASE TYPE) After 11 September 2001, the protection of national security became a high-stakes issue in Australia and internationally. The Australian Government commenced a far-reaching legislative agenda to update its national security laws. Described by a former attorney-general as ‘an unfinished canvas’, the national security legislative framework included communications–sector specific legislation, directed at the national interest obligations of communications industry stakeholders. This thesis examines the governance of national security in the Australian communications sector, with the aim of contributing to legal knowledge by examining the entrenched governance networks, structures and processes for coordinating national security law and policy in the Australian communications sector and accurately characterising the compact—some might call it the ‘accord’—between industry and government. A normative concern relating to the fate of democratic scrutiny in the specified context is investigated. The thesis draws on a governance theory perspective and uses a multiple case study approach. The thesis concludes that the coordination of national security law and policy in the Australian communications sector is best understood as corporatist governance. The research reimagines the Australian industrial relations Accord of the 1990s by framing the relationship between the state and industry as corporatist. The implications, both practical and abstract, of this relationship for liberal democratic institutions and democratic scrutiny are considered. The thesis concludes that, whereas co-regulatory and self-regulatory mechanisms may be efficient and effective, corporatist governance poses a threat to democratic scrutiny when the accord between industry and government is wholly functional and operating in its natural state of exclusivity, confidentiality and secrecy, under the cloak of national security. Corporatist governance is least risky to democratic scrutiny when the accord is not fully formed, or is easily broken—then, the strong democratic traditions of the ‘fourth estate’, the rule of law, parliamentary scrutiny and judicial oversight, may play a role in the coordination of national security law and policy in the Australian communications sector.
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I also authorise University Microfilms to use the 350-word abstract of my thesis in Dissertation Abstract International (this is applicable to doctoral theses only).
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ii
For
Michael and Loïc— ‘Petit à petit, l’oiseau fait son nid.’
In memory of
Daryl Eirene Lawrence 1947–2013
iii ABSTRACT
After 11 September 2001, the protection of national security became a high-stakes issue in Australia and internationally. The Australian Government commenced a far-reaching legislative agenda to update its national security laws. Described by a former attorney- general as ‘an unfinished canvas’, the national security legislative framework included communications–sector specific legislation, directed at the national interest obligations of communications industry stakeholders. This thesis examines the governance of national security in the Australian communications sector, with the aim of contributing to legal knowledge by examining the entrenched governance networks, structures and processes for coordinating national security law and policy in the Australian communications sector and accurately characterising the compact—some might call it the ‘accord’—between industry and government. A normative concern relating to the fate of democratic scrutiny in the specified context is investigated. The thesis draws on a governance theory perspective and uses a multiple case study approach.
The thesis concludes that the coordination of national security law and policy in the
Australian communications sector is best understood as corporatist governance. The research reimagines the Australian industrial relations Accord of the 1990s by framing the relationship between the state and industry as corporatist. The implications, both practical and abstract, of this relationship for liberal democratic institutions and democratic scrutiny are considered. The thesis concludes that, whereas co-regulatory and self-regulatory mechanisms may be efficient and effective, corporatist governance poses a threat to democratic scrutiny when the accord between industry and government is wholly functional and operating in its natural state of exclusivity, confidentiality and secrecy, under the cloak of national security. Corporatist governance is least risky to
iv democratic scrutiny when the accord is not fully formed, or is easily broken—then, the strong democratic traditions of the ‘fourth estate’, the rule of law, parliamentary scrutiny and judicial oversight, may play a role in the coordination of national security law and policy in the Australian communications sector.
v ACKNOWLEDGEMENTS
Many generous souls have helped, encouraged, inspired and motivated me during my candidature. First and foremost, I wish to express my gratitude to my supervisors, Kathy
Bowrey and Derek Wilding, for everything they have done for me as supervisors, mentors and friends. This project would not have been possible without their vision, patience, enthusiasm, tenacity, intellect and good humour.
I wish to thank my colleagues in the Faculty of Law at the University of New South
Wales. Ben Golder and Michael Handler, members of my review panel, were helpful and fair. Theunis Roux, chair of my review panel, appraised my work with honesty and rigour. Mark Aronson, from whose guidance I benefitted, read and commented on an early draft of Chapter Three. George Williams invited me to a Gilbert & Tobin Centre of Public Law lunch. Andrew Lynch kindly acted as my co-supervisor for a time.
Heartfelt thanks to Jenny Jarrett for her caring assistance and support. My sincere thanks go to Louise Buckingham, Kate Bond, Dominique Dalla-Pozza, Keiran Hardy,
Leon Terrill, Greg Weeks, Tamara Tulich, Rebecca Ananian-Welsh, Jacquie Hartley,
Aline Jaeckel, Amanda Wilson, Tamara Wood, Maggie Hall and Sally Richards for their friendship.
I wish to thank my former colleagues at the Macquarie Law School, particularly Peter
Radan, Denise Meyerson, Cameron Stewart, Lisa Ford and Nicole Graham. I wish to thank my former colleagues in the Department of Media and Communications and the
Faculty of Law at the University of Sydney, especially Kate Crawford, Gerard Goggin and Ann Dunn. I wish to express my gratitude to Catharine Lumby, Isabel Karpin and
Terry Carney, for their encouragement and advice at the beginning of my candidature.
vi I would like to thank my current and former colleagues at the Australian
Communications and Media Authority, especially Chris Chapman, Giles Tanner, Paul
White, David Brumfield, Tony George, Hugh Clapin, Rod Brown and Julia Cornwell
McKean for their support and genuine interest in my research. I am also grateful to
Chris Cheah for generously sharing his vast knowledge and experience of Australian communications regulation.
Thank you to Lisa Lines from Capstone Editing for her editorial assistance, which was limited to Standards D and E of the Australian Standards of Editing Practice, following the ‘Guidelines for Editing Research Theses’.
I am very grateful to my friends and family. I am particularly appreciative of Sophie
Kowald, Rowena Lloyd-Jones, Nick Kabilafkas and Zack Hoyt for their thoughtful feedback on drafts, Julie Anderson, Kim Gontie, Toby Hulf, Jennifer Henderson, Nicole
Lowres and Kate Wild for their practical insights.
I would like to thank the Lawrence family for their encouragement and enjoyable diversions. Warm thanks to Prune and Sophie for their help at home.
This thesis would not have been possible without the love and support of my family.
vii CONTENTS
Originality Statement ...... i Copyright Statement ...... ii Authenticity Statement ...... ii Abstract ...... iv Acknowledgements ...... vi List of Abbreviations ...... xi List of Publications and Presentations ...... xiv Chapter One Situating Australian National Security Law, Policy and Coordination in the Domestic Communications Sector ...... 1 I Context: Edward Snowden, National Security and the Communications Sector ...... 1 II National Security and the Australian Communications Sector after 11 September 2001 ...... 2 III Aim and Scope of Research ...... 7 IV Overview of the Research, Methodology and Constraints ...... 12 A Initial Theoretical Influences ...... 12 B Anglo-American and European Governance Theory ...... 16 C Methodological Considerations ...... 24 V Thesis Structure ...... 26 VI Significance of the Research ...... 32 Chapter Two The National Security Community and the Communications Sector ...... 38 I Introduction ...... 38 II Industry Context ...... 39 A Snapshot of the Australian Communications Sector ...... 39 B The Contemporary Building Blocks of Communications Industry Participation in National Security Policy and Coordination Pre-September 11 ...... 46 III Australian National Security Policy and Coordination after September 11 ...... 51 A The Australian National Security Community ...... 55 B Key Industry and Government Participants in the Communications Sector Component of the National Security Community ...... 60 IV Conclusion ...... 71 Chapter Three Key Concepts, Themes and Hysing’s Indicators of Government to Governance ...... 72 I Theoretical Framework ...... 72 A Post-September 11 National Security Law and Policy Literature and the Gap concerning Communications Regulation ...... 72 B The Role of Legal Rules in Coordinating National Security Law & Policy in the Australian Communications Sector ...... 77 C Concepts, Definitions and Themes ...... 82 D Governance as a Theoretical Lens ...... 88 E Corporatism as a Governance Concept ...... 91 F The Indicators of Government to Governance ...... 97
viii G Competing Approaches to Government and Governance ...... 106 II National Security, Democratic Scrutiny and the State—Why a Broad Governance Perspective is Desirable ...... 108 A The Role of the State in Coordinating National Security Law and Policy ...... 109 B The Modern Administrative State is a Negotiating State ...... 112 C The Fragility of Democratic Scrutiny ...... 116 D The Rule of Law ...... 119 E Parliamentary Oversight ...... 121 F The Role of Courts ...... 123 III Conclusion ...... 126 Chapter Four Coordinating Telecommunications Interception: A Corporatist Governance Framework ...... 129 I Introduction ...... 129 II Telecommunications Interception: A Short History ...... 131 A Telecommunications Interception as an Exercise of Executive Power ...... 131 B The Australian Security State and Telecommunications: 1975–1991 ...... 133 C Open Competition and a Statutory Framework for Cooperation on Telecommunications Interception: 1991–1997 ...... 139 D Open Competition and Telecommunications Interception Capability: 1997– 2001 ...... 142 E Convergence, Cooperation and Global Terrorism: 2001–2011 ...... 148 III Networks, Structures and Processes ...... 156 A Formal Internal Government Committees ...... 158 B Industry Consultation through Formal and Informal Networks, Forums and Working Groups ...... 172 C Liaison Roles ...... 174 IV Indicators of Government to Governance ...... 177 A Governing Styles and Instruments ...... 177 V Conclusion: Corporatist Governance ...... 196 Chapter Five When Corporatist Governance Falters: ACMA, Satellite Narrowcasting and the Anti-Terrorism Standards ...... 201 I Introduction ...... 201 II Applicable Law and Regulation ...... 202 A Broadcasting Services Act 1992 (Cth) ...... 202 B The Co-Regulatory Framework ...... 206 C Co-Regulation and Terrorist Content ...... 209 III Facts of the Al-Manar Investigations ...... 212 A The Al-Manar Investigations ...... 212 B The GTV Investigation, 2008–2009 ...... 233 IV Indicators of Government to Governance ...... 235 A The Relationship between ACMA and Private Actors ...... 236 B Relations between Policy Levels ...... 238 C The Limits of Corporatist Governance ...... 242 V Conclusion ...... 243 Chapter Six Between Litigation and Legislation: Operation Neath and the Attorney-General’s Roundtable ...... 250 I Introduction ...... 250 II Applicable Law and Regulation ...... 252 A Law, Legislation and the Fourth Estate ...... 252
ix B The Media and National Security Law, Policy and Coordination ...... 256 III Operation Neath and the Fourth Estate ...... 262 A The Facts of Operation Neath ...... 262 B The Role of the Media in Covering Police and Security Operations ...... 268 C Reconsidering Expectations about the Role of the Press ...... 270 IV Indicators of Government to Governance ...... 271 A Styles in Operation Neath ...... 275 B Relationships in Operation Neath ...... 280 C Negotiation Styles and the Nature of the Relationship ...... 294 D The Outcome of the Attorney-General’s Roundtable ...... 297 V Conclusion ...... 298 Chapter Seven Conclusion: The Unfinished Canvas—The Evolving Future of National Security and the Australian Communications Sector ...... 305 I Introduction ...... 305 II The Waxing and Waning of the National Security Community ...... 309 III The Accord Reimagined—Characterising the Relationship between Industry and Government as Corporatist Governance ...... 314 A Corporatist Governance in Context ...... 317 B Limitations to the Working Partnership ...... 320 IV Reflecting on the Construction of the Public Interest in the Context of Corporatist Governance ...... 322 A Accountability, the Role of Law, Parliament and the Courts ...... 326 B National Security, Corporatist Governance and the Public Interest ...... 328 V Potential Areas of Concern for Democratic Scrutiny ...... 333 A The Role of Law versus the Rule of Law ...... 334 B Parliamentary Oversight ...... 339 C The Role of Courts ...... 344 VI A Final Note on the Making and Breaking of the Accord ...... 347 Bibliography ...... 351 A Articles, Books and Reports ...... 351 B Cases ...... 371 C Legislation ...... 371 D Legislative Instruments ...... 373 E Other ...... 374 F Newspaper Articles ...... 384 G Information Released under the Freedom of Information Act 1982 (Cth) ...... 390
x LIST OF ABBREVIATIONS
ABA Australian Broadcasting Authority
ABC Australian Broadcasting Corporation
ACA Australian Communications Authority
ACCC Australian Competition and Consumer Commission
ACIF Australian Communications Industry Forum
ACLEI Australian Commission for Law Enforcement Integrity
ACMA Australian Communications and Media Authority
ACTU Australian Council of Trade Unions
AFP Australian Federal Police
AGD Attorney-General’s Department
AIIA Australian Information Industry Association
AIMIA Australian Interactive Media Industry Association
AJA Australian Journalists Association
AMTA Australian Mobile Telecommunications Association
APC Australian Press Council
APCO Association of Public-Safety Communications Officials
ARK Australia’s Right to Know Coalition
ASIC Australian Securities and Investment Commission
ASIO Australian Security and Intelligence Organisation
ASIS Australian Secret Intelligence Service
ASTRA Australian Subscription Television and Radio Association
BSA Broadcasting Services Act 1992
CA Communications Alliance
CAC Communications Access Coordinator
xi CSER Communications Security Enforcement Roundtable
CSP Carriage service provider
DPP Director of Public Prosecutions
FOI Freedom of information
GTV Global Tamil Vision
IATG Inter-Agency Technical Group
ICC Interception Consultative Committee
IIA Internet Industry Association
IGIS Inspector-General of Intelligence and Security
ISP Internet service providers
LEAC Law Enforcement Advisory Committee
LTTE Liberation Tigers of Tamil Elam
MEAA Media and Entertainment Arts Alliance
NPIG National Policy Implementation Group
NTC National Telecommunications Conference
ONA Office of National Assessments
OTT Over-the-top
PJCIS Parliamentary Joint Committee on Intelligence and Security
PM&C Prime Minister and Cabinet
RC Refused classification
SBS Special Broadcasting Service
SCI Standing Committee on Intercepts
SNC Special Networks Committee
TARBS Television & Radio Broadcasting Services Australia Pty Limited
TI Telecommunications Interception
xii TIA Act Telecommunications (Interception and Access) Act 1979 (Cth)
UNSW University of New South Wales
VoIP Voice over Internet Protocol
VOPI Victorian Office of Police Integrity
xiii LIST OF PUBLICATIONS AND PRESENTATIONS
The following publications and presentations arose from the writing of this thesis:
Publications
Lloyd-Jones, Susanne, ‘Where the Wild Things Are: Evolving Futures of
Communications Regulation in the Current National Security Context’ (2008) 14(2)
Pacific Journalism Review 50
Lloyd-Jones, Susanne, ‘Who is Singing the B-Party Blues: National Security and the
Communications Industry’ (2006) 121(1) Media International Australia Incorporating
Culture and Policy 15
Presentations
‘Keep the Information Flowing—Regulatory Negotiation, Communications Regulation and National Security in the era of Convergence, Co-regulation and Global Terrorism’
(Paper presented at the 2012 Post-Graduate Workshop in Public Law, Gilbert & Tobin
Centre of Public Law, Faculty of Law, University of New South Wales, 12–13 July
2012)
‘Where the Wild Things Are: Evolving Futures of Communications Regulation in the
Current National Security Context’ (Paper presented at the Public Right to Know
PR2K6 Conference, Australian Centre for Independent Journalism, University of
Technology, Sydney, 23–25 November 2007)
‘My Research’ (Paper presented at the Post-Graduate Roundtable, Law & Liberty in the
War on Terror Symposium, Gilbert & Tobin Centre of Public Law, Faculty of Law,
University of New South Wales, 4–6 July 2007) xiv ‘What Makes Me Passionate About My Research?’ (Work-in-Progress Staff Seminar,
Macquarie Law School, North Ryde, 25 October 2006)
‘An Unfinished Canvas? National (In)Security and the War in Cyberspace’ (Paper presented at the Association of Internet Researchers 2006: Internet Convergences
Conference, Queensland University of Technology, Brisbane, 27–30 September 2006)
‘National (In)security and the War in Cyberspace’ (Paper presented at the Work-in-
Progress Staff Seminar, Department of Media and Communications, University of
Sydney, Sydney, 1 September 2006)
xv
‘If the state is to perform the ordering and solidarity nourishing work that we argue is vital to the production of secure political communities then it must, consequently, be connected to forms of discursive contestation, democratic scrutiny and constitutional control.’
Ian Loader and Clive Walker, Civilising Security (Cambridge University Press, 2007) 7.
‘If industries seek to govern themselves through self-regulation then the rationale for them to do so is not because it profits the industry that it be done, but rather because this benefits the citizen through better administration, systems, accountability and outcomes. How is the citizen’s view of the public good to be constituted? How is the citizen’s disquiet with the way in which services are delivered or with the content of these services to be expressed? These questions invite the answer that a balance must be sought between efficiency and public expectation, and that systems must be in place, which ensure that where there is conflict it is in the end the public interest which is paramount in decision-making.’
Gareth Grainger, Broadcasting, Co-regulation and the Public Good (Paper presented at the World Summit for Regulators, Geneva, 1 December 1999).
‘[Law] sets standards and many of the communication rules. But law is not an omnipotent or singular force.’
Kathy Bowrey, Law and Internet Cultures (Cambridge University Press, 2005) 199.
xvi CHAPTER ONE SITUATING AUSTRALIAN NATIONAL SECURITY LAW, POLICY AND COORDINATION IN THE DOMESTIC COMMUNICATIONS SECTOR
I CONTEXT: EDWARD SNOWDEN, NATIONAL SECURITY AND THE COMMUNICATIONS SECTOR
In 2013, Edward Snowden, a citizen of the United States (US) and contractor to the US
Government’s National Security Agency, provided alleged sensitive national security information to WikiLeaks and a number of media outlets, including The Guardian newspaper in the United Kingdom (UK).1 The information disclosed by Snowden exposed, among other things, the entrenched networks, structures and processes that exist between government and the communications industry, and serve to operationalise national security law, policy and coordination.2 Snowden disclosed information about a surveillance program of the US Government called ‘Prism’.3 From the media coverage, it appeared that Prism could not exist without the extensive cooperation of multinational communications industry participants operating in Australia, such as Google, Microsoft,
Yahoo, Facebook and Apple.4 The service providers identified in the leaked documents have sought to distance themselves from the surveillance programs by arguing that they
1 Tom McCarthy, ‘Edward Snowden Identifies Himself as the Source of the NSA Leaks—As It Happened’, The Guardian (Online), 10 June 2013. 2 David Price, ‘The New Surveillance Normal: NSA and Corporate Surveillance in the Age of Global Capitalism’ (2014) 66(3) Monthly Review 43. 3 Information released by the Attorney-General’s Department under Freedom of Information legislation reveals that PRISM ‘is an internal government computer system used to facilitate the US Government’s lawful collection of foreign intelligence information from electronic communication service providers under warrants issued by the Foreign Intelligence Surveillance Court, as authorised by the US Foreign intelligence Surveillance Act’ (Attorney-General’s Department (Cth), Surveillance Allegations—PRISM, Background, Policy Commitments and Key Facts, 27 June 2013 (FOI Document 1, QTB13/32)). 4 National Public Radio, ‘Tech Giants Deny Granting NSA “Direct” Access to Servers’, The Two Way, 6 August 2013 (Scott Neuman). 1 only provide data under lawful requests.5 The disclosures also demonstrated that
Australia and the UK were part of the surveillance program.6
Edward Snowden’s disclosures, subsequently published by WikiLeaks, The Guardian
Newspaper and The Washington Post, have heightened public interest and awareness in the involvement of the communications sector in operationalising national security law and policy.7 Snowden’s disclosures illustrate, on a larger scale, an aspect of what this thesis explores specifically in regard to Australia: namely, that a large portion of the communications sector is implicated in the coordination of national security law and policy. This includes, specifically, the infrastructure providers, search engines, over-the- top (OTT) applications and services, broadcasters, telecommunications companies and newspapers. As much of the commentary on Snowden’s disclosures note, the involvement of the communications sector in these networks, structures and processes, some of which are public and some of which are private, has implications for democratic ideals, such as transparency, accountability, freedom of speech and privacy and also, for the relevance of the rule of law.
II NATIONAL SECURITY AND THE AUSTRALIAN COMMUNICATIONS SECTOR AFTER 11 SEPTEMBER 2001
The motivation for this thesis developed long before Edward Snowden’s disclosures, originating from an interest in the issues arising in the communications regulatory
5 See Ewen MacAskill, ‘NSA Paid Millions to Cover Prism Compliance Costs for Tech Companies’, The Guardian (online), 24 August 2013. 6 See Josh Taylor, ‘Australian Govt briefed on PRISM before Snowden leaks’, ZDNet (online), 7 October 2013; Will Ockenden, ‘Australia Prepared Briefing on US Global Internet Spying Program PRISM before Snowden Revelations’, Australian Broadcasting Corporation (online), 8 October 2013. 7 The US literature on Edward Snowden is extensive: David Lyon, ‘The Snowden Stakes: Challenges for Understanding Surveillance Today’ (2014) 13(2) Surveillance and Society 139; Naomi Gilens, ‘The NSA Has Not Been Here: Warrant Canaries as Tools for Transparency in the Wake of the Snowden Disclosures’ (2015) 28(2) Harvard Journal of Law & Technology 525; Peter Margulies, ‘Dynamic Surveillance: Evolving Procedures in Metadata and Foreign Content Collection after Snowden’ (2014) 66(1) Hastings Law Journal 1; Nora Ni Loideain, ‘Judicial Review of Mass Metadata Surveillance in the Post-Snowden Era’ (2015) 3(2) Media and Communications 53; Price, above n 2; Chris Marsden, ‘Hyper- Power and Private Monopoly: The Unholy Marriage of (Neo)Corporatism and the Imperial Surveillance State’ (2014) 31(2) Critical Studies in Media and Communication 100. 2 environment after the terrorist attacks in the US on 11 September 2001. After
‘September 11’, the political priority of protecting national security became a high- stakes issue in Australia and elsewhere.8 The Australian Government commenced a far- reaching legislative agenda to update its national security laws. Described by a former attorney-general as ‘an unfinished canvas’,9 the national security legislative framework included communications–sector specific legislation, directed at the national interest obligations of communications industry stakeholders.
On 11 September 2001, I was working as an in-house senior legal counsel for
Australia’s largest subscription television provider, Foxtel. At the time, Foxtel was a partnership between Telstra, Australia’s largest telecommunications provider,
Publishing and Broadcasting Limited, owned and operated by the Packer Family and
News Limited, the Rupert Murdoch–owned media giant. My role at Foxtel was, among other things, to keep abreast of legal, policy and regulatory change, and advise on any potential effects on the Foxtel business. As a carriage service provider (CSP) under the
Telecommunications Act 1997 and a broadcaster under the Broadcasting Services Act
1992 (BSA), Foxtel was potentially affected by incoming changes to communications- specific national security legislation. I began compiling a dossier on national security legislation that would affect the communications environment. Over the next three years, that dossier grew, as Australia debated the appropriate legal and policy responses to terrorist threats.10 National security amendments to the Radiocommunications Act
8 In September 2014, the Abbott Government lifted Australia’s terrorist attack alert from ‘medium’ to ‘high’ as a result of a number of Australian citizens going abroad to fight in conflicts in the Middle East. See Emma Griffiths, ‘Terrorism Threat: Australian Alert Level Raised to High; Terrorist Attack Likely but not Imminent’, Australian Broadcasting Corporation News (online), 12 September 2014. 9 ‘I have always said that the national security legislative framework is an unfinished canvas’ (Philip Ruddock, ‘Protecting National Security Information in Civil Proceedings’ (Media Release 113/2005, 21 June 2005)). 10 For a thorough review of Australian anti-terrorism legislation passed in the decade after 11 September 2001, see George Williams, ‘A Decade of Australian Anti-Terror Laws’ (2011) 35(3) Melbourne 3 1992, the Telecommunications Act 1997 and the Telecommunications Interception and
Access Act 1979 were all introduced into the Australian parliament and debated during this period.
In 2004, when Royal Assent was being given to the Communications Legislation
Amendment Act (No. 1) 2004, which formalised national security checking procedures for all new carriers entering the Australian telecommunications market, I departed
Foxtel to pursue other career opportunities. However, my interest in national security and the communications sector remained, and I continued to collate information and closely follow the debates. In 2005, I started teaching as an adjunct lecturer at the
University of Sydney and completed my Master of Laws at the University of New
South Wales (UNSW). My final masters subject was Kathy Bowrey’s Law and Internet
Cultures, which identified and theorised about some of the trends I had noticed in my own investigations, including the changing role of law, the power of corporations, the disruptive effects of technology and the evolving modes of governing in this context.
During 2006, the Australian Communications and Media Authority (ACMA) determined anti-terrorism program standards directed at satellite subscription and open narrowcasters.11 This move by the Authority was in direct response to an investigation it had conducted into Television and Radio Broadcasting Service Pty Limited, who broadcast Al-Manar Television, an Arabic language satellite channel with alleged links to the listed terrorist organisation, Hizbullah, in Australia.12 In 2007, I commenced as a
University Law Review 1136. For a comparative perspective see Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism (Cambridge University Press, 2011) 309–478. 11 On 16 March 2006, the ACMA determined the Broadcasting Services (Anti-terrorism Requirements for Subscription Television Narrowcasting Services) Standard 2006 and the Broadcasting Services (Anti- terrorism Requirements for Open Narrowcasting Television Services) Standard 2006. The determinations were made under ss 125(2) of the Broadcasting Services Act 1992 (BSA). 12 Australian Communications and Media Authority (Cth), ‘New Standards for Narrowcast Television Services’, ACMAsphere, Issue 7, April 2006
Being part of the academy encouraged me to develop a deeper consideration of the legal literature being written on this subject. I noticed a general lack of contemporary commentary and understanding of the role of the communications sector in national security law, policy and coordination. There was voluminous, well researched and detailed writing from Australia’s public law academics about the new anti-terrorism and counter-terrorism laws, covering topics such as the definition of terrorism, government overreach and threats to public law values, freedom of speech and privacy. However, there was very little written about the ways in which post-September 11 national security law, policy and coordination would affect the Australian economy in sectors such as communications, banking and other critical industries. The absence of analysis of the role of the communications sector in coordinating national security law and policy was significant.14
In 2008, I commenced work at ACMA, Australia’s regulator of telecommunications, radiocommunications, broadcasting and the internet. The ACMA had begun investigating alleged breaches of the anti-terrorism narrowcasting standards in force at the time. The ACMA would conduct three investigations into the Arabic language satellite channel, Al-Manar.15 They were high-profile investigations, involving a
13 I published two articles on the subject: Susanne Lloyd-Jones, ‘Who is Singing the B-Party Blues: National Security and the Communications Industry’ (2006) 121(1) Media International Australia incorporating Culture and Policy 15; Susanne Lloyd-Jones, ‘Where the Wild Things Are: Evolving Futures of Communications Regulation in the Current National Security Context’ (2008) 14(2) Pacific Journalism Review 50. 14 Post-Snowden international literature is filling the void somewhat: Gilens, above n 7; Loideain, above n 7; George Lucas, ‘NSA Management Directive #424: Secrecy and Privacy in the Aftermath of Edward Snowden’ (2014) 28(1) Ethics & International Affairs 29; Lyon, above n 7; Margulies, above n 7; Marsden, above n 7. 15 Australian Communications and Media Authority (Cth), Investigation Report 2158 (2009); Australian Communications and Media Authority (Cth), Al Manar Television Programming (Report, 9 December 2010). 5 multitude of government and community stakeholders.16 The entrenched networks, structures and processes, informed by government and business relationships, were challenged in the case of Al-Manar.17 The usual co-regulatory practice of ACMA was not appropriate because Al-Manar was not ‘an ordinary broadcaster in the Australian context’.18
The topic was significant enough to warrant further academic inquiry into what drives the regulatory practice between governments and the communications industry. There was a need to more accurately characterise the relationship between the communications industry and government than had occurred in the existing literature. I was inspired to discover the possible theoretical reasons for this. I wanted to explore what the implications of the regulatory practices might be for democratic scrutiny and the public interest. Finally, I felt that the inquiry was crucial to understanding the role of public servants, such as myself, in these networks, structures and processes, as all actions of government officials ‘must lie within the boundaries of power created by law’.19
This thesis is grounded in a long standing professional interest in the politics of communications law and regulation, particularly in the face of major industry transformations, the disruptive effects of technology and the significant national security challenges of the twenty-first century. It is informed by my experience working as a legal professional, a public servant and an academic, with my research agenda
16 Evidence to Environment and Communications Legislation Committee, Supplementary Budget Estimates, Parliament of Australia, Canberra, 19 October 2010, 103 (Chris Chapman). 17 Chapter Five of this thesis examines the investigations into Al-Manar Television in more detail. 18 Commonwealth, Parliamentary Debates, Senate, Environment, Communications and the Arts Legislation Committee, 19 October 2009, 119 (Simon Birmingham). 19 Chief Justice Robert French A C, ‘Administrative Law in Australia: Themes and Values Revisited’ in Matthew Groves (ed), Modern Administrative Law in Australia: Concepts and Context (Cambridge University Press, 2014) 24, 36–37. 6 motivated by an interest in tracing how traditional legal obligations and, in particular, the public interest, is accounted for under the current regulatory structures and practices.
III AIM AND SCOPE OF RESEARCH
Until Edward Snowden made his disclosures, discussions of national security rarely entailed consideration of the roles of internet service providers (ISPs), social media platforms, search engines, newspapers, telecommunications providers or television networks in the maintenance of Australia’s national security. Academic and popular discussions of national security are mostly framed in terms of a rights-based narrative, which is focused on the liberal democratic values under threat—such as privacy,20 free speech21 or freedom of the press.22 In addition, such discussions are commonly framed in terms of Australia’s place in the international world order, and actual and perceived threats to its sovereignty.23
The aim of my research is to contribute to legal knowledge by examining the entrenched governance networks, structures and processes for coordinating national security law and policy in the Australian communications sector, to accurately characterise the compact—some might call it the accord—between industry and government. By characterising this relationship, citizens, government and industry will be better equipped to understand its implications for liberal democratic institutions.
20 For example, see Roger Magnusson, ‘Privacy, Surveillance and Interception in Australia’s Changing Telecommunications Environment’ (1999) 27(1) Federal Law Review 33; Sharon Rodrick, ‘Accessing Telecommunications Data for National Security and Law Enforcement Purposes’ (2009) 37(3) Federal Law Review 375; Niloufer Selvadurai and Rizwanul Islam, ‘The Expanding Ambit of Telecommunications Interception and Access Laws: the Need to Safeguard Privacy Interests’ (2010) 15(3) Media and Arts Law Review 378; Molly Tregoning, ‘A New Panopticon: Surveillance and Privacy After September 11’ (2004) 9(3) Media and Arts Law Review 169. 21 For example, see Anthony Bergin and Raspal Khosa, ‘The Australian Media and Terrorism’ (Strategic Paper, Australian Strategic Policy Institute, 16 August 2007). 22 Lawrence McNamara, ‘Closure, Caution and the Question of Chilling: How have the Australian Counter-Terrorism Laws affected the Media?’ (2009) 14(1) Media and Arts Law Review 1. 23 Hugh White, ‘The Idea of National Security: What Use is it to Policymakers?’ in National Security College Occasional Paper No 3 (Australian National University, April 2012); Ross Babbage, ‘National Security Studies: What are the Distinguishing Features?’ in National Security College Occasional Paper No 3 (Australian National University, April 2012). 7 The thesis will examine the development of modern regulatory systems in the specific context of national security law, policy and coordination in the Australian communications sector. A normative concern is added to this aim, which relates to the fate of democratic scrutiny in the specified context. To achieve this aim, the thesis draws on a governance theory perspective. A particular focus is the work of Swedish political scientist, Erik Hysing, whose indicators of ‘government to governance’ assist in identifying the typologies of ‘government’ and ‘governance’ in the specified regulatory context.
Philip Ruddock’s ‘unfinished canvas’ metaphor24 still has currency in 2017, as amendments to communications sector national security obligations continue to be proposed.25 US lawyers, James Gorelick, John Harwood and Heather Zachary, argued that ‘in no industry has the impact of the events of 11 September 2001 been felt more strongly than in the communications industry’.26 As Chapter Two will demonstrate, the same is true in Australia, as attested by the national security-focused legislative changes to the sector’s obligations since September 11. However, the effect of September 11 on the communications sector went largely unnoticed in the legal literature produced in the decade after September 11.27
The Australian literature focusing on national security has considered the underlying administrative structure and processes that give effect to government policy on national
24 Ruddock, above n 9, 1. 25 For example, Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, ‘Advisory Report on the Telecommunications and Other Legislation Amendment Bill 2016’ (30 June 2017). 26 Jamie S Gorelick, John H Harwood II and Heather Zachary, ‘Navigating Communications Regulation in the Wake of 9/11’ (2005) 57(3) Federal Communications Law Journal 351. 27 With the exception of ibid and Kathy Bowrey, Law and Internet Cultures (Cambridge University Press, 2005) 171–199. 8 security issues,28 but, for the most part, the legal literature is disproportionately focused on public law and policy concerns about accountability, transparency and the imposition of limits on the executive government’s powers.29 This narrowness of focus means that important networks, structures and processes, also known as governance mechanisms, such as those that exist between the communications sector and the ‘national security community’, have not been subjected to sufficient academic scrutiny, despite particular initiatives or events highlighting their involvement in national security law, policy and coordination.
The communications sector, defined in this thesis as encompassing telecommunications, radiocommunications, broadcasting and information, communications and entertainment technology industries,30 has long been regarded as a cornerstone of intelligence and law enforcement.31 Historically, the communications sector has had a unique structural position within many nations’ national security law and policy frameworks, especially in the US.32 In Australia, the national security legislative framework encompasses, among other things, an ‘extensive legislative regime around counter-terrorism, national security and other cross-jurisdictional offences.’33 There is an historical operational34 interdependence between national security law and policy
28 See Ben Saul, ‘Security and Fairness in Australian Public Law’ in Matthew Groves (ed), Modern Administrative Law in Australia: Concepts and Context (Cambridge University Press, 2014) 94–118. 29 For example, Ben Golder and George Williams, ‘Balancing National Security and Human Rights: Assessing the Legal Response of Common Law Nations to the Threat of Terrorism’ (2006) 8(1) Journal of Comparative Policy Analysis: Research and Practice 43. 30 In this thesis, ‘communications’ includes the telecommunications, radiocommunications, broadcasting and information, communications and entertainment technology (ICET) industries as defined in Australian Communications Authority (Cth), Vision 20/20: Future Scenarios for the Communications Industry—Implications for Regulation, Final Report (14 April 2005)
National security has been analysed by political scientists and lawyers in terms of a rights-based narrative and the strategic and defence position of Australia.40 The literature commonly offers a polarised, narrow debate that has focused to date, on the legal side, on terrorism, anti-terrorism and counter-terrorism laws.41 In media and journalism studies, national security is examined largely in terms of the laws that affect the ability of the media to report on those issues.42 In defence and strategic studies, the focus is on Australia’s place in the international world order.43
The uniqueness of this study is that it examines the regulatory interface between the
Australian national security community and the domestic communications industry. For those who care about privacy, free speech, access to information and the rule of law, characterising the relationship between industry and government, and understanding the
35 See Communications Legislation Amendment Act 2004 (Cth). 36 Lucy Battersby and Phillip Wen, ‘Huawei Linked to China Deal’, The Sydney Morning Herald (online), 25 October 2013. 37 For example, the Telecommunications (Interception and Access) Act 1979 (Cth); Telecommunications Act 1997, pt 13; Broadcasting Services Act 1992 and associated programme standards and licence conditions, such as the prohibition on using broadcasting services to commission an offence. 38 See Telecommunications (Interception and Access) Act 1979 (Cth) as amended and the Telecommunications (Interception and Access) Legislation Amendment Bill 2007 (Cth). 39 See Classification Act 1995 (Cth) s 9A. See also David Hume and George Williams, ‘Australian Censorship Policy and the Advocacy of Terrorism’ 31(3) Sydney Law Review 381, 382–391. 40 Both are covered in more detail in Chapter Three. 41 The impressive output of George Williams, Andrew Lynch, Nicola McGarrity and the Gilbert + Tobin Centre for Public Law is indicative of this kind of legal academic writing. See Chapter Three for details. 42 See McNamara, above n 22; Mark Pearson, ‘National Security Isn’t Always in the National Interest’ in Media, Entertainment and Arts Alliance, Progress Under Liberty. The State of Press Freedom in Australia 2010, 24
The body of the thesis will focus on three identifiable parts of the communications sector, specifically cases arising in the decade after September 11 in: (1) telecommunications; (2) broadcasting; and (3) the print media. These three parts of the sector were chosen because information about the stakeholders’ national interest and national security legislative obligations is publicly available and the applicable law and policy is well established. Moreover, the administrative networks, structures and processes are relatively stable and coherent, and information is available on the public record about those networks, structures and processes. It is possible to study the cases selected with some clarity, as the regulatory practices are deeply entrenched.44
There are many other ‘hot topics’ that could have been included in more detail, such as the laws relating to data retention, telecommunications sector security reform or the introduction of an obligation on OTT service providers to decrypt data transmitted via their platforms. However, the selection of the three focus areas above was based on giving priority to areas where it is possible to reliably identify and discuss the regulatory transformation without hypothetical discussion of existing arrangements and
44 Other parts of the communications sector were excluded because they do not have the stability or coherency found in the selected topics. For example, cyber security is fragmented from a law and policy perspective because its governance is still being determined. See, for example, Australian Communications and Media Authority (Cth), ‘ACMA Cyber Security Function Moves to the Computer Emergency Response Team Australia’ (Media Release, 25/2017, 30 June 2017). 11 proposed new powers. The case study selection was also constrained by my obligations as an employee to maintain confidentiality.45 The methodology adopted and deployed through the case study approach is grounded in a discussion of existing governance networks, structures and processes, to explore how they recently operated. The case studies will provide a foundation from which further evaluation of the import and significance of the new proposals can be undertaken, including analysing the perceived benefits and risks contained within them.
IV OVERVIEW OF THE RESEARCH, METHODOLOGY AND CONSTRAINTS
As foreshadowed above, the evolution of my research tracks my development as a practicing lawyer in private practice, as an in-house legal counsel, as an academic and, now, as a federal public servant. My research reflects my unwavering belief in the importance of democratic scrutiny, which is not only necessary for maintaining a just and fair society, but also as a protective mechanism, which operates, albeit imperfectly, for the benefit of every Australian, in whatever role they are performing, be it lawyer, public servant, industry executive, journalist or intelligence officer.
A Initial Theoretical Influences
This project began as theoretical work. Kathy Bowrey’s book Law and Internet
Cultures provided me with a starting point for my ideas about Australian national security policy and coordination in the domestic communications sector. Bowrey’s book raises security as a regulatory concern in cyberspace, observing that ‘internet technology and policy have always been integral to advancing national security and foreign policy interests of nation states, especially the US state’.46 Bowrey’s work
45 The restrictions imposed through my employment at ACMA are discussed in Part IV, Section C of this chapter. 46 Bowrey, above n 27, 194. 12 concerns a number of themes that are significant to my work, such as the changing role of the state, the power of corporations, the disruptive effects of technology, especially the internet, and the rise of alternative governance mechanisms, such as negotiation, which are being deployed in place of or in conjunction with law.
From Bowrey, I moved to political theorist, Wendy Brown, who provided a critique of neo-liberalism and its effect on liberal democracies, particularly democratic institutions.
In her essay, Neoliberalism and the End of Liberal Democracy, Brown describes the political change that has brought about the state’s transformation from a regulator of behaviour and values to a manager of risk. Brown describes ‘a mode of governance encompassing but not limited to the state, and one that produces subjects, forms of citizenship and behaviour, and a new organisation of the social’.47 Brown’s thesis is appealing because it describes the effects of neo-liberalism’s political rationality on the liberal democratic state as involving the extension and dissemination of ‘market values to all institutions and social action, even as the market itself remains a distinctive player’.48 I can see these ideas being applied in the Australian communications co- regulatory framework, where market values inform and influence the design of regulatory frameworks.49
The work of Katharine Sarikakis on securitisation was influential in writing this thesis.
At its simplest, securitisation refers to the gradual shift of regulatory and policy issues, deliberations and outcomes from the public sphere to what Sarikakis refers to as the space ‘outside the sphere of normal politics’.50 The secrecy sphere is a regulatory space,
47 Wendy Brown, ‘Neoliberalism and the End of Liberal Democracy’ in Wendy Brown (ed), Edgework— Critical Essays on Knowledge and Politics (Princeton University Press) vii, 37. 48 Ibid 40. 49 For a brief description of the Australian communications market, see Department of Communications (Cth), Review of the Australian Communications and Media Authority—Issues Paper (2015) 5–6, 12–13. 50 Katherine Sarikakis, ‘Making Security: Citizenship, Public Sphere and the Condition of Symbolic Annihiliation’ (Paper presented at the Challenge F6 Programme, 2006) 4. 13 where policy and regulatory matters are no longer accessible by citizens or business
(although business may have greater access to those ‘securitised’ policy questions and issues through involvement in government–business partnerships, such as the Trusted
Information Sharing Network for Critical Infrastructure Protection).51 These ideas could be applied to the communications regulatory space, as the national security legislative agenda increases its momentum, and the concept of national security seems to be expanding over more and more aspects of social life and the economy.
Correspondingly, I gravitated towards regulatory theory because Sarikakis’s work signalled a move away from command-based regulatory frameworks and the growth of governance mechanisms, other than law, for solving regulatory problems. The core idea that I pursued was the concept of ‘regulation by negotiation’ in legislative and administrative decision-making. This concept sits loosely within ‘debates about contemporary administrative governance: how regulatory agencies bargain and dispute with private interests over the creation and application of general rules’.52 More broadly, my theoretical inquiries turned to the field of regulatory theory and the rise of the regulatory state, as found in works by Julia Black,53 John Braithwaite and Peter
Drahos54 and Neil Gunningham and Peter Grabovsky.55
Finally, the political economy literature was enlightening because it has extensively examined and critiqued the mass media and its relationship with the state. Edward
Herman and Noam Chomsky’s Manufacturing Consent—The Political Economy of the
51 See Attorney-General’s Department (Cth), Trusted Information Sharing Network (2017)
Many of the key studies in the field [of state–media relations] analyse content from the same handful of newspapers and television channels. All of them are powerful, professional news organizations that, while experiencing economic pressures, still command the attention of millions of viewers, buy ink by the barrel and newsprint by the ton, and maintain massive amounts of data on thousands of servers.58
Livingston went on to demonstrate that ‘news organizations of this size and power are the global exception rather than the rule’.59 However, I could foresee the domination of the Australian media environment by a handful of newspaper and television channels, comprising a privileged print and broadcast media elite.60 Livingston noted that many key studies in the field of media–state relations assume ‘an administratively competent, formally liberal—or at least non-authoritarian—consolidated state’, where the state is characterised as ‘cunning, manipulative, sometimes intimidating of news organizations and journalists, but not ruthlessly despotic’ in this context. 61 Again, I perceived an
Australian state that had some, if not all, of those characteristics. Livingston’s final point about media–state relations based on these two underlying assumptions was pertinent, namely that, in the context of a privileged print and media elite and an
56 See Edward S Herman and Noam Chomsky (eds), Manufacturing Consent: The Political Economy of Mass Media (Vintage, 1994). 57 Steven Livingston, ‘Theorizing State–Media Relations during War and Crisis’ in Piers Robinson, Philip Seib and Romy Fröhlich (eds), Routledge Handbook of Media, Conflict and Security (Routledge, 2016) 118. 58 Ibid. 59 Ibid. 60 There is a rich Australian political economy literature on the topic of media concentration in Australia, including, among others, Mark Westfield, The Gatekeepers: The Global Media Battle to Control Australia’s Pay TV (Pluto Press, 2000). 61 Livingston, above n 57. 15 administratively competent, formally liberal, non-authoritarian state, ‘media content is negotiated, not dictated’.62
These theoretical explorations assisted in shaping my ideas about how national security law, policy and coordination were being administered in Australia. They helped me identify the entrenched governance networks, structures and processes between industry and government that might be involved in the regulatory practice of coordinating national security law and policy. These debates were my starting points. However, a more situated theoretical framework was desirable in seeking to fully describe such a complex regulatory setting. Although the broader debate centres on the exercise of state power in the twenty-first century, governance theory provided a practical approach to understanding the dynamics of the compact between industry and government, and how law was being negotiated and substituted for other regulatory mechanisms. I was motivated to understand the influence (if any) on democratic scrutiny. This concern became critical to my thinking on the regulatory practice of coordinating national security law and policy in the communications regulatory environment.
B Anglo-American and European Governance Theory
Although governance has always existed in human societies, theorisation of the term reached prominence in English-language social sciences discourse in the 1970s and
1980s.63 The Foucauldian school adopts a theoretical approach to governance, initially focused on explaining the role of the state in modernity.64 Foucault has influenced many
62 Ibid. 63 David Levi-Faur, ‘From “Big Government” to “Big Governance” ’ in David Levi-Faur (ed), The Oxford Handbook of Governance (Oxford University Press, 2012) 6, 7. 64 For example, Mitchell Dean, Government, Power and Rule in Modern Society (Sage, 1999); Graham Burchell, Colin Gordin and Peter Miller, The Foucault Effect: Studies in Governmentality (University of Chicago Press, 1991). 16 legal scholars,65 my inspiration in considering questions of governance is not explicitly
Foucauldian. Instead, this thesis is inspired by the seminal work of Peter Drahos and
John Braithwaite, Global Business Regulation.66 This book sought to examine the role of international legal and political institutions in facilitating shifts in global multinational business practice. Drahos and Braithwaite showed how telecommunications regulation was ‘one of the earliest examples of international cooperation between states’.67 Their work provided my project with an historical anchor, showing how deregulation was the dominant principle for governing national telecommunications systems, starting in the US in the 1950s.68 The international dominance of deregulation transformed Australian telecommunications, laying the way for the cooperative statutory frameworks between industry and government.
Drahos and Braithwaite documented the ways in which states and corporations ‘have used mechanisms and principles to determine the shape of international telecommunications regulation’.69 They emphasised the centrality of negotiation and cooperation in the international telecommunications regulatory environment, concluding that ‘the levels of investment which are required to make the information superhighway a reality are too great for there not to be cooperation on its infrastructure’.70 Thus, based on this context, I was able to better understand the
Australian experience and begin to theorise on the governance of national security law, policy and coordination in the Australian communications sector.
65 The body of Foucauldian legal literature is too broad to list here. Prominent works include: Ben Golder, Re-reading Foucault: On Law, Power and Rights (Routledge, 2012); Ben Golder, Foucault’s Law (Routledge, 2009); Ben Golder and Peter Fitzpatrick, Foucault and Law (Ashgate, 2010); Gary Wickham and George Pavlich, Rethinking Law, Society and Governance: Foucault’s Bequest (Hart Publishing, 2001); Alan Hunt and Gary Wickham, Foucault and Law: Towards a Sociology of Laws as Governance (Pluto Press, 1994). 66 Braithwaite and Drahos, above n 54, 322. 67 Ibid. 68 Ibid 356. 69 Ibid. 70 Ibid 358. 17 1 What Does Governance Mean?
From Drahos and Braithwaite’s theoretical and practical explanation of international telecommunications regulation, I moved to the work of a number of Anglo-American and European governance scholars, namely, David Levi-Faur, B. Guy Peters, Gerry
Stoker, Jacob Torfing, Anne Kjaer, Chris Ansell, Alison Gash and Erik Hysing. These scholars have examined the origins of the concept of governance, its growth and development since the 1980s.71 They have developed and critiqued governance theory,72 including state-centred governance theory73 and interactive governance theory74, and undertaken empirical testing of the concept of government to governance.75
This thesis is interested in governance theory that attempts to explore the specific mechanisms of regulation, with an eye to mapping how these mechanisms and processes are influencing the future direction of national security law, policy and coordination in Australia. Governance is a broad theory, fit for this purpose, because it examines the role of the state and the role of institutions. It entails the use of mechanisms other than formal structures such as law, and hierarchies, such as those found in government portfolio departments, to make decisions or effect outcomes.
Governance accounts for shifts in the style and order of governing in economic, social or regulatory settings.76 It also encompasses the practice and processes for decision- making in economic, legal and regulatory settings. Chhotray and Stoker defined
71 Levi-Faur, above n 63, 5. 72 Gerry Stoker, ‘Governance as Theory: Five Propositions’ (1998) 50(155) International Journal of Social Sciences 17; Vasudha Chhotray and Gerry Stoker, Governance Theory and Practice: A Cross- Disciplinary Approach (Palgrave Macmillan, 2009). 73 B Guy Peters, ‘Governance as Political Theory’ in David Levi-Faur (ed), The Oxford Handbook of Governance (Oxford University Press, 2012) 11. 74 Jacob Torfing, B Guy Peters, Jon Pierre and Eva Sorensen, Interactive Governance: Advancing the Paradigm (Oxford University Press, 2012) Introduction. 75 Erik Hysing, ‘From Government to Governance? A Comparison of Environmental Governing in Swedish Forestry and Transport’ (2009) 22(4) Governance: An International Journal of Policy, Administration, and Institutions 647. 76 Levi-Faur, above n 63, 7. 18 governance theory as a theory about ‘the practice of collective decision-making’.77 B.
Guy Peters explained the root of the word governance, relating it to a metaphor about steering a boat.78 Peters explained that:
A steering metaphor is indeed a useful way in which to approach the idea of governance in contemporary societies. Societies require collective choices about a range of issues that cannot be addressed adequately by individual action, and some means must be found to make and to implement those decisions. The need for these collective decisions has become all the more obvious when the world as a whole, as well as individual societies, are faced with challenges such as climate change, resource depletion and arms control that cannot be addressed by individual actions, and indeed are often cases in which individual self interest is likely to result in collective harm.79
Kjaer opted for a broad definition of governance, critiquing B. Guy Peters’ narrow definition, and argued that:
If we accept that governance should be able to include other forms of set-ups than networks, and if we accept that most governance theories share a common concern with institutional change, then we should opt for a definition that refers to governance as the way political agents go about rules and rule- making. In short, governance theory introduces an element of human agency, which is often lacking in institutionalism. From an institutional perspective, governance therefore is about affecting the ‘frameworks within which citizens and officials act and politics occurs, and which shape the identities and 80 institutions of civil society’.
Thus, in the context of this thesis, governance theory encompasses both theories of the state and an account of the practices of state. Levi-Faur explains that state-centred governance theory is especially useful, as it recognises
the shift and transformation in the organization of the state, the limitations of its policy capacities and the importance of private actors in the policy process and in global governance more generally, with the suggestion that the state remains the most important and central actor in politics and policy.81
77 Stoker, above n 72, 3. 78 Peters, above n 73, 20. 79 Ibid. 80 Anne Mette Kjaer, ‘Rhodes’ Contribution to Governance Theory: Praise, Criticism and the Future Governance Debate’ (2011) 89(1) Public Administration 101, 105. 81 Levi-Faur, above n 63, 10–11. 19 State-centred governance theory includes a normative concern about accountability. As
Peters explained:
Governance also implies some conception of accountability, so that the actors involved in setting goals and then in attempting to reach them, whether through public or private action, must be held accountable for their actions to society.82
Governance theory directs attention to signifiers of change:83 the ‘structure, process, mechanism and strategy’84 for steering economy and society. By change, governance scholars tend to mean ‘new processes of governing, changed conditions of ordered rule, new methods by which society is governed’.85 Governance is an important concept because it is a way of explaining shifts in authority and control in economic, social, legal and regulatory systems. As David Levi-Faur explained, the thinking is dominated in terms of shifts from politics to markets, from hard law to soft law, from public authority to private authority, to provide a few examples.86
2 Interaction and Collaboration in Governance Theory
Interactive governance theory is also useful in this context, because it focuses on:
The complex process through which a plurality of social and political actors with diverging interests interact in order to formulate, promote, and achieve common objectives by means of mobilizing, exchanging, and deploying a range of ideas, rules and resources.87
Interactive governance recognises a different style of governing to that of traditional, state-centric forms of governance, such as law and other command-based mechanisms.88
Torfing explained that interactive governance mechanisms and instruments depend
82 Peters, above n 73, 20. 83 Levi-Faur, above n 63, 7–8. 84 Ibid 10. 85 R A W Rhodes, ‘The New Governance: Governing without Government’ (1996) 44(4) Political Studies 652. 86 Levi-Faur, above n 63, 7. 87 Torfing, Peters, Pierre and Sorensen, above n 74, 3. 88 Ibid 4. 20 more on bargaining and negotiation to achieve their policy goals than on the imposition of top-down authority.89
Ansell and Gash’s work on collaborative governance provides insights into the relationship between key stakeholders in their concept of governance. In this literature, collaborative governance is considered ‘a type of governance in which public and private actors work collectively in distinctive ways, using particular processes, to establish law and rules for the provision of public goods’.90 For Ansell and Gash, collaboration implied two-way communication and influence, which is broader than
‘mere consultation’.91 These theorists seek to distinguish their notion of collaborative governance from corporatism, a species of collaborative governance, which is historically understood to occur in industrial relations contexts, involving tripartite arrangements between industry, labour and government.92 Ansell and Gash took a broader view than traditional understandings of corporatism, in which peak associations have a ‘representational monopoly’ in their sector.93
3 From Government to Governance
The concept of government to governance provides a theory of the state ‘whereby power and authority drift away upwards towards transitional markets and political institutions and downward toward local or regional governments, domestic business communities and non-governmental organisations’.94 This construct is helpful in conceptualising and evaluating the trajectory of governance in Australian national security law, policy and coordination.
89 Ibid. 90 C Ansell and A Gash, ‘Collaborative Governance in Theory and Practice’ (2007) 18(4) Journal of Public Administration Research and Theory 543, 545. 91 Ibid 546. 92 Ibid 547. 93 Ibid. 94 Levi-Faur, above n 63, 10. 21 In reviewing this broad governance literature, Erik Hysing’s work on the indicators of government to governance was found to be useful for elucidating the central concerns of this thesis. Hysing is not the most influential theorist in the field of governance theory.
His work has a narrow focus on environmental governance and policy in Sweden and
Europe.95 What makes Hysing’s work so valuable is its accessible conceptual framework, which has practical applications in other law and policy contexts.
In 2009, Hysing published a paper entitled From Government to Governance? A
Comparison of Environmental Governing in Swedish Forestry and Transport96 that distilled the available government to governance literature into three generic indicators of government to governance.97 He then used the generic indicators—governing styles and instruments, relationships between public and private actors and policy levels other than the national level—to test what he called ‘the story line’ of government to governance. Hysing did this because he was concerned about how government to
95 For example, Hysing, above n 75; E Hysing, ‘Citizen Participation or Representative Government— Building Legitimacy for the Gothenburg Congestion Tax’ (2015) 39 Transport Policy 1; E Hysing, ‘How Public Officials Gain Policy Influence—Lessons from Local Government in Sweden’ (2014) 37(2) International Journal of Public Administration 129; E Hysing, ‘A Green Star Fading? A Critical Assessment of Swedish Environmental Policy Change’ (2014) 24(4) Environmental Policy and Governance 262; E Hysing, ‘Representative Democracy, Empowered Experts, and Citizen Participation: Visions of Green Governing’ (2013) 22(6) Environmental Politics 955; E Hysing, ‘Greening Transport— Explaining Urban Transport Policy Change’ (2009) 11(3) Journal of Environmental Policy and Planning 243; E Hysing, ‘Governing without Government? The Private Governance of Forest Certification in Sweden’ (2009) 87(2) Public Administration 312; E Hysing, L Frändberg and B Vilhelmson, ‘Compromising Sustainable Mobility? The Case of the Gothenburg Congestion Tax’ (2015) 58(6) Journal of Environmental Planning and Management 1058; E Hysing and K Isaksson, ‘Building Acceptance for Congestion Charges—The Swedish Experiences Compared’ (2015) 49 Journal of Transport Geography 52; E Hysing and E Lundberg, ‘Making Governance Networks More Democratic: Lessons from the Swedish Governmental Commissions’ (2016) 10(1) Critical Policy Studies 21; E Hysing and J Olsson, ‘Who Greens the Northern Light? Green Inside Activists in Local Environmental Governing in Sweden’ (2011) 29(4) Environment and Planning C: Government and Policy 693; E Hysing and J Olsson, ‘Contextualising the Advocacy Coalition Framework: Theorising Change in Swedish Forest Policy’ (2008) 17(5) Environmental Politics 730; E Hysing and J Olsson, ‘Sustainability through Good Advice? Assessing the Governance of Swedish Forest Biodiversity’ (2005) 14(4) Environmental Politics 510; E Hysing, J Olsson and V Dahl, ‘A Radical Public Administration? Green Radicalism and Policy Influence among Local Environmental Officials in Sweden’ (2016) 25(3) Environmental Politics 535; E Lundberg and E. Hysing, ‘The Value of Participation: Exploring the Role of Public Consultations from the Vantage Point of Interest Groups’ (2016) 39(1) Scandinavian Political Studies 1; J Olsson and E Hysing, ‘Theorizing Inside Activism: Understanding Policymaking and Policy Change from Below’ (2012) 13(2) Planning Theory and Practice 257. 96 Hysing, above n 75. 97 Ibid. 22 governance, as a rhetorical device, was influencing academic debate and beliefs and practices in politics. Hysing explained that the narrative of government to governance has strong normative implications, and had been used as a justification for spending cuts affecting the public sector.98 Hysing demonstrated that the story line of government to governance as a method for empirical research or policy change was an inadequate explanatory tool because it was too superficial.
Hysing’s major innovation was to posit that the indicators of government to governance are useful for establishing ‘analytically operative criteria’ for examining government and governance. In other words, Hysing’s indicators of government to governance assist in revealing the typologies of government and governance in any given regulatory setting. The ideal types of government and governance are defined as endpoints on a continuum. In identifying instances of government and governance using Hysing’s indicators, the multidimensional pattern of regulation can be identified with some clarity.
Hysing’s work on the indicators of government to governance is of a general nature and, for this reason, it is applicable to studies of regulated industries other than the forestry industry (on which Hysing focused), including communications. Accordingly, the thesis uses, where relevant, Hysing’s indicators of government to governance as the criteria for analysing instances of government and governance in the regulatory frameworks outlined in the case studies. This is discussed in further detail in Chapter Three.
4 Defining the Governance Terms used in this Thesis
This thesis refers to the administration of national security law, policy and coordination very broadly, as including the governance networks, structures and processes of
98 Ibid 648. 23 government regulation that interact with the communications industry over issues and concerns about national security law and policy. Thus, it may be useful to clarify, at the outset, the use of some terms that are well established in the literature on governance.99
By governance networks, this thesis refers to the myriad of relationships that exists across different levels of government and industry in performing the administration of communications sector security.100 By governance structures, this thesis refers to the regimes of laws, rules, judicial decisions and administrative practices that comprise the legal and institutional frameworks in the administration of communications sector security.101 By governance processes, this thesis refers to the interactive approaches and tools used by government and industry to administer national security law, policy and coordination. The administrative process ‘constitutes the institutional vehicle through which virtually all ground-level regulatory decisions are developed and implemented’.102
C Methodological Considerations
Hysing’s theorisation of government and governance is useful for evaluating contemporary regulatory practices in situ. This thesis provides a multiple case study approach. Case studies are a recognised and valid approach used by law and policy scholars to describe phenomena103 and they are considered useful ‘at all stages in the formation, development and testing of theories’.104 Each of the case studies featured in
99 Levi-Faur, above n 63, 8. 100 For an explanation of networks and network relationships, see Chad Whelan, ‘Managing Dynamic Public Sector Networks: Effectiveness, Performance, and a Methodological Framework in the Field of National Security’ (2015) 18(4) International Public Management Journal 536, 538–539, 546. 101 Levi-Faur, above n 63, 8. 102 Steven P Croley, ‘Theories of Regulation: Incorporating the Administrative Process’ (1998) 98(1) Columbia Law Review 1, 7. 103 Leslie A Pal, ‘Case Study Method and Policy Analysis’ in Iris Geva-May (ed), Thinking Like a Policy Analyst: Policy Analysis as a Clinical Profession (Palgrave Macmillan, 2005) 227, 228. 104 Alexander George and Andrew Bennett, Case Studies and Theory Development in the Social Sciences (MIT Press, 2004) 213. 24 this thesis provides a rich context for examining my themes and concepts. As a consequence, this thesis uses a combination of qualitative105 and standard doctrinal research106 methods. These methods have been adapted to a multiple case study approach.107 The purpose is to analyse the current and emerging regulatory mechanisms for the administration of national security law, policy and coordination in the communications sector, with a view to deepening the understanding of this regulatory practice in the communications regulatory space. The three case studies stand alone in terms of the discrete subject matter that they cover, but each is linked by networks, structures and processes in which the same or similar industry participants and government representatives participate.
The data field of this thesis is comprised of primary source material, in the form of information released under freedom of information (FOI) legislation through the public disclosure logs of government departments and agencies, and some limited FOI applications made by me, submissions to government, reports, Hansard, transcripts and other public statements and submissions by both government and industry participants.
The thesis also relies on secondary source material in the form of international and
Australian journal articles, research reports and other publicly available information.
In undertaking this research, an adequate amount of public record material about the case studies was accessible through media reporting, select FOI disclosures and parliamentary inquiries. My ability to locate material on the public record was, no doubt, facilitated by my professional and academic background, but my employment also created some limitations. Public servants, contractors and industry participants are
105 Sharan Merriman, Qualitative Research: A Guide to Design and Implementation (John Wiley & Sons Ltd, 2009) 5–19, 39–54. 106 Terry Hutchinson, Researching and Writing in Law (Lawbook Co, 2nd ed, 2006) 33–38. 107 Robert E Stake, Multiple Case Study Analysis (The Guilford Press, 2006); Robert Yin, Case Study Research—Design and Methods (Sage, 2nd ed, 1989). 25 subject to legal constraints around confidentiality and secrecy. There is a public interest in maintaining confidentiality and secrecy, and in protecting the national interest.108 As a federal public servant, I am subject to constraints around the collection, use and disclosure of government and other information.109 The case studies are, to some extent, products of my professional experience. However, they do not draw on any confidential information to which I may have had access at any point in time. They are based entirely on public record sources and information released through FOI processes. I have been scrupulous in my collection and use of information associated with them.
Unless accessed through employment, Australian citizens, in their capacity as private citizens, do not have access to anything other than publicly available information to understand the workings of their democratically elected government on national security law, policy and coordination. Citizens rely on the press and media institutions to reveal the workings of government. Hence, this thesis relies on material placed in the public sphere by traditional and non-traditional media outlets, where relevant, including new media platforms, and other sources of information, such as blogs.
V THESIS STRUCTURE
This thesis seeks to:
1. describe the regulatory framework for coordinating Australian national
security law, policy and coordination in the domestic communications
sector, noting the effects of digitalisation and convergence, and the rise of
the idea of a national security community
108 Commonwealth of Australia v John Fairfax & Sons (1980) 147 CLR 39 per Mason J [51]–[52]. 109 For an overview of secrecy laws that apply to Australian public servants, see Australian Law Reform Commission, Secrecy Laws and Open Government in Australia (Report No 112, 2010). 26 2. evaluate the extent to which new communications industry participants,
who exist as a result of the technological transformations in
communications technologies and services that have occurred over the last
30 years, have been brought into the accord with the national security
community
3. assess responsibility for coordinating national security law and policy in
light of the regulatory frameworks in operation across three detailed case
studies
4. consider how best to characterise the compact between government and the
communications industry on national security law, policy and coordination
5. reflect on the construction of the public interest and identify potential areas
of concern, specifically for democratic scrutiny.
Hysing’s generic indicators of government to governance will assist in drawing out the dynamic, variable and complex nature of state governing vis-a-vis the communications sector in coordinating national security law and policy within the communications regulatory framework. The indicators will be relied upon to characterise the relationship between industry and government, and frame the discussion of the implications for democratic institutions. In doing so, this thesis will argue that the coordination of national security law and policy in the Australian communications sector is best understood as corporatist governance.
The remainder of the thesis is organised as follows. After this introduction, Chapter
Two provides a brief history of the development of the contemporary communications sector, significant regulatory relationships and key actors. Chapter Three provides an outline of the theoretical structure used in the thesis to frame the analysis of the entrenched governance networks, structures and processes, which are the focus of the 27 research. This includes further discussion of the governance literature that has helped inform the analytical framework deployed across the case studies. In undertaking this background work employing Hysing’s indicators of government to governance, the thesis identifies instances of government and governance in an effort to pinpoint the specific areas of concern.
As already noted, the empirical work of the thesis is comprised of three case studies that examine the governance networks, structures and processes mentioned above, which are contained in Chapters Four to Six. Chapter Four examines telecommunications interception capability. It examines the highly prescriptive legislative structure, within which industry and government networks and processes operate. Chapter Five considers the governance networks, structures and processes found in broadcasting, specifically examining two investigations by ACMA under the relevant anti-terrorism narrowcasting standards. Chapter Six examines the publication and disclosure of national security information in the context of the print media, examining its relationship with government within the governance networks, structures and processes that exist for coordinating national security law and policy.
In terms of governance theory, these case studies serve as examples of a larger phenomenon within the modern Australian regulatory state, exemplifying the dynamism, complexity and variability in the use of ‘hard’ mechanisms, which are hierarchical, command and control forms of governance,110 and ‘soft’ mechanisms, comprised of self-regulation, co-regulation, cooperation, collaboration and negotiation.111 Combined, the case studies describe how the state and powerful economic stakeholders negotiate different modes of governance, which utilise, engage
110 Amos Zehavi, ‘New Governance and Policy Instruments: Are Governments Going “Soft”?’ in David Levi-Faur (ed), The Oxford Handbook of Governance (Oxford University Press, 2012) 242, 243–245. 111 Ibid 243. 28 with or avoid law, the parliament and the courts, specifically in the area of national security–related obligations on communications industry stakeholders. Much governance research undertaken to date examines the shifts in the modes of operation of the modern regulatory state.112 The thesis adds to this literature by fleshing out similar concerns, drawing upon much closer consideration of the interactive aspects of the regulatory practice of coordinating national security law and policy in the Australian communications sector.
The case study on telecommunications interception capability serves as an example of regulatory practices within a highly prescriptive legislative structure, which is supported by interactive industry–government governance networks and processes. In other words, telecommunications industry participants have strong command-based legislative obligations to provide ‘reasonably necessary assistance’113 and interception capability and delivery114 to law enforcement and national security agencies. On the government side, the agencies and departments who operate in this area, principally the Australian
Security and Intelligence Organisation (ASIO), the Attorney-General’s Department
(AGD), ACMA and the Australian Federal Police (AFP), all work within the confines of the legislation. However, within those boundaries, networks, both formal and
112 The research is voluminous. See Levi-Faur, above n 63 on the scholarly origins and growth of governance theory. Other examples include: Julia Black, ‘Critical Reflections on Regulation’ (2002) 27 Australian Journal of Legal Philosophy 1; T Christensen and P Laegreid, ‘Regulatory Agencies—The Challenges of Balancing Agency Autonomy and Political Control’ (2007) 20(3) Governance 499; Croley, above n 102; John Farrar and Bernard McCabe, ‘Corporatisation, Corporate Governance and the Deregulation of the Public Sector Economy’ (1995) 6 Public Law Review 24; Jody Freeman, ‘Collaborative Governance in the Administrative State’ (1997) 45(1) UCLA Law Review 1; Patrick Hughes, ‘Can Governments Weather the Storm in the New Communications Climate?’ (1997) 56(4) Australian Journal of Public Administration 78; Leighton McDonald, ‘The Rule of Law in the “New Regulatory State” ’ (2004) 33(3) Common Law World Review 197; Cheryl M Miller and Deil S Wright, ‘Who’s Minding Which Store? Institutional and Other Actors’ Influence on Administrative Rulemaking in State Agencies, 1978–2004’ (2009) Fall PAQ 397; Bronwen Morgan and Karen Yeung, ‘Regulatory Instruments and Techniques’ in Bronwen Morgan and Karen Yeung (ed), Introduction to Law and Regulation (Cambridge University Press, 2007) 79. 113 Telecommunications Act 1997 (Cth) s 313. 114 Telecommunications (Interception and Access) Act 1979 (Cth) pt V. 29 informal, have flourished. Governance mechanisms other than law, such as negotiation, are used to manage, define and resolve issues as they arise.
The second case study shifts the focus away from the infrastructure layer of the communications environment to consider the regulatory practice of coordinating national security law and policy in the broadcasting portion of the sector. Again, considering what is usually associated with national security law and policy, broadcasting is generally mentioned in debates about free speech and access to information by journalists, who are producing news content. This case study specifically examines the regulatory practice of ACMA when administering the anti-terrorism narrowcasting standards. Again, the case study identifies the prescriptive co-regulatory legislative structure within which the governance networks and processes operate.
The case study considers two instances where alleged terrorism-related content was being broadcast into Australia. The first example is an investigation into the Arabic language channel, Al-Manar Television, which is owned and operated from Lebanon.
The second example considers a Tamil language channel, Global Tamil Vision (GTV), broadcast in Australia by a subscription television provider with a local presence.
Taking up the themes of the thesis, this chapter seeks to characterise the network of
‘nested relationships’115 that exist between industry and government, and to demonstrate how the interactive aspects of the governance network break down when the industry participant is not ‘an ordinary broadcaster’116 for the purposes of enforcement action.
115 The concept of ‘nested relationships’ is used in governance, policy and politics literature to explain embedded or entrenched relationships between actors, both private and public, within larger governance, regulatory, legal or policy frameworks. For example, Michael Howlett, ‘Governance Modes, Policy Regimes and Operational Plans: A Multi-Level Nested Model of Policy Instrument Choice and Policy Design’ (2009) 42(1) Policy Science 73–89; Peter Schmitt and Lisa Van Well, Territorial Governance Across Europe: Pathways, Practices and Prospects (Routledge, 2016) 1, 6–7. 116 Commonwealth, Parliamentary Debates, Senate, Environment, Communications and the Arts Legislation Committee, 19 October 2009, 119 (Simon Birmingham). 30 The final case study, Chapter Six, considers print media and its relationship with government within the governance networks, structures and processes of administering national security law, policy and coordination in Australia. This case study focuses on an event in 2011 when The Australian newspaper published the details of a counter- terrorism warrant prior to the execution of the warrant. It was a high-stakes national security issue that resulted in a Victorian detective losing his job and being sentenced to a four-month suspended custodial sentence for unauthorised disclosure of sensitive national security information.117 It also resulted in an unenforceable, extra-legal governance mechanism for determining how, when and whether sensitive national security information would be published and by whom. The Attorney-General at the time, Robert McClelland, brought together the largest economic stakeholders in the print and broadcasting component of the sector to discuss, in the context of national security law, policy and coordination, the perceived and actual regulatory failures of
Operation Neath, and how such a situation should be managed in future.
Finally, the thesis will conclude by assessing the results of the case study analysis in the
Australian context, in the light of the five aims listed above, and will consider the evolving future of corporatist governance in the administration of national security law, policy and coordination in the communications sector. The final chapter, Chapter
Seven, considers some of the implications, both practical and abstract, of corporatist governance for liberal democratic institutions and democratic scrutiny. The thesis finds that, whereas co-regulatory and self-regulatory mechanisms can be efficient and effective, corporatist governance poses a threat to democratic scrutiny when the accord between industry and government is wholly functional and operating in its natural state of exclusivity, confidentiality and secrecy, under the cloak of national security.
117 ‘Suspended Sentence for Ex-Policeman’s Terror Leak’, The Australian (online), 5 February 2013. 31 Corporatist governance is least risky to democratic scrutiny when the accord is not fully formed, or is easily broken—then, the strong democratic traditions of the fourth estate, the rule of law, parliamentary scrutiny and judicial oversight, may hope to have a role in influencing the coordination of national security law and policy in the Australian communications sector.
VI SIGNIFICANCE OF THE RESEARCH
The association between the secret world of spies and telecommunications companies,
ISPs and now new media companies, such as Google and Facebook, is coming under closer scrutiny, partly because of publicity concerning the rogue actions of individuals such as Edward Snowden and organisations such as WikiLeaks.118 Reportage of Edward
Snowden’s disclosures revealed extensive, secret, government–industry governance networks, structures and processes that are directed towards the capture, storage, use and disclosure of the communications of ordinary citizens across the globe, including citizens’ metadata.119 The disclosures revealed widespread interception by the National
Security Agency, and the extensive collaboration of corporations with household names, such as Google and Apple. High-profile legal action in the US has demonstrated that citizens and civil society groups have concerns about these governance networks, structures and processes in terms of the compatibility of their practices with civil and human rights.120 Consequently, the US is well ahead of Australia in terms of academic
118 Spencer Ackerman and Dominic Rushe, ‘Microsoft, Facebook, Google and Yahoo Release US Surveillance Requests’, The Guardian (online), 4 February 2014; Spencer Ackerman, ‘Tech Giants Reach White House Deal on NSA Surveillance of Customer Data’, The Guardian (online), 28 January 2014; Craig Timberg, ‘Apple, Facebook, Others Defy Authorities, Notify Users of Secret Data Demands’, The Washington Post (online), 5 January 2014. 119 For example: ‘Microsoft, Facebook, Google and Yahoo Release US Surveillance Requests’, The Guardian (online), 4 February 2014; ‘Tech Titans Reveal New Data about NSA Snooping’, Time Magazine (online), 3 February; Charlie Osborne, ‘Microsoft, Apple, Google Call for NSA Muzzle’, ZDnet (online), 9 December 2013. 120 Hepting v AT&T Corp In re National Security Agency Telecommunications Records Litigation 671 F. 3d 881 (9th Cir, 2011); In re Google inc. Gmail Litigation, 5.13-MD-02430-LHK (N.D. Cal). 32 inquiry into the implications of the actions of the communications industry and the US
Government.
In Australia, telecommunications industry participants became intimately involved in national security policy and coordination after the deregulation of the telecommunications sector. The rapidly evolving regulatory landscape for telecommunications shifted from a monopoly to a multi-carrier environment in just over a decade. Despite the increase in the number of telecommunications carriers since
1997,121 the industry remains oligopolistic, dominated by the incumbent telecommunications provider, Telstra, and internationally owned mobile operators
Vodafone and Optus.122
The introduction of the ownership and control provisions for broadcasters and newspaper publishers in the late 1980s created the strict, sectoral divisions between print and broadcast media. In the face of convergence pressures,123 the television and broadcasting market in Australia remains subject to these divisions and has not fragmented. Television broadcasting remains an oligopolistic market. However, like print media, broadcasting is facing enormous pressure from service providers utilising the internet, including non-traditional competitors, such as ISPs and telecommunications carriers. Despite the financial problems and changing ownership of
121 In 1997, Optus and Telstra were the only two licensed carriers. In 2005 to 2006, there were 157 licensed telecommunications carriers (Australian Communications and Media Authority (Cth), Communications Report, 2005–2006, 52). In 2010 to 2011, there were 191 licensed carriers (Australian Communications and Media Authority (Cth), Communications Report 2010–2011, 23). 122 Australian Communications and Media Authority (Cth), Communications Report 2015–2016 (30 November 2016) 19. 123 Convergence will be explained in more detail later in the Chapter 3. However, it is an important rhetorical device that is shaping policy and regulatory outcomes. See Australian Communications and Media Authority (Cth), Broken Concepts: The Australian Communications Legislative Landscape (Report, August 2011) 5; David Lindsay, ‘Broadcast Regulation in the Broadband Era: Licensing and Content Regulation’ (2012) 62(3) Telecommunications Journal of Australia 43.1, 43.2–43.3. As Lindsay notes, the term convergence ‘can operate as little more than a buzzword that refers to any and all changes in the media and communications landscape’. 33 Network Ten,124 Fairfax Media125 and The Nine Network126, the largest economic stakeholders remain the principal participants in the governance networks, structures and processes that comprise the communications regulatory environment.
Although there is no formal tripartite, bipartite or unilateral arrangement in the communications sector, as there is in industrial relations contexts,127 there exists a governance network of formal consultative committees and expert groups, and informal consultation and relationships that ensure telecommunications interception capability and negotiated control over the content and publication of national security information.
The legislative structures and administrative processes provide the underlying legitimacy for industry and government networks to negotiate regulatory outcomes. A dispassionate, informed analysis of these arrangements is necessary to reveal the governance arrangements under which we are governed and protected as Australian citizens.
National security is a broad policy concept, affecting many regulatory and policy areas in Australian Government administration. Until Edward Snowden made his disclosures, discussion about national security did not often entail consideration of the role of the communications sector.128 Academic and popular discussion of national security, framed in terms of a rights-based narrative, remains focused on the liberal democratic values under threat, such as privacy,129 free speech130 or freedom of the press.131
124 Sarah Danckert and Lucy Battersby, ‘Network Ten Goes into Voluntary Liquidation’, The Sydney Morning Herald (online), 14 June 2017. 125 See Margaret Simons, ‘Crisis of Faith: The Future of Fairfax’, The Monthly (online), 30 January 2011. 126 See Andrea Carson, ‘Debt Deal Saves Channel 9—For Now’, The Conversation (online), 18 October 2012. 127 F Traxler, ‘Collective Bargaining and Industrial Change: A Case of Disorganization? A Comparative Analysis of Eighteen OECD Countries’ (1996) 12(3) European Sociological Review 571, 573. 128 Two publications of mine raised the connection between industry, government and the national security legislative framework. See both Lloyd-Jones articles, above n 13. 129 For example, see Magnusson, above n 20; Rodrick, above n 20; Selvadurai and Islam, above n 20; Tregoning, above n 20. 130 For example, Bergin and Khosa, above n 21. 34 Alternatively, it is framed in terms of Australia’s place in the international world order, and actual and perceived threats to its sovereignty.132 There is a need for an assessment of Australian national security law, policy and coordination that is capable of linking rights-based aspirations to governance realities.
Any contemporary understanding of the operational interdependence between the communications sector and national security law, policy and coordination must involve more than simply examining the legislation. As former Australian Prime Minister, Julia
Gillard, observed, when launching Australia’s first national security strategy in 2013, cooperation, cohesion and strong business–government partnerships form the basis of national security policy in the twenty-first century.133 The informal networks of the past between government and industry remain in some sectors.134 However, it is the mixture of formal and informal interactive and collaborative governance networks that now characterises the security landscape. For example, a large portion of Australia’s critical infrastructure, which includes communications infrastructure, is privately owned or operated.135
The entrenched governance networks, structures and processes have implications for citizens, government and communications industry stakeholders. These implications include difficulties in discerning the role of the state and the role of private enterprise in
131 McNamara, above n 22. 132 White, above n 23; Babbage, above n 23. 133 ‘Across the board, the [national security strategy] prioritises partnerships, not just among government agencies, but also between governments, business and the community to achieve effective and innovative results’ (Department of the Prime Minister and Cabinet (Cth), ‘Strong and Secure: A Strategy for Australia’s National Security’ (Strategic Paper, 2013)
The operational aspects of national security matters are never commented on in public.
Many of the governance networks, structures and processes between industry and government, which include the negotiating forums and the negotiated outcomes involving the Australian communications sector, are extra-legal, arguably falling outside the boundaries of public and administrative law accountability. Detailed information about them is not easily accessible on the public record, nor do governments offer it as a matter of convention or regular practice. Further, interpreting the available public record requires, to some extent, insider experience of the governance networks, structures and processes that led to the production of these documents. Thus, achieving oversight and accountability of the regulatory practice becomes more challenging, raising the importance of diffuse and indirect forms of accountability, such as FOI legislation. Similarly, characterising the compact between industry and government as corporatist governance becomes crucial to understanding the implications of the regulatory practices identified.
136 Chris Finn, ‘The Justiciability of Administrative Decisions: A Redundant Concept?’ (2002) 30(2) Federal Law Review 253–256. Ben Saul argues that Australian courts treat aspects of security as ‘innately non-justiciable’ and that this is a deeply political choice that judges make to defer to the executive (see Saul, above n 28, 95). 137 Saul, above n 28, 95. 138 Australian Security Intelligence Organisation Act 1979 (Cth) s 35P. 36 This thesis has been written in the belief that the role of the Australian communications sector in operationalising national security law, policy and coordination is significant and deserves greater public attention and deeper academic analysis. It has been written in the belief that the relationship between the state and the communications sector must be understood to fully comprehend the risks, if any, that the accord may pose to democratic scrutiny. It is hoped that the original research that underpins this thesis provides a solid foundation that inspires further work by other scholars about this important subject.
37
CHAPTER TWO THE NATIONAL SECURITY COMMUNITY AND THE COMMUNICATIONS SECTOR
Australia’s telecommunications networks are the critical infrastructure that enables all of us to conduct business and to go about our everyday lives online. Australia’s economic prosperity and wellbeing are increasingly dependent on telecommunications networks and the data that flows across them.1
National security must be thought of differently from other aspects of public policy. It involves greater guesswork, less certainty and therefore higher risks. It relies on nested networks of relationships between individuals, agencies and governments. And it is simultaneously top-down and bottom-up. However, we still try to deal with issues like cybersecurity or countering violent extremism as if they were discrete, manageable problems with an identifiable institutional ‘home’.2
I INTRODUCTION
The aim of this thesis is to examine the entrenched networks, structures and processes in which Australian national security law, policy and coordination is administered in the domestic communications sector. The regulatory terrain is complex. It is especially complicated because relevant actors and their interrelationships are affected by policy challenges and the varying political priorities of different governments and bureaucracies in the past decades. This chapter provides historical background information about the broader relevant regulatory framework. Then, each case study will elaborate on the role of particular agencies and actors during the relevant times, as required. Chapter Three links the overview of the broader framework to the theoretical framework used to analyse the field of national security law, policy and coordination, by explaining the relevance of Hysing’s indicators of government to governance to evaluating the dynamics of the national security landscape.
1 Commonwealth, Parliamentary Debates, Senate, 9 November 2016, 2346 (James McGrath, Assistant Minister to the Prime Minister). 2 Carl Ungerer, ‘The Case for an Australian National Security Strategy’ (Strategic Paper, Australian Strategic Policy Institute, 28 July 2011) 1, 10. 38 What follows here is an overview of the industry participants in the print and broadcast media and telecommunications infrastructure in Australia. Then, the history of the national security–communications sector interface is sketched, especially focusing on changes to government policy and coordination in the decade after 11 September 2001.
In this period, the concept of a national security community emerged, as did the recognition of the central role played by private actors, working in concert with government agencies, to advance Australia’s national security law and policy framework.
The concept of a cohesive national security community affects the character and mode of formal and informal governance associated with implementing and administering national security policy, regulation and law in the communications sector. Determining who is, and who is not, formally considered part of the community is of major importance. In this chapter, the concept of the national security community is critically evaluated, drawing, in particular, on the insights of former Australian National Security
Adviser, Margot McCarthy.
II INDUSTRY CONTEXT
A Snapshot of the Australian Communications Sector
Australia is an advanced industrial economy with well-developed mining, agriculture and services bases. The information media and telecommunications industries3 are a key sector of the Australian economy, generating $72.8 billion in sales and service income
3 Australian Bureau of Statistics (Cth), ‘8681.0 - Information Media and Telecommunications Services’ (Dataset, 2013–2014)
The sector employs approximately 165,000 persons, the majority of whom are employed in the telecommunications services subdivision.5
The communications sector is an important part of Australia’s social, economic and political landscape. The digitalisation of communications technology caused profound changes in the capability of technology, with this potential recognised since ‘the birth of the transistor’.6 The convergence of communications technology and the rise of new services, social networks and other applications have contributed to the blurring of the traditional boundaries between communications, which traditionally was categorised into telecommunications, broadcasting and computing.7 File sharing, social networking, instant messaging and other applications and services have enabled faster, constant communication, connectivity and data accumulation.8 The ubiquity of communications technology, services and applications points to the value and importance of those communications, including the data it produces, the information it conveys9 and the long-held conceptual distinctions, such as public and private, that it disrupts.10
The telecommunications market in Australia is oligopolistic at the infrastructure layer, that is, the carrier layer,11 yet it has been subject to increased competition across the applications and content layer in certain sectors, such as OTT services, which are
4 Ibid. 5 Ibid. 6 Christopher Marsden, ‘Convergence Reviews—or How Monopolists Extended Their Analogue Empires’ (2012) 62(3) Telecommunications Journal of Australia 38.1. 7 Trevor Barr, newmedia.com.au: The Changing Face of Australia’s Media and Communications (Allen & Unwin, 2000) 28, 77–78. 8 Kenneth Cukier and Viktor Mayer-Schoenberger, ‘The Rise of Big Data’, Foreign Affairs (online), May/June 2013, 28–29; Kate Crawford and Catharine Lumby, ‘Networks of Governance: Users, Platforms, and the Challenge of Networked Media Regulation’ (2013) 2(1) International Journal of Technology Policy and Law 3. 9 Crawford and Lumby, above n 8, 2. 10 Sarah Michele Ford, ‘Reconceptualizing the Public/Private Distinction in the Age of Information Technology’ (2011) 14(4) Information, Communication & Society 550, 551, 557. 11 Australian Communications and Media Authority (Cth), Communications Report 2015–2016 (30 November 2016) 8. 40 communication services and computer applications that offer messaging, voice and video call services, like VoIP telephony services.12 Most importantly, OTT services are considered services that do not have a carriage element to their delivery, that is, they are not delivered by a phone or internet service provider.13 Examples of OTT services include iMessage, FaceTime, WhatsApp, Facebook Messenger and Viber.14 The application of the Telecommunications Act 1997 (Cth) and the Telecommunications
(Interception and Access) Act 1979 (Cth) (TIA Act) to OTT services is complex. Peter
Leonard pointed out the inconsistency of treatment of OTT services under both Acts
‘because some OTT services providers are regulated (because of the carriage component of their service) as CSPs [carriage service providers], regardless of whether they own or operate telecommunications network infrastructure in Australia’.15
VoIP operators are not subject to licensing requirements like carriers, but they are considered CSPs for the purposes of the Telecommunications Act 1997 (Cth)16 and under the TIA Act.17 They are required to become members of the Telecommunications
Industry Ombudsman scheme if they plan to provide or resell telecommunications services to consumers or small businesses. In June 2016, there were 1599 carrier and
12 In its 2014–2015 Communications Report, the ACMA notes ‘Over-the-top (OTT) communications are those delivered by an application that is run over the top of another carriage service, and can be accessed using any compatible internet access device. With their low cost and one-click access, OTT voice over internet protocol (VoIP) services are increasingly affecting traditional communications revenues, with the impact felt more and more by both mobile and fixed-voice service providers. Global voice traffic via OTT VoIP applications is predicted to reach 1.4 trillion minutes by 2018, translating to $63 billion in lost revenue for traditional service provider (footnote omitted)’ (Australian Communications and Media Authority (Cth), Communications Report 2014–2015 (2 December 2015) 15). 13 See Australian Communications and Media Authority (Cth), above n 11, 15. 14 Ibid. 15 Peter Leonard, ‘Mandatory Internet Data Retention in Australia—Evidentiary Uses and Challenges’ (Report, Gilbert & Tobin and diGiTal, March 2016) 3, 4–15. 16 See Australian Communications and Media Authority (Cth), VoIP Legislation, Codes & Standards (26 September 2016). 17 Telecommunications (Interception and Access) Act 1979 (Cth) s 5. 41 eligible carriage service provider members of the Telecommunications Industry
Ombudsman scheme.18
In 2017, the Australian Competition and Consumer Commission (ACCC) reported that just four carriers dominated the emerging telecommunications landscape: Telstra, TPG
Group, Singtel Optus and Vocus/M2.19 Telstra was shown to be dominant in all segments of the wholesale market in both regional and metropolitan areas of all states.20
Telstra is the largest telecommunications industry participant in Australia and is the previously government–owned incumbent telecommunications provider. This early history and legacy of being a public utility is one reason for the dominance of Telstra in the governance networks, structures and processes that comprise national security policy and coordination in the Australian communications sector.
In Australia, broadcast and print media have not been subject to the same competition policy, but their relationship with government reflects a fairly stable, if at times difficult, history. In Australia, the metropolitan networks, the Nine Network, the Seven
Network and Network Ten, dominate television broadcast media. The industry also includes regional networks, the national Indigenous channel, Imparja Television, and two national public broadcasters, the Australian Broadcasting Corporation (ABC) and the Special Broadcasting Service (SBS). Australia’s subscription television industry is a monopoly. The dominant provider is Foxtel. Telstra is a shareholder of Foxtel, providing the cable distribution system for the Foxtel service. Presto, an online streaming service, is owned by Foxtel and Seven.21 The service offering of the
18 See Australian Communications and Media Authority (Cth), above n 11, 29. 19 Australian Competition and Consumer Commission, National Broadband Network Wholesale Market Indicators Report (30 June 2017). 20 Ibid. 21 Australian Competition and Consumer Commission, ‘ACCC Will Not Oppose Seven’s Proposed Acquisition of Shares in Foxtel’s Presto Entertainment Service’ (Media Release, MR20/15, 2 March 42 subscription media industry is made up of joint ventures between the major broadcasters, print media companies and telecommunications companies. For example,
Stan is a joint venture company between Fairfax Media and the Nine Network.22 Free- to-air and subscription television broadcasting have both faced threats to their monopolies over television programming content from the internet, cable and international satellite services.23 Services such as Netflix, Fetch TV and Presto are all challenging the free-to-air and subscription business models.
In the internet sector, the players are dispersed, global and fragmented across a spectrum of service provision. However, since the 1990s, with the rise of the big search engines, big social media and big e-shopping, other actors such as Google, Facebook,
Apple and Amazon have appeared within the networks, structures and processes previously dominated by older technology giants of the 1980s and 1990s, such as
Microsoft and IBM.24 New internet-based, on-demand services and subscription services, such as Netflix and iTunes, have begun to challenge the free-to-air network business model.25 The incumbent free-to-air networks have been slow in responding, but most now offer free on-demand services, characterised as catch-up TV services, for audiences.26
2015); Harry Tucker, ‘Foxtel and Seven West Combine to Fight Netflix and Stan with Presto Entertainment’, news.com.au (online), 15 January 2015. 22 Australian Competition and Consumer Commission (Cth), ‘Channel 7 and Foxtel Proposed Joint Venture’ (Public Registers—Mergers Register, 2 March 2015). 23 Andrea Rangone and Alessandro Turconi, ‘The Television (R)evolution within the Multimedia Convergence: A Strategic Reference Framework’ (2003) 41(1) Management Decision 48–49; Henry Jenkins, Convergence Culture: Where Old and New Media Collide (New York University Press, 2006) 5– 6. 24 Cukier and Mayer-Schoenberger, above n 8, 36–37. 25 For a theoretical perspective, see John Havick, ‘The Impact of the Internet on a Television-Based Society’ (2000) 22(2) Technology in Society 273–287; Savvas Papagiannidis, Joanna Berry and Feng Li, ‘Well Beyond Streaming Video: IPv6 and the Next Generation Television’ (2006) 73(5) Technological Forecasting and Social Change 510–523. 26 Fergus Halliday, ‘Freeview Says Aussies Stream 1.5 Billion Minutes of Catch-Up TV a Month’, Channel News (online), 11 August 2017. 43 The internet was shown to be the biggest contributor to structural change in the industry because of the growth in income generated from this subdivision.27 This dynamism in internet-based activities is underpinned by the stable, continuous dominance of the telecommunications services subdivision, which accounts for 60 per cent of the total sales and service income for the sector.28 In addition, the telecommunications services subdivision was responsible for 85 per cent of the capital expenditure in the industry over the 2013–2014 period.29 In the traditional print and broadcast media subdivision, often referred to as old media, industry income is either decreasing, in the case of publishing, or stagnating, in the case of broadcasting.30 Whereas old media is experiencing an overall decline in sales and service income, the income of ISPs, web- search portals and data processing services is growing rapidly, increasing from $4.3 billion to $5 billion between 2012–2013 and 2013–2014.31
These industry-specific statistics are reflected in research undertaken by ACMA. The
Communications Report for 2014–2015 showed that:
Australians are increasingly using the internet for more daily activities, with industry continuing to support this internet-enabled communications environment. In particular, Australians are going over-the-top (OTT) with online communications and video services.32
In 2015–16, ACMA reported that:
The key enabling elements of the communications sector are being transformed by the intensifying take-up and use of online services and the corresponding strong growth in data traffic. Data download volumes increased
27 Australian Bureau of Statistics (Cth), ‘Internet Transforming Information Media and Telecommunications Industry’ (Media Release 75/2015, 29 June 2015). 28 Ibid. 29 Ibid. 30 Ibid. 31 Ibid. 32 See Australian Communications and Media Authority (Cth), Communications Report 2014–2015 (2 December 2015). 44 by 52 per cent between the June 2015 and June 2016 quarters to over 2.2 million terabytes’.33
In terms of market share, in the same year, ACMA reported that:
The market share for the three mobile carriers remained largely stable, although the mobile carriers faced increased competition for post-paid customers. Telstra’s share of the mobile services in operation increased by 0.6 per cent to 54.5 per cent. In comparison, Optus’ market share declined by almost a percentage point to 28.6 per cent, while market share held by Vodafone Australia rose by 0.4 per cent to 16.9 per cent.34
In ACMA’s 2015–16 reporting period, the top four ISPs were Telstra, Optus, TPG
(which includes iiNet) and Vocus Communications (which includes M2 Group).35 This list reflects key industry mergers and acquisitions in the ISP market. ACMA reported that iiNet was acquired by TPG in August 2015 and that M2 Group merged with Vocus
Communications in February 2016.36 Vocus Communications’ services now include
Dodo, iPrimus, engine and Commander.37
The economic power of the communications industry is backed by its status as critical infrastructure.38 In Australia, business and government exchange information, ideas and skills through an industry–government engagement mechanism, the Trusted Information
Sharing Network, to build and maintain critical infrastructure resilience.39 The communications group is comprised of representatives from the telecommunications
33 Australian Communications and Media Authority (Cth), above n 11, 3. 34 Ibid 19. 35 Ibid 29. 36 Ibid. 37 Ibid. 38 The ‘Communications Sector Group’ of the Trusted Information Sharing Network brings together telecommunications, international submarine cables, postal and broadcasting sectors. Information technology companies are included in the ‘IT Security Expert Advisory Group’. See
B The Contemporary Building Blocks of Communications Industry Participation in
National Security Policy and Coordination Pre-September 11
Australia’s external security has broadly focused on its strategic and defence position in
Asia since the late 1980s.42 Internal security in Australia has focused on counter- terrorism since the 1970s.43 Jenny Hocking noted that the counter-terrorism structure that developed in Australia in the 1970s remained largely unchanged until 11 September
2001. The core elements of the internal national security structure prior to 2001 included the establishment of ASIO in 1949 and the introduction of telecommunications interception legislation in 1979.44 In 1989, the Foreign Minister Gareth Evans released a ministerial statement on Australia’s Regional Security that strategic and defence academics in Australia regard as the clearest articulation of Australian national security
40 Ibid. 41 Australian Government, Critical Infrastructure Resilience Strategy (Commonwealth, 2010) 4; Myriam Dunn-Cavelty and Manuel Suter, ‘Public–Private Partnerships Are No Silver Bullet: An Expanded Governance Model for Critical Infrastructure Protection’ (2009) 2(4) International Journal of Critical Infrastructure Protection 179. 42 Stephan Frühling, ‘Ghosts of Papers Past: The Strategic Basis Paper and Australian National Security Strategy in the Twenty-First Century’ in National Security College Occasional Paper No 3 (Australian National University, 29 April 2012) 9. 43 Jenny Hocking, Beyond Terrorism: The Development of the Australian Security State (Allen & Unwin, 1993) 189. 44 Ibid. 46 policy.45 The statement encompassed defence capability, defence assistance, diplomacy, economic links, development assistance and assistance against ‘non-traditional’ security issues, which included terrorism, intrastate ethnic conflict, failed states and transnational crime.46 During this time, responsibility for strategic defence policy was fragmented, and there were calls for a new institutional framework to provide for national security guidance and planning.47
Complicating matters was the expanding concept of security that now included the non- traditional concerns, and which had been fuelled by globalisation.48 In the 1990s, it became apparent that a coordinated, multidimensional approach would be required to protect Australia’s security.49 The National Security Committee of Cabinet was formed in 1996 as the central decision-making body on national security. To this day, its brief remains to consider the ‘strategic developments and major issues of medium to long- term relevance to Australia’s national security interests’.50
The recognition that national security policy and coordination would need to involve the telecommunications industry began to appear in public government documentation in the 1980s, during the beginnings of deregulation and privatisation in the Australian telecommunications market.51 During this time, Telecom’s relationship with law enforcement and national security agencies was coming under scrutiny.52 The
Telecommunications Act 1991 (Cth), which marked the first phase of deregulation and
45 Frühling, above n 42, 22. 46 Ibid; Gavin Keating, ‘The Machinery of Australian National Security Policy: Changes, Continuing Problems and Possibilities’ [2005] (166) Australian Defence Force Journal 20. 47 Frühling, above n 42, 22. 48 Keating, above n 46, 20. 49 Ibid. 50 Department of the Prime Minister and Cabinet (Cth), Review of Australia’s Counter-Terrorism Machinery (January 2015) 29. 51 Commonwealth, Parliamentary Debates, Senate, 27 March 1984, 840 (Michael Duffy, Minister for Communications). 52 Commonwealth, Parliamentary Debates, Senate, 27 March 1984, 840 (Michael Duffy, Minister for Communications). 47 privatisation, did not impose an express obligation on the newly created regulator,
AUSTEL, to provide assistance to law enforcement and national security agencies.
Rather, this was imposed through a ministerial direction in 1990.53 In 1994, the first tranche of amending legislation to the Telecommunications Act 1991 and the TIA Act was passed to provide a new framework for ‘cost-effective and relevant’ interception capability in Australia. The framework was based on competition and introduced co- regulation and self-regulation into the telecommunications sector. Despite the technological and other changes that have affected the telecommunications market, the co-regulatory and self-regulatory framework set out in the objects and regulatory policy of the Telecommunications Act 1997 (Cth)54 has remained intact, and has provided the statutory basis for industry and government liaison on national security policy and coordination.
The media industry, which is largely comprised of radio and television broadcasting and print media, is considered a ‘sensitive’ sector under the Australian Government’s foreign investment policy.55 Thus, concerns about foreign ownership on the grounds of national security have been a critical part of television broadcasting policy in Australia since its introduction in the 1950s.56 Until 2007, when the specific foreign ownership restrictions were removed from the BSA, Australia restricted foreign ownership of its media assets on the basis of protecting the national interest. Albon and Papandrea noted
53 On 12 November 1990, under s 28 of the Telecommunications Act 1989, the minister for transport and communications notified Austel, the newly established telecommunications regulator, that ‘it was the general policy of the Commonwealth Government that providers of public telecommunications services were capable of being intercepted for law enforcement and national security purposes, and that Austel should take account of that fact when considering licence conditions’ (Pat Barrett, ‘Review of the Long Term Cost Effectiveness of Telecommunications Interception’ (Report, Department of Finance (Cth), 1 March 1994) 72). 54 Telecommunications Act 1997 (Cth) ss 3–4. 55 Department of Communications (Cth), ‘Media Ownership and Control’ (Policy Background Paper No 3, 27 May 2015) 11; Foreign Acquisitions and Takeovers Act 1975 (Cth) s 17H; Foreign Acquisitions and Takeovers Regulations 1989 (Cth) r 12. 56 Robert Albon and Franco Papandrea, Media Regulation in Australia and the Public Interest (Institute of Public Affairs, 1998) 3. 48 that ‘many countries cite risk to national security as the reason for prohibiting foreign control of broadcasting’ and Australia was no different.57 The regulation of Australia’s
‘media assets’ now comes under the Foreign Acquisitions and Takeovers Act 1975
(Cth). Foreign investment is permitted but the Foreign Acquisitions and Takeovers
Regulation 2015 (Cth) requires that the Treasurer of Australia must be notified of and must approve foreign investment accounting for over five per cent of local media companies.58
Significant revisions to ownership and control laws on newspapers and television in the late 1980s consolidated the broadcasting and newspaper oligopoly that still exists today.59 In Australia, broadcasting and print media companies have a close relationship with government because of the comparatively small number of participants and the power of broadcasting and the print media to influence public opinion.60 Lobbying, deals and negotiation have characterised the development of broadcasting policy in
Australia. The result has been that policy and legislation often reflects the interests of those established operators or incumbents in the industry.61 Albon and Papandrea observed that the anti-competitiveness of broadcasting instruments and policy ‘has often
57 Ibid. 58 Foreign Acquisitions and Takeovers Regulation 2015 (Cth) regs 5, 55; Department of Communications (Cth), above n 55. 59 On arrangements between government and an established set of media companies: Jock Given refers to the ‘broadcasting policy settlement’ under which broadcasters fulfilled certain public policy objectives in exchange for government making available a very limited number of very profitable television licences. See Jock Given, Turning off the Television: Broadcasting’s Uncertain Future (UNSW Press, 2003) 58. Paul Chadwick refers to the ‘carve up’ of print and television ownership associated with legislative changes in the late 1980s designed to favour some industry interests over others (see Paul Chadwick, Media Mates: Carving up Australia’s Media (Macmillan, 1989)). Albon and Papandrea point to the restrictive licensing practices that protected incumbent broadcasters from competition (see Albon and Papandrea, above n 56, 44). 60 Terry Flew, ‘Regulating Journalists? The Finkelstein Review, the Convergence Review and News Media Regulation in Australia’ (2013) 2(1) Journal of Applied Journalism and Media Studies 181, 183– 185. 61 Albon and Papandrea, above n 56, 5, 44. 49 been seen as a quid pro quo for the obligations imposed by the “public trustee” position of broadcasters’.62
The role of the media in operationalising national security policy and coordination is much more complex than that of the telecommunications industry on account of the media’s role as the fourth estate that calls the government to account for its actions and undertakings. It is part of the ‘separation of powers’ doctrine that maintains a healthy tension between the judiciary, the legislature and the executive as a means of curbing excesses of power.63 However, the fourth estate role of the media can bring it into direct conflict with the government on matters of national security and the national interest.64
From the 1950s until the 1980s, Australia was operating a ‘D-Notice’ system, which involved a secret voluntary agreement between the media and government to withhold publication of certain matters concerning national security.65 The fractious relationship between the media industry and government has continued unabated since that time.
Maher, writing about the D-Notice system, observed that, ‘[f]rom its inception, the system has been dependent on media cooperation’.66 The cooperative aspects of the relationship between industry and government will be canvassed in more detail in the third case study of the thesis (Chapter Six).
62 Ibid 5. 63 Bernhard Debatin, ‘Fourth Estate’ in Gianpietro Mazzoleni (ed), The International Encyclopedia of Political Communiations (John Wiley & Sons, 1st ed, 2016) 1–2. For a discussion of the pressures on the ‘separation of powers’, see Tom Bathurst, Chief Justice of the Supreme Court of New South Wales, ‘Separation of Powers: Reality or Desirable Fiction?’ (Paper presented at the JCA Colloquim, Sydney, 11 October 2013); Michael McHugh, ‘Tensions between the Executive and the Judiciary’ (Paper presented at the ABA Conference, Paris, 10 July 2002) 1. 64 For example, Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39. Also, more recently, Glenn Greenwald, No Place to Hide: Edward Snowden, the NSA and the Surveillance State (Hamish Hamilton, 2014). 65 Annette Willing, Assistant Secretary, Security Law Branch, Attorney-General’s Department, ‘Media Arrangement to Protect Sensitive Law Enforcement and Counter-terrorism Information’, File No 09/23436, 1 December 2009, 4. Released under the FOI Act 1982 by the Attorney-General’s Department. 66 Laurence W Maher, ‘National Security and Mass Media Self-Censorship: The Origins, Disclosure, Decline and Revival of the Australian D Notice System’ (1997) 3(2) Australian Journal of Legal History 171, 202. 50 III AUSTRALIAN NATIONAL SECURITY POLICY AND COORDINATION AFTER SEPTEMBER 11
After the terrorist attacks in the US on 11 September 2001, the political imperative to protect national security became a matter of government priority in Australia and elsewhere.67 The Australian federal and state governments engaged in the construction of a new national security legislative framework to protect Australian citizens from the terrorist attacks that plagued the ‘Coalition of the Willing’ partners.68 In accordance with the directions of the United Nations Security Council, issued after 11 September
2001,69 Australia implemented measures directed at combating terrorism. By 2006,
Australia’s federal parliament had introduced over 42 individual pieces of terrorism- related legislation.70 By 2011, it had enacted 54 pieces of anti-terror legislation.71
September 11 caused a regulatory rethink in national security law, policy and coordination in Australia. The concept of national security was put under scrutiny and attempts were made in policy documents and parliamentary statements to define it with more precision and relevance. The National Security Statement delivered by former
Australian Prime Minister, Kevin Rudd, gave some guidance in terms of the policy and regulatory priorities of the Labor Government he led.72 The statement defined ‘national security’ as ‘freedom from attack or the threat of attack; the maintenance of our
67 In September 2014, the Abbott Government lifted Australia’s terrorist attack alert from ‘medium’ to ‘high’ as a result of a number of Australian citizens going abroad to fight in conflicts in the Middle East (see Emma Griffiths, ‘Terrorism Threat: Australian Alert Level Raised to High; Terrorist Attack Likely But Not Imminent’, Australian Broadcasting Corporation (online), 12 September 2014). For an explanation of the threat environment and what the terrorist attack alerts mean, see Australian Security Intelligence Organisation, Threat Environment
Five years later, on 23 January 2013, the Gillard government released the national security strategy. The strategy did not define national security but considered its
‘pillars’ to be:
[C]ountering terrorism, espionage and foreign interference; deterring and defeating attacks on Australia and Australia’s interests; preserving Australia’s border integrity; preventing, detecting and disrupting serious and organised crime; promoting a secure international environment conducive to advancing Australia’s interests; strengthening the resilience of Australia’s people, assets, infrastructure and institutions; the Australia–United States Alliance; understanding and being influential in the world, particularly the Asia- Pacific.74
The objectives of the strategy are ‘to protect and strengthen [Australia’s] sovereignty; to ensure a safe and resilient population; to secure [Australia’s] assets, infrastructure and institutions; to promote a favourable international environment’,75 which tie into ideas about the purpose of national security, namely, to protect the idea of the security of the state itself.76
There are multiple government agencies tasked with ensuring Australian national security,77 including Australia’s internal security agency, ASIO. The Australian
Security Intelligence Organisation Act 1979 (Cth) provides a broad working definition of security:
73 Ibid. 74 Department of the Prime Minister and Cabinet (Cth), ‘Strong and Secure: A Strategy for Australia’s National Security’ (Strategic Paper, 2013)
From the sources quoted above, it is clear that, historically, national security in
Australia has meant the defence and protection of Australian citizens, the constitution and its democratic institutions by the executive, the military, law enforcement and national security government agencies, pursuant to the Constitution.79 Over time, the concept has expanded to include food security and climate change.80 A critical appraisal of security by Barry Buzan noted that ‘[a]n undefined notion of national security offers scope for power-maximising strategies of political and military elites, because of the considerable leverage over domestic affairs, which can be obtained by invoking it’.81 In the Australian national security policy context, technological convergence, globalisation, the fragmentation of conflict and radical Islamist terrorism have been driving structural and cultural change.82 From these examples, it can been observed that the term is used in an open-ended manner and, accordingly, what the concept of national security entails in terms of governance is fluid.83
78 Australian Security and Intelligence Organisation Act 1979 (Cth) s 4. 79 See Anthony Blackshield and George Williams, Australian Constitutional Law and Theory : Commentary and Materials (The Federation Press, 4th ed, 2006) 734. 80 Robert McClelland, ‘7th Annual National Security Australia Conference’ (Speech delivered at the 7th Annual National Security Conference, Sydney, 23 March 2009). On 14 June 2017, the implications of climate change for Australia’s national security was referred to the Senate Standing Committees on Foreign Affairs, Defence and Trade for inquiry. 81 Barry Buzan, People, States and Fear: The National Security Problem in International Relations (Wheatsheaf Books Ltd, 1983) 4, 9. 82 Department of the Prime Minister and Cabinet (Cth), above n 74, 9–11. 83 Peter Hanks, ‘National Security—A Political Concept’ (1988) 14 Monash Univerity Law Review 114, 117–120. 53 Contrary to government representations and popular understandings of the government’s role in protecting citizens, in the past decade, state actors have been observed sharing authority with international organisations, multinational corporations and civil society representatives.84 Now, finally, there is an explicit recognition in the
Australian national security strategic policy statement, that governance mechanisms, such as negotiation, bargaining, cooperation and facilitation, are regulatory tools for achieving national security outcomes.85 Ungerer noted that:
[T]he main thrust of the government’s national security strategy has been to build greater cohesion and cooperation across the growing number of government agencies that have responsibility for, or involvement in, national security policy.86
After September 11, the policy and coordination strategies turned to methods of improving inter-agency collaboration, information sharing and operational know-how.
Cooperation, cohesion and strong business–government partnerships would openly form the basis of national security policy in the twenty-first century.87 The informal networks of the past between government and industry remain in some sectors, such as telecommunications interception, and within the national security leadership.88
However, a mixture of formal and informal cooperative networks now characterises the security landscape. The rise of the idea of the national security community is an important administrative development of the past decade in Australian national security
84 Ulrike Morth, Soft Law in Governance and Regulation: An Interdisciplinary Analysis (Edward Elgar, 2004) 2. 85 Commonwealth, Parliamentary Debates, House of Representatives, 4 December 2008, 12549–12557 (Kevin Rudd). 86 Carl Ungerer, ‘Measuring Up: Evaluating Cohesion in the National Security Community’ (Strategic Paper, Australian Strategic Policy Institute, 25 June 2011) 1, 2. 87 Julia Gillard, ‘Across the board, the [national security strategy] prioritises partnerships, not just among government agencies, but also between governments, business and the community to achieve effective and innovative results’ (Department of the Prime Minister and Cabinet (Cth), above n 74, iii). 88 Rodger Shanahan, ‘An Idea in Good Currency: Collaborative Leadership in the National Security Community’ in National Security College Occasional Paper No 1 (Australian National University, November 2011) 39. 54 policy. It encapsulates the mixture of formal and informal networks structures and processes of post-September 11 national security law, policy and coordination.
A The Australian National Security Community
The idea of a security community is not new, often arising in international relations literature.89 Some international relations scholars regard it as a powerful mechanism in security governance, permitting a more nuanced understanding of regional security dynamics, including understanding non-linear and dynamic change in regional security networks, structures and processes.90 The concept of a national security community entered the Australian public policy lexicon in 2008, in the Review of Homeland and
Border Security undertaken by Ric Smith, a distinguished Commonwealth public servant.91 In the summary and conclusions to his report, Mr Smith advised that:
In building on the existing Australian model, two things are required. First, the departments and agencies concerned, both those dedicated to security functions and those, which contribute to national security as well as performing other functions, should be regarded as a community [emphasis added]. This is important both to enable the Government to make strategic judgements across a wide range of hazards, including on the allocation of resources, and to ensure that the agencies benefit from access to each other’s skills, experience and other capabilities. Second, the departments and agencies concerned must be well connected and networked, and cultural, technical and other barriers minimised.92
The Smith Review acknowledged the necessity of a higher level of interconnectedness between agencies, departments and other participants in developing, implementing and administering national security policy, regulation and law. This is a fundamental
89 Emanuel Adler and Michael Barnett, Security Communities (Cambridge University Press, 1998) 3–5; Andrew Cottey, ‘Europe’ in James Sperling (ed), Handbook of Governance and Security (Edward Elgar, 2014) 164, 168, 184; James Sperling, ‘Governance and Security in the Twenty-First Century’ in James Sperling (ed), Handbook of Governance and Security (Edward Elgar, 2014) 3, 3. 90 Emanuel Adler and Patricia Greve, ‘When Security Community Meets Balance of Power: Overlapping Regional Mechanisms of Security Governance’ (2009) 35(1) Review of International Studies 59, 83. 91 Ric Smith, ‘Report of the Review of Homeland and Border Security: Summary and Conclusions’ (Commonwealth, 27 June 2008). 92 Ibid 1. 55 acknowledgement of what Rodger Shanahan’s research suggests has always been there, that is, the informal, cooperative governance arrangements that exist inside, and on the edges of, the top-down hierarchical bureaucratic structures and legislation that frame the exercise of government power.93 Ungerer has made similar observations about the coordination of national security policy, pointing out that it ‘relies on nested networks of relationships between individuals, agencies and governments. It is simultaneously top-down and bottom-up’.94
Successive governments have endorsed the concept of a community for national security, focused on coordination, coherency and integration.95 In 2008, Prime Minister
Kevin Rudd used the concept to signal a policy direction that would take ‘the detailed and diverse work of the national security community’ and bind it into a ‘coherent, coordinated whole’.96 The March 2010 Ahead of the Game report, detailing reform of the Australian public service, mentioned the need for a cohesive national security community.97 A speech by the former National Security Adviser,98 Dr Margot
McCarthy, talked about the origins of the concept of a national security community and the role of the National Security Adviser. McCarthy’s quotation is provided below because it is so important to understanding the past and future direction of national security policy and coordination. This has not altered substantially since the Abbott
Government removed Dr McCarthy from her position in 2013, even though some of the
93 Shanahan, above n 88, 39. 94 Ungerer, above n 86, 10. 95 Commonwealth, Parliamentary Debates, House of Representatives, 4 December 2008, 5 (Kevin Rudd); Commonwealth, Parliamentary Debates, House of Representatives, 13 June 2017, 6171–6175 (Malcolm Turnbull). 96 Commonwealth, Parliamentary Debates, House of Representatives, 4 December 2008, 5 (Kevin Rudd). 97 Department of the Prime Minister and Cabinet (Cth), Ahead of the Game—Blueprint for the Reform of Australian Government Administration March 2010 (30 March 2010) 9: ‘The threats posed by terrorism and challenges to our borders require an integrated national security community that operates on a whole- of-government basis.’ 98 According to newspaper reports, the Abbott Government removed Dr McCarthy from the position of National Security Advisor in 2013. See Jason Koutsoukis, ‘Tony Abbott Dismantles Role of National Security Adviser by Stealth, Insiders Say’, The Sydney Morning Herald (online), 25 October 2013. 56 names and roles have changed.99 McCarthy’s speech highlighted the historic governance mechanisms operating within the formal structures, as well as the importance of non-legal governance mechanisms to the future of national security policy and coordination. McCarthy explained that community, with its formal and informal structures and processes, is stronger than formal, bureaucratic, directive-based government:
As I reflect on the role of PM&C [Department of the Prime Minister and Cabinet] in national security before and after the establishment of the NSA [National Security Adviser], the key differences go to the related concepts of strategic leadership, a cohesive national security community and priority setting and resource allocation. Deputy Secretaries in PM&C have always been able to pick up the phone to Secretaries and Agency Heads elsewhere in government to work through problems and progress issues. But the new position of National Security Adviser was expected to do a lot more than invoke the authority of the Prime Minister to trouble-shoot and manage issues as they arose. He (as it was then) was expected to lead a large group of people over whom he not only had no formal authority, but some of whom were senior to him. How this very un-bureaucratic notion can be made to work in a bureaucratic environment goes directly to the underlying concept of a cohesive national security community, with an emphasis on ‘cohesion’ and ‘community’. I don’t know whether [Mr Ric Smith] intended it, but I believe the concept of a ‘national security community’—which trips off our tongues now but which was not something I recall us talking much about in 2008— speaks to something in our subconscious which is very different from— indeed, almost at odds with—the exercise of formal, position-based, directive leadership. The concept of ‘community’ we are probably most familiar is that of a ‘local’ community. And I refer here to a whole range of experiences we may have had of local communities as formed not only in neighbourhoods, towns, suburbs and cities but also schools, churches, workplace associations, and charitable and sporting endeavours. We know that the strength of the fabric of these communities—their ‘cohesion’—relies only in part on the actions of individuals in whom formal powers are vested; important though those powers are. The cohesion of such communities is also strongly influenced by individuals with few or no formal powers. Individuals who choose to harness whatever they possess of foresight, and the ability to influence, persuade, negotiate and mediate, to the advancement of a shared vision underpinned by common goals that cut across sectional interests. And if we look back on local communities that we’ve been part of and which have succeeded, I think we’ll find that it’s the creative interaction between those who exercise formal and informal leadership, and the creative tension (or sometimes outright conflict) between them, that has, for the most part, led to
99 See Department of the Prime Minister and Cabinet (Cth), Review of Australia’s Counter-Terrorism Machinery (January 2015) 28–29. 57 good outcomes. I won’t pretend that it doesn’t help the NSA, in his or her exercise of leadership, that colleagues know the NSA reports to the Prime Minister and is endeavouring to carry out her or his wishes. But to rely on this alone would be a serious mistake. That’s why Duncan Lewis, as the first NSA, spent so much time developing and maintaining relationships with colleagues across the national security community. Never taking them for granted. Sharing ideas and information with them as freely as possible. Being open and honest about areas of agreement and disagreement. And, while building a sense of common identity, respecting their individual accountabilities and responsibilities. And why I am endeavouring to do the same.100
The research of Dr Rodger Shanahan and Eliane Coates supports this account of collaboration in the national security community, and the importance of growing and maintaining personal relationships within that community.101 Shanahan explained that the national security community has expanded in scale and scope in the post-September
11 era. The expanded community has had the effect of breaking down the traditionally separate and hierarchical nature of national security governance. Shanahan noted that the national security community has grown from its confines within the portfolios of the prime minister, foreign affairs, defence and the attorney-general, to include people from many more departments and levels of government.102 Shanahan observed that the wider community and business sectors also play ‘vital roles in this policy area’.103
Identification with the concept of community affects the character and mode of informal governance in relation to implementing and administering national security policy, regulation and law in the communications sector. The national security community in
Australia includes long standing relationships between individual participants that span
100 Margot McCarthy, ‘National Security: Past, Present and Future’ (Speech delivered at a joint event of the Department of the Prime Minister and Cabinet and the National Security College, Canberra, 15 June 2012) 5. 101 Shanahan, above n 88, 40; Eliane Coates, ‘Collaborative Leadership within the National Security College—A Literature Review’ in National Security College Occasional Paper No 2 (Australian National University, November 2011) 2. 102 Shanahan, above n 88, 2. 103 Ibid. 58 decades.104 Nevertheless, the national security architecture in the post-September 11 era has meant that more people from more diverse backgrounds are partnering on national security law, policy and coordination issues.105
Since 2001, collaboration and coordination on matters of national security have been built progressively, with the Telecommunications Interception and Intelligence Services
Legislation Amendment Act 2011 (Cth), ensuring that agency information and know- how would be freed from its traditional restrictions.106 An Office of the National
Security Chief Information officer was established in April 2009 to ‘improve information sharing among the national security community’.107 The additional bolstering of business liaison and coordination and public–private partnerships has expanded the post-September 11 governance framework more deeply into the
Australian economy and society.
In July 2017, Prime Minister Malcolm Turnbull signalled the establishment of a new
Home Affairs super-portfolio, justified on the basis that:
[F]or over a decade, successive Governments have responded to worsening security trends with ad hoc arrangements to strengthen coordination and cooperation between Australia’s intelligence, security and law enforcement agencies. However, the Government believes that the evolving and complex threats to Australia’s security require more enduring and better integrated intelligence and domestic security arrangements.108
104 Ibid 23. It is also worth noting that some communications industry participants have also been around for decades, such as Telstra. 105 Ibid 2. Ms Catherine Smith, Assistant Secretary of the Attorney-General’s Department revealed in evidence that she has been in discussions with foreign-based platforms for at least 10 years ‘with the ones who have been around for 10 years’ (Evidence to Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Canberra, 2 November 2012, 7 (Catherine Smith)). 106 Greg Carne, ‘Beyond Terrorism: Enlarging the National Security Footprint through the Telecommunications Interception and Intelligence Services Legislation Amendment Act 2011 (Cth)’ (2011) 13(2) Flinders Law Journal 177, 178–179. 107 Department of the Prime Minister and Cabinet (Cth), Annual Report 2010–2011, Chapter 4, National Security Chief Information Office/Cyber Policy Coordinator. 108 Malcolm Turnbull, ‘A Strong and Secure Australia’ (Media Release, 18 July 2017). Prime Minister Malcolm Turnbull and others announced sweeping structural changes to the national security community following the review of the Australian Intelligence Community, including among other things: 59 The lexicon may have shifted away from the Labor Government’s concept of the national security community, and different terms may now be used to describe the reach of that community,109 but its essence remains the same—it signifies the formal and informal governance networks, structures and processes for coordinating national security in Australia.
B Key Industry and Government Participants in the Communications Sector Component of the National Security Community
As already noted, the economic, social and political context in which national security policy and coordination is administered within the Australian communications sector is characterised by digitisation and technological change in the provision of services, but relative stability in its networks, structures and processes, which include the largest economic participants in the communications sector.110 As set out in Section A of this chapter, subtle changes to the structure of the communications industry since the 1990s have not dislodged the networks, relationships, forums and consultative committees that characterise the administration of national security law, policy and coordination.
establishing an Office of National Intelligence; transforming the Australian Signals Directorate into a statutory agency within the Defence Portfolio; and creating a new portfolio known as Home Affairs, of immigration, border protection, domestic security and law enforcement. 109 For example, Malcolm Turnbull used the word ‘federation’ to describe the strategic planning and support function of the new Home Affairs portfolio: ‘The new Home Affairs portfolio will be similar to the Home Office of the United Kingdom: a central department providing strategic planning, coordination and other support to a “federation” of independent security and law enforcement agencies including the Australian Security Intelligence Organisation, the Australian Federal Police, the Australian Border Force and the Australian Criminal Intelligence Commission’ (Malcolm Turnbull, ‘A Strong and Secure Australia’ (Media Release, 18 July 2017)). 110 In the 2015–2016 reporting period, the fixed line section of the telecommunications market was dominated by Telstra; in the mobile market, the three major providers, Telstra, Optus and Vodafone, continued to hold the majority of the market (Australian Communications and Media Authority (Cth), above n 11, 19). 60 Despite the rhetoric of continuous change111 and ‘permanent whitewater’,112 examination of public record sources shows consistency in the membership of industry consultative committees, stability in the personnel who appear before parliamentary committees of inquiry and scrutiny and predictability about how matters will be dealt with in those contexts.
1 Government Participants
National security policy and coordination, communications services and communications industry participants fall under the heads of power of the
Commonwealth Government, as set out in section 51 of the Australian Constitution.113
As a consequence, the administration of national security law, policy and coordination in the communications sector, for the most part, is carried out by Commonwealth public servants, the majority of whom are employed by departments or agencies regulated under the Public Governance, Performance and Accountability Act 2013 (Cth).114
Domestically, in the communications sector, the administration of national security law, policy and coordination is principally carried out by the AGD, Australia’s internal security agency, ASIO and the communications regulator, ACMA. The AFP has an operational role. The communications portfolio, now the Department of
111 Commonwealth, Parliamentary Debates, House of Representatives, 13 June 2017, 6173 (Malcolm Turnbull). 112 Chris Chapman, ‘CommsDay Summit’ (Speech delivered at the CommsDay Summit, Sydney, 21 April 2015) 3. 113 Australian Constitution, s 51(v) – postal, telegraphic, telephonic and other like services; s 51(vi) – military defence; s 51(xx) – foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth. 114 There is some State-based participation in the communications security sector, but this thesis has limited itself to the Federal sphere. 61 Communications and the Arts, has a policy role where crossovers with communications sector issues occur.115
However, of the government actors involved in communications sector security, only
ASIO, the AGD and the AFP are considered national security agencies.116 The list of national security agencies on the government’s national security website clouds the extent of the reach of national security law, policy and coordination across multiple levels of the economy and society. It is at odds with the explanations of the national security community in Section B. Both McCarthy and Shanahan noted that the cohesion of these communities is not created by the formal frameworks that seek to limit influence and dialogue between participants.117 McCarthy emphasised that a community is made up of a variety of participants, some of whom may not have formal powers, but who are nonetheless influential and powerful in that community.118
A narrowly defined national security community will not register the power and influence of individuals, organisations and government entities not included in the definition, and this may have a profound influence on outcomes. ACMA is not included in the narrow construction of the national security community and, in this view, its role is merely ancillary or subordinate to the core national security community because it does not make policy in this area, despite its specific operational role. ACMA is
115 For example, the telecommunications sector security reforms announced on 26 June 2016 was a joint announcement—although the reform process itself has been conducted through the AGD. See
In the context of this study, a broad conception of the national security community is desirable; one that includes ACMA because of its enduring, long standing relationships within the communications sector in coordinating, advising and regulating national interest matters, and its statutory role in coordinating aspects of national security law and policy.120 Although ACMA shares its compliance role with the AGD in the administration of the national security legal obligations of the telecommunications industry and the broadcasting industry, it is wholly responsible for enforcement of those obligations. In addition, ACMA monitors compliance and arbitrates disputes about telecommunications interception capability between the AGD and industry participants.
For broadcasters, ACMA enforces codes of conduct and program standards and, in the online environment, it enforces content classification legislation and guidelines.
Until 2007, ACMA, and its predecessor, the Australian Communications Authority
(ACA), held responsibility for the greater part of national security coordination in the communications sector. In 1997, statutory obligations were imposed on carriers and
CSPs to provide reasonably necessary assistance and interception capability.121 For 30 years, the communications regulator administered the national interest obligations of carriers and CSPs under the telecommunications legislation within its remit. The AGD had a coordinating role through the office of the Communications Access Coordinator
(CAC) (previously known as the agency coordinator), housed within the AGD. After
119 Chris Cheah, ‘Safety Agencies and the ACMA—The Australian Communications and Media Authority and the Public Safety Sector’ (Speech delivered at the Association of Public-Safety Communications Officials (APCO), Australasia 10th Annual Conference, Adelaide, 13 March 2013). 120 Ibid. 121 Dale Boucher, ‘Telecommunications Interception Review—Review of the Longer Term Cost- Effectiveness of Telecommunications Interception Arrangements under Section 332R of the Telecommunications Act 1997’ (Report, Australian Communications Authority (Cth), June 1999) 125. 63 2007, ACMA’s role was significantly reduced, following the enactment of the TIA Act.
The AGD assumed responsibility for the majority of the interception capability requirements that had been shifted into the TIA Act by the 2007 amending legislation.
Interception capability is, for the most part, still determined by contractual negotiation between the relevant service provider and the relevant law enforcement agency or security agency. ACMA retained its mediator and arbitrator role after the legislative reforms of 2007. It mediates and arbitrates disputes between industry and law enforcement agencies and the security agencies over interception capability and data retention.122 ACMA’s duties include monitoring industry compliance with the interception capability requirements and reporting annually on both compliance and the number of requests for customer information, as held in the Integrated Public Number
Database.123 ACMA also runs the Communications Security Enforcement Roundtable
(CSER), one of the principal governance mechanisms associated with the administration of communications sector security.
In terms of content regulation, the communications portfolio manages classification law and policy for the federal government, including managing the cooperative framework for classification across the states and territories through the Council of Attorneys-
General.124 ACMA administers internet content regulation contained in Schedules 5 and
7 of the BSA and broadcasting content for broadcasting and narrowcasting services.
This regulation deals with ‘refused classification’ (RC) material found on the internet,
122 The ACMA’s compliance and enforcement powers are set out in the Telecommunications (Interception and Access) Act 1979 (Cth) pt 5. 123 ACMA reports on its national interest responsibilities in its Annual Report and in the Communications Report. Its obligations are set out in the Telecommunications Act 1997 (Cth) pt 13 and the Telecommunications (Interception and Access) Act 1979 (Cth) pt 5. 124 See ‘Classification Branch’, Australian Classification
As a member of the national security community, the AGD has a wide remit to administer national security law policy and coordination,126 and it shares some of this regulatory space with the communications portfolio because of the involvement of the communications sector.127 The AGD convenes consultative forums and meetings that assist in the coordination of national security law and policy, including critical infrastructure protection,128 telecommunications interception,129 data retention,130 secret network ownership131 and matters involving the publication of sensitive national security information.132
The AGD plays a crucial role in regulatory negotiations with industry stakeholders over national security policy and coordination. The AGD’s jurisdiction over these matters
125 Classification (Publications, Films and Computer Games) Act 1995 (Cth) s 9A. 126 Attorney-General’s Department (Cth), Annual Report 2015–16 (13 September 2016) 2. 127 For example, the Department of Communications and the Attorney-General’s Department jointly chair the Telecommunications Expert’s Group, created on 25 May 2017. The group is described as ‘a high- level strategic policy group with representation from industry and Commonwealth law enforcement and security. The group scope includes: discussion of strategic national security and law enforcement issues; provision of coordinated advice to Government, individual agencies and other parties on strategic national security and law enforcement issues, which will include telecommunications interception, access to telecommunications, cyber security and national security; and development and maintenance of the Group’s awareness of the potential impact that changes to telecommunications and information technology may have on national security and law enforcement and provides advice to Government and other parties on the impact.’ See Australian Government Directory
AGD also works closely with ACMA on national security matters relating to broadcasting, as the Al-Manar Television case study below demonstrates.134
ASIO is a key member of the national security community and it plays a crucial but opaque role in the administration of national security policy and coordination in the communications sector. ASIO’s stated purpose is to ‘protect the nation and its interests from threats to security through intelligence collection, assessment, and advice for government, government agencies, and business’.135 The 2015–16 Annual Report notes that this is an updated purpose statement, designed to reflect ASIO’s contemporary stakeholder commitments and to reflect that it operates as part of a ‘networked system of relationships across Australian society and internationally’.136 ASIO’s work is connected to developments in the communications sector,137 as its internal security function runs in parallel with the technological developments and regulatory changes in the communications sector.138 No agency feels the pinch of technological change as acutely as ASIO because its functions are so closely allied and dependent on access to
133 Australian Communications and Media Authority (Cth), ‘ACMA Cyber Security Function Moves to the Computer Emergency Response Team Australia’ (Media Release, MR25/17, 30 June 2017). 134 See also Documents contained in the Attorney-General’s Department file 11/11927—National Security—Liaison with the Australian Communications and Media Authority (ACMA) (Freedom of Information release). 135 Australian Security Intelligence Organisation (Cth), Annual Report 2015–16 (27 September 2016) pt 3. 136 Australian Security Intelligence Organisation (Cth), ASIO Corporate Plan 2016–17 (2016) 6. 137 The 2016–17 Corporate Plan envisages an increase in demand for ASIO’s ‘products and services’ in regard to telecommunications sector security, and continued engagement with owners of national critical infrastructure (Ibid 13). 138 Hoong Phun Lee, Peter John Hanks and Vincenzo Morabito, In the Name of National Security: The Legal Dimensions (LBC Information Services, 1995) 76. 66 data and information about people in Australia and elsewhere.139 ASIO has been quite open about this fact.140 In the telecommunications interception field, ASIO is the lead agency and has its own established relationships and informal networks with industry participants outside the formal network, structures and processes set up under telecommunications and telecommunications interception legislation.141 In October
2014, legislation was passed which expanded and enhanced the statutory framework for
ASIO’s cooperative and information-sharing activities.142
The challenges that ASIO faces as a security agency in the era of convergence and global terrorism are a microcosm of the greater challenges facing the AGD, ACMA and government generally, on how to regulate the internet and other converged media.143
ASIO has an internal branch dedicated to cyber-espionage.144 and a dedicated business and government liaison unit to develop, maintain and facilitate its networks across critical infrastructure industries, which includes communications.145 To facilitate the performance of its role, ASIO participates in and, in some forums, leads the networks,
139 David Irvine, Evidence to Legal and Constitutional Affairs Legislation Committee (Senate Estimates, Parliament of Australia, Canberra, 16 October 2012) 150–151. Also, more recently, Evidence to Legal and Constitutional Affairs Legislation Committee, Senate, 25 May 2017, 183 (Duncan Lewis). 140 Australian Broadcasting Corporation, ‘For their Eyes only’, Background Briefing, 21 October 2012 (Di Martin)
ASIO’s role in the administration of national security policy and coordination in the communications sector can be gleaned from public record sources. ASIO regularly makes its unclassified submissions available on the public record through its public reporting obligations,147 which has been a marked attempt to achieve greater transparency and scrutiny around its functions in recent years. In order to understand the influence of ASIO on the administration of national security policy and coordination in the communications sector, it is productive to examine their submissions and statements on the public record. For example, in its Report to Government for 2009/2010, ASIO noted that:
ASIO, in its role as lead agency on telecommunications interception, had confidential meetings with a wide range of telecommunications companies. In 2010, ASIO provided industry-wide briefings on some of the challenges of telecommunications interception as part of the AGD-hosted National Telecommunications Interception Conference. This forum also provided the opportunity to discuss development of policy and regulatory issues.148
The Attorney-General has designated it the ‘lead agency’ in regard to technical advice relating to telecommunications interception.149 The practical effect of this designation is that it is ASIO that negotiates with telecommunications companies over interception capability and requirements.150
146 Tom Sherman, ‘Telecommunications (Interception) Act 1979—Report of the Review of Named Person Warrants and Other Matters’ (Attorney-General’s Department (Cth), June 2003) 14–15; Evidence to Legal and Constitutional Affairs Legislation Committee, Senate, Canberra, 13 May 2013, 92 (David Irvine, Director-General of Security). 147 For example, ASIO’s annual unclassified report to Parliament, Annual Report, Corporate Plan and other public documents. 148 Australian Security Intelligence Organisation (Cth), ASIO Report to Parliament 2009–2010 (2010) 42. 149 Ibid 41. 150 Ibid. 68 Other government agencies and departments, at both state/territory and commonwealth levels, have roles to play in the administrative structures and processes. This includes the Department of Defence and the defence intelligence agencies, such as the Defence
Intelligence Organisation and the Australian Signals Directorate. The communications portfolio also plays a role in the development and administration of communications sector security policy.151 There are numerous smaller agencies and organisations that factor into the administrative arrangements, such as those relating to the governance of cyber security. The Department of the Prime Minister and Cabinet coordinates ‘whole- of government’ policy on national security, with the National Security Committee of
Cabinet being the main policy forum.
2 Industry Participants
A significant question is, should the concept of the national security community be broadened even further to include industry participants? Communications industry participants play a strategic role in national security law, policy and coordination, participating in consultative committees, forums and other governance networks, processes and structures. The largest telecommunications industry participants, Telstra,
Optus and Vodafone, and the industry associations, principally the Communications
Alliance (CA), the Australian Mobile Telecommunications Association (AMTA) and the Australian Information Industry Association (AIIA), appear to have a representational monopoly over interactions with government within the Australian communications sector. There are a number of smaller participants in the industry, such
151 For example, DBCDE chaired a meeting on 22 May 2013 regarding the use of s 313 of Telecommunications Act 1997 (see Evidence to Environment and Communications Legislation Committee, Senate, Canberra, 30 May 2013, 14–15 (Abdul Rizvi)). In 2014, it was reported in The Australian newspaper that the Communications Minister, Malcolm Turnbull, was not invited to the National Security Committee of Cabinet meeting (see Dennis Shanahan, ‘Cabinet Tension on Terror Laws’, The Australian (online), 7 August 2014). The author notes ‘during the Howard government years, then communications minister Helen Coonan was called into the NSC when legislation was being prepared to restrict some internet activities.’ 69 as iiNet and Macquarie Telecom, who are starting to make separate public statements about communications sector security.152 For the most part, the CA, AMTA, AIIA and the largest telecommunications carriers seek to influence the regulatory agenda with government.
In the ISP part of the sector, the Internet Industry Association (IIA) used to represent a broad cross-section of that part of the industry. In 2014, the IIA ceased operation as a separate organisation to the CA, which assumed responsibility for the core functions of the IIA.153 The CA administers the industry codes developed by the IIA. Now, the online and internet industry representation is more fragmented.154 In the broadcasting and print media parts of the sector, the largest economic stakeholders are free-to-air broadcasters, Channel 7, Channel 10, Channel 9 and subscription television provider,
Foxtel, and their respective industry association representatives. Free TV and the
Australian Subscription Television and Radio Association (ASTRA) also feature as part of the regulatory structure.155 In the print media sector, News Limited and Fairfax
Media are the dominant print and online media players. The publicly funded broadcasters, the ABC and the SBS, play a tangential role. The Australian Press Council and Media Entertainment and Arts Alliance are key stakeholders in the print media part of the sector, providing its self-regulatory structure.
The development of the last decade has been the rise of new media stakeholders, such as
Google, Facebook and Twitter, whose influence and importance in the administration of
152 Evidence to Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, 27 September 2012, 47–55 (Stephen Dalby). 153 See internet service provider industry representation on
Intelligence and Security (PJCIS) inquiry into potential reforms of national security legislation in 2012.157 These new stakeholders were an important part of the discussions between the AGD and industry on data retention.158
IV CONCLUSION
The roles and influences of the government and industry participants with a
‘representational monopoly’159 varies, depending on the issues under consideration and the context in which the issues arise. The case studies further explore the role of each of the main participants and examine how the national security community works in practice in the networks, structures and processes of national security law and policy coordination. The analysis in the case studies draws upon Hysing’s work on the indicators of government to governance, as discussed in the following chapter, Chapter
Three.
156 Robert McClelland, ‘Launch of National Cyber Security Awareness Week’ (Joint Press Conference, 6 June 2010); ‘Facebook Hits Back in Spat with Australian Federal Police’, The Australian (online), 31 May 2010. On Facebook’s relationship with law enforcement, see Sanja Milivojevic, ‘Social Networking Sites and Crime: Is Facebook More Than Just a Place to Procrastinate?’ (Paper presented at the Australian and New Zealand Critical Criminology Conference 2010, Sydney, 2010) 3–4. 157 Facebook, Google, eBay and Yahoo! are members of the Digital Policy Group. It was in this context that those new media companies made their submissions to the Parliamentary Joint Committee on Intelligence and Security’s Inquiry into Potential Reforms of National Security Legislation. See Australian Interactive Media Industry Association, Digital Policy Group, Submission No 198 to Parliamentary Joint Committee on Intelligence and Security, Inquiry into Potential Reforms of National Security Legislation, 7 September 2012, 2. 158 Bernard Keane, ‘Revealed: Who the Government Talked With on Data Retention Plans’, Crikey (online), 2 November 2012. 159 T Novitz and P Syrpis, ‘Assessing Legitimate Structures for the Making of Transnational Labour Law: The Durability of Corporatism’ (2006) 35(4) Industrial Law Journal 367, 371; Lucio Baccaro, ‘What is Alive and What is Dead in the Theory of Corporatism’ (2003) 41(4) British Journal of Industrial Relations 683, 684. 71 CHAPTER THREE KEY CONCEPTS, THEMES AND HYSING’S INDICATORS OF GOVERNMENT TO GOVERNANCE
The previous chapter, Chapter Two, sketched the historical development of the national security community concept and key influential actors. This chapter further elaborates on the theoretical framework, defining key concepts and terminology. Further justification is provided for the choice of theoretical framework—Erik Hysing’s work on the indicators of government to governance—to explain why it is helpful in critically assessing the field of national security law, policy and coordination in Australia.
Hysing’s generic indicators of government to governance are used selectively to assist in drawing out the dynamic, variable and complex nature of governing the communications sector in coordinating national security law and policy within the communications regulatory framework. The indicators of government to governance are not prescriptive but have been selected on the basis of relevance to the regulatory setting, and assist in framing the discussion in the case studies to follow. However, the approach of the thesis to the literature is not based on Hysing alone. In this chapter, a broad range of interdisciplinary theoretical, legal and policy-oriented scholarship is reviewed, on which the analysis in the later chapters will draw.
I THEORETICAL FRAMEWORK
A Post-September 11 National Security Law and Policy Literature and the Gap concerning Communications Regulation
The scholarly analysis of national security law and policy in Australia includes a vast amount of academic literature, published since 2001, on anti-terrorism and counter-
72 terrorism law.1 International scholarship is also of relevance.2 Broadly put, this field is dominated by, first, a public law discourse about human rights3, privacy and freedom of speech4 and second, by scholars from international relations and strategic, defence and national security studies. National security is commonly framed in terms of Australia’s place in the international world order and actual and perceived threats to its sovereignty.5 Traditionally, many of these scholars have focused on analysing how
Australia might strategically combat those threats6 but, increasingly, this focus is being perceived as too narrow and limiting. This has gradually led to calls for new ways of thinking about national security issues.7
1 For example, Ben Golder and George Williams, ‘What is “Terrorism”? Problems of Legal Definition’ (2004) 27(2) UNSW Law Journal 270; Ben Golder and George Williams, ‘Balancing National Security and Human Rights: Assessing the Legal Response of Common Law Nations to the Threat of Terrorism’ (2006) 8(1) Journal of Comparative Policy Analysis: Research and Practice 43; George Williams, ‘A Decade of Australian Anti-Terror Laws’ (2011) 35(3) Melbourne University Law Review 1136; Edwina MacDonald and George Williams, ‘Combating Terrorism: Australia’s Criminal Code since September 11, 2001’ (2007) 16(1) Griffith Law Review 27; Edward Santow and George Williams, ‘Terrorism Threat Assessments: Problems of Constitutional Law and Government Accountability’ (2012) 23 Public Law Review 23; Andrew Lynch, Nicole McGarrity and George Williams, ‘The Proscription of Terrorist Organisations in Australia’ (2009) 37(1) Federal Law Review 1; Ben Saul, ‘Speaking of Terror: Criminalising Incitement to Violence’ (2005) 28(3) UNSW Law Journal 868; Jenny Hocking, Terror Laws: ASIO, Counter-Terrorism and the Threat to Democracy (UNSW Press, 2004); Andrew Lynch, ‘Legislating with Urgency—The Enactment of the Anti-Terrorism Act (No 1) 2005’ (2006) 30(3) Melbourne University Law Review 747; Andrew Lynch and Alexander Reilly, ‘The Constitutional Validity of Terrorism Orders of Control and Preventative Detention’ (2007) 10(1) Flinders Journal of Law Reform 105. 2 Again, the literature is voluminous. For a review of the international terrorism literature up to 2008, see Andrew Silke, ‘Research on Terrorism—A Review of the Impact of 9/11 and the Global War on Terrorism’ in Hsinchin Chen, Edna Reid, Joshua Sinai, Andrew Silke and Boaz Ganor (eds), Terrorism Informatics: Knowledge Management and Data Mining for Homeland Security (Springer, 2008) 27–50; Williams, above n 1. 3 Greg Carne, ‘Beyond Terrorism: Enlarging the National Security Footprint through the Telecommunications Interception and Intelligence Services Legislation Amendment Act 2011 (Cth)’ (2011) 13(2) Flinders Law Journal 229. 4 See Chapter One. This is discussed further below. 5 Hugh White, ‘The Idea of National Security: What Use is it to Policymakers?’ in National Security College Occasional Paper No 3 (Australian National University, April 2012); Ross Babbage, ‘National Security Studies: What are the Distinguishing Features?’ in National Security College Occasional Paper No 3 (Australian National University, April 2012). 6 For example, Andrew O’Neil, ‘Conceptualising Future Threats to Australia’s Security’ in National Security College Occasional Paper No 3 (Australian National University, April 2012) 39. 7 See, for example, White, above n 5; O’Neil, above n 6; Babbage, above n 5. These writers understand that a new approach is needed to national security that is more inclusive and considers more than just defence and international relations. 73 The Australian literature has considered the underlying administrative structure and processes that give effect to government policy on national security issues.8 The topics of accountability, transparency and imposing limits on the executive’s policies have been the subjects of research9 and research is occurring in the field of public management and administration on public sector networks in the field of national security.10
When Australians talk of national security, they do not obviously consider how and what an ISP, a telecommunications provider or a television network might contribute to the maintenance of Australia’s national security. This is because, as mentioned above, academic and popular discussion of national security, as it relates to media and communications, is mostly framed in terms of a rights-based narrative. The focus is on the liberal democratic values perceived to be under threat—such as privacy,11 free speech12 or freedom of the press.13 The role of journalists has been extensively researched in Australia, and elsewhere, in the context of the effect of national security laws on their work.14
8 Saul, above n 1, 93–118; Carne, above n 3. 9 For example, Golder and Williams, above n 1. 10 Chad Whelan, ‘Managing Dynamic Public Sector Networks: Effectiveness, Performance, and a Methodological Framework in the Field of National Security’ (2015) 18(4) International Public Management Journal 536. 11 For example, see Roger Magnusson, ‘Privacy, Surveillance and Interception in Australia’s Changing Telecommunications Environment’ (1999) 27(1) Federal Law Review 33; Sharon Rodrick, ‘Accessing Telecommunications Data for National Security and Law Enforcement Purposes’ (2009) 37(3) Federal Law Review 375; Niloufer Selvadurai and Rizwanul Islam, ‘The Expanding Ambit of Telecommunications Interception and Access Laws: the Need to Safeguard Privacy Interests’ (2010) 15(3) Media and Arts Law Review 378; Molly Tregoning, ‘A New Panopticon: Surveillance and Privacy After September 11’ (2004) 9(3) Media and Arts Law Review 169. 12 For example, see Anthony Bergin and Raspal Khosa, ‘The Australian Media and Terrorism’ (Strategic Paper, Australian Strategic Policy Institute, 16 August 2007). 13 Lawrence McNamara, ‘Closure, Caution and the Question of Chilling: How have the Australian Counter-Terrorism Laws affected the Media?’ (2009) 14(1) Media and Arts Law Review 1. 14 For example, Piers Robinson, Philip Seib and Romy Fröhlich, Routledge Handbook of Media, Conflict and Security (Routledge, 2016); Jacqui Ewart, Mark Pearson and Joshua Lessing, ‘Anti-Terror Laws and the News Media in Australia Since 2001: How Free Expression and National Security Compete in a Liberal Democracy’ (2013) 5(1) Journal of Media Law 104. 74 Similarly, scholarly analysis of the communications sector and its regulation has primarily touched on the effect of national security law and policy regarding special issues, such as surveillance technologies,15 telecommunications data and privacy,16 free speech,17 censorship,18 the work of journalists,19 cybersecurity20 and trial process.21 The role of communications industry corporate participants is not usually considered in this literature. If corporate participants are mentioned, their role is treated as ancillary22 or self-evident.23 The communications industry is considered under the broad topic of critical infrastructure protection.24
15 Katina Michael, ‘The Social Implications of Information Security Measures on Citizens and Business’ (Paper presented at the First Workshop on the Social Implications of National Security, Wollongong, 2006); Katina Michael and M G Michael, ‘Historical Lessons on ID Technology and the Consequences of an Unchecked Trajectory’ (2006) 24(4) Prometheus 365; M G Michael and Katina Michael, ‘National Security: The Social Implications of the Politics of Transparency’ (2006) 24(4) Prometheus 359. 16 See for example, Rodrick, above n 11. 17 Saul, above n 1; Williams, above n 1. 18 Williams, above n 1, 382–391. 19 McNamara, above n 13. 20 For example, Johannes M Bauer and Michel J G van Eeten, ‘Cybersecurity: Stakeholder Incentives, Externalities, and Policy Options’ (2009) 33(10–11) Telecommunications Policy 706; Andrew Davies, ‘Your System Might Be At Risk—Australia’s Cyber Security’ (Strategic Paper, Australian Strategic Policy Institute, 31 May 2011); Richard J Harknett and James A Stever, ‘The New Policy World of Cybersecurity’ (2011) 71(3) Public Administration Review 455; J R Santos, Y Y Haimes and C Lian, ‘A Framework for Linking Cybersecurity Metrics to the Modeling of Macroeconomic Interdependencies’ (2007) 27(5) Risk Analysis 1283; Russell G Smith and Peter Grabosky, ‘Cyber Crime’ in Andrew Goldsmith, Mark Israel and Kathleen Daly (eds), Crime and Justice: A Guide to Criminology (Lawbook Co, 3rd ed, 2006). 21 See ‘Coping With Economic Integration: Corporatist Strategies in Germany and Austria in the 1990s’ 23(3) West European Politics 67; Mark Rix, ‘Counter-terrorism and Information: The NSI Act, Fair Trials, and Open, Accountable Government’ (2011) 25(2) Continuum: Journal of Media and Cultural Studies 285; Nicola McGarrity and Edward Santow, ‘Anti-Terrorism Laws: Balancing National Security and a Fair Hearing’ in Victor Ramraj, Michael Hor, Kent Roach and George Williams (eds), Global Anti- Terrorism Law and Policy (Cambridge University Press, 2nd ed, 2012) 122. 22 For example, McNamara, above n 13. 23 For example, Rodrick, above n 11. 24 For example, Nigel Wilson, ‘Australia’s National Broadband Network—A Cybersecure Critical Infrastructure?’ (2014) 30(6) Computer Law & Security Review 699; Arjen Boin and Denis Smith, ‘Terrorism and Critical Infrastructures: Implications for Public–Private Crisis Management’ (2006) 26(5) Public Money & Management 295; Jim Norton, ‘The Crisis in Our Critical National Infrastructure’ (2007–2008) 14(4) Public Policy Research 244; Myriam Dunn-Cavelty and Manuel Suter, ‘Public– Private Partnerships Are No Silver Bullet: An Expanded Governance Model for Critical Infrastructure Protection’ (2009) 2(4) International Journal of Critical Infrastructure Protection 179; Cristina Alcaraz and Sheralia Zeadally, ‘Critical Infrastructure Protection: Requirements and Challenges for the 21st Century’ (2015) 8 International Journal of Critical Infrastructure Protection 53; Bill Lane, Stephen Corones, Susan Hedge and Dale Clapperton, ‘Freedom of Information Implications of Information Sharing Networks for Critical Infrastructure Protection’ (2008) 15(4) Australian Journal of Administrative Law 193. 75 This literature is marked by the absence of research about the governance networks, structures and processes that relate media and communications companies to the work of government in the field of national security law, policy and coordination. It is common for scholarship to mount a critique of the national security framework without any significant analysis of the bureaucratic layers tasked with coordinating the relevant law and policy, which were broadly sketched in Chapter Two. The presumption is of an uncomplicated command-driven model of governance, which ignores the private actors who are key to the delivery of communications services and the fact that, without their cooperation, there would be a significant regulatory problem. In short, there is no critical understanding of the role of constructs such as the national security community as part of the governance model or of the reality that the communications regulatory framework is corporatist.
A consequence of this gap is a failure to understand and critically assess the value of the compact—or accord—between the communications industry and government on national security law, policy and coordination.25 The presumption that the national security community can be narrowly defined and delineated with reference to sketches of formal command structures prevents a deeper understanding of the governance relationships at play in any one situation and the implications of the existence of these broader regulatory connections.
25 The relationship between industry and governments on national security policy and coordination has been considered in the literature on critical infrastructure protection and cooperative security policy. See for example, Wilson, above n 24, 704; Dunn-Cavelty and Suter, above n 24; Alcaraz and Zeadally, above n 24. 76 B The Role of Legal Rules in Coordinating National Security Law & Policy in the
Australian Communications Sector
In the communications regulatory space, concerns about national security are manifested in legal rules in the telecommunications legislation,26 in broadcasting legislation27 and program standards28 and in film and literature classification legislation.29 These rules apply to communications industry stakeholders, telecommunications companies, broadcasters, ISPs and internet content hosts.30 For example, the concern about who controls telecommunications carriers is subject to a requirement for new carrier licensees to be security checked.31 In regard to the need to gather evidence and intelligence, the TIA Act imposes obligations on carriers and CSPs to cooperate with law enforcement and national security agencies.32
In regard to the commission of terrorism offences, such as recruitment, fundraising and advocacy, the anti-terrorism narrowcasting standards prohibit open and subscription narrowcasting television services from broadcasting programs that recruit or solicit funds for a listed terrorist or advocate the doing of a terrorist act.33 Both broadcasters and ISPs are regulated by the requirements of Section 9A of the Classification
(Publications, Films and Computer Games) Act 1995, which restricts the dissemination
26 Telecommunications Act 1997 (Cth) pts 14–15; Telecommunications (Interception and Access) Act 1979 (Cth) pt 5. 27 Broadcasting Services Act 1992 (Cth). 28 Broadcasting Services (Anti-terrorism Requirements for Open Narrowcasting Television Services) Standard 2011 and the Broadcasting Services (Anti-terrorism Requirements for Subscription Television Narrowcasting Services) Standard 2011. 29 Classification (Publications, Films and Computer Games) Act 1995 (Cth) s 9A. 30 Broadcasting Services Act 1992 (Cth) schs 5, 7. 31Communications Legislation Amendment Act (No. 1) 2004 (Cth), which amended the Telecommunications Act 1997 (Cth) and the Telecommunications (Interception and Access) Act 1979 (Cth) to make new carrier licensees subject to a security check by ASIO. 32 Telecommunications (Interception and Access) Act 1979 (Cth) pt 5; Telecommunications Act 1997 (Cth) pt 14, s 313. 33 Broadcasting Services (Anti-terrorism Requirements for Subscription Television Narrowcasting Services) Standards 2011, pt 3; Broadcasting Services (Anti-terrorism Requirements for Open Television Narrowcasting Services) Standards 2011, pt 3. 77 of films and publications advocating terrorist acts. Previous government efforts to introduce an ISP mandatory filtering policy were motivated, in part, by concerns about terrorism-related material being made available on the internet,34 reflecting similar concerns being raised in Europe and elsewhere.35
These laws reflect the operational interdependence between communications regulation and national security policy and coordination outcomes, in the sense that outcomes are dependent on the effectiveness of the regulatory mechanisms and partnerships between communications industry participants and government. For example, detecting and acting upon terrorist activity through access to and use of communications data and content is dependent on the efficacy of the regulatory mechanism around the exchange of that information.36 As Senator Mark Bishop remarked during the senate debates on the Telecommunications (Interception and Access) Amendment Bill 2007, ‘without the carriers’ obligations to provide access to information on either data or content, no such scheme would be possible’.37
The development of social media creates additional regulatory complications. For example, the social networking platform, Facebook, has a history of poor cooperation with law enforcement agencies.38 These new media players have different cyber-
34 The filter was primarily concerned with blocking child abuse material, but other forms of prohibited content were to be covered under the ‘refused classification’ category in the Classification (Publications, Films and Computer Games) Act 1995. See
Digital capabilities, in short, are distributed among a wider variety of users, including other sovereign states, privacy-loving individuals and profit- maximising corporations, each with different legal understandings, interpretative frameworks, and their own security agendas. Perhaps the most fundamental challenge the state faces in this context then, is a loss of its exclusive privilege to define ‘threats’ and a comparable decline in the mystique formerly surrounding ‘national security’.41
Google’s release of its ‘transparency report’,42 which documents, among other things, the number of government requests for information about Google users on a country- by-country basis, is an example of such ‘a comparable decline in the mystique formerly surrounding national security’.43 Google’s rationale for releasing the data was increased transparency and openness for Google users, even though there was no legal
39 Kathy Bowrey, Law and Internet Cultures (Cambridge University Press, 2005) 171–199, 54; ‘Turnbull Plans to Force Tech Giants to Decrypt Messages’, News.com.au (online), 14 July 2017. On 14 July 2017, in a joint press conference with the Attorney-General and Acting Commissioner of the AFP about the proposed ‘decryption’ legislation, Prime Minister Malcolm Turnbull said ‘[l]ook, I’m not suggesting this is not without some difficulty. As I have said, you would have heard me say when I was in Europe, that there is a culture particularly in the United States, a very libertarian culture, which is quite anti- government in the tech sector’ (Malcolm Turnbull, ‘Press Conference with the Attorney-General, Senator The Hon George Brandis QC and the Acting Commissioner of the Australian Federal Police, Mr Michael Phelan APM’ (Press Conference, 14 July 2017)). 40 Three reviews of the Parliamentary Joint Committee on Intelligence and Security have raised this issue: Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Inquiry into Potential Reforms of National Security Legislation (2013); Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Advisory Report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 (2015); Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Review of the Telecommunications and Other Legislation Amendment Bill 2016 (Report, 2017). 41 Diana Saco, ‘Colonising Cyberspace: National Security and the Internet’ in Jutta Weldes, Mark Laffey, Hugh Gusterson and Raymond Duvall (eds), Cultures of Insecurity: States, Communities and the Production of Danger (University of Minnesota Press, 1999) 289. 42 See Google, Transparency Report (2011)
In 2010, a mass media campaign by state and federal law enforcement agencies was launched against Facebook’s ‘woeful relationship with law enforcement bodies’.46
According to The Australian newspaper, the problem was rectified in 2011, with the appointment of an Australian policy and regulatory contact person.47 What is clear is that an accord between Facebook and the national security community has not formed.
In June 2017, the Turnbull government commenced a public relations campaign aimed at socialising its proposed legislative reforms for ‘imposing obligations of cooperation’ on OTT providers.48
Transnational entities such as Facebook, Twitter and Google are neither carriers nor
CSPs as defined by the Telecommunications Act 1997 (Cth), whereas other service providers such as Skype are CSPs because of the carriage of communications component of their service.49 Technology lawyer Peter Leonard pointed out that the
44 Other companies have followed suit, the most recent being US telecommunications company, Verizon. See ‘Verizon Publishes First Transparency Report on Data Requests’, The New York Times (online), 22 January 2014. 45 Richard Spinello, ‘Google in China: Corporate Responsibility on a Censored Internet’ in Alfreda Dudley, James Braman and Giovanni Vincenti (ed), Investigating Cyber Law and Cyber Ethics: Issues, Impacts and Practices (Information Science Reference, 2012) 239, 241–242; Clive Thompson, ‘Google’s China Problem (and China’s Google Problem)’, The New York Times Magazine (online), 23 April 2006; Tania Branigan, ‘Google Row: China’s Army of Censors Battles to Defeat the Internet’, The Guardian (online), 24 March 2010; Craig McMurtrie, ‘Google to Bypass China’s “Great Firewall” ’, The Australian Broadcasting Corporation (online), 23 March 2010; Tanya Branigan, ‘Google angers China by shifting service to Hong Kong’, The Guardian (online), 23 March 2010. 46 Patrick Gray, ‘Facebook Hindering the Police’, The Sydney Morning Herald (online), 26 May 2010. Facebook responded in kind: Caitlin Fitzsimmons, ‘Facebook Hits Back in Spat with Australian Federal Police’, The Australian (online), 31 May 2010. 47 James Chessel, ‘Facebook Hires Conroy Staffer in a Bid to Repair Relations’, The Australian (online), 10 August 2011. 48 Rachel Baxendale, ‘Brandis Proposes Decryption Laws for Terror Suspects’ Messages’, The Australian (online), 11 June 2017. 49 Peter Leonard, ‘Mandatory Internet Data Retention in Australia—Evidentiary Uses and Challenges’ (Report, Gilbert & Tobin and diGiTal, March 2016) 15. 80 definition of ‘carrier’ under the TIA Act is broader than under the Telecommunications
Act 1997 (Cth), resulting in most of the interception regime being applicable to CSPs.50
OTT services provided by carriers or CSPs may be subject to section 313 requests, under the Telecommunications Act 1997 (Cth), for reasonably necessary assistance made to the carrier or CSP.51 However, the carriers and CSPs dispute their ability to provide reasonably necessary assistance or interception capability in regard to OTT services.52 Platforms such as Google, Facebook and Twitter are considered ‘ancillary service providers’.53 They are arguably subject to the TIA Act, but the fact that the
PJCIS has recommended that this obligation needs to be formalised suggests that doubt remains.54 The committee noted that:
Although expressed as ‘extending’ the interception regime to ancillary service providers such as Facebook, Google and Twitter, the purpose of this term of reference is in fact to clarify that—as the Committee understands to be the case—the existing obligations do apply to ancillary service providers. It is not an extension of existing obligations.55
The committee then went on to recommend that:
[T]he Telecommunications (Interception and Access Act) 1979 and the Telecommunications Act 1997 be amended to make it clear beyond doubt that the existing obligations of the telecommunications interception regime apply to all providers (including ancillary service providers) of telecommunications services accessed within Australia. As with the existing cost sharing
50 Ibid 15–16. 51 Telecommunications Act 1997 (Cth) s 313. 52 See Telstra, Submission No 189 to Parliamentary Joint Committee Inquiry into Potential Reforms of National Security Legislation, August 2012, 8, 19–20. 53 Ancillary service provider is not defined in legislation. However, the Attorney-General’s Department defines ‘ancillary service provider’ as ‘companies that deliver their services over-the-top of carrier and carriage service provider infrastructure, such as social media and webmail providers, and that play a major role in the Australian telecommunications market’ (Attorney-General’s Department (Cth), Submission No 26 to Senate Legal and Constitutional Affairs References Committee, Inquiry into the Comprehensive Revision of the Telecommunications (Interception and Access) Act 1979, 12 December 2014, 13). 54 Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Report of the Inquiry into Potential Reforms of National Security Legislation (2013) 54. 55 Ibid. 81 arrangements, this should be done on a no-profit and no-loss basis for ancillary service providers.56
Changes to communications regulation in the interests of national security after 11
September 2001 have involved ‘the almost constant pattern of revision’ of the telecommunications interception framework,57 and broader amendments covering telecommunications licensing,58 classification of terrorism-related content,59 sedition,60 restrictions on press freedoms,61 secrecy,62 terrorism advocacy63 and narrowcasting content standards.64 Taken together, the list demonstrates an acceleration in security- focused communications regulation. A broader perspective is desirable so that the risks to privacy, freedom of speech and other human rights, can be better understood and, ultimately, these rights can be better defended or protected.
C Concepts, Definitions and Themes
Understanding the governance framework between the communications sector and national security law, policy and coordination requires consideration of several key concepts, which, although fairly well developed, are contested in the literature. This section introduces and defines those concepts, which are part of the theoretical framework of the thesis. The explicit linking of these concepts here and in the case studies represents part of the substantial original contribution of this thesis, in the light
56 Ibid. 57 Simon Bronitt and James Stellios, ‘Regulating Telecommunications Interception and Access in the Twenty-First Century: Technological Evolution or Legal Revolution?’ (2006) 24(4) Prometheus 413, 414. 58 Communications Legislation Amendment Act (No. 1) 2004 (Cth). 59 Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Act 2007. 60 The Anti-Terrorism Act (No. 2) 2005 (Cth). 61 National Security Information (Criminal and Civil Proceedings) Act 2005 (Cth); National Security Legislation Amendment Act (No. 1) 2014 (Cth); the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth). 62 National Security Legislation Amendment Act (No. 1) 2014 (Cth). 63 Commonwealth Criminal Code 1995 (Cth) s 102.1(1A). 64 Broadcasting Services (Anti-terrorism Requirements for Open Narrowcasting Television Services) Standard 2011; Broadcasting Services (Anti-terrorism Requirements for Subscription Narrowcasting Television Services) Standard 2011. 82 of the above background context to the development of Australian national security law, policy and coordination, the criticism of the academic construction of this field and presumptions about the role of law within it. The concepts will be utilised within the overarching theoretical framework of governance, discussed in Section D below.
The thesis uses the term communications sector to mean that part of the Australian economy that provides communications goods and services. Historically, the sector encompassed postal services, telecommunications, broadcasting and radiocommunications. Since digitalisation and the commercialisation of the internet, it has encompassed goods and services provided over the internet. It now also includes new media goods and services and social media and networking technology, goods and services. Similarly to the concepts to follow, the idea of the communications sector is rooted in economic discourse, where like services are assumed to be able to be regulated in the same way. For instance, banking, mining and supermarkets are other oligopolistic, regulated industry sectors.65 The expanded definition of the communications sector allows regulation to target the major participants in the communications space who are fairly well known. However, the use of the term communications sector in regulatory discourse suggests a coherence and stability between the relevant actors that oversimplifies the industry dynamics.66
The primary meaning of the term security, also used throughout the thesis, is as defined in the ASIO Act.67 This definition encompasses the ideas of national security and national security risk. The thesis uses the legislative definition of security because that definition has been decided via a process of democratic scrutiny and is subject to
65 Damon Kitney, ‘We Are an Oligopoly Economy: Robb—Exclusive’, The Australian (online), 19 August 2013. 66 For example, the ‘direct marketing industry’ encompasses telemarketing and e-marketing. However, this activity is fragmented across multiple sectors of the economy because businesses offering products and services use marketing techniques to sell their goods and services. 67 Australian Security and Intelligence Organisation Act 1979 (Cth) s 4. 83 democratic accountability. However, interpretation of what is encompassed within that legislative definition is not fixed. As noted above, national security encompasses subjects ranging from the defence of Australia and its institutions to climate security and food security.68 An expansive definition of security enables the concept to be stretched over a range of activities, industries and parts of civil society.
In the thesis, the term administration means the networks, structures and processes that the Australian federal government uses to regulate communications industry participants when managing national security law, policy and coordination.
Administration is as much about the political process as it is about the legal process.
ACMA refers to administration and regulation in terms of ‘regulatory practice’.69
However, administration entails the study of the exercise of government power,70 of which the concept of regulatory practice is a part. These terms are used interchangeably throughout the thesis.
The term regulation is used throughout the thesis. As noted in Chapter One, regulation is a broad concept, of wide appeal, and it is the subject of extensive academic study.71
Drahos and Braithwaite studied the international regulation of telecommunications in
Global Business Regulation, noting that it was a domain in which regulation globalised early, and in which the principle of deregulation dominated.72 Jill Hills, a professor of communications policy, referring to regulation in the telecommunications industry, explained that:
68 Department of the Prime Minister and Cabinet (Cth), ‘Strong and Secure: A Strategy for Australia’s National Security’ (Strategic Paper, 2013)
The Australian Government defines regulation narrowly as ‘any rule endorsed by government where there is an expectation of compliance’.74 Clearly, however, regulation encompasses a much broader idea. Governments regulate with and without directly exercising their statutory powers.75 The term is used in this thesis to ‘describe a range of government activity, mainly the system of power and rules that allows governments to control private corporations and the markets in which they operate’.76
Regulation and governance are very similar concepts. Both involve the use of mechanisms for achieving economic, legal and social control. The distinction between the two is that governance focuses more on the patterns and arrangements between actors.77 Braithwaite explained governance in terms of ‘providing, distributing and regulating’,78 whereas regulation tends to be regarded as narrower than governance, focused on ‘steering the flow of events and behaviour’.79
The thesis utilises the concepts of digitalisation and convergence. Digitalisation is a story about how technology is changing the regulatory paradigm for the
73 Jill Hills, Telecommunications and Empire (University of Illinois Press, 2007) 54, 5. 74 Department of the Prime Minister and Cabinet (Cth), The Australian Government Guide to Regulation (March 2014) 6. 75 For example, the ACMA’s Australian Internet Security Initiative (AISI) is an example of regulation without direct legislation. See, Lia Timson, ‘ACMA to Take Microsoft Infected IP Feed to Improve Fight against Cybercrime’, The Age (online), 9 May 2014. 76 Hills, above n 73, 4–5. 77 Reinhard Steurer, ‘Disentangling Governance: A Synoptic View of Regulation by Government, Business and Civil Society’ (2013) 46(4) Political Science 387, 388. 78 John Braithwaite, ‘Can Regulation and Governance Make a Difference?’ (2007) 1(1) Regulation and Governance 1, 3. 79 Ibid. 85 communications sector generally.80 Trevor Barr noted that ‘digitalization enables the transmission of all kinds of communications signals—not only voice, but data, video, graphics and music—over the network’.81 By the 1990s, most telecommunications systems had converted to digital transmission technology.82 The effect of this conversion was to enable the transmission of ‘extraordinary quantities of information in many forms’.83 Another effect of digitalisation has been the convergence of traditional media and communications technology, companies, institutions and functions.84
The term convergence is used throughout the thesis to denote ‘the dissolving of clear boundaries between formerly discrete industries’.85 The practical effect of convergence has been to challenge and blur the traditional sector-specific regulatory distinctions between broadcasting, telecommunications, radiocommunications and the internet.
Selvadurai argued that, as a result, it is no longer appropriate for different stakeholders within the sector to be subject to varying levels of regulation. This is the difficulty faced by governments around the world.86
Together, digitalisation and convergence are powerful rhetorical devices that enable the lexicon of change, instability and uncertainty to dominate the language of government and industry.87 They have resulted in legislative definitions and concepts being marked
80 See Stuart Weinstein, ‘OFCOM, Information-Convergence and the Never Ending Drizzle of Electric Rain’ (2003–2004) 8 International Journal of Communications Law and Policy 1; Niloufer Selvadurai, ‘Regulating for the Future—Accommodating the Effects of Convergence’ (2005) 13(1) Trade Practices Law Journal 20; Chris Chapman, ‘Facilitating Convergence: Australia’s Regulatory Approach’ (Speech delivered at the NCC Broadcasting and Telecomms Regulatory Forum, Taipei, Taiwan, 4 October 2007 2007); Australian Communications and Media Authority (Cth), Broken Concepts: The Australian Communications Legislative Landscape (Report, August 2011) 5. 81 Trevor Barr, newmedia.com.au: The Changing Face of Australia’s Media and Communications (Allen & Unwin, 2000) 28. 82 Ibid. 83 Ibid. 84 Ibid 22–28; Selvadurai, above n 80, 20–21. 85 Selvadurai, above n 80, 20. 86 Ibid. 87 For example, Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Report of the Inquiry into Potential Reforms of Australia’s National Security Legislation (24 June 2013) 86 as ‘broken’.88 Convergence has also provided the basis for identifying certain legislative and regulatory concepts as ‘enduring’.89 The idea of the broken concept has been picked up in other regulatory contexts, including national security policy and coordination.90
Finally, the thesis uses the term global terrorism to describe a phenomenon that has brought about legislative and policy change since 11 September 2001 in the field of national security policy and coordination.91 Its effects have filtered through into the communications sector. The vast body of national and international academic literature on this topic is testament to the effect of the concept on policy and regulatory settings.
In the US, the communications industry has played a part in assisting the US administration to achieve its national security outcomes92, but not without challenges and resistance.93
Taken together, these concepts and definitions provide part of the theoretical structure of this thesis and assist in laying the foundation for the analysis of the governance
6, 54, 69, 183; Attorney-General’s Department (Cth), ‘Equipping Australia against Emerging and Evolving Threats’ (Discussion Paper, July 2012) 3. 88 In its Broken Concepts discussion paper, the ACMA identified approximately 55 communications legislative concepts as broken or under significant pressure from convergence, including but not limited to: media diversity; Australian identity; long-term interests of end users; any-to-any connectivity; universal service; protection from unsolicited communications; broadcasting services bands licensing; influence in broadcasting; broadcasting standards and codes of practice; licence area plans; carrier licensing; co- and self-regulatory measures; carrier; carriage service provider; content service provider; internet service provider; narrowcasting service; and standard telephone service. 89 In its Enduring Concepts discussion paper, the ACMA identified 16 concepts that it considered ‘enduring’, grouping them according to ‘market standards’, which encompasses the concepts of ‘competition, quality, redress and efficiency; ‘social and economic participation’, which encompasses the concepts of access, confidence and digital citizenship; ‘cultural values’, which encompasses the concepts of diversity of voices, Australian identity, community values, localism and ethical standards; ‘safeguards’, which encompasses the concepts of protection of the public, protection of children, digital information management and the national interest. It is interesting to note that the ‘national interest’ is last on the list. Australian Communications and Media Authority (Cth), ‘Enduring Concepts— Communications and Media in Australia’ (Report, November 2011) 6–7. 90 Attorney-General’s Department, above n 87, 31. 91 Department of the Prime Minister and Cabinet (Cth), Review of Australia’s Counter-Terrorism Machinery (January 2015) 10–13. 92 Jamie S Gorelick, John H Harwood II and Heather Zachary, ‘Navigating Communications Regulation in the Wake of 9/11’ (2005) 57(3) Federal Communications Law Journal 351. 93 Appeal judgment of Circuit Judge McKeown setting aside the appellants claims that the telecommunications companies illegally provided data to the National Security Agency in Hepting v AT&T In re National Security Agency Telecommunications Records Litigation 671 F. 3d 881 (9th Cir, 2011). 87 networks, structures and processes operating in the area of national security law, policy and coordination in the communications sector, which will be examined using governance as the theoretical lens. The concepts are applied as appropriate in the case studies.
D Governance as a Theoretical Lens
From a theoretical perspective, governance has multiple strands: nodal governance, collaborative governance, interactive governance; state-centred governance, network governance, regulatory governance, corporatist governance, democratic governance; territorial governance and security governance, to mention but a few. In their theoretical works, Noam Chomsky and Jürgen Habermas have separately considered the detrimental effects of governance by corporate power to the public sphere.94 As outlined, the intention of this thesis is to provide an account of the governance networks, structures and processes in operation in the Australian communications sector, taking into account digitalisation, convergence and global terrorism. This research intersects with public law discussions about the character and power of the nation state today in coordinating national security law and policy.95 Relevant insights from governance theorists are drawn upon to characterise the nature of the relationship between government and industry in the governance frameworks operating to advance national security law, policy and coordination.
Most governance theorists agree that ‘[g]overnance signifies a change in the meaning of government, referring to a new process of governing; or a changed condition of ordered
94 P N Anderson, ‘What Rights are Eclipsed When Risk is Defined by Corporatism?: Governance and GM Food’ (2004) 21(6) Theory, Culture & Society 155, citing Noam Chomsky, Deterring Democracy (Vintage, 1992) and Jurgen Habermas, The Structural Transformation of the Public Sphere (Polity Press, 1992). 95 For example, Ian Loader and Neil Walker, Civilising Security (Cambridge University Press, 2007). 88 rule; or a new method by which society is governed’.96 Liz Fisher described governance as ‘a less hierarchical form of governing in which public and private actors have a role to play’.97 Stoker explained that, traditionally, governance was a synonym for government.98 According to Stoker:
Anglo-American political theory uses the term ‘government’ to refer to the formal institutions of state and their monopoly of legitimate coercive power. Government is characterised by the ability to make decisions and its capacity to enforce them. In particular, government is understood to refer to the formal and institutional processes, which operate at the level of the national state to maintain public order and facilitate collective action.99
The concept of governance as a counterpoint to the traditional idea of law as command entered the lexicon of legal scholarship in the 1980s.100 Harlow and Rawlings explained in Law and Administration that ‘the law/government’ divide … has given ground before the notion of “governance”—a “new process of governing; or a changed condition of ordered rule; or the new method by which society is governed” (footnote omitted)’.101
Many scholars examining governance are concerned about:
[A] transformation from hierarchical governing by nationally organised political institutions (i.e., government) to modes of governing in which a multitude of public and private actors from different policy levels govern society through networks and soft policy instruments’. (citations omitted).102
96 R A W Rhodes, ‘The New Governance: Governing without Government’ (1996) 44(4) Political Studies 652–653. 97 Elizabeth Fisher, ‘Risk and Governance’ in David Levi-Faur (ed), The Oxford Handbook of Governance (Oxford University Press, 2012) 420. 98 Gerry Stoker, ‘Governance as Theory’ (1998) 50(155) International Journal of Social Sciences 17. 99 Ibid. 100 The existence of the Journal of Law and Governance, among others, is an indicator of the acceptance of governance concepts into law, in addition to research centres and scholarship. For example, Bond University’s Centre for Law, Governance and Public Policy. See, Meredith Edwards, ‘Public Sector Governance—Future Issues for Australia’ (2002) 61(2) Australian Journal of Public Administration 51; Jason Solomon, ‘Law and Governance in the 21st Century Regulatory State’ (2008) 86 Texas Law Review 819. 101 Harlow and Rawlings, above n 70, 45. 102 Erik Hysing, ‘From Government to Governance? A Comparison of Environmental Governing in Swedish Forestry and Transport’ (2009) 22(4) Governance: An International Journal of Policy, Administration, and Institutions 647. 89 Stoker’s review of the literature provides his view of the ‘baseline agreement’ on what governance means:
Governance refers to the development of governing styles in which boundaries between and within public and private sectors have become blurred. The essence of governance is its focus on governing mechanisms, which do not rest on recourse to the authority and sanctions of government.103
For example, schools, scholarly disciplines, clubs and associations can all exist within a governance structure that does not contain government. Thus, governance can and does exist entirely on its own, in the absence of government.104
Kjaer explains that many scholars, like Kooiman, argue that adopting a governance perspective ‘means being open to the fact that public governing is not only carried out by one actor but is a shared set of responsibilities’.105 Thus, this shift in the mode of governing necessitates an expansion of the network of relevant actors exercising legal power.106 Governance scholars examining security have noted the reliance of the state on the cooperation and resources of non-state actors.107 The use of private actors in governing complicates first, any formal or top-down accounting of the legal order, and second, the traditional legal focus on the legislature and the courts as mechanisms for democratic accountability. In some of the literature on governance, the range of private actors is broad, including not only corporations and civil society groups, but also other parts of society, individuals, researchers and other groups.108 There are other narrower
103 Stoker, above n 98. 104 James Rosenau and Ernst-Otto Czempiel, Governance without Government: Order and Change in World Politics (Cambridge University Press, 1992) xii, 311; B Guy Peters, ‘Governance without Government? Rethinking Public Administration’ (1998) 8(2) Journal of Public Administration Research and Theory 223, 223–243. 105 Anne Mette Kjaer, ‘Rhodes’ Contribution to Governance Theory: Praise, Criticism and the Future Governance Debate’ (2011) 89(1) Public Administration 101, 103–104. 106 Jacob Torfing, ‘Governance Networks’ in David Levi-Faur (ed), The Oxford Handbook of Governance (Oxford University Press, 2012) 99, 100–101. 107 Elke Krahmann, ‘Conceptualising Security Governance’ (2003) 38(1) Cooperation & Conflict 5, 6. 108 Hysing, above n 102, 651. 90 forms of governance in existence, such as corporatism, which do not admit a broad range of private actors into the law and policymaking forums.109
E Corporatism as a Governance Concept
In political theory, the concept of corporatism has a long history. It describes the relationship between large economic stakeholders or industry participants and the state.
It is a theory about the influence and power of organised interests on the policymaking process. The theory has deep European and US roots, especially in the areas of politics,110 industrial relations111 and, more recently, in environmental policy112 and governance networks.113 Corporatism refers to ‘a diverse range of political economic arrangements’.114 It is a concept ‘that enjoys a range of contexts in which it can apply,’115 from authoritarian states to advanced Western industrial social democratic welfare states.116 Corporatism, as a theoretical concern, has been referred to as ambiguous and imprecise because it describes governmental practices that are far from
109 C Ansell and A Gash, ‘Collaborative Governance in Theory and Practice’ (2007) 18(4) Journal of Public Administration Research and Theory 543, 547. 110 Jane Mansbridge, ‘A Deliberative Theory of Interest Representation’ in M P Petracca (ed), The Politics of Interests: Interest Groups Transformed (Westview Press, 1993). 111 For example, Anderson, above n 94; Lucio Baccaro, ‘What is Alive and What is Dead in the Theory of Corporatism’ (2003) 41(4) British Journal of Industrial Relations 683; H M Drucker, ‘Devolution and Corporatism’ (1974) Government and Opposition 178; R Heinisch, ‘Coping with Economic Integration: Corporatist Strategies in Germany and Austria in the 1990s’ (2000) 23(3) West European Politics 67; Sheila Jasanoff, ‘Technological Innovation in a Corporatist State: The Case of Biotechnology in the Federal Republic of Germany’ (1985) 14(1) Research Policy 23; W J M Kickert, ‘Beneath Consensual Corporatism: Traditions of Governance in the Netherlands’ (2003) 81(1) Public Administration 119; Oscar Molina and Martin Rhodes, ‘Corporatism: The Past, Present, and Future of a Concept’ (2002) 5(1) Annual Review of Political Science 305; T Novitz and P Syrpis, ‘Assessing Legitimate Structures for the Making of Transnational Labour Law: The Durability of Corporatism’ (2006) 35(4) Industrial Law Journal 367. 112 Hysing, above n 102. 113 E Hysing and E Lundberg, ‘Making Governance Networks More Democratic: Lessons from the Swedish Governmental Commissions’ (2016) 10(1) Critical Policy Studies 21; Christian Hunold, ‘Corporatism, Pluralism, and Democracy: Toward a Deliberative Theory of Bureaucratic Accountability’ (2001) 14(2) Governance: An International Journal of Policy and Administration 151. 114 Ian Hampson, ‘The End of the Experiment: Corporatism Collapses in Australia’ (1997) 18(4) Economic and Industrial Democracy 539, 541. 115 Peter Williamson, Corporatism in Perspective: An Introductory Guide to Corporatist Theory (Sage, 1989) 21. 116 Hampson, above n 114, 541. 91 fixed.117 The variety of its forms reflects different historical, geographical and institutional settings.118 Scholars such as Gill119 have speculated on the utility of considering the corporatist aspects of the national security sector, but there is no
Australian research on this subject.
Internationally, corporatism has a distinctive industrial relations hue.120 In Australia, corporatism was once visible in its traditional realm, industrial relations,121 but its entrenched, structural nature across the regulated sectors of the economy122 has not been studied, especially not in the area of the communications sector and national security in
Australia. Indeed, there is little Australian political science literature that considers corporatism in Australia in any context other than industrial relations. Here, corporatism is most often discussed in connection with the economic liberalisation and industrial relations policies of the Hawke–Keating Government, the Prices and Incomes Accord
(the Accord) being its most obvious manifestation.123 Encel explained that:
Despite disagreement about the precise nature of corporatism, it is clear that it entails a high level of state intervention in economic and social affairs, in close consultation with major interest groups. Indeed, the very notion of intervention is anachronistic. No modern economy is conceivable except as a nexus of relationships between the state and the whole spectrum of organised and unorganised producers and consumers.124
This is an important observation about corporatism that reflects its governance characteristics. Encel described the necessary conditions of corporatism, where the
117 Molina and Rhodes, above n 111, 306. 118 Novitz and Syrpis, above n 111, 371. 119 Peter Gill, ‘Theories of Intelligence’ in Loch Johnson (ed), The Oxford Handbook of National Security Intelligence (Oxford University Press, 2010) 43, 48. 120 Molina and Rhodes, above n 111, 305–331. 121 Hampson, above n 114. 122 For example, Damien Cahill, ‘Labo(u)r, The Boom and the Prospects for an Alternative to Neo- liberalism’ (2008) 61 Australian Journal of Political Economy. 123 Hampson, above n 114, 545; Cahill, above n 122, 325. 124 S Encel, ‘Public Administration: Then, Now and in the Year 2000’ (1988) 47(3) Australian Journal of Public Administration 233, 239. 92 parties collaborate and cooperate with one another over a shared conception of a public good. In the case of the Accord, it was a shared conception of income policy.
As a stated goal of government, corporatism fell out of favour in Australia when the
Labor Government lost power to the Liberal Party under John Howard in 1996.125
However, as Damien Cahill noted, the Accord was more than just an agreement about wages, it was also a ‘working partnership’.126 Even though the industrial relations focus of Australian corporatism may have subsided, its general characteristics, noted by governance scholars, have not. Those characteristics are evident in the networks, structures and processes of political exchange between key economic stakeholders and government (that developed as a result of the economic liberalisation of the Hawke and
Keating years). In his 1988 C. G. Lewis Memorial Lecture, Encel noted:
Corporatism, of course, also means an active role for public administrators, but a more political and up-front role, which involves the kind of public exposure from which officials have normally shrunk. One of Patrick Cook’s cartoons in the Wilenski report shows a door marked “think tank”. Outside is a nervous-looking official holding a large handbook entitled ‘Learning to swim’. I suppose my parting message is—Get your togs on!127
Encel was referring to the general shift in the modes and style of governing that governance entails for the state, which have been highlighted by governance scholars.
The quotation also touches on governance scholars’ observations about corporatist environments; namely that the state seeks to build relationships with organisations controlling valuable resources.128 This relationship building requires the use of governance mechanisms, other than law, to achieve policy and regulatory outcomes.
Cahill has identified the relationship-building characteristics of the Accord, quoting Bill
125 Hampson, above n 114, 550. 126 Cahill, above n 122, 326. 127 Encel, above n 124, 239. 128 Baccaro, above n 111, 684–685; Hunold, above n 113, 160. 93 Kelty, the former secretary of the Australian Council of Trade Unions (ACTU). Cahill explained:
Reflecting upon the Accord in 2003, former ACTU Secretary Bill Kelty said [t]he Accord was at one end of the spectrum simply an expression of support for the Labor Party to govern. At the other end of the spectrum it was a working partnership. This highlights the dual nature of the Accord: it had a formal and an informal aspect. Both are critical in appreciating that the Accord was about more than an incomes policy (references omitted).129
Scholars of collaborative governance, such as Ansell and Gash130 and Jodi Freeman,131 regard corporatist governance as a narrow form of collaborative governance, which, in
Ansell and Gash’s work, signals less stakeholder representation. The narrowness of representation is considered a shortcoming for theorists examining corporatism from a democratic governance perspective.132 For Freeman, the dangers of corporatist governance are more pronounced, providing for the empowerment of some interests and groups over others.133 For example, in corporatist environments, it is often the case that interest groups without a representational advantage are not included in the governance networks, structures or processes.134 Freeman noted that an institutional infrastructure is necessary to support corporatism, and cited the work of David Johnson, who argued that:
Corporatist structures require a high level of interest aggregation, usually culminating in the existence and interrelationship of peak associations representing set interest groups, with the members of these groups accepting the legitimacy both of elite bargaining and decision-making by these
129 Cahill, above n 122, 326. 130 See Ansell and Gash, above n 109. 131 See Jody Freeman, ‘Collaborative Governance in the Administrative State’ (1997) 45(1) UCLA Law Review 1. 132 Hunold, above n 113, 161. 133 Freeman, above n 131, 85. 134 For example, The Hansard of the PJCIS inquiry into potential reforms of nation security legislation reveals that the Internet Society of Australia, a chapter of the Internet Engineering Task Force (IETF), the international standard setter for the Internet, is not included in the corporatist networks, structures or processes, even though they are able to provide technical expertise and assistance (Evidence to Parliamentary Joint Committee on Intelligence and Security, Senate, Sydney, 27 September 2012, 36 (Narelle Clark)). 94 associations and government and of the enforcement of the decisions so reached by the associations involved. The viability of corporatism thereby necessitates the existence of supportive cultural conditions rooted to the existence of strong interest groups, strong peak associations, respect for group politics and inter- associational decision-making, and belief in the value and importance of consensual policy-making and administration designed to serve the well-being of the groups involved as well as of the greater community.135
In other words, corporatist governance is dependent on specific kinds of networks, structures and processes for its success and legitimacy. It necessarily involves a narrow class of powerful, well-organised private interests and a shared conception of the public good. Johnson’s work indicated the conditions for corporatism to be viable and
Birkinshaw added to Johnson’s conditions by describing the ‘corporatist embrace’ as comprising ‘confidentiality, mutual protection of interest, closeted relationships and mutually beneficial bartering’.136 According to Birkinshaw, these are the ingredients of the corporatist relationship.137
A more positive assessment of corporatism as a form of democratic governance emphasises its deliberative appeal, as corporatism treats interest groups as legitimate participants in public policymaking.138 Jane Mansbridge’s work has shown how corporatism encourages negotiations and reveals the deliberative functions and processes of interest group representation in highly regulated environments.139 Novitz and Pyrsis highlighted this deliberative aspect of corporatism, noting that:
Within a corporatist structure, interest groups cooperate with each other and with public authorities in the articulation of interests, allocation of values and implementation of policy. Within a framework designed to achieve a balance
135 David Johnson, ‘The Canadian Regulatory System and Corporatism: Empirical Findings and Analytical Implications’ (1993) 8(1) Canadian Journal of Law and Society 104. 136 Patrick Birkinshaw, ‘Corporatism and Accountability’ in Andrew Cox and Noel O’Sullivan (eds), The Corporate State—Corporatism and the State Tradition in Western Europe (Edward Elgar, 1988) 52. 137 Ibid. 138 Hunold, above n 113, 160. 139 Ibid. 95 of power between two sets of opposing interests, bargaining occurs, the outcome of which is then reflected in government policy.140
The usefulness of corporatism as a governance concept to describe phenomena in specific regulatory settings takes it beyond the confines of its industrial origins.
Birkinshaw, writing in the late 1980s on corporatism and accountability in the UK, noted that:
Even though the peak tripartite form of corporatism of the 1960s and 1970s has waned, the features of the corporatist embrace which give cause for concern for the exercise of power on the public behalf have, far from being expunged, undergone a new vitality.141
This thesis seeks to tap into the vitality of corporatist governance as a theoretical basis for explaining and exploring the effect of large economic stakeholders on national security law, policy and coordination in the Australian communications sector. In the communications sector, privileged interest groups, being the industry associations and industry stakeholders, participate in the governance network structures and processes for coordinating national security law and policy. The regulatory environment includes bargaining forums and frameworks, designed to achieve cooperation on matters arising in the regulation of communications security. To identify the corporatist governance networks, structures and processes for the administration of national security law, policy and coordination in the Australian communications sector, the chapter now shifts to a discussion of the indicators of government to governance, which will be used for framing the discussion in the case studies.
140 Novitz and Syrpis, above n 111, 371. 141 Birkinshaw, above n 136. 96 F The Indicators of Government to Governance
The theme from government to governance is part of a body of literature that studies the power of the executive in politics, policy, law, security and administration to use mechanisms other than command and control to bring about social and economic change or influence behaviour.142 In the from government to governance narrative, the conception of law as a command plays a lesser role143 and, thus, it follows that there is a diminishing role for the courts and the legislature. Government is conceived of as hierarchical and command-based, where rules are formally set out in public documents.
Governance is less hierarchical and utilises informal and flexible regulatory mechanisms to effect societal and economic change.
The indicators of government to governance set out in Hysing’s work are utilised in this thesis because they encapsulate both descriptive and analytic dimensions. Chapter Two surveyed some of the complexity and mutability of actors and relationships that need to be accounted for within the national security landscape. The indicators of government to governance provide a convenient frame through which complexity, dynamism and variability in the governance networks, structures and processes of the administration of national security law, policy and coordination may be assessed, including the power-
142 Harlow and Rawlings, above n 70, 45. See for example Rhodes, above n 96; David Levi-Faur, ‘From “Big Government” to “Big Governance”’ in David Levi-Faur (ed), The Oxford Handbook of Governance (Oxford University Press, 2012); Hysing, above n 102; Stoker, above n 98; Krahmann, above n 107, 8; Michael Howlett, ‘Managing the “Hollow State”: Procedural Policy Instruments and Modern Governance’ (2008) 43(4) Canadian Public Administration 412; Michael Howlett, Jeremy Rayner and Chris Tollefson, ‘From Government to Governance in Forest Planning? Lessons from the Case of the British Columbia Great Bear Rainforest Initiative’ (2009) 11(5–6) Forest Policy and Economics 383; Andrew Jordan, Rüdiger K W Wurzel and Anthony Zito ‘The Rise of “New” Policy Instruments in Comparative Perspective: Has Governance Eclipsed Government?’ (2005) 53(3) Political Studies 477; Mike Marinetto, ‘Governing Beyond the Centre: A Critique of the Anglo-Governance School’ (2003) 51(3) Political Studies 592; Peters, above n 104; Robbie Waters Robichau, ‘The Mosaic of Governance: Creating a Picture with Defintions, Theories, and Debates’ (2011) 39(s1) The Political Studies Journal 113; Christopher Scanlon, ‘A Step to the Left? Or Just a Jump to the Right? Making Sense of the Third Way on Government and Governance’ (2001) 36(3) Australian Journal of Political Science 481. 143 Amos Zehavi, New Governance and Policy Instruments: Are Governments Going “Soft”?’ in David Levi-Faur (ed), The Oxford Handbook of Governance (Oxford University Press, 2012) 243; Elizabeth Fisher, Risk: Regulation and Administrative Constitutionalism (Hart Publishing, 2010) 15. 97 sharing arrangements with key economic stakeholders in the communications sector.
Hysing explained that, although it has limitations as a research method,144 the concept of government to governance is a powerful rhetorical device:145
From government to governance is an often-told story line of recent changes in the way society is governed. At the heart of this story lies the notion that the role and the governing capacity of the state has changed. The state is considered unable to articulate and pursue collective action and impose its will on society because the governing challenges are too complex, diverse, and dynamic. The story line tells us that we are witnessing a transformation from hierarchical governing by nationally organised political institutions (i.e., government) to modes of governing in which a multitude of public and private actors from different policy levels govern society through networks and soft policy instruments—in other words, governance.146
To test the storyline of government to governance, Hysing proposed three ‘indicators of government and governance’.147 Hysing distilled the indictors of government to governance from the prevailing literature. The indicators are not presented by Hysing as an exhaustive list or as prescriptive analytical tools. They are used as broad indicators of modes of governance in a regulatory setting, assisting in highlighting those modes as government, governance or both. The indicators of government and governance are
‘divided along three dimensions: governing styles and instruments, the relationship between public and private actors, and relations between policy levels’.148 These three dimensions are discussed in the subsections below.
1 Governing Styles and Instruments
The first indicator focuses on governing styles and instruments, which refers to the regulatory mechanisms that are in use in the sector that are indicative of the dynamism, variability and complexity of government and governance. Hysing explained that, on
144 Hysing, above n 102, 648. 145 Ibid 647. 146 Ibid. 147 Ibid 649. 148 Ibid. 98 the government side, command and control instruments are the method through which the central government ‘assumes top-down control and the capacity to set, implement and evaluate policy objectives’.149 Relevant instruments include laws and incentive- based instruments, such as taxes and grants. The objectives are to regulate market conditions or change behaviour. In governance, soft rather than hard instruments are
150 used, and these may include information and voluntary agreements.
Australian legal scholar Greg Weeks explained that ‘soft law instruments occupy a broad section of the spectrum between unstructured discretion and legislation’.151
Weeks argued that soft law is best understood as ‘including a range of different instruments along a spectrum rather than a collection of like objects’.152 Examples may include ‘mere guidance or statements about an agency’s general practices on the one hand and, on the other, soft law which is all but compulsory to follow because, for example, it sets out the process to be followed if you wish to obtain a licence’.153 This definition enables the identification of governance mechanisms that, as Weeks noted,
‘may mix softness with legality in varying concentrations’.154
Certain ideological or political objectives, such as decentralisation, privatisation and outsourcing, are grouped under the concept of governance. Hysing noted that these strategies have been associated with the English theory of new public management, which encompasses the idea of ‘rolling back the state’; where the provision of services is based in the relevant market, also known as ‘rowing’, whereby the state ‘steers’ the rowing boat with its policy and legal guidelines.155 The ideas of ‘steering’ and ‘rowing’
149 Ibid 651. 150 Ibid. 151 Greg Weeks, Soft Law and Public Authorities: Remedies and Reform (Hart Publishing, 2015) 17. 152 Ibid 19. 153 Ibid. 154 Ibid. 155 Hysing, above n 102, 651. 99 are derived from public-choice theory, which demands a lesser role for the state and a greater role for private interests.156 Harlow and Rawlings explained that new public management is ‘a managerial technique of administration, characterised by rules, accountability and quantitative audit’. Harlow and Rawlings identified two aspects of new public management that they regarded as relevant to administrative law: first, a shift in dominant values, associated with a limited conception of government, and second, a lesser role for courts.157 In other words, governance challenges traditional conceptions of government and accountability.
A mixture of governing styles and instruments will be outlined in the case studies. The identification of those regulatory mechanisms will provide a picture of the dynamism, complexity and variability of state and industry interactions in coordinating national security law and policy.
2 The Relationship between Private and Public Actors
The second indicator of government to governance in Hysing’s study concerns the relationship between public and private actors in governing society. Again, Hysing made the simple distinction that ‘in government, monocentric, hierarchically organised political institutions are seen as the prime governors of society. Governance highlights collaboration, deliberation, and interaction between public and private actors.’158 In
Hysing’s study, private actors are defined in broad terms, encompassing organisations, companies, researchers and others, and notes that these actors can be integrated into the
156 Harlow and Rawlings, above n 70, 59. 157 Ibid. 158 Hysing, above n 102, 651. 100 policy process to varying degrees. Hysing’s conception of private actors is more diverse than that envisioned by corporatism.159
When examining the interactions between participants in a law and policy framework, the public–private distinction may be hard to discern because the traditional role of the state has become blurred. Hysing explained that, in a governance setting:
Instead of a governing structure based on institutionalised and hierarchical interaction between the public and private actors, networks based on resource interdependency and trust characterise the relationship between private and public actors. In these networks, the capacity of the state to steer is limited, only having ‘loose leverage’. Thus, private and voluntary actors perform self- governing. However, the literature on meta-governance and network management highlights that state actors are in a favourable position to act as enablers and facilitators—steering these networks at a distance.160
In this thesis, the relationship between private actors and the state is crucial to understanding the governance networks, structures and processes that comprise the administration of national security law, policy and coordination in the Australian communications sector. In this context, a private actor means both a company that is an industry participant and a corporate executive of an industry participant. This is suggestive of corporatism, as only individuals working in the companies or for the industry associations are admitted into the networks for coordinating national security law and policy. These individuals are found at all levels within their organisations, and come from the management level of companies, from legal, policy and engineering departments and from regulatory affairs. This mix has been discerned from public record sources, primarily those who present as witnesses in the various parliamentary inquiries into communications sector specific national security law and policy. Some of the private actors play recurring roles.
159 Ibid. 160 Ibid. 101 On the government side, this thesis refers primarily to the already defined national security community and, within that community, to the AGD, ACMA, ASIO and the
AFP. Again, there are many other individuals, including government ministers, involved in coordinating national security law and policy, some of whom have been involved for decades.
The changes occurring in the communications sector, which was foreshadowed in
Chapter Two, point to an industry undergoing rapid change because of technological advances and the proliferation of internet protocol–based services. There are three reasons for defining the private and public actors in this way. First, this thesis is seeking to account for the managerial complexity in coordinating national security law and policy from within the communications sector. Second, the aim is to demonstrate that, despite the disruptive effects of technology, the networks, structures and processes for coordinating national security law and policy have remained stable. Third, both formal and informal networks and connections are included to accurately characterise the accord between industry and government in coordinating national security law and policy.
3 Relations between Policy Levels
Hysing’s paper identified policy levels as the third indicator of government to governance. Hysing explained:
In government, the level of nation state is the central locus of authority. Even though other policy levels are recognised as important arenas, the ability of central governments to retain their sovereignty is not in question … national governments may relinquish authority voluntarily as a strategy to delegate responsibility for ‘difficult’ issues to other policy levels. In addition, even if concessions are made on the international policy level, the state has the capacity to act as gatekeeper in the implementation phase to protect its interests. Multilevel governance, on the other hand, theorises that actors and institutions on different policy levels operate autonomously from the state and have the capacity to circumvent the national level in policymaking. In another 102 strand of governance research it is argued that state-dominated forums on the global level, that is, international institutions and negotiations, are challenged by an evolving global society that sets up global standards and rules that do not rely on state authority—indicating global governing beyond the state.161
In the administration of national security law, policy and coordination in the Australian communications sector, the state is active across the policy levels through the national security community. There are hierarchies within the government sector, but the governance structure of the national security community has had a flattening effect on the hierarchies, as noted by the former National Security Adviser to the prime minister.162 There are many government actors—independent agencies, portfolio departments, police and security services—who play a role in this community and, as the case studies will demonstrate, the communications sector negotiates with these multiple branches of government at different levels of formality and in different forums, both formal and informal.
In this thesis, these policy relationships are traced by studying the feedback mechanisms used to refine processes, determine effectiveness and respond to critiques. The networks, structures and processes are stable, but ever-evolving. In contrast to Hysing, the focus is on domestic policy levels.163 As explained in Chapter One, this thesis is not concerned specifically with the role of government ministers of portfolio departments or the executive per se. The focus is on the regulatory practices between participants in the administrative process and the mechanisms in use, rather than the specific role of the executive in shaping law and policy outcomes. A different appraisal of the networks,
161 Ibid 652. 162 Margot McCarthy, ‘National Security: Past, Present and Future’ (Speech delivered at a joint event of the Department of the Prime Minister and Cabinet and the National Security College, Canberra, 15 June 2012) 5. 163 However, examining the impact of international policy levels would be a worthy future project to discern how much government and non-government organisations have over the administration of national security law, policy and coordination in Australia. 103 structures and processes for the coordination of national security law and policy to this thesis would consider this role in more detail.
4 Understanding the Communications Sector through Hysing’s Three Indicators
Although Hysing’s government to governance indicator framework was designed to evaluate environmental regulation in Sweden, it is based on the distillation of a larger body of literature on government and governance.164 The indicators themselves, and the literature from which they were derived, are sufficiently broad to have applicability beyond forestry and transport in Sweden. The indicators allow for an exploration of the compact between the state and communications industry stakeholders in coordinating national security law and policy in the communications sector. They have the added benefit of allowing for comparison across the different subject matters that comprise the national security case studies.
The modes of governing that Hysing identified are generic. The use of hard and soft mechanisms is characteristic of the Australian regulatory landscape, as much as of the
Swedish environment.165 The use of law to regulate can be contrasted with other mechanisms, such as codes, standards and voluntary agreements, and with other strategies, such as privatisation, outsourcing, negotiation and collaboration.
The need to analyse the relationship between public and private actors is not only relevant to environmental case studies. Understanding how stakeholders interact with government in the regulatory setting is a useful indicator of the complexity of state governing vis-a-vis the communications sector. Hysing made the important point that in government regulatory environments:
164 Hysing, above n 102, 649. 165 See Weeks, above n 151. 104 Private actors have clearly defined roles: to take part through popular elections and lobbying (pluralism) or through highly institutionalised public-private governing arrangements (corporatism).166
In this scenario, Hysing was highlighting that governing occurs through monocentric, organised political institutions, such as government entities and corporations.167 This observation is useful for the study of communications and national security because, as discussed above, the concept of corporatism features in some national security studies literature, where it has been used to describe the compact between government and industry.168 Hysing observed that corporatism permits a less diverse form of public– private governing than do arrangements where more diverse social and political participants are able to influence policy and regulatory processes.169
The different policy levels that comprise a regulatory environment or sector are generalisable from Hysing’s study. Even though Hysing focused on policy formation in
Swedish forestry and transport, the policy interaction between government departments, business entities and international entities, both government and non-government, is a familiar component of any regulatory environment or industry sector. Hysing explained that, in some governance research, it has been suggested that ‘state-dominated forums on a global level … are challenged by an evolving global society that sets up global standards and rules that do not rely on state authority—indicating global governing beyond the state’.170
It is useful to examine how different policy levels interact with each other, whether any act autonomously or whether the state dominates particular levels. This is also a means of assessing the influence of international policy levels and governance structures that
166 Hysing, above n 102, 651. 167 Ibid. 168 See for example, Gill, above n 119, 48. 169 Hysing, above n 102, 651. 170 Ibid 652. 105 are beyond the power and jurisdiction of the nation state. In Australia, as in Sweden, the national government is divided into departments and agencies, which perform specific roles regarding the relevant sector under examination. In addition, international forums exert external pressure on the policy levels, as Hysing’s study demonstrates.
Finally, Hysing undertook a sector analysis, as does this thesis. The application of the general indicators to a sector of the economy or society permits the examination of the specifics of that sector—in the case of this thesis, the communications sector—using indicators derived from the international literature. This mode of analysis gives the study of the unique Australian context broader relevance to scholars in other jurisdictions.
G Competing Approaches to Government and Governance
Hysing’s article highlights a difference in the approaches to government and governance in the government to governance literature. One approach involves the idea that governance is all encompassing and that government is simply a part of the governance whole. In highlighting this approach, Hysing explained that the appeal of the concept of governance is ‘its capacity—unlike that of the narrower term
“government”—to cover the whole range of institutions and relationships involved in the process of governing’.171 Stoker explained that:
The contribution of the governance perspective to theory is not at the level of casual analysis. Nor does it offer a new normative theory. Its value is as an organising framework for understanding changing processes of governing. As Judge et al. comment, such conceptual frameworks ‘provide a language and frame of reference through which reality can be examined and lead theorists to ask questions that might not otherwise occur’.172
171 Jordan, Wurzel and Zito, above n 142, 478. 172 Stoker, above n 98, 18. 106 In other words, the concept of governance, broadly conceived, enables an examination of networks, structures and processes that may not be readily identifiable if one’s perspective is constrained by traditional assumptions about what constitutes public administration. For example, if the focus is on formal policy and legal responses of the state to societal issues and problems, other responses between the state and, in the case of this study, communications industry participants, may be overlooked or dismissed because they do not fit into a traditional public or administrative law and policy paradigm. As a result, the spaces where the state and industry are active may be overlooked, and so may the decisions being made, perhaps informally and voluntarily, which have consequences for democratic scrutiny.173
An alternative approach conceives of government and governance as existing on a continuum. In typological theory, ideal types are usually defined as endpoints on a continuum.174 Hysing explained that:
Government and governance can be regarded as two poles on a continuum along which the role of the state varies from direct state intervention, that is, state governing through authoritative allocation of values to society, to extensive societal autonomy, that is, self-organised and self-governing private and voluntary actors and networks capable of resisting government interference.175
There has been some criticism of the idea that government and governance exists along a continuum. According to Jordan et al., ‘placing government and governance at the opposite ends of a theoretical continuum is unlikely to be sufficiently sensitive to pick up changes in the form and function of governance’.176 However, conceiving of government and governance on a continuum is considered productive in exploring the
173 Ibid. 174 D Harold Doty and William H Glick, ‘Typologies as a Unique Form of Theory Building: Toward Improved Understanding and Modeling’ (1994) 19(2) The Academy of Management Review 230, 237. 175 Hysing, above n 102, 649. 176 Jordan, Wurzel and Zito, above n 142, 480. 107 case studies of this thesis. As Hysing pointed out, ‘theoretically, modes [of governing] at the extreme ends of the continuum give the clearest indication of government and governance’.177
As foreshadowed, one of the ambitions of this thesis is to bring to life the complexity of the governance arrangements, the diversity of actors, forums and interactions at play. It is important to trace reflexivity in practice, as governance processes are refined and redeveloped in response to particular problems that arise. As the following section will demonstrate, using the indicators of government to governance permits an examination of the mixed modes of governing utilised by the modern Australian state in the administration of national security law, policy and coordination in the domestic communications sector.
II NATIONAL SECURITY, DEMOCRATIC SCRUTINY AND THE STATE—WHY A BROAD GOVERNANCE PERSPECTIVE IS DESIRABLE
Analysing communications sector politics and negotiations through Hysing’s lens of corporatist governance indicators adds flesh to (1) significant contemporary concerns about the nature of the relationship between state and corporate actors, and (2) the normative concern about the risks and implications for democratic scrutiny.
How might the risks and implications for democratic scrutiny appear once the nature of the relationship between the state and corporate actors has been determined? Before this question can be answered, it is worthwhile sketching the normative concerns, beginning with the common questions raised about the role of the state in coordinating national security law and policy.
177 Hysing, above n 102, 652. 108 A The Role of the State in Coordinating National Security Law and Policy
Many governance theorists engaged in the fields of law, politics, sociology, economics, international relations and security have focused on understanding the role of the state in developed capitalist societies in many contexts. For some, the state has transformed itself. Formal, hierarchical command-based government has been supplemented or replaced with informal roundtables, cooperative governance networks and other less hierarchical mechanisms of governance.178 For other theorists, the role of the state is that of risk manager and risk has become an important governance technique.179
Corporatism, as a form of state-centred governance, has been discussed in the context of its deliberative appeal in public policymaking settings.180 This version of corporatism advances a role for the democratic state that entails government and chosen interest groups negotiating a shared conception of the public good.181 Ian Loader and Neil
Walker regarded security as a public good, best provided by an ‘anchored’ pluralist state that is bounded by constitutional law, to ensure a level of generality, predictability and accountability in its pursuit of collective security.182
Governance theory is desirable for analysing the role of the state in coordinating national security law and policy in the communications sector because it permits an
178 The governance and regulation literature reflects this thinking. For example John Braithwaite, ‘The Essence of Responsive Regulation’ (2011) 44(3) University of British Columbia Law Review 480; Wade MacLaughlan, ‘Public Service Law and the New Public Management’ in Michael Taggart (ed), The Province of Administrative Law (Hart Publishing, 1997) 118–133. 179 For example Elizabeth Fisher, ‘Framing Risk Regulation: A Critical Reflection’ (2013) 4(2) European Journal of Risk Regulation 125; Fisher, above n 97; Elizabeth Fisher, ‘The Rise of the Risk Commonwealth and the Challenge for Administrative Law’ [2003] (Autumn) Public Law 455; Fisher, above n 143; Elizabeth Fisher, ‘Risk Regulatory Concepts and the Law’ in Risk and Regulatory Policy: Improving the Governance of Risk (Organisation for Economic Co-operation and Development, 2010); H Rothstein, M Huber and G Gaskell, ‘A Theory of Risk Colonization: The Spiralling Regulatory Logics of Societal and Institutional Risk’ (2006) 35(1) Economy and Society 91, 91–112; Julia Black, ‘The Emergence of Risk-Based Regulation and the New Public Risk Management in the United Kingdom’ [2005] (Autumn) Public Law 512, 512–548. 180 Hunold, above n 113, 159–160. 181 Ibid 160. 182 Loader and Walker, above n 95, 188–190. 109 examination of the networks, structures and processes in which the state is operating, and generates an assessment of what the state is doing—is it leading? Is it defining priorities and objectives? Is it ‘steering’ or ‘rowing’? What techniques and practices is it using? The ideas in the governance literature, canvassed above in Section G, point to the variety of mechanisms used by the state to achieve regulatory outcomes, and the literature encompasses normative concerns about the effect of the role of the state on democratic ideals, such as accountability and transparency.
In terms of the relevance of the state’s role in the case studies, the examination of this role is the first step in characterising its relationship with industry. The coordination of national security law and policy is dependent on the Australian state as the central, organising institution. The modern state, which lawyers encounter in theory and in practice, is complex. That the state maintains a dominant and powerful role in the governance of security is uncontroversial. Discussing the power of the state, Hugh
White argued that:
Many people thought that in the era of globalisation states might become less important, but that hardly seems to have happened. They remain the most potent institutions on earth, with unmatched material and institutional power, and with an emotional hold on individuals exceeded only by the family … Perhaps the most basic reason why states are so powerful is that an effective state is essential for almost every form of human progress among its citizens: education, health, economic growth and, of course, law and order. In other words, an effective and secure state is a necessary condition for human security; this is what Hobbes meant when he so famously described life without a state as ‘solitary, poor, nasty, brutish and short’.183
For many engaged in the debate over the regulatory response to global terrorism after 11
September 2001, the existence of the global terrorist threat has provided successive governments with an opportunity to exact tighter social control over the community in
183 White, above n 5, 7. 110 the name of security.184 The national security legislative framework serves the function of presenting the state as ‘doing something’ about the global terrorist threat.185 The arguments do not stray far from this underlying concern with the effect of the national security legislative framework on democratic scrutiny.
Many commentators argue that the ‘direction of pull’186 has distorted reality in regard to the threat of terrorism, and that the state’s response has been disproportionate, potentially illegal, unconstitutional, immoral and damaging to the fabric of our democratic society.187 Hocking argued that we are seeing a transition in the Australian democratic state:
We are witnessing the development of a new type of state – a state in which the interests of security prevail, even over democracy itself, and in which personal freedoms and liberties depend upon the arbitrary will of the state.188
Post-September 11, the public has retained an expectation that the state will play a formative role in relation to national security because:
Security is a valuable public good, a constitutive ingredient of the good society, and that the democratic state has a necessary and virtuous role to play in the production of this good. The state, and in particular the forms of public policing governed by it, is, we shall argue, indispensable to the task of fostering and sustaining liveable political communities in the contemporary world.189
Indeed, the traditional expectation that the state secures our freedom is very deep. As
White argued:
184 For example Jenny Hocking, ‘Protecting Democracy by Preserving Justice: Even for the Feared and Hated’ (2004) 27(2) UNSW Law Journal 319. 185 See also Philip Thomas, ‘Legislative Responses to Terrorism’ in Phil Scraton (ed), Beyond September 11: An Anthology of Dissent (Pluto Press, 2002) 93. 186 ‘Push and pull’ is a concept used by cultural theorists to explain the causes of cultural shifts and was first coined by James Lull. See James Lull, ‘The Push and Pull of Global Culture’ in James Curran and David Morley (eds), Media and Cultural Theory (Routledge, 2006). 187 Agnes Chong et al, ‘Laws for Insecurity? A Report on the Federal Government’s Proposed Counter- Terrorism Measures’ (Public Interest Advocacy Centre, 23 September 2005) 3. 188 Hocking, above n 184, 337. 189 Loader and Walker, above n 95, 7. 111 The provision of security is not just the highest priority of the state, as political leaders so often maintain, but the state’s very essence. The long history of government in human society is the history of the steady expansion—and occasional contraction—of the role of the state, driven by and perhaps also driving changes to, conceptions of security for which the state is responsible.190
However, as already noted, the state is not tasked with securing peace and good order on its own anymore.191
The complexity of the contemporary communications regulatory environment must be examined in the context of the ‘new kind of state’ rhetoric, which emanates from both sides of politics. Corporations share the provision of security with the state, sometimes providing that security independently of the state.192 Theorising about this power- sharing arrangement will assist in better understanding national security law, policy and coordination in the Australian communications sector.
B The Modern Administrative State is a Negotiating State
It is equally important to understand negotiation, a governance mechanism, in the administration of national security law, policy and coordination. The modern administrative state, from a governance perspective, is a practiced negotiator. In the context of national security, private actors, such as the corporations who own and operate valuable resources in the form of critical infrastructure or who operate in
‘sensitive sectors’, enter into negotiations with the state over access, assistance and support around those resources, including negotiations about applicable law, policy and coordination. In the communications sector, industry stakeholders own and control the infrastructure and networks for the delivery of communications. As a result, the state
190 White, above n 5, 4–5. 191 Les Johnston and Clifford Shearing, Governing Security: Explorations in Policing and Justice (Routledge, 2003) 16. 192 For an overview of the privatisation of security using private military companies, see Elke Krahmann, States, Citizens and the Privatisation of Security (Cambridge University Press, 2010); Carlos Ortiz, ‘The New Public Management of Security: The Contracting and Managerial State and the Private Military Industry’ (2010) 30(1) Public Money & Management 35, 35–41. 112 negotiates with these stakeholders through a myriad of governance networks, structures and processes.
US scholars have considered negotiation in the regulatory context as ‘a process of policy formulation that brings representatives of affected interests together to reach consensus on the content and sometimes the language of a proposed rule making’.193
The US literature has a distinct concept of regulatory negotiation, referred to as
‘RegNeg’. Another description is that ‘negotiated rulemaking is a process by which representatives of the interests that would be substantially affected by a proposed rule, negotiate to reach consensus’.194 This concept sits loosely within ‘debates about contemporary administrative governance: how regulatory agencies bargain and dispute with private interests over the creation and application of general rules’.195 Whereas some scholars, such as Harter, regard regulatory negotiation as synonymous with negotiated rulemaking,196 others, such as Coglianese, have argued that regulatory negotiation ‘actually connotes a broader range of methods used by agencies for soliciting public input’.197 The US literature suggests that regulatory negotiation is a deliberative process.198 Professor Jody Freeman argued that governance is a ‘set of negotiated relationships between public and private actors. Under this view, public and private actors negotiate over policy making, implementation, and enforcement thereby decentralising the decision-making process’.199
193 Daniel Fiorino, ‘Regulatory Negotiation as a Policy Process’ (1988) 48(4) Public Administration Review 764, 764–772. 194 Philip Harter, ‘Assessing the Assessors: The Actual Performance of Negotiated Rulemaking’ (2000) 8(2) NYU Environmental Law Journal 32. 195 Patrick Schmidt, Lawyers and Regulation: The Politics of the Administrative Process (Cambridge University Press, 2005) 2. 196 Harter, above n 194, 32. 197 See for example Cary Conglianese, ‘Assessing Consensus: The Promise and Performance of Negotiated Rulemaking’ (1997) 46 Duke Law Journal 1255, 1256. 198 Fiorino, above n 193, 768. 199 Jody Freeman, ‘The Private Role in Public Governance’ (2000) 75(101) New York University Law Review 543, 543. 113 In the US, regulatory negotiation is formal and structured through legislative frameworks. In Australia, formal cooperative and co-regulatory legislative frameworks exist, which foster the use of negotiation, including instances of formal and structured industry-generated rulemaking, for example in the Telecommunications Act 1997.200 In this thesis, regulatory negotiation refers to a regulatory process, decision or resolution that has been made within governance networks, structures and processes with the participation and consent of interested parties to satisfy at least some of the wants and needs of all parties involved in the negotiation. In the communications sector, the governance networks, structures and processes of cooperation and co-regulation have fostered formal regulation by negotiation between the government and communications industry stakeholders. The negotiations, which include bargaining and disputation, cooperation and facilitation, have occurred over a range of substantive regulatory issues from data retention to interception capability.
Negotiation between government and industry is not new in the regulatory landscape in
Australia, the US, Canada and the UK.201 For instance, in the context of the
Convergence Review announced by the Minister for Broadband, Communications and the Digital Economy in December 2010, Armstrong argued:
When the Minister has completed negotiations with the parties, it is time to cement the deal. If it were a negotiation between private parties, a contract would be signed. But since we are dealing with public policy, what better instrument than an Act? So the Parliament is used as a kind of notary public, to entrench the deal into Australian law.202
200 See Karen Lee, ‘Counting the Casualties of Telecom: The Adoption of Part 6 of the Telecommunications Act 1997 (Cth)’ (2009) 37(1) Federal Law Review 41; Karen Lee, Legitimacy in the New Regulatory State (PhD Thesis, University of New South Wales, 2016). 201 For example Matthew Franklin and Jamie Walker, ‘Mining Profits Tax Negotiations Could Take Months: Rudd’, The Australian (online), 11 June 2011. 202 Mark Armstrong, ‘Will a New Communications Act be Allowed to Work?’ (2010) 29(2) Communications Law Bulletin 7. 114 In the communications sector, stakeholders negotiated with the AGD about an appropriate regulatory model for data retention for at least five years.203 The AGD negotiated with foreign-based communications industry stakeholders ‘who have been around for 10 years’204 over access to telecommunications data.
Not only are Acts of Parliament negotiated but so are informal cooperative arrangements, protocols, guidelines and, in some cases, relevant agency and press contacts. The third case study considers a case involving the disclosure of sensitive national security information, in which the negotiations included a ‘24/7 contact list’ of relevant agency and press contacts.205 The examples across the regulatory landscape point to negotiation as a feature of governance, including the negotiation of enforcement outcomes between regulators (such as the ACCC, ASIO and ACMA) and regulated entities across many sectors in the economy, such as corporations, communications and competition.206
Regulatory negotiations are part of the processes for administering national security law, policy and coordination.207 From a governance perspective, regulatory negotiation constitutes a mode of governing utilised by the state, in lieu of other mechanisms, such
203 Parliamentary Joint Committee on Intelligence and Security, Inquiry into Potential Reforms of National Security Legislation, Inquiry Hansard (14 September 2012) 33–34. 204 Parliamentary Joint Committee on Intelligence and Security, Inquiry into Potential Reforms of National Security Legislation (Canberra, 2 November 2012) 7. 205 These issues are covered in more detail in Chapter Six. 206 For example, enforceable undertakings are negotiated outcomes between regulators and regulatees. See Richard Johnstone and Christine Parker, ‘Enforceable Undertakings in Action—Report of a Round- Table Discussion with Australian Regulators’ (Working Paper No 71, National Research Centre for Occupational Health and Safety Regulation, 2010) 209; Christine Parker, ‘Restorative Justice in Business Regulation? The Australian Competition and Consumer Commission’s use of Enforceable Undertakings’ (2004) 67(2) Modern Law Review 209; Marina Nehme, ‘Enforceable Undertakings: Are they Procedurally Fair?’ (2010) 32(3) Sydney Law Review 470. 207 For example, Ms Catherine Smith, Assistant Secretary, Attorney-General’s Department explained to the Parliamentary Joint Committee on Intelligence and Security (in relation to the legal basis for compelling Facebook to keep ‘metadata’) that ‘A number of American service providers do actually have points of contact in Australia. A lot of that has been a result of negotiating with them over the years for assistance to law enforcement, so they have seen that there is an operational need in Australia’ (Evidence to Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Canberra, 2 November 2012, 6–7 (Catherine Smith)). 115 as law. Regulatory negotiations are a component of the governance of national security law, policy and coordination in Australia. In examining the negotiations between industry and government through the case studies, the aim is to characterise the relationship between industry and government with accuracy, so that the implications and risks of this characterisation for democratic scrutiny can be assessed.
C The Fragility of Democratic Scrutiny
There is a public interest in citizens having knowledge about the workings of their democratically elected government.208 Governance theory enables an examination of regulatory mechanisms that assists in determining the relative roles of law, parliament and the courts in the regulatory practice of national security law, policy and coordination in the Australian communications sector. Many governance mechanisms used in the coordination of national security law and policy are not naturally open to democratic scrutiny. In part, this is because of the operation of law and policy around secrecy, but is also the result of the very nature of the governance mechanism itself. For example, negotiations between industry and government often occur in confidence. In determining the relative roles of law, parliament and the courts in the governance of national security in Australia, the implications for democracy—both positive and negative—posed by the modes of governance can be determined. By undertaking this analysis, it is hoped that the public interest in knowing the workings of democratically elected governments will be enlivened.
Communications is a sensitive sector of the economy, which demands consideration of the role of law in setting, influencing and shaping the regulatory outcomes for national security policy and coordination. National security issues in the communications sector
208 Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39, 52 (Mason J). 116 are high-stakes issues for citizens, business and government because most matters of national security involve some kind of potential danger or threat and, significantly, the executive has expansive powers in this area of its remit. In matters of national security, the public interest in having access to information and knowledge about the workings of government is often subordinated to the demands of national security, or the information that is made available is so modified and redacted, it is almost meaningless.
It is a quandary—what are citizens permitted to know?
Since 11 September 2001, the question of whether Australia’s democratically elected government and its apparatus should have ‘contemporary and necessary’ powers to prevent violent, destructive outcomes has been asked frequently in both the public and the private spheres.209 The answer to the question is often affirmative (to the need for and granting of such powers), subject to a range of qualifications relating to balancing210 national security and collective community interests with democratic principles and values, human rights and the rule of law.211 Most have agreed that new laws were necessary to nudge Australia out of its complacency212 and bring it into line with its international obligations.213 Others have decried the negative effects of these
209 Tim Mayfield, ‘Australians Back Tougher Anti-Terror Laws’, The Interpreter (online), 27 August 2014; Gregory Rose and Diana Nestorovska, ‘Australian Counter-Terrorism Offences: Necessity and Clarity in Federal Criminal Law Reforms’ (2007) 31(1) Criminal Law Journal 20. See also conservative Australian commentators who support the expansion of powers, such as Gerard Henderson, ‘Threat from Within Makes Anti-Terrorism Laws Indispensible’, The Sydney Morning Herald (online), 7 February 2012; Janet Albrechtsen, ‘Don’t Let Terror Attack Divide Us’, The Australian (online), 17 December 2014. 210 Williams, above n 1, 90; Simon Bronitt, ‘Australia’s Response to Terrorism: Neither Novel nor Extraordinary?’ (Paper presented at the Human Rights Law 2003:The Year in Review, Monash University, The CUB Malthouse, Southbank, Melbourne, 2003); Golder and Williams, above n 1. 211 Sarah Joseph, ‘Australian Counter-Terrorism Legislation and the International Human Rights Framework’ (2004) 27(2) UNSW Law Journal 428; Ian Barker, ‘Human Rights in an Age of Counter Terrorism’ (2005) 26 Australian Bar Review 1; John von Doussa, ‘All Under Control? Recent Issues in Australia’s Legal Response to Counter-Terrorism’ (Speech delivered at the Human Rights and Equal Opportunity Commission Forum, Sydney, 13 November 2006). 212 Williams, above n 1, 10. 213 See Ivan Shearer, ‘Human Rights in an Age of Terrorism’ in Alice Erh-Soon Tay, Günther Doeker- Mach and Klaus Ziegert (eds), Law and Legal Cultures in Comparative Perspective (Franz Steiner, 2004) 125; Saul, above n 1. 117 laws on democracy, arguing that the laws are creating an unacceptable, security-biased
‘new type of state’.214 In support, Hocking noted that:
The core principles which distinguish liberal democratic regimes from authoritarian ones—‘the rule of law, openness and accountability of government; and the maintenance of a bond of trust and confidence between citizens and government that results from an electorate that is informed about public affairs’—have increasingly been put under strain by the continuing expansion of security operations according to a broad mandate of ‘counter- terrorism’. The ultimate effect of terrorism has been to provide a ready legitimization for this increased security control, pervasive surveillance infrastructure and a diminution of established legal and political protections before the law. Its significance lies as much in this interaction with society in which it occurs as with the terrorist acts themselves.215
Should the governance networks, structures and processes that comprise the accord between government and the communications industry be subject to the democratic scrutiny provided by law, parliament and the courts? Does the public have a right to know what government and the communications sector are negotiating? What role is there for public law values in the administration of national security law, policy and coordination in the Australian communications sector? Does a commitment to public law values protect the public interest in knowing?
The concept of public law values is derived from the idea that constitutional and administrative law will be best understood by referencing their core values, identified as
214 Hocking, above n 184, 335–338. See also the concerns of print and broadcast media stakeholders on the laws of sedition, preventative detention and non-disclosure introduced in 2005 by the Howard Government: Media and Entertainment Arts Alliance, Submission No 198 to the Senate Legal and Constitutional Committee, Inquiry into the Provisions of the Anti-Terrorism Bill (No 2) 2005, 11 November 2005, 2; Australian Press Council, Submission No 143 to the Senate Legal and Constitutional Committee, Inquiry into the Provisions of the Anti-Terrorism Bill (No 2) 2005, 11 November 2005, 2–3; Special Broadcasting Service, Submission No 164 to the Senate Legal and Constitutional Committee, Inquiry into the Provisions of the Anti-Terrorism Bill (No 2) 2005, 14 November 2005, 1. 215 Hocking, above n 1, 247. 118 the rule of law, good administration, democracy and separation of powers.216 The relevance of these core values to the concerns of this thesis is elaborated upon below.
D The Rule of Law
The concept of the rule of law serves the public interest in providing certainty and stability in regulatory contexts because it is, ideally, public and not arbitrary.217
However, in some governance settings, law will have a diminishing role. This is a characteristic of the modern regulatory state and it is empirically supported in the regulation literature.218 In the context of environmental regulation in Europe, for example, Liz Fisher argued:
For some, law is seen as largely irrelevant because there has been an abandonment of traditional law for more fashionable concepts of regulatory governance. This development has taken many simultaneous forms including the abandonment of command and control regulation; the creation of reflexive law; and the negating of the public/private divide. In all cases, however, there appears to be not much role for law, which is seemingly, replaced by other forms of decision-making, in particular negotiation and/or other forms of accountability mechanisms such as audit.219
This by no means suggests that the rule of law ideal is being jettisoned for these alternative governance mechanisms. Fisher shows that law is essential in the area of risk regulation because:
216 Paul Daly, ‘Administrative Law: A Values-Based Approach’ in Mark Elliott, John Bell, Jason Varuhas and Philip Murray (eds), Public Law Adjudication in Common Law Systems: Process and Substance (Hart Publishing, 2015) 1; Harlow and Rawlings, above n 70, 46-47. 217 Leighton McDonald, ‘The Rule of Law in the “New Regulatory State” ’ (2004) 33(3) Common Law World Review 197, 204; Martin Krygier, ‘The Rule of law: Legality, Teleology, Sociology’ in Gianlugi Palomblla and Neil Walker (eds), Relocating the Rule of Law (Hart Publishing, 2009) 45, 58; Martin Krygier, ‘The Rule of Law: An Abuser’s Guide’ in András Sajó (ed), The Dark Side of Fundamental Rights (Eleven International Publishing, 2006) 129, 141. 218 Leighton McDonald has distinguished between rule of law ‘side-liners’ and ‘hard-liners’ from his review of the regulation literature, noting ‘Scholars of regulation rarely pay much attention to the rule of law. For many, the rule of law is seen as largely irrelevant to contemporary forms of governance. Empirically grounded studies often imply that the rule of law is out of step with the realities of how social and economic life is regulated, both nationally and transnationally’ (McDonald, above n 217, 197). 219 Fisher, above n 143, 15. 119 Law provides both arenas and discourses for disputing the role of public administration. Law as such is not just instrumental—it is not content free. Legislative reform debates, judicial review cases, or other forms of call to accounts are sites for determining what is, and should be, the role and nature of public administration. Likewise, the law itself is the discourse through which this is done.220
The role of law in the administration of national security law, policy and coordination in the Australian communications sector is that of an obligation and accountability framework, which creates ‘networks of responsibility’.221 Leighton McDonald has argued that the challenge is to think about the rule of law ‘so as to maintain its relevance as a norm to which regulation should routinely aspire, albeit in ways which are more sensitive to the insights of regulatory scholars’.222 By this, McDonald meant that it might be useful to examine the underlying principles of legality in the rule of law and, when analysing governance networks, structures and processes, it may be appropriate to apply those wider principles—such as those that oppose arbitrary and unaccountable governance—to the regulatory contexts under examination, to maintain the relevance of the rule of law to these contexts.
Law still provides the basis of obligations on industry stakeholders. Its presence or absence guides stakeholders in decisions concerning their obligations and in shaping responses that have a direct effect on their business interests. It should be noted that communications industry stakeholders subject to national security obligations are at pains to uphold both the spirit and letter of the law, so far as it makes explicit demands
220 Ibid 23. 221 Elizabeth Fisher, ‘Environmental Law as “Hot” Law’ (2013) 25(3) Journal of Environmental Law 347, 350. 222 McDonald, above n 217, 220. 120 upon them.223 Of interest here is the extent to which action related to Australia’s national security is balanced against commercial interests and the public interest.
The case studies will explore how the rule of law is being interpreted, resisted and negotiated in the specified contexts. The question becomes whether law, involving accessible and intelligible rules, is being created and applied, and what form it is taking in the national security context—is it in the form of ‘light touch’ regulatory mechanisms to ensure compliance, rather than a command backed by a sanction?224 In the administration of national security law, policy and coordination in the Australian communications sector, can it be said that the content and application of law is being determined by negotiation?
E Parliamentary Oversight
Parliamentary oversight is another source of democratic scrutiny and legitimacy for national security law, policy and coordination. Parliamentary scrutiny preserves the public interest in ensuring that Australia’s citizens are confident that the overall policies of the national security community are consistent with their legal mandate.225 From the citizens’ perspective, democratic scrutiny provides the means through which they can understand the workings of their democratically elected governments. In each case study, there is an exploration of the role of parliament in the administration of national
223 Rob Nicholls and Michelle Rowland, ‘Message in a Bottle: Stored Communications Interception as Practised in Australia’ in Katina Michael and M G Michaels (eds), The Second Workshop on the Social Implications of National Security (from Dataveillance to Überveillance and the Realpolitik of the Transparent Society) (University of Wollongong Press, 2007) 13. 224 The Parliamentary Joint Committee Inquiry into Potential Reforms of Australia’s National Security Legislation canvassed a number of industry participation models based on compliance and risk management, including a ‘tiered regime for industry assistance’. See Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, ‘Report of the Inquiry into Potential Reforms of Australia’s National Security Legislation’ (24 June 2013) 56–59. 225 Andrew O’Neil, ‘Influence without Power: Commissions of Inquiry and the Australian Intelligence Community’ in Stuart Farson and Mark Phyian (eds), Commissions of Inquiry and National Security: Comparative Approaches (Praeger Security International, 2011) 13–28, 13. 121 security policy and coordination. In respect of parliament, Harlow and Rawlings noted that:
We should be careful not to underrate the symbolism of formal parliamentary contribution to lawmaking. Parliament provides the ultimate seal of democratic legitimacy, marking the giving of assent on behalf of citizens to measures that are to have binding force.226
This provides the foundation for a discussion of whether the role of parliament is being eroded or diminished because of government to governance in the context of state– corporate links. In Australia, parliamentary oversight of the national security agencies is well established. Australia has a standing joint committee on intelligence and security, which is the principal review committee of the intelligence and security services. In addition, senate budget estimates and supplementary budget hearings provide scrutiny over expenditure on national security policy and coordination. The Legal and
Constitutional Affairs Committee considers changes to the law, the Human Rights
Committee considers the effects of policy and law on human rights and the communications portfolio is scrutinised in the Communications, Environment and the
Arts Committee, as well as by Senate Estimates.
A few members of the national security community are not directly subject to parliamentary scrutiny, such as the Australian Signals Directorate and the Defence
Intelligence Organisation. The Inspector-General of Intelligence and Security (the IGIS) monitors these agencies and reports annually to parliament. However, for the most part, parliament plays a crucial role in providing broad access to information about and scrutiny of national security policy and coordination, and the workings of government and its agencies in this field. Parliamentary scrutiny serves to bolster democratic governance and, ultimately, the fundamental rights and liberties of citizens. However,
226 Harlow and Rawlings, above n 70, 143. 122 parliament can only undertake this important democratic work if it is provided with accurate information, reasonable timeframes and the power to affect change.227
F The Role of Courts
Finally, there is a public interest in courts, through the principle of open justice, settling disputes between the government and the news media on the publication of matters of national security. There is a public interest in protecting confidentiality, in terms of protecting journalists’ sources, but also in protecting confidential material that would legitimately prejudice security if it were disclosed.228 Courts play an important democratic role in deciding where the balance lies between government and the communications industry over the interpretation of legal obligations and restraints imposed on industry by government in the name of national security.229 Mark Pearson’s work on Australia’s anti-terror laws, and their effect on Australian news media, demonstrated, through four terrorism case studies, the crucial role of courts in settling disputes between the media and the government, security services and police over the publication of and access to national security information.230
From September 2001, judicial oversight of national security matters has contracted, with effects on the role and procedure of courts and the work of journalists. The role of courts in arbitrating national security cases has been changed procedurally by legislation aimed at controlling the use and disclosure of sensitive national security information.
227 Tim Legrand, writing in the context of the proscription of terrorist organisations in the United Kingdom, is critical of what he terms the ‘poverty of parliamentary oversight’ in these matters. Legrand argues that the lack of sufficient opportunity or information given to parliament in proscription cases ‘adds up to something worse than weak scrutiny: the appearance of a parliament in consensus with the executive’. See Tim Legrand, ‘Modern Outlawry: The Magna Carta, Terrorist Organisations and the Erosion of Parliamentary Scrutiny’, The Eastminster Blog (9 February 2015)
The point here is that the principle of open justice is in conflict with the interests of national security. Despite the enactment of the National Security Information (Criminal and Civil) Proceedings Act 2004 (Cth), courts provide experienced and impartial adjudication around this area of conflict. They are obliged to weigh the different interests (even when their capacity to give equal weight to each is changed by legislation)232 and make decisions that serve the interests of justice, the public interest in knowledge and open justice, or that do not prejudice national security.
The work of journalists in reporting on national security matters has been altered by legislation that has had the effect of opening up their sources to exposure through the telecommunications data retention regime,233 which introduced the ‘journalist information warrant’ regime that leaves journalists and media companies ignorant even of the existence of the warrant.234 Information about the warrants cannot be disclosed or
231 Nicola McGarrity, ‘Fourth Estate or Government Lapdog? The Role of the Australian Media in the Counter-Terrorism Context’ (2011) 25(2) Continuum 273, 276. 232 Ibid. 233 George Williams, ‘The Danger of our Laws’ (2016) 20 Law Society of NSW Journal 31, 31. 234 The Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth) introduced the ‘journalist information warrants’. See Richard Ackland, ‘Data Retention: “Journalist Information Warrants” are Warrants in Name Only’, The Guardian (online), 23 March 2015. See also Joint Media Organisations, Submission No 125 to Parliamentary Joint Committee on Intelligence and 124 used by anyone. The laws have also restricted journalists’ access to information, including their ability to report on ASIO’s ‘special intelligence operations’.235 The combined effect of this legislation, passed in 2014, has been to reduce the inherent jurisdiction of courts to perform their traditional role of balancing the public interest, such as the protection of the confidentiality of the identity of a journalist’s source and the need for citizens to know about the workings of government, with the national interest.236 The role of courts has been filled, somewhat, by the IGIS, who oversees the work of ASIO. The IGIS now has oversight of the ‘journalist information warrants’ issued by the AGD in favour of ASIO and the special intelligence operations, also approved by the AGD.237
Taken together, the provisions mentioned above demonstrate a shift in the role of courts from that of the 1980s, when they were a rampart of democratic scrutiny. Now, the public interest has been subordinated to the national interest and the IGIS has the main oversight role.238 Although this thesis does not examine the data retention regime or the special intelligence operations laws in detail—they are outside the period of analysis in the case studies and public information sources remain sparse—it is noted that they provide a contemporary example of a return to hard mechanisms, with the added twist
Security, Inquiry into and Report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, 20 January 2015. 235 Australian Security Intelligence Organisation Act 1979 (Cth) s 35P; Williams, above n 233, 31. 236 James Nunez, ‘The Implied Freedom of Political Communication: A Basis for Journalists to Challenge Australian Security Intelligence Organisation Act 1979 (Cth) s 35P?’ (2015) 20(3) Media and Arts Law Review 252, 252–281; Adam Zwi, ‘Security Law Watchdog Recommends Relaxing Secrecy Provisions for Journalists’ (2016) 31(1) Communications Law Bulletim 9, 9–11. 237 Inspector-General of Intelligence and Security, Annual Report 2015–2016 (Office of the Inspector- General of Intelligence and Security, 11 Oct 2016) 19–20. 238 Although, James Nunez questions whether section 35P is open to constitutional challenge. See Nunez, above n 236, 16. 125 that they diminish the role of two traditional institutions of scrutiny, namely the fourth estate and the courts.239
This thesis seeks to explore whether the democratic scrutiny provided by the courts is diminished when the state and corporations negotiate outcomes, in secret, in lieu of adjudication through the courts. The final case study, which concerns the political aftermath of the AFP’s Operation Neath counter-terrorism raid, considers the implications of industry and government negotiating outside the courts to determine disputes between the media and government over the publication of and access to national security information.
III CONCLUSION
In the context of the administration of national security law, policy and coordination in the Australian communications sector, the rhetoric of ‘shared responsibility’ and
‘private–public partnership’ is ubiquitous.240 The case studies that follow reveal the involvement of communications industry participants in strategic decision-making on national security law, policy and coordination.
Hysing’s indicators of government to governance enable the identification of modes of governing in different regulatory settings. Hysing does not create a prescriptive schema with the indicators nor require adherence to such a schema, but presents them as a useful means of critically examining regulatory settings for instances of government and governance or both. This thesis uses Hysing’s indicators of government to governance selectively in response to the dynamics of each case study’s unique context. By critically examining one or more of the indicators of government to governance through
239 McGarrity, above n 231; Chris Nash, ‘Freedom of the Press in the New Australian Security State’ (2005) 28(3) UNSW Law Journal 900. 240 Australian Mobile Telephone Association and Communications Alliance, Submission No 16 to the Legal and Constitutional Affairs References Committee, Inquiry into Comprehensive Revision of Telecommunications (Interception and Access) Act 1979, 27 February 2014, 2–3. 126 the case studies, the aim of this thesis is to provide a richer, nuanced discussion of the governance networks, structures and processes. 241 Each case study is different in terms of its history, the subject matter, the amount of regulation and the composition of stakeholders from the public and private sectors. Therefore, the indicators of government to governance that each case study will consider also differ.
All case studies consider relations between government and private actors, as the nature of that relationship is pivotal in identifying instances of corporatist governance. The first case study on telecommunications interception also considers governing styles and instruments, because the legislative framework in this regulatory setting is well developed, and the regulatory design institutionalised corporatist governance mechanisms.
The second case study on the Anti-Terrorism Standard investigations also considers relationships between policy levels, because those relations were disclosed as a consequence of the facts and showed the different levels of influence operating on regulatory outcomes. The third case study on Operation Neath and the Attorney-
General’s Roundtable also considers governing styles, because the facts of the case under examination exposed the negotiations between corporate elites and government over the terms of regulation, which signifies corporatist governance as a mode of governance.
The task of each case study is not only to reveal a range of governance mechanisms, but also to assist in more accurately characterising the link between the state and corporations as corporatist governance. The choice of indictors in each case study
241 Allowing for governance mechanisms, such as negotiation, public-private collaboration and partnerships, to be identified. For example, Ansell and Gash, above n 109; Keith G Provan and Patrick Kenis, ‘Modes of Network Governance: Structure, Management, and Effectiveness’ (2008) 18(2) Journal of Public Administration Research and Theory 229. 127 permits a deeper analysis of the hard and soft governance mechanisms in use, and tracks the influence of relationships in the regulatory setting and domestic policy levels. In doing so, the implications for institutions of democratic scrutiny are revealed, that is, each case study considers the role of the rule of law, parliamentary scrutiny and courts, in addition to other forms of accountability in operation.
128 CHAPTER FOUR COORDINATING TELECOMMUNICATIONS INTERCEPTION: A CORPORATIST GOVERNANCE FRAMEWORK
The ACA observes that despite the efforts of agencies and C/CSPs to conclude arrangements, contractual-type negotiations on issues such as charges, conditions, delivery points and other administrative arrangements are frustrating the policy intent of the law. Negotiations are taking too much time and TI [Telecommunications Interception] is not being delivered while these secondary matters are being settled. (ACA, 1999)1
It is worth stressing that point about good long-term relationships because my experience has been that they really are important, particularly in these areas where there are sometimes critical community and citizen issues at stake. While not everyone will or should always agree on everything on particular issues to do with the emergency call service, or interception or whatever, it is nevertheless important for the sake of the Australian community and the national interest that long-term relationships are maintained and do not become corrosive. (Chris Cheah, 2013)2
I INTRODUCTION
As the opening quotations above indicate, an extensive network of government and industry participants enables the administration of national security law, policy and coordination. In Australia, the governance of telecommunications interception and access is comprised of a prescriptive, technical legislative regime, which involves multiple networks of government agencies across many portfolio departments, including communications, law enforcement, the national security community and industry, in complex processes of decision-making. These networks, structures and processes facilitate the actual interception of and access to a wide range of communications across the communications sector, from telecommunications metadata
1 Dale Boucher, ‘Telecommunications Interception Review—Review of the Longer Term Cost- Effectiveness of Telecommunications Interception Arrangements under section 332R of the Telecommunications Interception Act 1997’ (Report, Australian Communications Authority (Cth), June 1999) 3. 2 Chris Cheah, ‘Safety Agencies and the ACMA—The Australian Communications and Media Authority and the Public Safety Sector’ (Speech delivered at the Association of Public-Safety Communications Officials (APCO), Australasia 10th Annual Conference, Adelaide, 13 March 2013). 129 to stored communications to the content of communications.3 The administration of telecommunications interception capability and delivery is comprised of networks, structures and processes that enable industry participants (who are subject to obligations contained in legislation), government departments, police forces and security agencies to negotiate the finer details of interception law, policy and practice. Along with other critical infrastructure providers, such as the banks, the telecommunications industry is obliged by law to cooperate in the delivery of national security outcomes for Australia in an increasingly competitive globalised industry and economy.
This case study is the first of three concerned with characterising the relationship between industry and government by examining the cooperative governance framework for telecommunications interception. It differs from the other case studies in that it has no major controversy or factual ‘case’, that is, there was no defined issue that required resolution, from which conclusions could normally be drawn. Rather, what is offered is a broad historical and contemporary description of the cooperative governance framework for telecommunications interception that has evolved since the 1960s. The composition of players involved in telecommunications interception has undergone major changes over the years. Simply mapping these phases is, in itself, an important research undertaking. Nonetheless, the case study references several examples in which government and industry negotiate interception outcomes. By using the indicators of government to governance, the aim is to flesh out the nature of the existing compact between industry and government on telecommunications interception capability law, policy and coordination and more clearly define its characteristics.
3 Attorney-General’s Department (Cth), ‘Equipping Australia against Emerging and Evolving Threats’ (Discussion Paper, July 2012) 21–22. 130 The chapter begins with a short history of telecommunications interception to provide the background that is necessary to understand the current cooperative governance structure. Next, the chapter explains the networks, structures and processes that currently comprise the telecommunications interception capability regime. The chapter then discusses the regulatory instruments and the relationship between government and industry, with reference to two of Hysing’s indicators of government to governance, styles and instruments and relationships between public and private actors. Finally, based on the preceding analysis, the chapter draws the conclusion that the governance arrangements, which are ostensibly a form of collaborative governance, are inherently corporatist in their organisation, structure and practice.
II TELECOMMUNICATIONS INTERCEPTION: A SHORT HISTORY
This section provides a brief overview of changes in the regulatory arrangements for telecommunications interception over the past three decades, demonstrating the increasing complexity in governance frameworks that has emerged as a result of shifting political ambitions and industry deregulation.
A Telecommunications Interception as an Exercise of Executive Power
Initially, the function of interception was divided between private telecommunications companies and government.4 Australia’s interception history is characterised by a long period of government control of telecommunications, during which the colonial governments, and then the Commonwealth Government, were the sole providers of telecommunications services to the public.5 From the onset of the Cold War in the late
1940s, telecommunications interception was conducted as an exercise of executive
4 J Hills, ‘What’s New? War, Censorship and Global Transmission: From the Telegraph to the Internet’ (2006) 68(3) International Communication Gazette 195, 198. 5 Anne Moyal, Clear Across Australia: A History of Telecommunications (Thomas Nelson, 1984) 87–88. 131 power without a legislative framework.6 As noted by the Senate Legal and
Constitutional Legislation Committee in its March 1995 report on the
Telecommunications (Interception) Amendment Bill 1994:
Up until 1960 there was no Commonwealth legislation dealing with communications interception. Phones were ‘tapped’ as an executive act. From 1950 onwards there were Prime Ministerial directions in place to govern the exercise of the executive discretion. These directions authorized interception only in relation to cases of espionage, sabotage and subversive activities.7
The power to regulate ‘postal, telegraphic, telephonic and other like services’ is enshrined in section 51(v) of the Australian Constitution Act. It was under this head of power that the first piece of legislation concerning telecommunications interception was enacted, the Telephonic Communications (Interception) Act 1960. The purpose of that
Act was to ‘prohibit interception of telephonic messages in their passage over the telephonic system controlled by the Commonwealth’.8 The 1960 Act was limited to the interception of telecommunications for reasons of national security.9 As noted by the
Barrett Review,10 ‘the original focus of telecommunications interception was on intelligence gathering by security agencies’.11
The Telephonic Communications (Interception) Act 1960 also had the purpose of
‘legislatively regularis[ing] the Commonwealth’s role in telephone tapping’,12 and allowed for warrants for access to information transmitted via telephone, telex and telegrams for national security purposes only. At the time, the Act covered the field in respect of telecommunications interception in Australia. Otherwise, access to
6 Legal and Constitutional Legislation Committee, Parliament of Australia, Report on the Telecommunications (Interception) Amendment Bill 1994 (1995) 2. 7 Ibid. 8 Joint Select Committee on Telecommunications Interception, Parliament of Australia, Report of the Joint Select Committee on Telecommunications Interception (1986) 100. 9 Ibid. 10 Pat Barrett, ‘Review of the Long Term Effectiveness of Telecommunications Interception’ (Report, Department of Finance (Cth), 1 March 1994) 30. 11 Ibid. 12 Legal and Constitutional Legislation Committee, above n 6, 2. 132 communications was prohibited. In 1960, the Postmaster-General’s Department was the sole provider of telecommunications services.13
When the first interception legislation was passed, many members of parliament questioned the legitimacy and necessity of the interception legislation.14 The concern was that interception, if not limited, regulated and controlled, would be abused for political purposes that exceeded the public law boundaries of legality, necessity and legitimacy. This concern arose out of the politics of the Cold War and a concern that the security services and police were acting illegally.15 A level of formality was maintained between the postmaster-general, law enforcement and security agencies through the requirement for interception warrants, but otherwise, according to the Boucher Review, interception was ‘addressed primarily by less formal arrangements between Telecom, law enforcement and national security agencies’ until the introduction of the first cooperative legislative frameworks of the 1990s.16
B The Australian Security State and Telecommunications: 1975–1991
The period from 1975 to 1991 was characterised by the beginnings of facilities-based competition, deregulation and privatisation across the telecommunications sector.17 This
13 The National Archives of Australia notes that ‘[a]t Federation, control of postal services was transferred to the Commonwealth and the postmaster-general’s department (CA 9) was established in Melbourne. The postmaster-general’s department was responsible for post, telegraph and telephone services, and later acquired other functions including broadcasting and overseas telecommunications. In 1975, the postmaster-general’s department was abolished and replaced by the Postal and Telecommunications Department (CA 1959).’ See National Archives of Australia, Research Guides: Collections in Melbourne: A Guide to Commonwealth Records (2017)
ASIO.20
In 1975, a wave of reforms led to the splitting of the Postmaster-General’s Department into the post office and the telecommunications commission, which traded as Telecom.
In 1979, further legislative change was introduced, which saw the repeal of the
Telephonic Communications (Interception) Act 1960 and the interception of information provisions of the Telecommunications Act 1975. The TIA Act was enacted in their place. Lee, Hanks and Morabito pointed out that the TIA Act was introduced to complement the Australian Security Intelligence Organization Act 1979.21 Both the
18 Ibid; Department of Transport and Communications (Cth), Microeconomic Reform: Progress— Telecommunications (Policy Document, November 1990). 19 See Jenny Hocking, Beyond Terrorism: The Development of the Australian Security State (Allen & Unwin, 1993); Hong Phun Lee, Peter John Hanks and Vincenzo Morabito, In the Name of National Security: The Legal Dimensions (LBC Information Services, 1995). 20 Hocking, above n 19, especially Chapters 3 and 4. 21 Lee, Hanks and Morabito, above n 19, 76. 134 ASIO Act and the TIA Act came into force on the same day.22 As noted by the Boucher
Review:
The Telecommunications Act 1975 (1975 Act) and the Telecommunications Act 1989 (1989 Act) did not impose express obligations on the monopoly carrier, Telecom (or AUSSAT and OTC under the 1989 Act) in respect of interception. Interception, up until the enactment of the Telecommunications Act 1991 (1991 Act), was still addressed primarily by less formal arrangements between Telecom and law enforcement and national security agencies.23
The amendments to the TIA Act in the 1980s were concerned with extending the warrant powers of the AFP to intercept for serious drug trafficking offences and amendments relating to the various royal commissions conducted during the period into organised crime, such as SP Bookmaking.24 At the time, there was only one provider of telecommunications—Telecom.25
In a ministerial statement to parliament in March 1984, the minister for communications at the time explained the relationship between Telecom and law enforcement in the following terms:
A number of steps have been taken to improve liaison between Telecom and law enforcement agencies. The detailed working arrangements and policy guidelines between Telecom and the Australian Federal Police have been reviewed and revised arrangements are in place. The informal arrangements between the State police and Telecom have also been examined but are regarded as satisfactory and need not be formalised. Formal arrangements have been established in each State and at the national level for high-level liaison between Telecom, State police and the AFP. Telecom is taking steps to strengthen its internal investigation unit. The unit has a charter to initiate investigations and pursue them to the point where there appear to be substantial grounds for suspicion. At that point, they will be handed to the State police or AFP as appropriate … Law enforcement agencies have
22 ‘Notes on clauses—Telecommunications (Interception) Bill 1979’ (Research Note, Parliamentary Library, Parliament of Australia, 1979) 13759–13775. 23 Boucher, above n 1, 123. 24 As part of a package of amendments to various pieces of legislation in the 1980s to fight organised crime, including the Telecommunications (Interception) Act 1979. See for example, Commonwealth, Parliamentary Debates, Senate, 28 May 1987, 3555 (Peter Cleeland). 25 Edelsten v Investigating Committee of New South Wales (1986) 7 NSWLR 222, 224 (Lee J). 135 criticised some Telecom administrative procedures in that they do not provide adequate information to assist in investigation of illegal activities. Telecom, of course, has based its administrative procedures on what it needs to operate efficiently on a commercial basis. However, following discussions between law enforcement agencies and Telecom, it has been agreed that Telecom will collect some additional information from applicants for telephones and will keep appropriate records for a longer period.26
As the above quotation indicates, there were multiple levels of coordination and cooperation in operation or being instigated between Telecom and the law enforcement agencies. It also demonstrates that the prerogatives of Telecom were different to those of the law enforcement agencies, in that commercial imperatives were a consideration for Telecom in developing cooperative arrangements. The commercial imperatives of telecommunications providers, such as competitiveness and cost-effectiveness, became the driver for later statutory reviews of the governance arrangements for telecommunications interception. The communications sector’s desire for competitiveness needed to be balanced against the agencies and LEAs’ desire for comprehensive interception capability.
Australia’s evolving cooperative governance structure for telecommunications interception was not unique. For example, in the UK, interception legislation was introduced in the mid-1980s. Lee, Hanks and Morabito noted that, apart from the 1984 decision of the European Court of Human Rights in the Malone case,27 the impetus for introducing a statutory framework for telecommunications interception was the introduction of legislation for the privatisation of the existing state-owned telecommunications services.28 The UK organised its telecommunications interception on the basis of cooperative relationships between agencies and industry. Indeed, as noted in the Boucher Review, ‘a Standing Committee on Intercepts (SCI) exists for law
26 Commonwealth, Parliamentary Debates, House of Representatives, 27 March 1984, 840 (Michael Duffy). 27 Lee, Hanks and Morabito, above n 19, 64. 28 Ibid. 136 enforcement agencies (LEAs) and security agencies with liaison arrangements with industry and manufacturers. A technical group examines future technologies’.29 The
Boucher Review also remarked that, in the UK, ‘the whole TI system works significantly on the basis of co-operation with industry’.30
In the late 1980s, telecommunications deregulation started to become a reality in
Australia.31 The Australian Telecommunications Authority (AUSTEL) was established by section 16 of the Telecommunications Act 1989 (the 1989 Act) as an independent regulatory body, which would be responsible for technical and economic regulation of the telecommunications industry, including provision of advice and assistance to industry and government on a range of matters.32 AUSTEL had general government obligations, including implementing any general policies of the government under section 28 of the 1989 Act. In 1990, AUSTEL received a notification from the government that all providers of public telecommunications services would be capable of being intercepted and that AUSTEL must factor this into any licensing decision.33
Other provisions further bolstered the cooperative aspects of the legislative framework, including the obligation for telecommunications providers to use their best endeavours to ensure their networks and facilities would not be used in the commission of an offence.34
29 Boucher, above n 1, 94. 30 Ibid 96. 31 Alisdair Grant (ed), Australian Telecommunications Regulation (UNSW Press, 3rd ed, 2004) 4. Drahos and Braithwaite showed how deregulation was the driving principle in telecommunications regulation internationally, starting in the 1950s in the United States. See John Braithwaite and Peter Drahos, Global Business Regulation (Cambridge University Press, 2000) 558. 32 Barrett, above n 10, 72. 33 Ibid. 34 Telecommunications Act 1989 (Cth) s 26. 137 The Barrett Review had revealed that these provisions had been inadequate in operation.35 Consequently, AUSTEL, following concerns expressed by its industry and government stakeholders, established an advisory committee under section 32 of the
1989 Act. The first meeting of the Law Enforcement Advisory Committee (LEAC) was held on 23 October 1990.36
During this period, the Joint Select Committee on Telecommunication Interception was concerning itself with the extension of the TIA Act to include the state police forces. A concern was that agency rivalries were one cause of the state police seeking access to the powers to intercept under the TIA Act. The committee’s report intimated there was
‘a lack of cooperation between the AFP and the state police and other agencies, due to a desire to retain the integrity of their respective empires’.37
In summary, the pre-1980s era of telecommunications interception was characterised as operating on an informal basis between government departments and agencies, with more formal requirements existing around obtaining an interception warrant. During this time, the state was the sole provider of telecommunications services, and the state itself, through its police services and security services, was negotiating for access to communications. The networks were entirely internal to the state, as there were no corporate participants operating in the Australian telecommunications sector. The status quo changed with the liberalisation and privatisation of telecommunications in the late
1980s. The need to coordinate vastly diverse interests and goals led to the establishment of an independent regulatory authority, AUSTEL; a forum for consultation between industry and government, in the form of LEAC, and the introduction of the earliest obligations on industry to cooperate, set out in the 1989 Act.
35 Barrett, above n 10, 72. 36 Ibid. 37 Joint Select Committee on Telecommunications Interception, above n 8, 178. 138 C Open Competition and a Statutory Framework for Cooperation on
Telecommunications Interception: 1991–1997
The period from 1991 to 1997 was one of regulatory instability in telecommunications, during which many of the deregulation and competition reforms in the telecommunications sector were debated and ultimately decided.38 Up until 1989,
Telecom made its own by-laws. By the end of the 1980s, more formalised processes for interacting with the telecommunications industry were introduced, as the role of the independent regulator, AUSTEL, came under scrutiny. The Barrett Review noted that:
By the end of the 1980s, the Government had promoted commercial freedom in the telecommunications industry and continued with radical restructuring in the new decade. The efficiency of the industry was seen as a major factor affecting the competitiveness of the entire Australian economy, as well as an essential service for Australian households … The benefits of ensuring the appropriate balance between, and the framework for, both the competitive and regulatory environments were regarded as critical to the achievement of this objective. In these circumstances there were strong pressures to enhance AUSTEL’s role as an independent regulatory body, which was put into effect by the Telecommunications Act 1991.39
The Telecommunications Act 1991 (the 1991 Act) enhanced and further developed the cooperative relationships between industry and government. The 1991 Act contained obligations for industry to ensure their networks and facilities would not be used in the commission an offence, and introduced the obligation to provide reasonably necessary assistance to law enforcement and security agencies.40 The carrier licence conditions also contained obligations pertaining to telecommunications interception capability, cooperation and consultation.41
38 Raiche, above n 17, 9. 39 Barrett, above n 10, 72. 40 Telecommunications Act 1991 (Cth) ss 47(1)–(2). 41 Ibid s 73A; Barrett, above n 10, 74. 139 The focus of the Barrett Review of 1994 was the long-term cost-effectiveness of telecommunications interception. The review recommendations provided the basis for cost-sharing arrangements between government and industry.42 The review stressed the importance of cooperation and consultation between agencies and telecommunications carriers and noted that:
The evidence suggests that consultation and cooperation between agencies and telecommunication carriers has not been as effective up till now as it could or should be. The Law Enforcement Advisory Committee (LEAC), established under the auspices of AUSTEL, is the main forum for such consultation. There is considerable support for it by all parties, including support from telecommunication service providers who are not at present represented. No respondent indicated any interest in an alternative arrangement. There needs to be greater appreciation of the interrelationship of responsibilities between carriers/service providers and the agencies. I consider that LEAC has the potential to ensure that future difficulties in the area of interception can be minimized. This includes criticisms of the possible adverse impact of TI on the competitiveness of the communications industry.43
Many legal and regulatory issues arising out of the new obligations imposed on industry participants—including balancing the need for cost-effectiveness with the agencies’ requirements—were referred to LEAC for consideration and resolution.44 The Barrett
Review regarded LEAC as the prime forum for the resolution of telecommunications interception issues between the parties. However, there was also significant conflict. As noted by the Barrett Review:
Discussions with members of the Committee, participants and observers in and of its activities suggest that there are sometimes problems with the functioning of LEAC derived from the conflicting goals of the telecommunications suppliers and the agencies. It has been claimed that on occasions almost confrontationalist, or at least, an adversarial approach was adopted by the parties. The point is not about avoiding vigorous debate but about indicating a concern to ensure better (and more timely) communication and cooperation. Observations made by agencies and by carriers point to a need to improve
42 Barrett, above n 10, 74. 43 Ibid 2. 44 Ibid 2–3. 140 coordination and the availability of timely and adequate information for decision-making within the LEAC.45
On 15 July 1992, the role of LEAC was enhanced and formalised as the key advisory body between industry and government on telecommunications law enforcement and security issues. In a ministerial direction to AUSTEL under section 50 of the 1991 Act,
LEAC was to be maintained by AUSTEL, with a more formalised structure for consultation and advice. The direction required subcommittees to be formed to deal with new technology, the establishment of principles for resolving grievances and the potential to broaden LEAC membership.46 During this period, there were two general carriers in operation, Optus and Telstra, and three mobile carriers, Telstra, Optus and
Vodafone. In addition to LEAC, industry participants were able to consult individually with government about their concerns around, for example, the adoption of new technology or what might constitute reasonably necessary assistance and to whom such assistance should be given.47
The Barrett Review provided the clearest statement of LEAC’s role in the governance framework for telecommunications interception:
Under its terms of reference, LEAC deals with a wide range of law enforcement and security matters. Telecommunications Interception matters have accounted for, at most, 25% of the Committee’s resources since its establishment in February 1990. The Committee has dealt very largely with policy and legal issues, and the expertise of the officials representing the member organisations reflects this. LEAC does not usually deal with technical matters.48
LEAC’s role was purely advisory, rather than regulatory. Barrett noted that LEAC’s strength was that it operated on neutral territory and, thus, it was best placed to coordinate national security and law enforcement issues with the telecommunications
45 Ibid 80. 46 Ibid 77–78. 47 Ibid 79. 48 Ibid 80. 141 industry, within the competition framework created by the 1991 Act. Thus, LEAC operated with a discernible structure, laid out in legislation and ministerial notifications, directions and declarations. The early history of LEAC can be traced through the public reviews undertaken in the 1990s. Valuable information about its membership, its functions and its processes can be discerned and, in this regard, LEAC’s operations are transparent and accountable. However, LEAC’s internal networks and processes are less easily discerned from the public record because they are classified.
D Open Competition and Telecommunications Interception Capability: 1997–2001
On 1 July 1997, full deregulation of the telecommunications market commenced. The
Telecommunications Act 1997 (the 1997 Act) introduced changes to the government’s regulatory policy on telecommunications, which included, among other things, a general move towards industry self-regulation in telecommunications. Roger Magnusson described the post-June 1997 regulatory framework as ‘technology neutral, market- driven and emphasizing self-regulation’.49 By this, he meant that government, in implementing the new regime, favoured no particular technology or platform, although it was assumed that there would be a shift to digitalisation.50 Magnusson also drew attention to the pro-competition policy underpinning the new regime, which had the effect of removing the restrictions on carrier licensing to open up the carrier and CSP market to full competition. In this new environment, self-regulation was to be favoured as much as possible.51 For this reason, the period from 1997 to 2001 is the key period for defining the statutory boundaries of the collaborative governance arrangements over telecommunications interception in Australia.
49 Roger Magnusson, ‘Privacy, Surveillance and Interception in Australia’s Changing Telecommunications Environment’ (1999) 27(1) Federal Law Review 33, 34. 50 Ibid 37. 51 Ibid 34. 142 From 1997 to 2001, the concerns of the 1970s, 1980s and early 1990s, which had focused on drug trafficking, police corruption and the politicisation of the security services, were overshadowed by concerns about terrorism, technological change and the effects of full competition on the telecommunications industry.52 The interception regime was extended to CSP service providers under the 1997 Act. In further amending legislation, AUSTEL and the Spectrum Management Authority, established under
Radiocommunications Act 1992, were merged to form the ACA.53
In response to the concerns and recommendations of the Barrett Review, the
Telecommunications Legislation Amendment Act 1997 introduced a statutory obligation on industry and government to cooperate within a legislatively defined governance structure, which included the creation of the agency coordinator within the AGD.54 The amending legislation introduced new concepts and obligations into the interception framework, including the concept of ‘delivery point’, the interception capability plan and notification obligations on industry about new technology.
The Hon. Warwick Smith, Minister for Family Services, in his second reading speech of the Telecommunications Legislation Amendment Bill 1997, explained the effects of deregulation on telecommunications interception in these terms:
One of the effects of the opening of the telecommunications market to full competition will be to increase the difficulties and expense faced by the agencies in attempting to negotiate interception capability arrangements with each and every new entrant. Add to this the escalating speed of technological change in telecommunications, and the obvious outcome is increasing delays to the entrance of new market participants and to new services, with
52 Commonwealth, Parliamentary Debates, House of Representatives, 12 October 1999, 11338 (Daryl Williams); Commonwealth, Parliamentary Debates, House of Representatives, 12 October 1999, 11332 (Paul Neville). 53 Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997 (Cth). 54 Telecommunications Legislation Amendment Act 1997 (Cth). 143 implications for the growth and development of the Australian telecommunications market.55
The 1997 Amendment Act expanded and consolidated industry and government cooperation. The agency coordinator’s role was designed to centralise the dealings between national security and law enforcement agencies and the government on interception capability. Two years later, the problems within the cooperative framework around structures for negotiation and dispute resolution were identified in the Boucher
Review, commenced in late 1998 at the request of the minister for communications, information technology and the arts.56 The Boucher Review more closely examined telecommunications interception from the vantage point of full deregulation and cost- effectiveness. As mentioned above, concerns around the ‘contractual style negotiation’ between agencies and carriers/CSPs were one issue considered by this review.
The concept of reasonably necessary assistance is found in Part 14 the 1997 Act. It applied to the ACA and, after 2005, to its successor, ACMA, as well as to carriers,
CSPs and intermediaries. 57 Section 312 of the Telecommunications Act 1997 (Cth) requires that ACMA, in performing its telecommunications functions or exercising its telecommunications powers, gives officers and authorities of the commonwealth, states and territories such help as is reasonably necessary for enforcing the criminal law and laws imposing pecuniary penalties; protecting the public revenue and safeguarding national security. Section 313 applies to carriers and CSPs. Section 314 of the
Telecommunications Act 1997 (Cth) sets out the terms and conditions on which such help is to be provided. This is an enduring concept that provides, in part, one aspect of the legislative basis for regulation by negotiation.
55 Commonwealth, Parliamentary Debates, Senate, 19 November 1997, 10837 (Warwick Smith). 56 Boucher, above n 1, 2–11. 57 Telecommunications Act 1997 (Cth) s 313. 144 LEAC continued operating during this period (1997–2001) and was considered an effective and efficient forum for sharing information between industry and government.58 In conjunction with the agency coordinator, the cooperative framework was further enhanced when the Australian Communications Industry Forum (ACIF) was formed in 1997.59 Before ACIF was incorporated, it had been operating as the
National Industry Interworking Forum, which was established in anticipation of the
1997 regulatory regime.60 Membership of ACIF was open to all industry participants, and it was required to be representative of all parts of the communications industry, so that participation and consultation in the development of codes and standards would meet the requirements of the 1997 Act and satisfy the ACA that ACIF represented the communications industry.61 It was formed to assist it in implementing the new co- regulatory and self-regulatory telecommunications framework. The Boucher Review recommended that ACIF act as an alternative forum for carriers and CSPs to settle issues arising out of the new interception framework.62
In May 1997, ACIF was approached by LEAC to develop an industry code to guide carriers and CSPs in their dealings with law enforcement and national security agencies under the 1997 Act.63 LEAC was concerned about the lack of uniformity in the approach to the issue of interception, and about the practices of some service providers.
While LEAC was still operational and resolving issues about interception capability and
58 Australian Communications Authority (Cth), Annual Report 2002–2003 (Australian Government, Canberra, 2003) 65. 59 Johanna Plante, ‘The Australian Communications Industry Forum: Looking Forward and Looking Back’ (2002) 52(2) Telecommunications Journal of Australia 37. 60 Grant, above n 31, 47–48. 61 Ibid 47. 62 Boucher, above n 1, 83. 63 Australian Communications Authority (Cth), Telecommunications and Law Enforcement (July 1998) 11; Australian Communications Industry Forum, ‘ Industry Code ACIF c537:2002: Provision of Assistance to National Security, Enforcement and Government Agencies’ (Explanatory Statement) 145 delivery through its subcommittees,64 ACIF started the process of developing codes and standards associated with telecommunications interception obligations. The work was carried out by one of ACIF’s operational working committees, called the Operations
Code Working Committee. It covered matters such as disclosure of information, obligations to give reasonably necessary assistance and suspension of a service in an emergency.65 The purpose of the code was to establish industry benchmarks. The code was issued in draft form for comment in May 1999.66 It was first published in 2001 as
ACIF C537: 2001. The second edition was registered in February 2002.67 The Code ceased operation in June 2003, after an internal review by ACIF.68 The code was ultimately replaced with the ACA’s Telecommunications and Law Enforcement
Manual.69 Given that the theme here is of the industry developing in terms of self- regulation and cooperation, it is not readily apparent from available public record sources why the ACIF code was deregistered and replaced by the ACA’s
Telecommunications and Law Enforcement Manual. The industry attitude to the ACIF code was revealed by Telstra’s submission on the issue of participant monitoring under the TIA Act to the Ford Review of telecommunications interception policy in May
1999. In response to whether an ACIF Code could be used to guide industry on the monitoring of telephone calls, the Ford Review noted that:
Telstra had reservations about the use of ACIF Codes because they are subject to change at any time. Telstra observed that whenever the composition of the ACIF panel changes, new members tend to insist on reviewing the codes.70
64 Boucher, above n 1, 83. 65 Australian Communications Authority, above n 63. 66 Australian Communications Industry Forum, above n 63. 67 See Australian Communications and Media Authority (Cth), Industry codes previously registered under Part 6 of the Telecommunications Act 1997, and now replaced or removed:
Ford Review considered the resources required for the Attorney-General to perform its agency coordinator role, which industry regarded as having improved the administration of interception.71 Other submissions to the review noted that there was ‘too much consultation and negotiation for too little outcome’.72 The Ford Review did not attribute this comment to any particular participant. However, it appears that ASIO was concerned about whether the agency coordinator would be given enhanced powers to decide particular issues arising between industry and the agencies, without requiring unanimity from the security and law enforcement agencies.73 As noted by Ford, the underlying concept behind the role of the agency coordinator, as envisaged by the 1997
Act, was that of assisting the consultation processes, rather than being able to overrule any agency. ASIO was concerned that any move to give the agency coordinator the power to act without the agreement of the agencies would be at odds with other legislation, such as the ASIO Act. These public comments suggest in-fighting between the agencies and the AGD about who had the power resolve issues as they arose between industry and the agencies. It suggests deference to the traditional hierarchical governance structures of government administration, especially deference to those structures that governed the operation of the intelligence community.
The period from 1997 to 2001 is the one in which industry and government, within the new self-regulatory telecommunications paradigm, investigated the mechanisms for working together to resolve issues and deal with the rapid expansion of services and
71 Ibid 71. 72 Ibid. 73 Ibid 72. 147 service providers. During this period, the tensions between competition policy in the telecommunications sector and the traditional hierarchies of national security administration became apparent. Issues of competitiveness and cost-effectiveness were continually balanced against the agencies’ desires for interception capability and delivery. In this period, national security was an important concern, but it was weighed against the equally compelling public policy goal of competition in the telecommunications sector. The next section discusses how that fine balance shifted after the terrorist attacks in the US on 11 September 2001.
E Convergence, Cooperation and Global Terrorism: 2001–2011
In the decade following 11 September 2001, the interception legislative framework was significantly expanded in both scope and scale. Consequential and substantive amendments have been made to the legislative framework since 2001. These reflect technological advances, the formation and disbandment of various crime and corruption commissions, the addition of new commissions and agencies to the list of interception agencies (such as the Australian Securities and Investment Commission) and to keep the
TIA Act up to date with new offence provisions in the Criminal Code, the Corporations
Law and other legislation.74
This first decade of the twenty-first century coincides with Australia’s response to the so-called war on terror and an increasing awareness of the use of telecommunications to
74 For example: Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (Cth); National Crime Authority Legislation Amendment Act 2001 (Cth); Cybercrime Act 2001 (Cth); Royal Commissions and Other Legislation Amendment Act 2001 (Cth); International Criminal Court (Consequential Amendments) Act 2002 (Cth); Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002 (Cth); Telecommunications Interception and Other Legislation Amendment Act 2003 (Cth); Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No. 2) 2004 (Cth); Criminal Code Amendment (Trafficking in Persons Offences) Act 2005(Cth); Statute Law Revision Act 2005 (Cth); Law Enforcement Integrity Commissioner (Consequential Amendments) Act 2006 (Cth); Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth); Statute Law Revision Act 2010 (Cth); Freedom of Information Amendment (Reform) Act 2010 (Cth); Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 (Cth). 148 facilitate serious crimes.75 Updates to the offence provisions have included amendments for terrorism, serious drug offences, child abuse material, police disciplinary matters, serious money laundering offences, making of plastic explosives, slavery, sexual servitude and people smuggling, criminal organisations, market offences (such as insider trading and market manipulation) and identity crimes.76 Expansion of the regime has included adding new powers to allow the passing of information to commonwealth, state and territory Directors of Public Prosecutions (DPPs) and expanding the classes of persons and agencies who may apply for a search warrant and/or use interception material.77 The legislation was updated in 2008 to allow interception for investigations by the ACCC involving suspected cartel activity.78 In 2009, the scope of the Act was expanded to include the Queensland Public Interest Monitor as an interception agency for the purposes of the TIA Act.79
In 2011, the interception framework was further expanded to allow the use of interceptions to locate missing persons and to access the stored communications of victims of serious ‘contraventions’.80 In addition, the role of ASIO has been extended beyond its internal security role. ASIO may now provide logistical, technical and support services to other interception agencies in the execution of other agencies’ warrants. Finally, the interception capability obligations imposed on communications
75 For a full exposition of Australia’s ‘war on terror’ discourse, see Kathleen Gleeson, Australia’s ‘War on Terror’ Discourse (Ashgate, 2014). 76 For example: Telecommunications Interception and Other Legislation Amendment Act 2003 (Cth); Telecommunications Interception Legislation Amendment Act 2002 (Cth); Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth); Law and Justice Legislation Amendment (Marking of Plastic Explosives) Act 2007 (Cth); Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth); Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010 (Cth); Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Act 2011 (Cth); Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth); Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 (Cth); Anti-People Smuggling and Other Measures Act 2010 (Cth); Corporations Amendment (No. 1) Act 2010 (Cth); Anti-People Smuggling and Other Measures Act 2010 (Cth); Crimes Legislation Amendment Act 2011 (Cth). 77 Australian Crime Commission Establishment Act 2002 (Cth). 78 Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 (Cth). 79 Telecommunications Interception Legislation Amendment Act (No. 1) 2009 (Cth). 80 Telecommunications Interception and Intelligence Services Legislation Amendment Act 2011 (Cth). 149 industry stakeholders have been amended so that telecommunications industry stakeholders must now notify ASIO, the interception capability lead agency, about technological and business changes that may have a material adverse effect on interception capability.81
Structural change occurred in the communications sector, with convergence occurring both in industry and government. The structure and composition of industry representation changed. Technological change in the provision of communications goods and services was a driving force behind the consolidation. ACIF was the main industry representative within the cooperative framework for telecommunications interception. In 2005, the Australian VoIP Association joined ACIF, reportedly to give the diversified telecommunications industry a stronger, unified voice.82 In 2006, ACIF merged with the Service Providers Association83 to become the CA.84 At the time, the merger was explained as a response to rapid change in the communications technologies and industry structures.85 The merger meant that the membership base of industry representation was considerably expanded. ACIF then sought the input of consumers through its consumer consultative forums,86 and the CA continued with that representation.87 The statutory role of ACIF continued after the merger, with the CA taking over responsibility for the development and registration of industry codes and standards under Part 6 of the Telecommunications Act 1997.
81 Ibid. 82 ‘ACIF Expands to Include AVoIPA’, CRN (online), 30 May 2006. 83 The Service Providers Association Inc. was founded in 1993. It was the national body representing communications technology and service providers. 84 See Australian Communications and Media Authority (Cth), Organisation Links—Network Facilities (31 July 2017)
Authority (ABA) aimed at establishing a converged regulator. The merger was framed in terms of the need to keep abreast of the rapid change and convergence occurring in the communications sector, but there was little in the existing regulatory framework that facilitated a converged regulatory approach in the converging communications sector.88
The merger of the ACA and the ABA was widely accepted by industry participants.
Telstra Corporation, the incumbent telecommunications provider, regarded the merger as a necessary policy response to enable more consistent regulation of convergent technologies.89
The TIA Act was reviewed twice during this period. The Sherman Review in 2003 concerned the operation of the named persons warrant regime, but it also examined the cooperative governance framework and the operations of the various committees to ensure telecommunications interception was effective in the deregulated environment.90
The Sherman Review was a statutory review required by the passage of legislation amending the TIA Act. Importantly, it contributed to knowledge about the collaborative governance framework simply by documenting the forums in which interception law and policy was (and still is) operationalised. In doing so, the complexity of the cooperative framework was revealed in full. Sherman showed that, apart from LEAC, which directly influenced and involved the telecommunications industry more
88 Department of Communications, Information Technology and the Arts (Cth), Submission to the Senate Environment, Communications, Information Technology and the Arts Committee, Inquiry into the Australian Communications and Media Authority, 1 May 2005; Niloufer Selvadurai, ‘Regulating for the Future—Accommodating the Effects of Convergence’ (2005) 13(1) Trade Practices Law Journal 20; Australian Communications and Media Authority (Cth), Broken Concepts: The Australian Communications Legislative Landscape (Report, August 2011) 5. 89 Telstra Corporation Ltd, Submission to the Senate Environment, Communications, Information Technology and the Arts Committee, Inquiry into the Powers of Australia’s Communications Regulators, 1 May 2005, 4–5. 90 Tom Sherman, ‘Telecommunications (Interception) Act 1979—Review of the Review of Named Person Warrants and Other Matters’ (Report, Attorney-General’s Department (Cth), June 2003) 14–15. 151 broadly,91 the Attorney-General monitored the operation of the TIA Act, including an extensive program of consultation with stakeholders.92 The Sherman Review noted that:
Intercepting agencies also participate in quarterly meetings of the Law Enforcement Advisory Committee (LEAC), chaired by the ACA. The role of LEAC is to provide advice and recommendations to the ACA on law enforcement and national security issues relating to telecommunications. LEAC comprises representatives from criminal law enforcement and national security agencies, carriers and CSPs, the Department of Communications, Information Technology and the Arts, and the AGD.93
In 2004, the agency coordinator changed its name to the office of the CAC to better reflect the function of the office, as its role in facilitating, coordinating and communicating with industry, government and agencies over access to communications required improved clarity and recognition. The role was continued under the 2007
Amending Act.94 The CAC administers the implementation of Interception Capability
Plans and chairs the Interception Consultative Committee (ICC). It also organises exemptions under the interception capability provisions of Part 5 of the TIA Act.
The ICC was identified as the prime government forum for dealing with telecommunications interception issues of a technical, legal and policy nature. Inter- agency consultation was also taking place through the Special Networks Committee
(SNC) and the (Inter-Agency Technical Group) IATG. These two forums are constituted for intercepting agencies. Their briefs included examining technological developments and their influence on telecommunications interception.95
91 Ibid 15. 92 Ibid 14. 93 Ibid 15. 94 Telecommunications (Interception and Access) Amendment Act 2007 (Cth). 95 Sherman, above n 90, 14–15. 152 As noted by the Sherman Review, during this period, in September 2001, ASIO was assigned the lead interception agency role by the Attorney-General after federal cabinet endorsed and agreed to the ‘lead-house’ role.96
The Blunn Review in 2005 provided the blueprint for the most significant structural reforms to the telecommunications interception regime since it was first introduced into legislation. Anthony Blunn, a retired distinguished public servant with experience in
Business and Consumer Affairs, Finance and the AGD, undertook the task of reviewing access to communications for national security and law enforcement purposes, and presented his report to parliament on 14 September 2005.97 Mr Blunn’s report considered how best to regulate lawful interception and access to communications ‘in the ever-changing world of technologies’.98 The regulatory mechanisms in use, such as legislation and warrants, were considered, as were the cooperative forums on which the telecommunications interception legislation is now based. The review stressed the importance of interoperability, cooperation and facilitation between agencies, government departments and industry.99 It considered not only the matter of expanding access to communications and resolving issues presented by technological developments, but also ways to consolidate the cooperative frameworks, which included the creation of an overarching legislative framework for telecommunications interception, to be housed in the TIA Act.
The 2007 amendments to the Telecommunications Act 1997 and the TIA Act were characterised by Australian legal academics, Simon Bronitt and James Stellios, as ‘a
96 Ibid 15. 97 Anthony Blunn, ‘Review of the Regulation of Access to Communications’ (Report, Attorney-General’s Department (Cth), August 2005). 98 Explanatory Memorandum, Telecommunications (Interception) Amendment Bill 2006 (Cth). 99 Blunn, above n 97, 18. 153 sea-change in regulatory design’.100 The legislative reforms of 2007, which sought to implement a tranche of Blunn’s recommendations, included introducing the concept of
‘access’ into the title of the TIA Act, introducing authorisations for
‘telecommunications data’ and warrants for ‘B-Parties’ and shifting the interception capability and delivery requirements from the Telecommunications Act 1997 to the TIA
Act.101 The practical effect of this shift was that responsibility for the cooperative framework was moved from the communications portfolio to the law and justice portfolio. The industry representatives supported this transfer.102
ACMA’s role was reduced to that of arbitrator of disputes between the parties and the enforcer of compliance with the interception capability provisions of the TIA Act. The office of the CAC was further expanded to include an education function and, accordingly, recommendations for increased funding were made.
Blunn’s review reinforced the importance of communication and shared understandings in the operationalisation of telecommunications interception, drawing attention to the roles of the ICC and LEAC in fostering consultation and cooperation. Blunn recommended that LEAC be given the power to resolve issues between parties, rather than ‘simply talking about them’.103
Before the enactment of the TIA Act, ACMA commenced a review of LEAC, which is discussed in more detail in Part IV below. In August 2008, LEAC was formally dissolved and replaced with the CSER, an open forum with advisory functions, rather
100 Simon Bronitt and James Stellios, ‘Regulating Telecommunications Interception and Access in the Twenty-First Century: Technological Evolution or Legal Revolution?’ (2006) 24(4) Prometheus 413, 414. 101 Blunn, above n 97. 102 Communications Alliance, Submission to the Senate Legal and Constitutional Committee, Inquiry into the Telecommunications (Information and Access) Amendment Bill 2007, 11 July 2007, 1. 103 Blunn, above n 97, 18. 154 than a formal committee created under section 58 of the Australian Communications and Media Authority Act 2005.104
The legislative change in this period strengthened the narrative of cooperation and partnership and of shared responsibility.105 In 2008, the idea of a national security community had entered the lexicon around national security law, policy and coordination.106 ASIO’s role had continued to expand, particularly the formalisation of its role in cooperating, assisting and sharing information within the national security community. The CAC’s role was further expanded by the requirement in the
Telecommunications Interception and Intelligence Services Legislation Amendment Act
2011 that all carriers and CSPs must regularly inform the CAC of proposed changes to telecommunications services and networks that would have a material effect on the ability of those service providers to comply with the Telecommunications Act 1997 and the TIA Act. Legislative obligations now required industry to maintain open communication about the development of its service offerings and technological developments.
Industry continued to raise concerns around competitiveness and cost-effectiveness, even as the narrative of national security gained prominence and power. The issue of the effect of national security obligations on the competitiveness of the telecommunications industry has been the subject of academic inquiry. In 1989, US scholar Manly
Rutherford Irwin published a book on competitive freedom versus national security
104 Australian Communications and Media Authority (Cth), Authority Submission—Review of the Law Enforcement Advisory Committee, 21 August 2008, released under the FOI Act 1982 (Cth). 105 For example, as recently as February 2014, the Australian Mobile Telecommunications Association (AMTA) and the Communications Alliance advocated in a joint submission that a partnership between law enforcement and national security agencies should form the basis of any revised Telecommunications (Interception and Access) Act 1979. See Australian Mobile Telecommunications Association and Communications Alliance, Joint Submission No 16 to the Senate Legal and Constitutional Affairs References Committee, Comprehensive Revision of the Telecommunications (Interception and Access) Act 1979, 27 February 2014, 2. 106 See Chapter Two for details. 155 regulation, arguing that national security regulation was antithetical to competiveness because national security law and policy cannot keep up with the dynamics of market change.107 Irwin’s views are echoed in industry submissions on the various tranches of telecommunications interception legislative reform over the last three decades.108
National security obligations could also be considered anti-competitive, as only the largest telecommunications providers and communications companies are in a position to fully comply.
Since 2001, the communications regulatory landscape has continued to be shaped by national security law, policy and coordination requirements. It is worth noting here, that the balancing act historically undertaken by the communications portfolio, primarily the communications regulator, between the public policy desire for cost-effectiveness and competitiveness, and the equally important public policy desire for access to information for law enforcement and national security purposes, was tipped in favour of national security during this decade.
III NETWORKS, STRUCTURES AND PROCESSES
The previous section provided a short chronology of the major phases of the development of the telecommunications cooperative governance framework since the
1960s and presented the context in which the networks, structures and processes of telecommunications interception capability were developed and implemented. This section will further explain those networks, structures and processes, and, so far as they
107 Manley Rutherford Irwin, Competitive Freedom versus National Security Regulation (Quorum Books, 1989) 5. 108 For example Australian Mobile Telephone Association and Communications Alliance, above n 105, 2–3: ‘National security is a concern for all Australians and brings shared responsibilities to the Government, industry and the community. The Act and its supporting regulatory framework must be clear, consistent and workable, without imposing unreasonable obligations or unrecoverable costs on industry’. 156 are disclosed on the public record, the large number of forums that have developed in operationalising sector governance.
The administration of telecommunications interception is comprised of formal and informal networks, structures and processes. Here, networks refers to the relationships between government agencies, departments and industry stakeholders who perform regulatory functions and activities in the administration of communications sector security. Structures refers to the legislative and regulatory framework of cooperative governance, and processes refers to the actions taken to achieve particular ends. The
Barrett Review provided a summary of the structural arrangements for the coordination of telecommunications industry, law enforcement and national security agencies at the beginning of the 1990s:
The 1991 Act has placed substantial regulatory power in the hands of AUSTEL [the telecommunications regulator at the time]. The issue of telecommunications/law enforcement and security needs therefore seems adequately provided for within the regulatory structure. In brief: the government has notified AUSTEL of a general policy of interceptibility of telecommunications for law enforcement and security purposes and required AUSTEL to take account of that fact in its issue of licences; the Minister has directed AUSTEL to maintain a Law Enforcement Advisory Committee and a subgroup for consultative purposes on new technology and has identified the principal membership and functions of the Committee; the Minister has made a General Licence Declaration establishing conditions relating to law enforcement and security needs; licences issued by AUSTEL have restated relevant law enforcement and security related conditions; and AUSTEL has created a law Enforcement Advisory Committee, LEAC, which in turn has created a subgroup, in accordance with the Minister’s Direction, to deal with licensee/law enforcement consultations.109
This excerpt describes an historical top-down structure for the administration of telecommunications interception capability, which traditionally was within the communications portfolio. This indicates a leaning towards the government end of the
109 Barrett, above n 10, 79–80. 157 government to governance continuum, demonstrating the command-like nature of the structure.
However, as discussed in Section II of this chapter, with telecommunications deregulation came a change in regulator, a change in industry participants and an expansion of the number of interception agencies. The command-style regulatory framework remains in operation. However, the administrative functions are now divided between different portfolios, with the AGD, ACMA and ASIO arguably having the most influential roles of the government stakeholders.
The following part of the chapter, Section A, will examine more closely the forums, approaches and tools used by government and industry to administer the cooperative framework for telecommunications interception. Sections B and C will review the characterisation of the relationship between industry and government.
A Formal Internal Government Committees
The full privatisation and deregulation of telecommunications divided responsibility for different parts of the commonwealth interception regime between the communications portfolio and the law and justice portfolio of the federal government. The rationale for creating the cooperative framework for telecommunications interception arose out of the micro-economic reforms of the late 1980s and the oligopolistic nature of the market for telecommunications interception post-deregulation. In 1994, the Barrett Review found that:
Given the regulatory nature of the arrangements for the provision of TI and the oligopolistic style of market dealings, the efficient operation of TI very much
158 depends on ready availability of information and co-operation among all stakeholders.110
Numerous internal government committees and forums now provide the critical structural support for telecommunications interception capability. Committees and forums support the need for information and cooperation between the stakeholders. The formal internal government committees discussed in this section are the ICC, the SNC, the IATG, LEAC, CSER and an associated Expert Group. Following this, the role of other informal mechanisms is considered.
1 ICC
The ICC is comprised of senior management from the intercepting agencies, which are listed in the TIA Act. According to the Sherman Review of 2003, the AGD regarded the
ICC as the primary forum for dealing with telecommunications interception issues of a technical, legal and policy nature.111 In terms of what the ICC does, and when it meets, the Sherman Review reported that:
The ICC meets quarterly and members are invited to raise issues of concern in relation to the Interception Act. The AGD briefs the ICC, and actively seeks the views of members, in relation to proposed legislative amendments. Other specific functions of the ICC include: consideration of interception capability plans and applications for exemption from the obligation to provide interception capability (lodged by telecommunications carriers under Part 15 of the Telecommunications Act 1997) [sic.]; facilitation of direct discussions between agency representatives and telecommunications carriers; and consideration and formulation of common views in relation to emerging policy issues.112
Information released under the Freedom of Information Act 1982 (Cth) by the AGD reveals that the ICC continues to operate as a forum for issues arising under telecommunications interception legislation. Issues discussed in the ICC on 22
110 Ibid 71. 111 Sherman, above n 90, 14–15. 112 Ibid. 159 November 2007 included the use of intercepted information,113 a report on the National
Telecommunications Conference (NTC),114 and new legislation.115 The ICC appears to be an internal government committee that is not attended by industry stakeholders.116
The significance of the committee cannot be easily gauged from the public record.
However, its existence is proof of ongoing inter-agency and departmental collaboration and cooperation on matters relating to interception law and policy. Given the wide remit of the TIA Act, and the number of government stakeholders involved in its administration, it makes sense that a committee such as this one should operate within the networks, structures and processes of national security policy and coordination.
2 SNC and IATG
The Sherman Review provided information about two other specialist forums for coordinating and negotiating telecommunications interception issues among the different arms of government, the SNC and IATG. Sherman reported that:
Inter-agency consultation on issues related to telecommunications interception also occurs through meetings of the Special Networks Committee (SNC) and the Inter- Agency Technical Group (IATG). The role of the SNC is to consider priorities for the development of interception capability as well as interception requirements and standards, and to report on the management and costs of interception projects. Representatives of each intercepting agency attend meetings of the SNC with appropriate decision-making authority in relation to the strategic development and acquisition of interception capabilities. The
113 Interception Consultative Committee, Briefing Item 8—Use of Intercepted Information, Meeting of 22 November 2007, released under the FOI Act 1982 (Cth) by the Attorney-General’s Department. 114 Interception Consultative Committee, Briefing Item 4—Report of the National Telecommunications Conference, Meeting of 22 November 2007, released under the FOI Act 1982 (Cth) by the Attorney- General’s Department. 115 Interception Consultative Committee, Briefing Item 6—Telecommunications (Interception and Access) Amendment Act 2007 (Cth), Meeting of 22 November 2007, released under the FOI Act 1982 (Cth) by the Attorney-General’s Department. 116 Attendees to the meeting on 22 November 2007 included the Attorney-General’s Department, Western Australia Police, NSW Crime Commission, Western Australian Crime and Corruption Commission, Australian Crime Commission, Office of Police Integrity Victoria and NSW Police. Meetings are convened by the Telecommunications and Surveillance Law Branch of the Attorney-General’s Department. 160 SNC is chaired by ASIO as part of its role as ‘lead- house’ agency for interception matters.117
The role of the IATG was described in the following terms:
The role of the IATG is to examine technological developments and other technical issues having an impact on telecommunications interception. Meetings of the IATG are attended by engineering and technical representatives of intercepting agencies, with the chair taken on an annual rotating basis.118
Information about the technological and other developments discussed by the IATG are not available on the public record nor have they been released under FOI. Therefore, it is only possible to speculate that this committee may consider, among other things, cutting-edge technological developments in the communications sector, and the rise of social media, search engines and other data aggregators. The committee may also consider the activities of those using peer-to-peer structures, voice over internet protocols (VoIP) and new methods of evasion and avoidance, such as the use of anonymising tools and software.119
3 LEAC
Until it was dissolved on 21 August 2008,120 LEAC operated as a highly institutionalised forum and platform for interaction between the communications
117 Sherman, above n 90, 14–15. The members of the SNC are the Australian Security Intelligence Organisation (Chair); AFP; National Crime Authority; Victoria Police (representing State intercepting agencies); Australian Security Intelligence Organisation (specifications); and Australian Security Intelligence Organisation (project and contract administration). See Australian Federal Police, Platypus (December 1998)
[P]rovide the ACMA with a formal way to receive industry or consumer advice, thereby contributing to regulatory decisions; facilitate collaborative problem-solving by drawing on the expertise and resources of external stakeholders; strengthen industry-government regulatory partnerships to better deliver communications policy objectives; and to provide a formal and ongoing consultative process to address politically sensitive matters.122
The Barrett Review described LEAC as ‘the principal means of coordination of interests in the context of TI’.123 In July 2007, ACMA conducted a review of LEAC with industry stakeholders. Neither the review discussion paper and submissions nor the outcomes of the review were made public by ACMA, except in the most general terms in its 2008–2009 Annual Report.124 Information released under FOI legislation provides selective insight into the reasons why LEAC was reviewed and eventually replaced by
CSER.125
According to information released under FOI legislation, ACMA considered LEAC to be a ‘valuable platform for ACMA to update and receive information about communications law enforcement issues’.126 LEAC provided a forum where regulatory negotiations could take place about national security and law enforcement concerns in the communications regulatory environment. It was one of the first mechanisms for
121 Ibid. 122 Australian Communications and Media Authority (Cth), Law Enforcement Advisory Committee, Item 8: The Review of the Law Enforcement Advisory Committee—Summary of Submissions, Meeting 08-1, 7 March 2008, Tabled by the ACMA, released under the FOI Act 1982 (Cth). 123 Barrett, above n 10, 71. 124 Australian Communications and Media Authority (Cth), Annual Report 2008–2009 (Commonwealth, Canberra, 2009) 79. 125 Australian Communications and Media Authority (Cth), Law Enforcement Advisory Committee, Agenda Item 9: Review of the Law Enforcement Advisory Committee (LEAC)—Draft Discussion Paper, 25 July 2007, released under the FOI Act 1982 (Cth). 126 Australian Communications and Media Authority (Cth), Authority Submission—New Consultative Arrangements for Law Enforcement and National Security Issues, 21 August 2008, released under the FOI Act 1982 (Cth). 162 structuring regulatory negotiations and had been an enduring presence in the regulatory framework.127
The draft discussion paper provided to the LEAC meeting of 25 July 2007 explained that the review of LEAC was part of an ACMA initiative to review its stakeholder engagement mechanisms. The discussion paper accompanying the review explained that:
The idea was to consider from ‘first principles’ what roles those formal consultation processes were performing; how they were working; whether there was room for improvement; and whether alternative approaches might work better. ACMA considers that such periodic reviews are generally good practice and the new Authority provided a natural point for this to occur. The Chairman of ACMA also took a decision that all formally constituted advisory committees would be chaired by a full time Authority member.128
The discussion paper explained that LEAC was the last committee to be reviewed by
ACMA under the initiative because of the legislative changes that were foreshadowed after the Blunn Review of access to communications.129 The reasons given for reviewing LEAC related to whether it was still fit for purpose in terms of ACMA’s overall stakeholder engagement strategy. It appears that, over the life of LEAC, its function changed. It transformed from being an advisory committee of the communications regulator to a networking forum for stakeholders, where more topical issues could be discussed between stakeholders.130 Even though its terms of reference stated its formal membership, LEAC grew in size and scope beyond its original function, which ACMA attributed to LEAC being the only forum of its kind for stakeholders to meet and discuss such issues.131 Submitters to the review complained about a number of matters, including the size and composition of the committee, its
127 Ibid. 128 Ibid. 129 Australian Communications and Media Authority (Cth), above n 125. 130 Ibid 1. 131 Ibid. 163 membership and the frequency and timing of meetings.132 Another reason foreshadowed for the review was the changes to ACMA’s regulatory role with the passage of the
Telecommunications (Interception and Access) Amendment Bill 2007.133
The CA, an observer in LEAC, was invited to make a submission to the review and published its submission on its website.134 This is the only submission to the review that was made public. Information released under FOI reveals that a number of stakeholders and LEAC members were invited to make a submission to the review, including Telstra,
Optus and Hutchison Telecoms.135 In response to a question about how well the existing arrangements had been working, the CA commented that:
Communications Alliance sees LEAC as providing a valuable forum for all industry stakeholders to come together. It provides all sides of the industry with good opportunities to participate in relationship building and stakeholder management. It is successful in the dissemination of information to stakeholders. However, it is noted that this value to industry is at odds with the ACMA view of its role, i.e., ACMA sees the primary function of an advisory committee to assist ACMA in performing its regulatory functions by providing information and advice, rather than act as a forum for ACMA to provide information to the industry.136
Other industry submissions echoed these concerns.137 There is a tension apparent over whether there is a hierarchical power relationship in operation with respect to information gathering and the direction of information flows. CA implied that ACMA used LEAC to garner information from industry rather than as a forum to facilitate the
132 Ibid 2. 133 Ibid 4. 134 Anne Hurley, Chief Executive Officer, Communications Alliance, Letter to the ACMA dated 7 December 2007, ‘Review of the Law Enforcement Advisory Committee’
The existing arrangements are less than adequate in providing an effective forum for decision-making or the delivery of outcomes. The number of attendees at LEAC has become too large for effective operation. Its size does not lend itself to good facilitation of meetings. The level of secretariat support limits the functionality of the committee and contributes to a lack of delivery of resolutions or outcomes or progress to completion of agreed actions in a timely manner.138
From the information released under FOI legislation, there appeared to be too many parties present at the meeting, with different responsibilities and exposure, to be able to identify and obtain clear or desired outcomes.139 In addition, it was claimed that ACMA resourcing of the group was inadequate. In response to the question, ‘what are the roles, responsibilities and functions that are necessary or desirable for future agency– industry–regulator consultation?’, the CA responded:
Future stakeholder consultation should address the following areas: setting the strategic direction and the setting of policy; consideration of the impact of emerging services and technologies; dealing with operational issues; and information dissemination.140
This excerpt suggests that, historically, LEAC was run in a very ‘government’-like manner, or in a hierarchical, top-down style. However, changes to the sector have encouraged the expectation that industry should have a more significant and meaningful contribution to the development of policy and the strategic direction of the group. This is a typical corporatist characteristic—that a less hierarchical relationship between the economic stakeholders and government is established, that the power-sharing
138 Anne Hurley, above n 134.
139 Australian Communications and Media Authority, above n 135, 1–14. 140 Anne Hurley, above n 134.
165 arrangements are equally divided and all parties contribute within the defined institutional setting.
In response to the question, ‘what are the options for structuring consultation between relevant stakeholders in order to best meet needs into the future?’, almost all submitters proposed the separation of operational and regulatory matters from strategic and policy matters. Telstra argued that:
There is a need to create a National Policy Implementation Group (NPIG) that would have a specific set of functions and have responsibility to deliver outcomes.141
Telstra reasoned that the creation of this group was necessary if industry and government were to meet the significant technological and other challenges facing the communications environment. The CA submitted that:
Industry is open to discuss with government as to where a group responsible for policy matters in law enforcement would sit and where responsibility for chairing should lie.142
In terms of how representation should be constituted, the CA submitted that:
Representation in our view must include the major stakeholders including major carriers and representative industry associations, with equal representation of industry and law enforcement agencies. Such representatives to be from a policy rather than an operational role. The continuation of representation of industry groups in any agreed forums is critical; Communications Alliance, AMTA and IIA are all needed to be a part of any group, amongst other reasons to ensure that the interests of smaller members can be gathered and represented.143
Optus and Telstra both submitted that LEAC needed to be more effective, and Optus specifically supported expanding representation to the peak industry groups of AMTA
141 Telstra Corporation, above n 137. 142 Anne Hurley, above n 134. 143 Ibid. 166 and the CA.144 This suggests that the major economic stakeholders would remain in the negotiating role, representing the interests of minor industry participants at an institutional level. This power distribution is typical of corporatist networks, where the major economic stakeholders are the privileged participants in the highly institutionalised regulatory and policy settings. Minor industry participants are often overlooked. Smaller operators do not have the economic clout or resources to fully participate, relying heavily on industry representation through the peak industry associations. In the context of telecommunications, Telstra and Optus are better resourced and economically powerful, thus they continue to shape regulatory outcomes.
4 The Dissolution of LEAC and the Creation of the CSER and the Experts’ Group
The outcome of the review was the dissolution of LEAC and the creation of the CSER and the Expert Group. New members were added, including the CA and AMTA. The participation of major economic stakeholders was considered essential for its operation, and representation of smaller industry participants would be served through the key industry associations. The ACMA Annual Report of 2008–2009 explains the change in the composition and work of the CSER consultative forum in these terms:
Following the review, the Authority decided that it was more appropriate that LEAC be transformed from an advisory committee to the ACMA into a broader forum that deals with communications law enforcement regulatory and operational matters called the Communications Security and Enforcement Roundtable (CSER). The CSER operates as a ‘clearing-house’ for issues and is an open forum for its members to share information and progress regulatory and operational issues about law enforcement. When required, it also functions as a mechanism for giving advice to the ACMA.145
The reasons for changing the formal statutory committee structure of LEAC into the less formal governance structure of the CSER were not publicly explained, except as
144 Ibid; Singtel Optus Pty Limited, above n 137. 145 Australian Communications and Media Authority (Cth), Annual Report 2008–2009 (Commonwealth, Canberra, 2009) 79. 167 articulated by ACMA in its Annual Report and as set out in material released through an
FOI process a decade later. In an ACMA submission released under FOI it was explained that:
Formally constituting CSER under subsection 58(1) of the Australian Communications and Media Authority Act 2005 (the ACMA Act) does not seem appropriate or necessary for the broader consultative role now intended.146
From the FOI material, it became known, in August 2008, that ACMA agreed to the new consultative arrangements and the establishment of CSER. The creation of an
Expert Group was also agreed to. The logic and reasoning here is discussed in more detail below.
With the transformation from LEAC to CSER, a formal statutory advisory committee to
ACMA was transformed into an informal consultative forum. The new name suggests a directional shift in communications with ACMA and the establishment of more of a partnership. The nomenclature is inclusive and collaborative, not hierarchical. It is difficult to discern from the public record how a roundtable differs in practice from a formal statutory advisory committee. For instance, does the chair of the meeting conduct proceedings differently? Nonetheless, the change in language is indicative of a cultural shift in understanding the nature of governance and relationships between the parties.
The 2007 Amendment Act had already altered the lead role of the communications regulator, which began with the establishment of AUSTEL under the 1991 Act and the
1997 Act, and was continued by the ACA. With the creation of new statutory appointments to the AGD, and expansion of the roles of other members of the national
146 Australian Communications and Media Authority (Cth), Authority Submission—New Consultative Arrangements for Law Enforcement and National Security Issues, 21 August 2008, released under the FOI Act 1982 (Cth) 2. 168 security community, the statutory committee, LEAC, was, at that time, appropriate and necessary.147 However, with the shift from LEAC to CSER, the establishment of a less formally prescribed forum to manage telecommunications interception operational issues is observed, with the creation of the new Expert Group to handle strategic and complex policy matters. This organisational change aligns with the ambition to change the role of ACMA and enshrine a more cooperative framework with industry for sector governance.
From the outside, CSER appears to be more corporatist and less representative than
LEAC. According to information released under FOI legislation, ‘membership of the
CSER would be managed flexibly, compatible with the intention of the CSER to be an effective forum for the exchange of views’.148 The membership of CSER was to be the same as LEAC, but with industry peak bodies and other government agencies included, which had only had observer status under LEAC. The new members included the CA,
AMTA, the Victorian Office of Policy Integrity and the Australian High Tech Crime
Commission.149
Even in information released under FOI legislation, CSER was discussed in vague terms. However, it is just one aspect of the cooperative framework for telecommunications interception. There are multiple points of entry now between industry and government—from direct liaison with ASIO’s business unit to compliance and enforcement action with ACMA—where each have their own associated networks and processes.
147 Barrett, above n 10. 148 Australian Communications and Media Authority (Cth), above n 146, 4. 149 Ibid. 169 According to information released under FOI legislation, the Expert Group emerged as a specialist subgroup of the CSER.150 The ACMA Annual Report makes the following statement about the Expert Group
To complement the CSER and for other discrete reasons, a separate and smaller strategic policy group (the Experts Group) has been established by the Attorney-General’s Department and the Department of Broadband, Communications and the Digital Economy, with the ACMA as a member.151
The Expert Group was created as a smaller, strategic group managed within the AGD and communications portfolio, with CSER focusing on operational and regulatory matters. The membership of the Expert Group was to be decided by the AGD and communications portfolio. ACMA would be a member of the Expert Group, at CSER
Chair level.152 In other words, the full-time ACMA member who chaired CSER was the person nominated to attend Expert Group meetings on ACMA’s behalf.153 The review of LEAC noted that LEAC was not a suitable forum for discussing strategic issues around national security and law enforcement.154 Information released under FOI legislation indicates that the Expert Group was designed to:
Discuss forward looking strategies such as those relating to the impact of emerging technologies on law [sic.] interception. The group would also provide a high level exchange of views on law enforcement and the interception and access regime.155
This change of emphasis from formal to informal, from statutory committee to roundtable, is an example of shift from government to governance. Although the obligations on stakeholders remain in the statutory framework for telecommunications interception, the manner in which the governance framework is organised has moved to
150 Ibid. 151 Australian Communications and Media Authority (Cth), above n 145, 79. 152 Australian Communications and Media Authority (Cth), above n 126, 4. 153 Ibid. 154 Ibid. 155 Ibid 4. 170 a flatter, less hierarchical structure in the communications portfolio. At least, that is how the situation appears to an outside observer. Whether this is actually the case and whether the changes reflect a different character to the discussions, whereby industry players have more input, or whether it is a more cosmetic change, is difficult to ascertain from public record sources.
5 The Fate of Internal Government Committees
In the decade since 11 September 2001, the role of the independent regulator for communications has been gradually downgraded. AUSTEL, the ACA and then ACMA went from being the central regulatory contact for industry to being ‘a member’ of an open forum for policy and stakeholder consultation.
The cooperative governance framework for telecommunications interception has become more dispersed and fragmented. This was a consequence of the changes in public sector management and governance discussed in Chapter Three, in addition to legislative changes described in this chapter. The communications regulator, along with the statutory office holders and national security community, work together in extensive networks of internal working groups, roundtables and expert forums, which comprise the internal governance mechanisms for framing the administration of telecommunications interception in the communications sector. From the public record, it is possible to glean that there are other committees, subcommittees, forums and networks that are not publicly disclosed, unless leaked to the press, revealed as a consequence of parliamentary scrutiny or disclosed through FOI legislation.
An example here is instructive. Through questions in parliament, it became known that, as early as 2009, confidential meetings with industry had taken place about a statutory
171 regime for data retention.156 A network of four main administrating government entities was involved, the AGD, AFP, ASIO and the communication portfolio. From the public record source, it is known that the CA and AMTA participated in the meetings.157 It appears that Telstra was also part of discussions with the AGD on data retention for a number of years.158
Thus, one parliamentary disclosure revealed the way that telecommunications interception capability has come to be administered within a corporatist network, with an uncertain degree of effectiveness and marginal public accountability. However, the formally constituted internal government committees continue to play an important role, as will be discussed further in Section B below. The key point here is that these bodies have become increasingly less formal in constitution, tailored to the particular governmental need (such as a secret internal departmental task force on data retention)159 and reacting to push-back from various constituencies, and they include a wide array of institutional, cross-departmental and private actors in internal forums.
B Industry Consultation through Formal and Informal Networks, Forums and Working
Groups
It is axiomatic that corporatist structures and processes do not exist in the absence of a relationship with industry. In addition to industry supporting the work of internal government committees, the administration of telecommunications interception capability is peppered with various formal and informal networks, forums and working
156 Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Inquiry into Potential Reforms of National Security Legislation, Inquiry Hansard, 2 November 2012, 9–12. 157 Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Inquiry into Potential Reforms of National Security Legislation, Inquiry Hansard, 14 September 2012, 30, 33, 37. 158 Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Inquiry into Potential Reforms of National Security Legislation, Inquiry Hansard, 27 September 2012, 4. 159 Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Inquiry into Potential Reforms of National Security Legislation, Inquiry Hansard, 2 November 2012, 10. 172 groups that assist in building corporatist relationships. As these are ad hoc in nature, it is not possible to list them all. However, there are some recurring events. For instance, the
NTC is an annual event organised by the AGD, which brings together interception agencies, the AGD and industry to discuss new technologies and telecommunications issues. In information released under the FOI Act 1982, the ICC reported on the outcome of the NTC held in 2007. The minutes of the meeting of 22 November 2007 note that:
The National Telecommunications Conference was a resounding success, having received a majority of favourable comments from both agencies and industry alike … the only negative comments to come out of the conference related to the seating at the venue, although some ISPs were concerned about the lack of direct relevance to them. In any event, it was noted that the level of collaboration had been very promising.160
Collaboration in this context means the coming together of a select group of stakeholders to ‘build consensus and develop networks for translating consensus into results’.161 Richard Margerum, writing in the context of resource management, noted that collaborative approaches are common across a range of governance and policy areas. The following definition of collaborative governance by Ansell and Gash is apt here:
A governing arrangement where one or more public agencies directly engage nonstate stakeholders in a collective decision-making process that is formal, consensus oriented, and deliberative and that aims to make or implement public policy or manage public programs or assets.162
The NTC is an example of a cross-jurisdictional governance and policy forum that involves industry and government stakeholders. Not only does collaboration in this
160 Interception Consultative Committee, Meeting Minutes—Item 4, Meeting of 22 November 2007, released under the FOI Act 1982 (Cth) by the Attorney-General’s Department. 161 Richard Margerum, Beyond Consensus: Improving Collaborative Planning and Management (MIT Press, 2011) 6. 162 Chris Ansell and Alison Gash, ‘Collaborative Governance in Theory and Practice’ (2008) 18(4) Journal of Public Administration Research and Theory 543, 544. 173 context arguably assist in developing strategies for solving future problems, it also creates and sustains the corporatist governance arrangements that underpin it.
Government organises specific-issue consultation with industry, such as the data retention industry consultation meeting held in Canberra on 30 November 2009.163 The meeting agenda disclosed that topics for discussion included an overview of unspecified
‘developments’ in data retention, AGD policy considerations, technical issues and the way forward. The AGD released a consultation paper under FOI, which was distributed to industry participants.164 However, this issue-specific meeting was only made public because of a FOI request and the questioning of members of the AGD in the PJCIS inquiry into national security reforms.165
It is not entirely clear how or why particular industry consultations arise or who drives their agendas. Their existence suggests that there is a perceived need to assemble those considered part of the telecommunications industry community to push particular messages from time to time or to promote informal information exchanges outside internal committees. Presumably, there are many common participants between these events and internal committees, but the organisation here is looser and it appears that the members must be already known to the organiser to be invited.
C Liaison Roles
In addition to internal committees, which can include invited industry actors and more informal networks and events, there is a formal liaison role created by legislation. The
CAC is a statutory office with the AGD that provides a central point of contact between
163 Data Retention Industry Consultation Meeting, Meeting Agenda, Monday, 30 November 2009, Canberra, released under the FOI Act 1982 (Cth) by the Attorney-General’s Department. 164 Ibid. 165 See Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Inquiry into Potential Reforms of National Security Legislation, Inquiry Hansard, 2 November 2012, 9–12. 174 intercepting agencies and telecommunications carriers.166 It is also responsible for liaising with the communications portfolio.
The interception agencies, of which there are many, have business liaison units within their organisations. For example, ASIO has a business liaison unit, which deals more informally with industry representatives on interception, security checking and other matters relating to ASIO’s remit.167
Finally, the corporatist processes for telecommunications interception are characterised by other informal networks that exist between agencies, the AGD, ACMA, ASIO and industry stakeholders. It is difficult to quantify and qualify these networks, except to say that they do exist and are a result of agencies and industry working together over a number of years.168 The role of informal networks may change, in the context of the increasing instability and marked loss of job security in the public service since the reforms of the 1980s, which introduced senior executive service employment on a contractual basis. As Rodger Shanahan noted:169
The informal networks that have been referred to previously developed as a consequence of the senior members of the national security community emerging from the same department or having worked together in the same departments for decades.170
It is not clear what the loss of jobs in the public sector may mean in terms of the future development of informal networks. It would be naive to suggest that the national security community does not extend into the industries it relies on for its core
166 Telecommunications (Interception and Access) Act 1979 (Cth) s 6R. 167 Australian Security Intelligence Organisation (Cth), ASIO Report to Parliament 2012–2013 (2013) 14. 168 See Nick Warner, ‘ASIS at 60’ (Speech delivered at the Lowy Institute Distinguished Speakers Series, Sydney, 19 July 2012). 169 Michael Pusey, Economic Rationalism in Canberra: A Nation-Building State changes its Mind (Cambridge University Press, 1991) 113. 170 Rodger Shanahan, ‘An Idea in Good Currency: Collaborative Leadership in the National Security Community’ in National Security College Occasional Paper No 1 (Australian National University, November 2011) 39. 175 intelligence gathering activities or critical infrastructure protection.171 Arguably, the network extends into the business community and professional communities, wherever the personnel are employed or seconded. Given the specialist expertise involved, one would expect there to be secondments and other exchanges of personnel from the public service to private employers and vice versa, from time to time. Of relevance to the issue of industry accessing ‘threat information’ on national security issues, as recently as June
2017, the AGD disclosed that 20–50 individuals within industry currently have appropriate security clearances and that it is ‘open to’ placing secondees within the telecommunications industry.172 This openness to career opportunities is itself a factor that facilitates the building of a shared identity among members of the national security community.
The preceding paragraphs outlined the known committee and conference structures for the governance of telecommunications interception in the Australian context.173 As noted already, there are other committees that exist that are not disclosed on the public record for security or operational reasons. Combined, these committees show the extensive networks that exist between industry and government. These particular agencies and forums demonstrate a reliance on governance mechanisms that involve negotiation with industry on national security law, policy and coordination.
171 For example, the Critical Infrastructure Centre is a recently created ‘hub’ within the AGD designed to bring together ‘expertise and capability’ from across government, including ASIO and the Department of Communications and the Arts, to ‘better manage the national security risks to Australia’s critical infrastructure’. See Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Advisory Report on the Telecommunications and Other Legislation Amendment Bill 2016 (30 June 2017) 48–49; Attorney-General’s Department (Cth), Critical Infrastructure Resilience (2017)
The changing role of the state in the administration of telecommunication interception, and the modes of government and governance can be critically assessed by exploring beyond the specifics of the forums described above. As explained in Chapter Three, there are three indicators of government to governance. This part of the chapter will examine two indicators in relation to the cooperative structures that have developed in relation to telecommunications interception. Although different modes may suggest either government or governance, most frequently, the indicators of government and governance are mixed. The indicators assist in characterising the relationship between industry and government as corporatist governance.
A Governing Styles and Instruments
Government relies upon governing styles and particular instruments to ‘set, implement and evaluate policy objectives’.174 Hysing contrasted government styles and instruments, such as legal commands, with governance styles and instruments, such as voluntary agreements and other soft instruments. Telecommunications interception capability is conventionally characterised by hard instruments, with some soft governance mechanisms being implemented around the committee processes. Soft mechanisms, such as negotiation, are used with stakeholders not yet subject to the telecommunications interception regime, such as device makers and social media companies.175 In the section that follows, two indicators of government to governance
174 Erik Hysing, ‘From Government to Governance? A Comparison of Environmental Governing in Swedish Forestry and Transport’ (2009) 22(4) Governance: An International Journal of Policy, Administration, and Institutions 647, 651. 175 Although, the Attorney-General announced in June 2017 that the Turnbull Government would consider new laws which impose legal obligations on those companies to cooperate with government. See Rachel Baxendale, ‘Brandis Proposes Decryption Laws for Terror Suspects’ Messages’, The Australian (online), 11 June 2017. 177 are explored with a view to characterising the relationship between industry and government.
1 Governing Styles
The governing styles involved in telecommunications interception capability appear to be of the command and control176 type, in that the form of rule is framed by the text of the legislation. The practice of governing is based on legal commands and hierarchical, institutionalised relationships between the privileged stakeholders and government. As discussed in the Introduction, scholars have suggested that, since September 11, the state has become more authoritarian in matters of security. However, as demonstrated by the above discussion about the cooperative governance framework for telecommunications interception, there has also been some relaxation in control, which has created a greater capacity for negotiation and collaboration.
Nevertheless, scholars such as Carol Harlow have argued that authoritarianism remains in the cooperative frameworks of the decentred regulatory state. Harlow argued that the
‘colonisation of the private by the public is the true characteristic of contemporary government and that the state, far from ceding power to the private sector, was everywhere active behind the scenes’.177 This position is worth testing in regard to the cooperative framework for telecommunications interception.
As indicated by the discussion above, there has been friction between industry and government over the non-consultative style of the AGD on matters of interception capability, especially where industry advocates soft regulatory options, such as codes,
176 Robert Baldwin, Martin Cave and Martin Lodge, The Oxford Handbook of Regulation (Oxford University Press, 2010) 5, 8–9. 177 Carol Harlow, ‘The Hidden Paw of the State’ in David Dysenhaus, Murray Hunt and Grant Huscroft (eds), A Simple Common Lawyer: Essays in Honour of Michael Taggart (Hart Publishing, 2009) 77–78. 178 guidelines or use of the many and varied negotiation forums.178 There have been other examples of public push-back from new stakeholders, such as Facebook, in the communications environment on national security and law enforcement imperatives.179
Negotiation is another governing style that characterises the cooperative governance framework for telecommunications interception. As shown in Part I, negotiation has always been part of the regulation of telecommunications interception, even in the period where the state was the monopoly carrier and the only service provider.180
However, as explained in Part II of this chapter, with the introduction of competition, deregulation, privatisation, and the structured rulemaking of Part 6 of the
Telecommunications Act 1997, the regulatory relationships have become less straightforward as new players have entered the market. Technological advances and the rapid expansion of internet protocol-based services have added yet another layer of operational complexity.
The early history of telecommunications interception, set out in the first part of this chapter, demonstrated how negotiation is an important component of how ‘things get done’ in the telecommunications interception regulatory space. The mechanism of negotiation is, at times, considered inefficient by industry. Recently, for instance,
AMTA and the CA criticised the protracted, inefficient contractual negotiations with
ASIO over the cost recovery for delivery capability interception product:
178 For example Australian Mobile Telecommunications Association and Communications Alliance, Joint Submission No 16 to the Legal and Constitutional Affairs References Committee, Inquiry into Comprehensive Revision of the Telecommunications (Interception and Access) Act 1979, 27 February 2014, 14. 179 However, as mentioned in previous chapters, this position is changing. See recently David Wroe, ‘How the Turnbull Government Plans to Access Encrypted Messages’, The Sydney Morning Herald (online), 11 June 2017; Gareth Hutchens, ‘Coalition Wants Law Changed to Allow Decryption of Terrorist Communications’, The Guardian (online), 11 June 2017. 180 Boucher, above n 1, 123. 179 Cost recovery for Delivery Capability is all too often delayed by complex legal arguments associated with establishing formal contracts. Whilst there is no mention of contracts in the Act, the lead Agency, ASIO, insists on establishing contracts before any cost recovery can occur. The contract process has then also been used to attempt to extend the obligations on individual CSPs through the inclusion of terms and conditions above and beyond those required for compliance with the Act. Limited carrier/CSP capital is tied up while these contract negotiations drag on.181
Industry submissions on the public record and obtained through FOI legislation reveal the depth and breadth of negotiations with government about interception issues. In
February 2007, the CA commented on an exposure draft of the Telecommunications
(Interception and Access) Amendment Bill 2007 (Cth). AMTA, Vodafone, Optus and
Telstra also made submissions on the bill. The rhetoric of cooperation and collaboration is a defining characteristic of the CA submission. The entirety of the negotiation over the exposure draft legislation is not on the public record. However, based on the legislation that was eventually passed and the industry submissions, the nature of the negotiation can be discerned with some accuracy. The CA submission drew the AGD’s attention to the objects of the Telecommunications Act 1997 and remarked that:
For ten years Australia’s telecommunications industry has, in accordance with the policy object of the Telecommunications Act 1997 of the ‘maximum use of industry self-regulation’ successfully been developing industry-led solutions through the auspices of the Communications Alliance.182
Although the CA’s critique was implicit rather than overtly stated, it is significant that the statement emphasised the importance of ‘industry-led solutions’ to regulatory problems. The CA submission identified the main issues as the extent of consultation, the ‘absolute’ obligations to comply with interception capability and the definition of
‘telecommunications service’—the definition in the proposed bill differed to that
181 Australian Mobile Telecommunications Association and Communications Alliance, Joint Submission No 16 to the Legal and Constitutional Affairs References Committee, Inquiry into Comprehensive Revision of the Telecommunications (Interception and Access) Act 1979, 27 February 2014, 9. 182 Communications Alliance, Submission to the Attorney-General’s Department, Exposure Draft of the Telecommunications (Interception and Access) Amendment Bill 2007, 20 February 2007, 1. 180 contained in the Telecommunications Act 1997—because it could give rise to an obligation to intercept applications,183 when these are often encrypted or outside the control of the carrier or CSP.184
Historically, through the aegis of forums such as LEAC, the industry had an established relationship with the communications regulator, which evolved within the co-regulatory context. The prospect of the AGD taking over appeared to concern the CA. They took the opportunity of commenting on the bill to signal their concerns about the likely style of governing by the AGD. The submission reiterated a commitment to ‘working collaboratively with the government, law enforcement agencies and all stakeholders in the vital requirements for an effective and efficient framework for security and law enforcement’.185
Although this is only one example, it suggests, in line with Harrow’s observation about the post-September 11 state, that a strong government approach to obligations and resistance to the industry preference for governance remained, despite semantic changes used by government to describe the framework of governing. However, there was sufficient trust in the government’s rhetoric on governance that industry considered it worthwhile to protest against this approach.
2 Instruments
183 By applications, industry was referring to those software services that operate over a network, usually individually purchased by a consumer. 184 These are also called ‘over the top’ services, access to and cooperation from which have recently been identified by the Turnbull government as requiring a legislative solution. See Hutchens, above n 179; Wroe, above n 179. 185 Communications Alliance, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Telecommunications (Interception and Access) Amendment Bill 2007, 11 July 2007, 1. 181 Hysing noted that the type of governing instruments used in a regulatory setting provide an indication of whether government or governance is in operation.186 The instruments indicate the type of regulatory environment: if it involves command and control styles and instruments, this suggests government, whereas if soft styles and instruments are used, such as negotiation and guidelines, this suggests governance. In addition, the styles and instruments in use in a particular regulatory setting may indicate the power dynamics between participants.
Telecommunications interception capability sits within the regulatory framework that relates to access to communications for law enforcement and national security purposes.
Together, the Telecommunications Act 1997 and the TIA Act 1979 cover the responsibilities of carriers,187 CSPs188 and carriage service intermediaries189 to accommodate interception and access of communications by means of the regulatory concepts of reasonably necessary assistance and interception capability.
Telecommunications interception capability appears to be a prescriptive, technical, command-based legal framework. Telecommunications interception capability is provided pursuant to Part 5 of the TIA Act 1979. Carriers, nominated CSPs and carriage
186 Hysing, above n 174, 651. 187 Telecommunications Act 1997 (Cth) s 7 defines ‘Carrier’ as ‘the holder of a carrier licence’. A ‘carriage service’ is defined as ‘a service for carrying communications by means of guided and/or unguided electromagnetic energy’. 188 A ‘carriage service provider’ is defined by s 87 of the Telecommunications Act 1997 (Cth): ‘For the purposes of this Act, if a person supplies, or proposes to supply, a listed carriage service to the public using: a network unit owned by one or more carriers; or a network unit in relation to which a nominated carrier declaration is in force; the person is a carriage service provider’. 189 The Telecommunications Act 1997 (Cth) defines a ‘carriage service intermediary’ as ‘a person who is a carriage service provider under ss 87(5)’. Subsection 87(5) states: ‘For the purposes of this Act, if: a person (the first person), for reward, arranges, or proposes to arrange, for the supply of a listed carriage service by a carriage service provider to a third person; and the first person would be a carriage service provider under subsection (1) or (2) if the person had supplied that carriage service; and the commercial relationship between the first person and the third person is, or is to be, governed (in whole or in part) by an agreement between the first person and the third person that deals with one or more matters relating to the continuing supply of the service (whether or not that supply is, or is to be, for a readily ascertainable period); and the conditions (if any) specified in a determination under subsection (8) are satisfied; the person is a carriage service provider.’ 182 service intermediaries are also subject to Ministerial Determinations190 and regulations.191 This demonstrates the importance of legislative and administrative rules around telecommunications interception capability. In government to governance terms, legislative and administrative decisions are command-like hierarchical governance mechanisms because they are usually derived from a legislative base.
However, the concept of reasonably necessary assistance,192 which sits at the heart of the day-to-day operation of telecommunications interception, is not without controversy.193 It is also the basis for the obligation to provide interception capability.
Part 14 of the Telecommunications Act 1997 provides that ACMA, a carrier or CSP must give law enforcement, national security agencies and other authorities ‘such help as is reasonably necessary’ for the purposes of enforcing the criminal law and laws imposing pecuniary penalties, protecting the public revenue or safeguarding national security.194 Other national interest requirements include that a CSP may suspend the supply of a carriage service in an emergency if requested to do so by a senior police officer.195
The term reasonably necessary assistance is not defined by the Telecommunications Act
1997. ACMA has provided guidelines, a form of ‘soft law’, about what it entails.
Examples given by ACMA ‘of the kind of help law enforcement and national security agencies might ask for include: information about calls made or phone number to name
190 Telecommunications (Interception) Regulations 1987 (Cth). 191 Telecommunications (Interception and Access) (Requirements for Authorisations, Notifications and Revocations) Determination 2012 (Cth). 192 Telecommunications Act 1997 (Cth) s 313. 193 Ben Grubb, ‘How ASIC’s Attempt to Block One Website Took Down 250,000’, The Sydney Morning Herald (online), 5 June 2013; Peter Kell, Australian Security and Investments Commission, Opening Statement to Senate Estimates Committee, 4 June 2013
Industry appears to take seriously its obligation to provide reasonably necessary assistance. For example, in its submission to the Senate Committee on Legal and
Constitutional Affairs’ inquiry into the Telecommunications Interception and
Intelligence Services Amendment Bill 2010, the CA (also representing AMTA and IIA) submitted that:
The Associations recognise that the assistance that industry provides to law enforcement and security agencies (Agencies), as embodied in legislation, contributes to the effectiveness and efficiency of those agencies and benefits the Australian community. Accordingly, Industry cooperates with and willingly provides a high level of assistance to Agencies.197
Communications industry participants provide reasonably necessary assistance to law enforcement and national security agencies partly because they must198 and partly because they participate in the corporatist governance structures and processes that frame this requirement. The framework for cooperation between national security, law enforcement, other authorities and the communications industry is set out in Part 5 of the TIA Act 1979. Part 5 is structured around the concept of ‘interception capability’, which is defined, for the purposes of the TIA Act, as follows:
196 Australian Communications and Media Authority (Cth), Public Interest Obligation—Provision of Reasonably Necessary Assistance (Australian Government, 20 July 2016). 197 Communications Alliance, Australian Mobile Telecommunications Association and the Internet Industry Association, Response to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010, 27 October 2010, 2. 198 Telecommunications Act 1997 (Cth) s 313. 184 in relation to a particular kind of telecommunications service that involves, or will involve, the use of a telecommunications system, [interception capability] means the capability of that kind of service or of that system to enable a communication passing over the system to be intercepted; and lawfully intercepted information to be transmitted to the delivery points applicable in respect of that kind of service.199
There are a number of key concepts that make up the interception capability framework.
Part 5 of the TIA Act provides detailed procedures for ensuring that interception capability can occur. The key operational concepts include: delivery points,200 exemptions from interception capability,201 interception capability planning,202 delivery capability203 and the allocation of costs.204
These requirements continue to be operationalised through the industry consultation committees. From a government to governance perspective, the prescriptiveness of the legislative instrument suggests hierarchical, command-based mechanisms. The combination of legal commands, institutionalised governance networks and practices makes it appear as if telecommunications interception capability involves more government than governance. However, the regulatory setting is more complex. Though
CSER, the Experts’ Group and other subject-specific committees, both formal and informal liaison occurs.
3 The Relationship between Government and Communications Industry Stakeholders
Hysing identified the relationship between public and private actors in governing society as an indicator of government to governance. This indicator seeks to identify the patterns of interactions between state actors and private actors, and to assess their relative roles. Using the typologies of government and governance as poles on a
199 Telecommunications (Interception and Access) Act 1979 (Cth) s 187(2). 200 Ibid s 188. 201 Ibid ss 192, 193. 202 Ibid pt 5.3. 203 Ibid pt 5.5. 204 Ibid pt 5.6. 185 continuum, Hysing explained that, in a government setting, private actors have clearly defined roles, one of which is corporatist, which is characterised by highly institutionalised relationships.205 Alternatively, in governance settings, the role of private actors is more diverse. According to Hysing’s analysis, networks of resource interdependency and trust characterise the relationship between public and private actors. Hysing argued that, in this environment, the state has less ability to ‘steer’ outcomes.206 However, as noted in Chapter Three, the typologies of government and governance exist on a continuum, and that continuum is what enables a consideration of the more complex regulatory environments in operation. As Hysing also noted, even in governance settings, state actors are able to act as enablers and facilitators, who can steer the networks at a distance.207
The success of the cooperative framework for telecommunications interception depends heavily on the willingness of industry participants to collaborate, share information and interact with government in the formal and informal networks on the law, policy and coordination issues that arise. From the submissions on the public record,208 it appears that the regulatory negotiations over interception capability are, at times, adversarial.
Arguably, however, the inherent tensions between industry’s competitive goals and the interception agencies’ goals have always caused adversarial responses to achieving interception capability.
205 Hysing, above n 174, 651. 206 Ibid. 207 Ibid. 208 For example, Boucher, above n 1; Barrett, above n 10; Sherman, above n 90; Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Inquiry into Potential Reforms of National Security Legislation (2013); Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Inquiry into the National Security Legislation Amendment Bill (No.1) 2014 (2014); Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Advisory report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 (2015); Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Review of the Telecommunications and Other Legislation Amendment Bill 2016 (2017). 186 The area of telecommunications interception and access tends to involve a growing
‘shopping list’ of subject matter to be addressed and there are expectations regarding direct reporting to the state on business, services and technological developments. There is tension here related to industry expectations and capacity to comply and the possible threat of consequences for non-compliance. The bureaucratic nature of the power makes it difficult for industry stakeholders to conceive of grounds to question the state’s exercises of power. The submissions by industry are carefully crafted responses that seek to demonstrate support for the general obligations to assist law enforcement and security agencies. At the same time, there is resistance from a business point of view, aimed at maintaining competitive advantage in Australia and internationally.
The Blunn Review emphasised the need for ‘shared understandings’ of what is required by the state and what is practicable.209 The collaborative forums were considered the most appropriate place for those shared understandings to be realised:
The need for shared understandings highlights the requirement for a greater emphasis on communication and education on issues facing data access for security and law enforcement purposes. In my view there is a pressing need to ensure that all involved in giving effect to the data access regime are kept better informed of current legal and related issues and developments. Obviously this would include carriers/carriage service providers (C/CSPs) but would extend to vendors and to privacy interests. It might also sensibly involve the Director of Public Prosecutions (DPP) and the issuing authorities provided any suggestion of influence could be avoided.210
Blunn reviewed the prevailing collaborative governance architecture and explained that:
The Interception Consultative Committee (ICC), which is chaired by the Agency Co-ordinator, already provides an effective mechanism for consultation between the Attorney-General’s Department (AGD) and the intercepting agencies. The Law Enforcement Advisory Committee (LEAC) already provides a useful contact forum for industry and security and law
209 Blunn, above n 97, 17. 210 Ibid 18. 187 enforcement agencies but in my view could be better focused on the structured resolution of issues rather than simply talking about them.211
There was an emphasis in the Blunn Review on improving points of contact between industry and government and the functioning of existing forums. The repetition of
‘already’ in this quotation, in conjunction with the emphasis on the need for ‘better’ cooperative approaches suggests that, although the cooperative governance mechanisms existed, they were not operating as well as they could or should. Information released under FOI by ACMA confirms this conclusion.212 The recommendations of the Blunn
Review were translated into the Telecommunications (Interception and Access)
Amendment Bill 2007. Later, Blunn’s recommendations and the changes introduced by the 2007 Amendment Bill motivated the dissolution of LEAC by ACMA.213
An exposure draft of the 2007 Amendment Bill was released to, among others, industry and the national security community in February 2007, and the submissions from the selective consultation were not made public.214 This is suggestive of corporatism, as a limited group of privileged stakeholders were invited to comment on the draft legislation. Once the Bill was made public, industry stakeholders, used to the cooperative framework for telecommunications interception capability, publicly baulked at some of the changes being introduced and were critical of the government’s
‘reasonable but variable’ consultation on the bill.215
The submissions of industry stakeholders on the 2007 Amendment Bill contain references to their ‘exposure draft’ recommendations. For example, AMTA was
211 Ibid 18. 212 Australian Communications and Media Authority (Cth), above n 125. 213 Ibid. 214 Bronwyn Jaggers, Bills Digest, No 10 of 2007/2008, 3 August 2007, Telecommunications (Interception and Access) Amendment Bill 2007, 4. 215 Evidence to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Canberra, 16 July 2007, 20 (Chris Althaus). 188 concerned about changes to the role of the CAC. According to AMTA, there was a lack of any requirement for the CAC to take into account the objects and regulatory policy of the Telecommunication Act 1997, which covers, among other things, the promotion of the greatest practicable use of industry self-regulation,216 and was recognised for avoiding the imposition of undue financial and administrative burdens on participants in the Australian telecommunications industry. The AMTA submission, which had the support of Optus217 and Vodafone,218 referred to the cooperative framework for resolving issues. It submitted that:
AMTA considered that its concerns could be addressed in a relatively straightforward manner through minor amendments to the bill. Any further points of clarification could be resolved through discussions with ACMA and the AGD.219
During the senate committee hearings on the bill, the chief executive officer of AMTA submitted in support of the co-regulatory path:
Indeed, we are, not surprisingly, strong proponents of the elements of the Telecommunications Act, particularly those that refer to self-regulation and of course the imposition of regulations that not undue financial or administrative burden is placed upon they industry. We also recognise that, through the co- regulatory path that we often have the opportunity to take, we get a built-in flexibility in solutions that industry can bring to bear and, in partnership with government, we can reduce the need for black-letter law so that industry can go about its business again with flexibility and an ability to respond to changes in technology.220
216 Telecommunications Act 1997 (Cth) ss 4(a)–(b). 217 Paul Fletcher, Director, Corporate & Regulatory Affairs, Singtel Optus Pty Limited, Letter to the Inquiry into the Telecommunications (Interception and Access) Bill 2007, 9 July 2007. 218 Matthew Russell, Public Policy, Vodafone Australia Limited, Letter to the Secretary of the Senate Legal and Constitutional Committee, Proposed Telecommunications (Interception and Access) Amendment Bill 2007, 11 July 2011, 2. 219 Australian Mobile Telecommunications Association, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Telecommunications (Interception and Access) Bill 2007, 9 July 2007, 2. 220 Evidence to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Canberra, 16 July 2007, 19 (Chris Althaus). 189 The Telstra submission is even stronger in its support of the negotiating forums for resolving issues between government and industry. For example, on the subject of
Ministerial Determinations in section 189, Telstra argued that:
Industry consultation is a vital pre-cursor to any Ministerial Determinations. Due to the potential impact of any such determination on the telecommunications industry and those relying on the services provided by industry, Telstra was supportive of the inclusion of a formal consultation process in the Exposure draft. However, we note that this consultation process has now been removed from the TIA Bill and the Minister is no longer required to consult with industry prior to making a determination.
We submit that s. 189 should be amended to provide that, prior to making a determination, the Minister must make the terms of the draft determination available for industry comment. We suggest that industry should be given a reasonable time to consider the financial, technical and practical effect of any proposed Ministerial determination and make submissions regarding the proposed determination. We also suggest that the Minister be required to take into account any submissions received in respect of the proposed determination.221
The tension here is evident, as the most power stakeholder, Telstra, was pushing for more control over the form and substance of instruments, in this case, the Ministerial
Determinations. This suggested a desire to steer outcomes and an expectation that this power would be granted.
AMTA was critical of the omission of the formal consultation framework and noted in the senate committee hearing that:
I would emphasise to the committee that the industry’s level of consultation on this bill has been reasonable but variable. Frequently time lines have been a challenge. We look at the current state of the bill and note that some of the consultation process that was explicitly within the bill is no longer there. The extent that that changes the attitude of government in terms of consultation
221 Douglas C Gration, Company Secretary, Telstra Corporation Ltd, Telstra’s Submission to the Telecommunications (Interception and Access) Amendment Bill 2007 (Cth), 10 July 2007, 2. 190 remains to be seen. We do not believe that it will but we note the omission of some of that formal consultation that was in an earlier draft.222
Consultation is important to industry because it is how it achieves leverage in the design of governance networks, structures and processes. Formal consultation permits recourse and scrutiny. Informal consultation is more diffuse, usually carried out in secret, and has an arbitrary element. It can be given or taken away, as the state sees fit. This is suggestive of Harlow’s observation that the state is able to achieve authority in many and varied forums, and that its power has not been diluted by governance, but ostensibly enhanced.223 It also supports Hysing’s claim that, in governance settings, where there is seemingly less hierarchy, formality and structure, the state can ‘facilitate and enable’ outcomes using those very mechanisms.224
The Chair of the Committee was concerned about the level of consultation and questioned the CEO of AMTA specifically on this point. AMTA responded as follows:
There was over an extended period a high degree of interaction with the industry. We had a number of concerns particularly in relation to standards and powers within the exposure draft. We were able to put an argument forward, the government listened to that, and that was an important amendment in our view. You find that we are somewhat obsessed about the relationship between this bill and the Telecommunications Act and the acknowledgement of the objects. In the exposure draft there was a consultation process outlined explicitly and that has been removed from the bill as its currently stands. I suspect that is on the basis that the standards issue had largely been solved, but in this context we got out our point that this is a partnership between industry and government and, to the extent that there is a strong flow of discussion and negotiation between the two, that can only give a better outcome from both sides. We looked at consultation during the process and felt reasonably comfortable with that but we also looked into the future as to how consultation should be built into how the bill is managed, and that was the point of the omission.225
222 Evidence to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Canberra, 16 July 2007, 20 (Chris Althaus). 223 Harlow, above n 177. 224 Hysing, above n 174. 225 Evidence to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Canberra, 16 July 2007, 24 (Chris Althaus). 191 This quotation demonstrates the crucial role of negotiation and consultation around obligations. It suggests that industry saw itself as an equal partner in this regulatory setting, able to steer outcomes and achieve leverage over possible regulatory outcomes.
In the context of the indicators of government to governance, the public stance of industry suggests corporatist governance because it involves institutionalised participation. However, it also suggests a desire for self-governing and power-sharing arrangements.
The manner in which the industry interacted with the AGD was also an issue. The chair of the committee asked AMTA about the nature of its interactions with the AGD, to which AMTA responded:
The way the consultation has gone has been pretty typical. There have been things raised. Each and every one of those things have been specifically discussed, and I would be reticent to say more. We have certainly had an open and fruitful dialog with the department. From an industry perspective, since the Blunn report came out discussions and consultations particularly with the new Telecommunications and Surveillance law branch have certainly improved. They have certainly been open. We have got on quite well in terms of discussing issues. One of the issues to be addressed at this point in time, one which exercises the industry’s mind, is the nature of the on-going interaction between the department and industry. We have mentioned other bodies within the domestic industry, and AMTA is seeking to bring those bodies together and has had a discussion with the Attorney in relation to a high-level strategic forum whereby industry and the department can engage in higher level discussion in addition to, and complementary to, the operational issues that get discussed in other forums.226
AMTA’s response to resolving the definitional issues produced by the Bill, such as the lack of a definition for telecommunications data, was simply that ‘some of the definitional stuff we just see as being worked through operationally with the department, ACMA and the CAC’.227 In a similar vein, the CA reiterated its commitment ‘to working collaboratively with the government, law enforcement
226 Ibid 25–26. 227 Ibid; Evidence to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, 16 July 2007, 25–26 (Michael Ryan). 192 agencies and all stakeholders in the vital requirements for an effective and efficient framework for security and law enforcement’.228 Likewise, the representatives from the
AGD submitted that:
There has been exceptional consultation on this particular bill …. In the first place we developed draft legislation in close consultation with Commonwealth government agencies. That was an internal consultation process. We released the exposure draft of the bill in February and we received 32 submissions addressing the various provisions. To follow up on that we also had a number of meeting and conversations with industry groups and various submitters to work through some of the issues that they raised. Quite a few of the issues that they have raised have resulted in amendment between the exposure draft and the one that was subsequently introduced.229
The shared understanding between industry and government centred on the acknowledgement that telecommunications interception must be undertaken cooperatively. This was the starting point for all negotiations, but it is difficult to track how far that cooperation extended. It appeared to depend on the circumstances of a particular case, the regulatory setting in which the negotiation was taking place and what the commercial or government imperatives may have been at the time. It also seemed to depend on whether the issue was about established business as usual matters or some new obligation or requirement. Further, cooperation depended on how much time had been spent in secret negotiations before an issue was released for public comment or released as a bill for parliamentary scrutiny. In this sense, cooperation between industry and government appears to have occurred in an ad hoc manner.
The regulatory concerns of the 1990s were motivated by a concern for the cost- effectiveness of telecommunications interception and how best to smooth over the contractual negotiations taking place between industry and government over
228 Anne Hurley, Chief Executive Officer, Communications Alliance, Letter to the Senate Inquiry into the Telecommunications (Interception and Access) Amendment Bill 2007, 11 July 2007, 1. 229 Evidence to Senate Standing Committee on Legal and Constitutional Affairs, Reference: Telecommunications (Interception and Access) Amendment Bill 2007, Parliament of Australia, Canberra, 16 July 2007, 39–40 (Catherine Smith). 193 interception capability requirements. After September 11, concerns about cost- effectiveness began to recede into the background, and the concerns surrounded compliance, cohesion, cooperation within the legislative framework, education, rapid technological change and extending access beyond the content of communications.
The amending Acts of 2006230 and 2007231 implemented a number of recommendations by the Blunn Review. The government argued at the time that shifting telecommunications interception capability from the Telecommunications Act 1997
(administered by ACMA) to the TIA Act (administered by the AGD) was done to
‘create a more effective legislative framework for accessing telecommunications information for law enforcement and national security purposes’.232 However, the shift from the care of the communications regulator to the AGD suggested a heightened sensitivity and need to control telecommunications interception capability in a post-
September 11 world. As echoed in the comments on the bill, there was a marked industry suspicion of the state’s approach to cooperation, whether that engagement was to be formally or informally pursued.
Ironically, after seven years of operation, in 2014, a joint submission by AMTA and CA during the Senate Legal and Constitutional Affairs References Committee Inquiry into
‘Comprehensive Revision of Telecommunications (Interception and Access) Act 1979’, argued for the interception capability requirements to be moved back into the
Telecommunications Act 1997:
Obligations placed on telecommunications carriers and CSPs to support LENSAs [Law Enforcement and Security Agencies] are split between the Telecommunications Act (Part 14) and the Act. Obligations on the telecommunications industry should be removed from the Act and placed back
230 Telecommunications (Interception) Amendment Act 2006 (Cth). 231 Telecommunications (Interception) Amendment Act 2007 (Cth). 232 Commonwealth, Parliamentary Debates, Senate, 14 June 2007, 7 (Phillip Ruddock). 194 into the Telecommunications Act. This would also remove any perception of a potential conflict of interest the Attorney General’s Department may have between balancing policies; extending the powers of LENSAs on the one hand and increasing obligations on industry on the other hand. The Associations suggest that the [Department of Communications] is better placed to evaluate the overall objectives of the Telecommunications Act before any additional regulatory obligations are placed on the telecommunications industry.233
After the 2007 changes, and the shift of control of the interception governance framework to the AGD, industry stakeholders perhaps began to realise that the communications portfolio (and the communications regulator) was their preferred state actor. The shift was informed by the belief that the communications regulator, ACMA, had a better understanding of their industry and was more open to industry concerns about maintaining competitiveness in the global marketplace. Additionally, the regulatory policy of the Telecommunications Act 1997, administered by the communications portfolio, supported industry self-regulation, which provided a long- term statutory basis for balancing industry interests against those of the security agencies and LEAs.234
The discussion above reveals that, regardless of whether industry is formally required to collaborate with government, or whether it interacts on an informal basis, outside, and in addition to, any public scrutiny process, there are only hints on the public record of more significant tensions and concerns over the position taken by the state.
233See Australian Mobile Telecommunications Association and Communications Alliance, Joint Submission No 16 to the Legal and Constitutional Affairs References Committee, Inquiry into Comprehensive Revision of Telecommunications (Interception and Access) Act 1979, 27 February 2014, 8. 234 Telecommunications Act 1997 (Cth) s 4 states that [t]he Parliament intends that telecommunications be regulated in a manner that: (a) promotes the greatest practicable use of industry self-regulation; and (b) does not impose undue financial and administrative burdens on participants in the Australian telecommunications industry but does not compromise the effectiveness of regulation in achieving the objects mentioned in section 3. 195 V CONCLUSION: CORPORATIST GOVERNANCE
How then should the relationship between industry and government surrounding telecommunications interception be characterised? Hysing’s indicators of government to governance have assisted in demonstrating the complexity in the telecommunications interception regulatory environment. This chapter has focused on two indictors: governing styles and instruments, and the relationships between public and private actors. The analysis has revealed the need for deeper consideration of corporatism to assist in explaining the quandaries that this chapter has raised. Hysing encouraged this kind of additional investigation and exploration, as he realised, from his own work, that the indicators of government and governance could assist with such work.235 As typologies of modes of governing, government and governance mechanisms are often mixed or intermingled in a regulatory setting.
Thus, as Hysing concluded, state governing is highly dynamic and variable. The indicators of government and governance are a starting point for further elaboration within a particular setting. The aim of this thesis is not to plot a point on the continuum from one to the other, but to trace the way power is being deployed by the state to manage the domain of telecommunications interception at different times. Hysing explained that corporatism is a narrow form of governance, indicative of government- like regulatory settings and characterised by highly institutionalised private–public governing arrangements.236 Corporatism suggests a particular kind of relationship between public and private actors, which is not broadly representative of the wider community, but selective and exclusionary. The indicators of government and governance explored in this case study reveal the need for further elaboration and analysis of the seemingly corporatist dynamics in operation in the telecommunications
235 Hysing, above n 174, 667. 236 Ibid 651. 196 interception regulatory setting. However, there are impediments to conducting this work. Patrick Birkinshaw explained that a corporatist relationship is characterised by
‘confidentiality, mutual protection of interest, closeted relationships and mutually beneficial bartering’.237 This chapter has shown that the cooperative framework for telecommunications interception demonstrates that the relationship between industry and government is characterised by these qualities.
Corporatism provides a useful theoretical foundation for explaining and exploring the effects of large economic stakeholders on the law and policymaking process. In the communications sector, privileged interest groups, being the industry associations and industry stakeholders, participated in the governance structures and processes for policy formation, law-making and law-operationalising. These are bargaining forums and frameworks designed to achieve collaboration and consensus on matters arising in the regulation of communications security. As Novitz and Pyrsis noted:
Within a corporatist structure, interest groups cooperate with each other and with public authorities in the articulation of interests, allocation of values and implementation of policy. Within a framework designed to achieve a balance of power between two sets of opposing interests, bargaining occurs, the outcome of which is then reflected in government policy.238
The technical knowledge and other kinds of expertise required to meaningfully participate in a discussion of the regulatory issues affecting interception capability and related matters, and to take into account the special nature of national security concerns in this context, means that there are significant limitations on the meaningful participation of a large range of actors.239 Indeed, even in the corporatist forums in
237 Patrick Birkinshaw, ‘Corporatism and Accountability’ in Andrew Cox and Noël O’Sullivan (eds), The Corporate State: Corporatism and the State Tradition in Western Europe (Edward Elgar, 1988) 52. 238 T Novitz and P Syrpis, ‘Assessing Legitimate Structures for the Making of Transnational Labour Law: The Durability of Corporatism’ (2006) 35(4) Industrial Law Journal 367, 371. 239 Hysing notes that the central premise of pluralist theory is the value of very broad (often public) consultation: Hysing, above n 174, 651. 197 which industry participate, stakeholders have noted the strain of there being too many participants. As previously mentioned, as part of ACMA’s review of LEAC, the CA observed that:
The existing arrangements are less than adequate in providing an effective forum for decision making or the delivery of outcomes. The number of attendees at LEAC has become too large for effective operation. Its size does not lend itself to good facilitation of meetings.240
Hence, in the collaborative governance framework, corporatism may be understood as a
‘system of functional participation’,241 in which the state, using a mixture of government and governance mechanisms, which are fundamentally corporatist, negotiates with select, privileged interest groups over national security obligations and outcomes. The willingness to provide a high level of assistance to agencies and to cooperate is a basic feature of corporatist networks.242 It is arguable that there has been a cultural shift in the modes of negotiation, with the state itself undergoing structural change into a corporatist, managerial regulatory state. In addition, the post-September
11 changes in the political rationality of the state vis-a-vis security have further complicated the negotiating table. Industry feel empowered to demand negotiation with the state and to attempt to resolve issues informally because of the nature of the subject matter and the uncertainties around technological developments, as well as commercial interests.
The shift of power to the AGD, away from the communications portfolio, may be regarded as representing a stronger hand of the state, but there is evidence that the AGD recognises that, in reality, it needs to change its practice and facilitate greater
240 Communications Alliance, Review of the Law Enforcement Advisory Committee, Letter to the Australian Communications and Media Authority dated 7 December 2007
The events of September 11 gave countries such as Australia the opportunity to redefine and re-scope national security law, policy and coordination. In the communications regulatory space, that redefinition and re-scoping has seeped into the negotiating forums as the place for regulatory matters to be resolved. This study of telecommunications interception finds that interception is currently administered using a mixture of government and governance mechanisms, practices and techniques.
The cooperative framework for telecommunications interception will continue to evolve. New stakeholders, such as Facebook or Google and other ‘tech giants’, are not obviously part of the governance frameworks as currently constituted. It is likely that telecommunications interception will remain reliant on legal commands and hierarchical management structures. However, the collaborative governance framework is not a settled concept for industry, government or the national security community. It is bounded by highly institutionalised networks, structures and processes but, within the corporatist relationship, there is scope for many and varied governance mechanisms to flourish. The regulatory design suggests that new media and communications stakeholders will eventually be brought into existing forums or new forums will be created to accommodate their role in the coordination of telecommunications interception law and policy.
Finally, the emergence of corporatist governance as identified in this chapter has political consequences for a law thesis. The mode of governing leads to certain risks, both abstract and practical. On an abstract level, corporatism may present challenges for
199 public law concerns around transparency and accountability. On a practical level, corporatism may undermine the enforceability of decisions or negotiated outcomes.
Corporatist governance may, at times, be observed actively avoiding a role for formal law, parliament and the courts. This point is taken up further in the concluding chapter to this thesis, Chapter Seven.
200 CHAPTER FIVE WHEN CORPORATIST GOVERNANCE FALTERS: ACMA, SATELLITE NARROWCASTING AND THE ANTI-TERRORISM STANDARDS
It is not unusual for me to sit down with the chief executives of the major broadcasters on matters. Again it depends on circumstances. Particularly in the commercial broadcasters arena, there is sometimes the necessity to have discussions with respect to what might be the appropriate sanctions—for example, the acceptance of enforceable undertakings. I do not consider it unusual that I sit down with the chief executives of the broadcasters.1
I INTRODUCTION
The previous case study examined the corporatist governance framework for telecommunications interception in Australia. This case study concerns the corporatist governance framework for broadcasting, created in the 1990s with the passage of the
BSA. This legislation introduced the concept of co-regulation into the governance of broadcasting. The case study examines ACMA’s investigations into the broadcasting of alleged terrorist programming material on the Lebanese-based television service, Al-
Manar Television, and the Sydney-based television service, GTV. The investigations concerned alleged breaches of the anti-terrorism narrowcasting standards; disallowable legislative instruments that prohibit the broadcasting of terrorism content, which includes recruitment, fundraising and advocacy prohibitions (the Anti-Terrorism
Standards).2
Although it was found, in all cases, that there was no breach of the Anti-Terrorism
Standards, comparison of the investigations serves as a test of the major contention of
1 Evidence to the Senate Environment and Communications Legislation Committee, Parliament of Australia, Canberra, 23 May 2012, 179 (Chris Chapman, Chairman of the Australian Communications and Media Authority). 2 Broadcasting Services (Anti-terrorism Requirements for Open Narrowcasting Television Services) Standard 2006; Broadcasting Services (Anti-terrorism Requirements for Open Narrowcasting Television Services) Standard 2008; Broadcasting Services (Anti-terrorism Requirements for Subscription Television Narrowcasting Services) Standard 2006; Broadcasting Services (Anti-terrorism Requirements for Subscription Television Narrowcasting Services) Standard 2008 (the Anti-Terrorism Standards). In 2011, after the third investigation into Al-Manar Television, new standards that included the prohibition on advocacy were made. 201 this thesis—that national security law, policy and coordination in the communications sector is administered through entrenched corporatist governance networks, structures and processes, which are grounded on a compact or accord between government and industry. There is a need to carefully and precisely trace the structure and character of the relationship to evaluate the nature of the power wielded by the state and the implications for democratic scrutiny and the public interest. The case study compares the investigations, with a view to revealing some of the advantages and shortcomings of that compact.
The chapter begins with a brief outline of the applicable law and regulation, specifically examining the co-regulatory framework for broadcasting, which is an example of a cooperative governance framework. Then, the facts of each investigation are outlined.
Next, Hysing’s indicators of government to governance are considered in the context of the investigations, with a view to revealing the governance mechanisms in operation.
Finally, the chapter concludes with some observations about the relationship between industry and government in the context of the Al-Manar and GTV investigations.
II APPLICABLE LAW AND REGULATION
A Broadcasting Services Act 1992 (Cth)
In Australia, broadcasting services are regulated by the BSA and the complementary
Radiocommunications Act 1992 (Cth), which covers spectrum management, licensing and planning. The objects and regulatory policy of the BSA guide ACMA in its regulatory practice.3 The most important governance concept in the BSA is that of co- regulation. Co-regulation is fundamental to the operation of the BSA and shapes
3 Broadcasting Services Act 1992 (Cth) ss 3–4. 202 ACMA’s regulatory outcomes.4 There are two broad kinds of broadcasting services regulated by the BSA: broadcasting services, which offer programming of general appeal,5 and narrowcasting services, which offer programming that is limited in some way, such as through the appeal of the programming (for example, foreign language channels), or in relation to time, such as a near video on-demand service.6
As the BSA regulates broadcasting and content services on the basis of the ‘sphere of influence’ concept, different kinds of services are regulated at different levels.7 For example, free-to-air television is considered to have a high sphere of influence on account of its high level of penetration into Australian households.8 ACMA has a degree of flexibility in how it interprets influence, as it has noted:
One example of how influence has been assessed with flexibility is the ACMA’s determination of standards containing anti-terrorism requirements for subscription narrowcasting and open narrowcasting services. Anti- terrorism standards have been in place for television narrowcasters since 2006 in addition to relevant class licence conditions in Schedule 2 to the BSA and industry codes of practice. However, the ACMA has not made similar standards for commercial, community and subscription broadcasting services.9
Commercial broadcasting licensees require a broadcasting services licence and a radiocommunications apparatus licence to operate their services.10 These licensees must adhere to more onerous licence conditions and programming obligations, and are
4 Specifically, industry groups develop codes of practice under s 123 of the Broadcasting Services Act 1992 in consultation with ACMA. Co-regulation, as a concept and regulatory approach, is discussed in more detail in the next section. 5 Broadcasting Services Act 1992 (Cth) s 6, pt 2. 6 Ibid ss 17–18. 7 ‘[D]egree of influence’ in the broadcasting context means the amount of influence a particular service has over the Australian population. It is based on a ‘one to many’ technological structure. As ACMA’s Broken Concepts paper points out, the concept of ‘influence’ does not take into account the influence of online services that, structurally, may be ‘one to one’ services, but on a global scale. See Australian Communications and Media Authority (Cth), Broken Concepts: The Australian Communications Legislative Landscape (Report, August 2011) 82–85. 8 See FreeTV Australia, Free TV Today—Penetration of Technology (2014) Slide 4
Narrowcasting services, in contrast, are provided under class licences.14 This means that narrowcasters do not pay licence fees or apply for a licence under the BSA (although, if they provide a service using the broadcasting service bands of the radiofrequency spectrum, they will need an apparatus licence to provide their services).15 However, narrowcasters are subject to the programming content requirements contained in the relevant licence conditions, codes of practice and the Anti-Terrorism Standards.16
Television services are subject to specific content regulation.17 The subject matter set out in the licence conditions, programming standards and codes of practice frames the scope of regulation.18 The BSA and related regulatory mechanisms have a broad remit, covering Australian content regulation, sport, local content protections, terrorism- related material, sports programming, sponsorship announcements on community television, advertisements on television and radio, political matter, children’s television and time restrictions on certain types of programming.19
In regard to television content, the licence conditions regulate matters such as tobacco and therapeutic goods advertisements, sponsorship announcements on community
11 Broadcasting Services Act 1992 (Cth) pt 5. 12 Ibid sch 2, cls 7(2)(b), 8(2)(b), 9(2)(a), 10(2)(a). 13 Ibid s 41. 14 Ibid pt 7. 15 Radiocommunications Act 1992 (Cth) ss 99, 100, 102, 109. 16 Broadcasting Services Act 1992 (Cth) sch 2, pt 7, s 11. 17 Ibid sch 2. 18 Ibid. 19 Ibid. 204 television and political advertising.20 In addition, broadcasters must not use their broadcasting services in the commission of an offence.21 ACMA has broad powers to impose licence conditions on the licensees of broadcasting services.22
Narrowcasters operate their services subject to the conditions provided under Part 7 of
Schedule 2 to the BSA, which covers matters including a ban on tobacco advertising, a requirement to comply with any applicable program standards approved by ACMA, a condition not to use the broadcasting service to commit an offence, requirements to comply with the Act in relation to broadcasting of political and electoral material and advertisements relating to medicines, and requirements to keep records of material broadcast. Narrowcasters are prohibited from broadcasting programming that has been classified X or refused classification (RC).23
Broadcasters and narrowcasters are subject to certain programming standards.24 The
Children’s Television Standards apply to broadcasting service licensees. In the open and subscription narrowcasting space, the Anti-Terrorism Standards apply. Codes of practice also apply to both narrowcasting and broadcasting services. These codes are developed by industry in consultation with ACMA.25 Although it is ultimately ACMA’s decision to make a program standard that it has developed itself or to register a code
20 Ibid. 21 Ibid sch 2, cl 7(h). For example, in 2012, Today FM Sydney broadcast a prank call by two of its presenters to the hospital where the Duchess of Cambridge was interned for acute morning sickness. ACMA investigated breaches of cls 1.3, 2.1(d), 2.3(d), 6.1, and 9.1 of the Commercial Radio Australia Codes of Practice and Guidelines 2011. The additional licence condition on commercial radio broadcasting licence No 3032 imposed by the Administrative Appeals Tribunal on 8 October 2012 under s 43(1) of the Broadcasting Services Act 1992 (Cth) and the standard licence condition set out at 8(1)(g) of sch 2 to the Act. See Australian Communications and Media Authority (Cth), Investigation Report 2928 (Commonwealth of Australia, Canberra, 17 July 2015); Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7 (Gageler J). See also Jeremy Leith, ‘Case Note: Australian Communications and Media Authority v Today FM (Sydney Pty Ltd): Administrative Body as “Prosecutor, Judge and Jury”?’ [2016] 38 Sydney Law Review 255. 22 For example Broadcasting Services Act 1992 (Cth) s 43. 23 Ibid sch 2. 24 Ibid. 25 Ibid s 123. 205 developed by industry, both are subject to extensive discussion with industry (and, in some cases, community) participants.26
The broadcasting codes of practice incorporate elements of the film and literature classification scheme into their operation.27 Both the subscription and open narrowcasting codes of practice adopt the classifications set out in the Guidelines for the
Classification of Film and Computer Games.28 Those program classification categories are contained in section 3.1 of the Subscription Broadcast Television Codes of Practice and apply to subscription and open narrowcasting services by virtue of Code 3 of the
Subscription Narrowcasting Codes of Practice. As a result of the operation of Code 3, the Narrowcasting Codes prohibit the broadcast of material classified refused classification (or material which would be so classified if presented for classification).29
The refused classification category now includes material that advocates the doing of a terrorist act.30
B The Co-Regulatory Framework
When the deregulation and privatisation of the telecommunications sector was occurring in the late 1980s and early 1990s, the broadcasting sector was also facing changes. The
BSA gave special status to the concept of co-regulation, and that governance structure continues to operate in what has remained an oligopolistic industry. Co-regulation is a description of the regulatory framework for sharing responsibility for regulation between the regulator and the regulated industry. ACMA describes co-regulation in the sector in these terms:
26 Ibid sch 2. 27 Subscription Broadcast Television Codes of Practice, s 3.1; Subscription Narrowcasting Codes of Practice, s 3. 28 Above n 27. 29 Open Narrowcasting Code of Practice 2009, cl 3.4; Subscription Narrowcast TV Code 2007, cl 3.3. 30 Classification (Publications, Films and Computer Games) Act 1995 (Cth) s 9A. 206 The self- and co-regulatory framework for media and communications generally requires industry participants to assume responsibility for regulatory detail within their own sectors. This is underpinned by clear legislative obligations, with the regulator maintaining reserve powers. These arrangements provide flexibility for the ACMA, as the regulator, to exercise a variety of roles depending on the nature of the concern, such as whether the issue is a policy matter or market issue. This includes the flexibility to not intervene and allow market-based solutions to develop, to provide advice to government on policy issues, or to encourage industry-developed solutions.31
In its September 2011 Occasional Paper, ACMA offers a more detailed definition of co-regulation, adopting the definition used by the European Commission, that ‘co- regulation can be understood as a combination of non-government (industry) regulation and government regulation’,32 which generally involves:
[B]oth industry and government (the regulator) developing, administering and enforcing a solution, with arrangements accompanied by a legislative backstop. Co-regulation can mean that an industry or professional body develops the regulatory arrangements, such as a code of practice or rating schemes, in consultation with government. While the industry may administer its own arrangements, the government provides legislative backing to enable the arrangements to be enforced.33
Under co-regulation, government involvement generally falls short of prescribing the code in detail in legislation. However, co-regulatory mechanisms can include legislation that:
• delegates the power to industry to regulate and enforce codes
• enforces undertakings to comply with a code
• prescribes a code as a regulation but the code only applies to those who
subscribe to it (prescribed voluntary codes)
• does not require a code but has a reserve power to make a code mandatory
31 Australian Communications and Media Authority (Cth), ‘Optimal Conditions for Effective Self- and Co-Regulatory Arrangements’ (Occasional Paper, September 2011) 6. 32 See the definition of co-regulation used by the European Commission in European Commission, ‘Study on Co-Regulation Measures in the Media Sector’ (Report, Hans-Bredow-Institut, 2006) 35. 33 Australian Communications and Media Authority, above n 31, 6–7. 207 • requires industry to have a code and, in its absence, government will impose
a code or standard, and
• prescribes a code as a regulation to apply to all industry members (prescribed
mandatory codes).34
The development of codes, the acceptance of undertakings and the imposition of a licence condition or standards are examples of soft and hard co-regulatory mechanisms in which the regulator and regulated enter into negotiation over the terms and conditions of that regulation.35 Only in very rare circumstances can the regulator introduce changes to the regulatory framework without first consulting the industry most affected. This is the normal situation in Australia and other OECD countries.
Participants in co-regulated sectors of the economy have a clear opportunity to shape and improve the regulation that governs their operations.36 In reality, industry participants have actively pursued opportunities aimed at minimising regulatory impact and scope. For example, it is worth noting here that the industry association representing subscription and open narrowcasting services, ASTRA, disagreed with the making of the 2011 Anti-Terrorism Standards, which contained the new prohibition against advocacy of terrorism. ASTRA argued that:
ASTRA strongly supports the principle that programming should not advocate the doing of a terrorist act. However, ASTRA does not believe that the Proposed Standard that applies to the Broadcasting Services (Anti- terrorism Requirements for Subscription Television Services) Standard 2008 (the
34 Ibid 6. 35 For example, Christine Parker shows that enforceable undertakings are negotiated binding undertakings between the regulator and the party giving the undertaking: Christine Parker, ‘Restorative Justice in Business Regulation? The Australian Competition and Consumer Commission’s Use of Enforceable Undertakings’ (2004) 67(2) Modern Law Review 209, 209–246. 36 The Australian Government Guide to Regulation describes co-regulation as ‘solution where industry develops and administers its own arrangement and government provides the underpinning legislation to enforce it. Such legislation can set out mandatory standards, but may provide for enforcement through a code overseen by the industry’ (Department of the Prime Minister and Cabinet (Cth), The Australian Government Guide to Regulation (March 2014) 28). 208 ‘Standard’) is an appropriate mechanism for dealing with this issue, and, as such, could place the continued broadcast of certain subscription television narrowcasting services in jeopardy, thereby limiting the voices that are available to members of the public who choose to subscribe to subscription television services…[I]f the ACMA does not believe that the Codes adequately deal with the issue of terrorism material, then ASTRA believes that this matter is best dealt with in a revision of the Codes that would prohibit the broadcasting of any program that advocates the doing of a terrorist act, as that term is defined in the Criminal Code. ASTRA further believes that, in circumstances where a broadcaster located in Australia is interposed between the viewer and the channel supplier (as opposed to open broadcast channels, which may originate and have no connection to Australia or a provider in Australia) and the viewer has a contractual relationship with the broadcaster, then it is more appropriate for the broadcaster to handle any complaints relating to programming in the first instance. Broadcasters have direct relationships with their channel suppliers, and are best placed to handle inappropriate content, particularly where there is real doubt as to whether the relevant program has breached the Codes. 37
As the main negotiator with ACMA over the development of codes under the BSA,
ASTRA has predictably disagreed with ACMA over the inadequacy of the codes. It is a natural stance for an industry representative body to take, as ASTRA was responsible for negotiating the terms of the code, and championing industry’s ability to resolve issues arising under the codes. ASTRA asserted its position at the negotiating table in its submission, arguing for an industry-led solution to the perceived problem of terrorism- related content.
C Co-Regulation and Terrorist Content
Prior to 11 September 2001, the co-regulatory framework dealt with terrorism-related content in two ways: through the relevant codes of practice and through licence conditions. The codes had adopted the classification guidelines, and so material could be classified according to that framework. The licence conditions captured both criminal conduct (i.e., narrowcasters are not to use their service to commission an offence) and,
37 Australian Subscription Television and Radio Association, Submission to the Australian Communications and Media Authority, Amendments to the Anti-Terrorism Standards for Narrowcast Television, February 2011, 2. 209 as mentioned above, classification (i.e., narrowcasters were not permitted to broadcast material that had been classified RC or X18+). However, as will be apparent from this discussion, the regulatory schemes all presume that broadcasters have a real and significant jurisdictional presence within Australia.
In 2007, the Attorney-General at the time, Phillip Ruddock, unilaterally introduced changes to the Classification (Publications, Films and Computer Games) Act 1992, which dealt with terrorism advocacy in publications, film and computer games, repudiating the historical cooperation between the Attorneys-General of the states, territories and commonwealth on matters of classification.38 The Classification
(Publications, Films and Computer Games) Amendment (Terrorist Material) Act 2007 introduced a new category of RC material, which applies to content that advocates the doing of a terrorist act. Section 9A states that a publication, film or computer game that advocates the doing of a terrorist act must be classified as RC. Section 9A explains advocacy in terms of direct or indirect counselling or urging, or instruction, or as direct praise for the doing of a terrorist act, where there is a risk that such praise might have the effect of leading a person (regardless of his or her age or any mental impairment that the person might suffer) to engage in a terrorist act.39
The new RC category has had a trickle-down effect on the regulation of broadcasting content. For example, the Narrowcast Television Codes of Practice prohibit the broadcasting of material classified RC, or material that would be classified RC if presented for classification to the Classification Board.40 By adopting the category of
38 David Hume and George Williams, ‘Australian Censorship Policy and the Advocacy of Terrorism’ (2009) 31(3) Sydney Law Review 381, 382–392. 39 Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Act 2007 (Cth) s 9A(3). 40 See clause 3.4 of the Open Narrowcasting Code of Practice 2009 and clause 3.3 of the Subscription Narrowcast TV Code 2007. 210 RC from the film, literature and computer games classification scheme, the Codes prohibit the broadcasting of material that advocates the doing of a terrorist act.
Historically, the regulation of terrorist-related material on broadcasting services has been situated within a wider debate about the classification of publications, film and computer games, and concerns about freedom of speech.41 Accordingly, most legal scholarship has examined the regulation of terrorism-related content from the perspective of state censorship law and policy. An exception is the research by legal academics, George Williams and David Hume, who wrote two papers on the repudiation of the cooperative arrangement at attorneys-general level for classification of terrorism content.42 Terrorist content has also surfaced in debates about mandatory internet filtering.43
Although the existing literature has considered the ambition of the state in seeking to regulate certain content, these perspectives have not considered the governance architecture that administers broadcasting standards. Nor does the literature consider broadcasting regulation in the wider context of the administration of national security law, policy and coordination. There is little understanding of these processes and the extent of the corporatist governance networks, structures and processes, and how they operate in the communications sector.
41 See for example Ben Saul, ‘Speaking of Terror: Criminalising Incitement to Violence’ (2005) 28(3) UNSW Law Journal 868; Chris Nash, Freedom of the Press in the New Australian Security State’ (2005) 28(3) UNSW Law Journal 900; Lawrence McNamara, ‘Closure, Caution and the Question of Chilling: How Have the Australian Counter-Terrorism Laws Affected the Media?’ (2009) 14(1) Media and Arts Law Review 1. 42 David Hume and George Williams, ‘Advocating Terrorist Acts and Australian Censorship Law’ (2009) 20 Public Law Review 37; Hume and Williams, above n 38, 382, 392. 43 Evidence to Senate Standing Committee on Environment, Communications and the Arts, Parliament of Australia, Canberra, 23 February 2009, 105 (Stephen Conroy). 211 III FACTS OF THE AL-MANAR INVESTIGATIONS
A The Al-Manar Investigations
Al-Manar Television, a Lebanese satellite broadcaster with alleged links to the
Lebanese Shi’a political and militia group, Hizbullah, has been investigated three times under Australian broadcasting law. The ABA investigated Al-Manar Television in
2004, after it received complaints about the content of the service from members of the public and community organisations. Then, ACMA investigated Al-Manar Television in
2008 and again in 2010. This section examines those investigations in more detail in the context of the relationship between ACMA and Al-Manar within the co-regulatory framework.
1 Al-Manar Television: A Narrowcasting Service?
The Al-Manar Television service is classified as a narrowcasting service for the purposes of the BSA. There are two types of narrowcasting service defined under the
BSA. Sections 17 and 18 cover the characteristics of an ‘open’ narrowcasting service and a subscription narrowcasting service, respectively. Al-Manar is an open narrowcasting service, the key characteristics of which are that it is receivable in
Australia and available freely, rather than on the payment of subscription fees. The Al-
Manar Television service enters Australian territory unencrypted via an Indonesian owned and controlled satellite. It is available via satellite receiving equipment free-to- air to any person anywhere in Australia, as long as the dish is big enough to receive the signal.44
The defining characteristic of a narrowcasting service is that its reception is limited in one or more of the ways set out in the relevant section of the BSA. Most notably, a
44 Evidence to Environment, Communications and the Arts Committee, Parliament of Australia, Canberra, 19 October 2009, 119–120 (Nerida O’Loughlin). 212 service broadcast in a language other than English is usually classified as a narrowcasting service for the purpose of the BSA.45 In this case, Al-Manar Television is broadcast entirely in Arabic and, therefore, its programs target the Arabic-speaking population and are of limited appeal in a broader Australian context.
2 Al-Manar within the Lebanese Broadcasting Market
In the Lebanese broadcasting market, Al-Manar is a satellite television service that broadcasts the views of one of the parties, Hizbullah, represented in its secular government. In Lebanon, the broadcasting market is divided along secular lines in much the same way as the government of the country. Research commissioned by ACMA for the 2010 Al-Manar Investigation provides insight in to the Lebanese market. Rodger
Shanahan explained that:
Media ownership and political participation are largely synonymous in Lebanon, despite legislative efforts to broaden the media ownership sectarian base. The competing political messages at their most basic are seen in the proliferation of billboards throughout Lebanon commemorating martyrs who have died in the service of their cause. This has been well practised over the years by Hizbullah and Amal in the south of the country with numerous billboards showing the faces of martyrs who have died during fighting against Israel.46
Shanahan also showed that privately owned electronic media is commonly used by
Lebanese political parties to conduct their sectarian messaging,47 and further explained that:
The use of privately owned electronic media as a forum for sectarian political messaging is a consistent feature of Lebanese politics. Measures to counter the communalisation of media have been attempted, such as the 1994 Audio- Visual Media Law that requires all private stations granted licences to have only Lebanese shareholders from all religious communities. In practice
45 Australian Communications and Media Authority (Cth), Narrowcasting Services on Television— Guidelines and Information (May 2007) 10–15. 46 Rodger Shanahan, ‘Key Events in Lebanese Politics December 2008 – January 2010 and the Role of Hizbullah’ (Research Report, Australian Communications and Media Authority, 2010) 3. 47 Ibid 32. 213 though, the intent of this law has not been met and stations continue to be identified with a particular community.48
In addition to Al-Manar Television, Shanahan’s research listed the different television stations and their political affiliations, including the Lebanese Broadcasting
Corporation, which broadcasts in Lebanon and was originally established as a station by the Lebanese Maronite Forces. Murr TV is owned by a Maronite member of parliament, named Gabriel Murr. Future TV supports the Future Movement, led initially by former
Lebanese Prime Minister, Rafiq Hariri, and subsequently, after his assassination in
2006, by his son, Sa’ad. The National Broadcasting Network is largely controlled by the head of the Shi’a Amal party. Orange TV represents the views of the Free Patriotic
Movement of Michel Aoun.49
3 Al-Manar’s Links with Hizbullah
ACMA’s investigations into Al-Manar Television were not able to establish a link between the ownership of Al-Manar Television and Hizbullah on the basis of the evidence before it during its three investigations. ACMA relied on open source material to make findings in regard to the potential link. The research report explained that:
There is little doubt that al-Manar is the television media arm of Hizbullah….it would be surprising in the Lebanese context if a major political organisation such as Hizbullah did not have its own television station. The links between the organisation and the television station are significant. The station itself (along with the Al-Nour radio station) was registered under the name of the Lebanese Media Group (also known as the Lebanese Communication Group), although exactly who the majority shareholders are is unknown. In 2002, it is claimed that there were forty shareholders, the largest of which was Muhammad Ra’ad a senior Hizbullah member of Parliament. The US Treasury Department claimed in 2006 that prominent Hizbullah party members had been shareholders in the group.50
48 Ibid. 49 Ibid 32–33. 50 Ibid 33. 214 The militant arm of the Hizbullah organisation, the External Security Organisation is listed on the Australian Attorney-General’s list of proscribed terrorist organisations.51
The Hizbullah organisation is listed in its entirety, including a number of its aliases, on the United Nations’ list of proscribed individuals and entities.52 The proscribed entity,
Hizbullah, is the alleged owner and controller of Al-Manar Television. The consequences of these listings are that it is illegal to be a member of these groups, associate with members or provide material support, among other things.53 The legislation seeks to target individuals and groups, but potentially impacts on the work of journalists, despite any available defences for acts performed in good faith.54
In terms of security threats to Australian interests, it should be noted that ASIO focuses on the activities of Hizbullah and its associated proscribed individuals and entities, rather than on the activities of Al-Manar Television as such.55 For example, if Al-Manar
Television programming contains interviews with known or suspected members of the proscribed entities or known individuals, whom mention Australia, ASIO would
51 The External Security Organisation was initially listed in 2003 under s 102.1 of the Criminal Code Act 1995 (Cth). See Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Report of the Review of the Relisting of Hizballah’s External Security Organisation (2007) 1–2. 52 Department of Foreign Affairs and Trade (Cth), Sanctions regimes: UN Security Council sanctions relating to terrorism (2017)
It may signify that Australia is a potential target of terrorism or a potential base for extremist activities.56 ASIO also monitors extremist propaganda across multiple platforms and technologies, including the internet, social media platforms and traditional media, because it regards exposure to such material as a potential accelerant of radicalisation.57 On the basis of publicly available material published by ASIO, it is reasonable to conclude that Al-Manar Television is of interest to ASIO as a source of extremist propaganda, and as a potential source of information about the intentions of individuals and groups and how they might attempt to influence Australian audiences.
The ownership link between Al-Manar and Hizbullah is a complicating factor in its regulation for the purposes of Australian broadcasting law. As a result of this linkage, the Al-Manar Television investigations raised a number of important issues pertaining to the manner in which satellite narrowcasting is regulated in Australia, and exposed both the strengths and weaknesses of the entrenched networks, structures and processes between industry and government within the co-regulatory framework.
4 ABA Investigation into Al-Manar Programming
On 22 October 2004, the ABA published a news release in regard to Al-Manar programming on the subscription narrowcast television licensee, Television & Radio
Broadcasting Services Australia Pty Limited (TARBS). TARBS was an Australian- based subscription television provider, which offered channels with foreign language programming in Australia. The ABA commenced an investigation into Al-Manar
56 Australian Security Intelligence Organisation (Cth), ASIO Report to Parliament 2006–07 (18 September 2007) 21. 57 Australian Security Intelligence Organisation (Cth), ASIO Report to Parliament 2013–12 (12 September 2014) 5. 216 Television on TARBS on 23 October 2003.58 The 2004 news release explained that the
ABA had been conducting an investigation into Al-Manar Television and that:
During the investigation, the ABA considered whether certain material in programs provided by Al Manar was in breach of Federal anti-terrorism laws, including material that appeared to solicit funds for organisations linked with terrorism. It concluded that if such material were broadcast with the intent to solicit funds and the broadcaster was reckless as to whether or not the funds would be used for terrorism purposes, it could constitute use of the broadcasting service in the commission of an offence. This would be a breach of the conditions of the subscription narrowcast television class licence, however, intent must be established in order to find a breach.59
The ABA found no evidence that ‘TARBS broadcast material with the requisite intention’60 to use the broadcasting service in the commission of an offence. Thus, no breach of the subscription television narrowcast licence conditions was found. The investigation into Al-Manar Television was never completed because TARBS went into liquidation.61 In addition, the satellite service provider, Globecast, had stopped carrying the service at the time of the media release.62
As a result of that investigation, the ABA reached the conclusion that it disclosed ‘a deficiency in the rules governing subscription narrowcasters’.63 The ABA further explained that:
The ABA proposes to examine use of its powers to ensure that there are appropriate community safeguards in respect of programming of the type provided on the Al Manar channel. The range of powers available to the ABA in this instance is broad, and includes the power to specify an additional condition on class licences and the power to determine a program standard.64
58 Australian Broadcasting Authority, ‘ABA Investigation into Al-Manar Programming on TARBS’ (News Release 135/2004, 22 October 2004). 59 Ibid. 60 Ibid. 61 Ibid. 62 Ibid. 63 Ibid. 64 Ibid. 217 As a consequence of the first Al-Manar investigation, ACMA consulted directly with industry on its proposed new standard and invited public comment.65 ACMA received only one submission as a result of the consultation.66 On 16 March 2006, ACMA determined the Anti-Terrorism Standards of 2006, the object of which was defined in section 3 as being ‘to prevent the broadcasting of programs that encourage people to join or finance terrorist organisations’.67 Section 5 of the new standard defined a terrorist organisation as having ‘the same meaning as in the Criminal Code’.68
The Senate Standing Committee on Regulations and Ordinances scrutinised the Anti-
Terrorism Standards and subsequently disallowed the 2006 standards in June and
August 2006. The reason for the disallowance was concern that certain provisions were not adequately explained and that their operation was ambiguous. The disallowance notices were subsequently withdrawn on 12 September 2006 after correspondence with the minister satisfied the committee that ACMA would amend the provisions of the
2006 standards so that there was greater certainty in determining which individuals or organisations were deemed to be terrorist entities.69
5 The Second Investigation into Al-Manar TV and the Making of the 2008 Anti- Terrorism Standards
ACMA commenced its second investigation into Al-Manar Television in late 2008 when it became aware of media reports70 that Al-Manar Television was broadcasting into Australia via an Indonesian owned and controlled satellite, Indosat. ACMA did not
65 Section 26: Explanatory Statement, Broadcasting Services (Anti-terrorism Requirements for Open Narrowcasting Television Services) Standard 2008 made under the Broadcasting Services Act 1992, 1. 66 Ibid. 67 Ibid. 68 Criminal Code Act 1995 (Cth) s 012.1. 69 Commonwealth, Parliamentary Debates, Senate, 11 September 2006, 48 (John Watson). 70 ‘Move to Block Terror TV’, The Age (online), 21 August 2008. 218 receive any specific complaints about Al-Manar content.71 In the absence of a specific complaint about the programming on the service, ACMA commenced the investigation into Al-Manar Television programming pursuant to section 170 of the BSA, which gives ACMA a wide discretion to undertake investigations of its own accord.72 Al-
Manar Television programs were recorded by ACMA, using its own equipment, between 28 August 2008 and 5 September 2008. ACMA staff reviewed nine days of programming, which amounted to 216 hours of programming. Ultimately, only two programs were fully translated and assessed as being potentially in breach of the Anti-
Terrorism Standards because they covered topics that could be taken to involve recruitment and/or solicitation of funds.
In terms of the operation of the co-regulatory framework in this instance, there is no indication in the investigation report that ACMA contacted the licensee before finalising its report. Indeed, the issue of the identity of the licensee is somewhat overlooked in the report. A question arises as to whether the licensee is Indosat, the satellite service provider, or the Lebanese Communication Group, the owner and operator of Al-Manar
Television. Usually, in investigations of this kind, some indication is given of contact with the relevant licensee in regard to the alleged breach. At a minimum, the broadcaster is approached for programming material. ACMA’s actions in recording Al-
Manar programs indicates this was not the case here. The programming material recorded by ACMA was assessed according to Australian broadcasting law, but there was no negotiation with the broadcaster, except, perhaps, the requirement under the
71 Australian Communications and Media Authority, ACMA Investigation Report 2158: Al-Manar TV, 28 August to 5 September 2009 (2009) 2. 72 Broadcasting Services Act 1992 (Cth) s 170 permits ACMA to ‘conduct investigations for the purposes of the performance or exercise of any of its broadcasting, content and datacasting functions’. 219 BSA to afford a person the opportunity to comment on findings that may be adverse or against the person’s interests before publication.73
This second investigation into Al-Manar Television found that there were no breaches of the 2006 Anti-Terrorism Standards. The findings of this investigation were subject to sustained criticism from interest groups within the Australian Jewish community and members of the public.74 The Australian Jewish press expressed disappointment and disbelief that no investigations had been made in regard to racial vilification, and that the Australian Government had effectively condoned the broadcast of hate speech from a broadcaster with known links to a terrorist organisation.75 ACMA did not investigate any breaches into racial vilification because no complaints had been received alleging breaches of the racial vilification provisions of the narrowcasting code of practice. The concern at the time was whether Al-Manar Television was recruiting and/or soliciting funds for terrorist organisations.
After this investigation, and on account of the earlier disallowance motion from parliament,76 ACMA revoked the 2006 Anti-Terrorism Standards. The standards were considered difficult for the industry to administer on account of the operational imprecision of the definition of ‘terrorist organisation’.77 The legal and practical effect of the standards was to oblige narrowcasters to determine whether an organisation was
73 This is a basic requirement of procedural fairness. 74 Evidence to Environment, Communications and the Arts Legislation Committee, Supplementary Budget Estimates, Parliament of Australia, Canberra, 19 October 2009, 112–113 (Nerida O’Loughlin). 75 For example Colin Rubenstein, ‘Terrorist Television Would Violate Our Racial Hatred Laws’, The Age (online), 7 August 2009; Executive Council of Australian Jewry, ‘Annual Report of the Executive Council of Australian Jewry Inc. 2009/5769-5770’ (9 November 2009) 7–8. 76 The 2006 Anti-Terrorism Standards remained in force during this period because the notice of disallowance was withdrawn. The notice of disallowance was withdrawn by the Standing Committee on Regulations and Ordinances following receipt of satisfactory responses from the Minister on matters concerning the committee: see Commonwealth, Parliamentary Debates, Senate, 11 September 2006, 48- 51 (John Watson). 77 Commonwealth, Parliamentary Debates, Senate, 11 September 2006, 48 (John Watson). 220 in fact a terrorist organisation under the Criminal Code and, subsequently, whether the narrowcast material was recruiting or soliciting funds for that terrorist organisation.
New standards were made on 1 December 2008 to resolve this issue. ACMA changed
‘terrorist organisation’ to ‘listed terrorist organisation’ in the definition to better reflect the law and policy environment in Australia, by linking the definition to those entities on the lists of the AGD and the Department of Foreign Affairs and Trade.78 The goal was to make it simpler for narrowcasters to identify those individuals and organisations considered a terrorist for the purposes of the Anti-Terrorism Standards. Ultimately, the disallowance motion was withdrawn once the ambiguity had been rectified.79
6 The Third Investigation into Al-Manar Television and Review of the Anti-Terrorism Standards
The non-breach finding in the second investigation caused a flurry of complaints to
ACMA, calling for further review of the content of Al-Manar’s programs on account of the alleged owner and controller of Al-Manar Television being associated with the listed terrorist organisation, Hizbullah, and allegedly using Al-Manar Television as a recruitment, fundraising and propaganda tool for that entity.80 These matters remain unproven, although, as already indicated in the discussion of the earlier inquiries, it is almost certain, from research undertaken by Rodger Shanahan, that Al-Manar
Television and Hizbullah have strong political and financial links. As noted, in the
Lebanese broadcasting market, this would not be an unusual situation.
ACMA was questioned about the 2008–2009 investigation in the senate budget estimates committee hearings on 19 February 2009. The questions pertained to the
78 Ibid. 79 Ibid. 80 Australian Communications and Media Authority (Cth), Al-Manar Television Programming Investigation Report (December 2010) 31–32. 221 ownership and control of Al-Manar Television by Hizbullah, the ability to receive the service in Australia and, most relevantly for this thesis, the mechanisms that ACMA would use to regulate Al-Manar Television in the event of a breach finding. During the hearing, for example, Senator Simon Birmingham asked the Chairman of ACMA, Mr
Chris Chapman, what was the worst penalty that could be applied for systematic and ongoing breaches and cumulative breaches of the code. Chris Chapman’s response explained that:
In the ordinary course and in the ordinary commercial television broadcasting sense, consistent and repeated breaches of the code lead to one of two outcomes: a discussion with the particular licensee or network encouraging them to provide us with an enforceable undertaking that is detailed and prescriptive and seeks to go to the heart of the matter to redress behavioural issues within the licensee or network—that has been an increasing trend with the way we have liaised with licensees and networks, and there have been a number of examples of that over the last two years in particular—or, in the absence of an enforceable undertaking being offered or with the inappropriateness of an enforceable undertaking, as an enforceable undertaking is not a magic bullet for all circumstances, we would seek to impose a licence condition on the licensee. More serious consequences would then flow from any subsequent breach of the licence condition, which in the ordinary course would probably reflect in a licence condition what exists in a code provision.81
Senator Birmingham then drew a distinction between an ordinary broadcaster and the case of Al-Manar Television. The questioning of ACMA officers then proceeded as follows:
Senator BIRMINGHAM - All of that was on the pretext of being an ordinary broadcaster in the Australian context.
Mr Chapman—Yes.
Senator BIRMINGHAM—How does a satellite broadcaster like al-Manar fit into that context? Are there examples of how you have dealt with such broadcasters for any breaches of the code?
81 Evidence to Environment, Communications and the Arts Legislation Committee, Supplementary Budget Estimates, Parliament of Australia, Canberra, 19 October 2009, 119 (Chris Chapman, ACMA Chairman). 222 Ms O’Loughlin—There haven’t really been. When al-Manar was last looked at back in 2004, when it was provided by TARBS, the service was voluntarily ceased by TARBS. I do not have at my fingertips any other examples. But, if there also were something carried forward by the Federal Court, we would also seek the cooperation of the local satellite provider in addressing the issue.
Mr Chapman—So that limited experience in dealing with other areas is why I gave you an insight into what typically happens in the commercial broadcasting environment. I was not seeking to avoid your question; I was just trying to give you a feel for the way in which we would go about it ordinarily.
Senator BIRMINGHAM—But those types of undertakings and so on are unlikely to succeed with a satellite broadcaster based out of another country.
Mr Chapman—That is a very good example of where an enforceable undertaking would be just a totally inappropriate approach and a licence condition would be far more direct. You then still have the question of subsequent enforceability issues, but I think it is a good example of where a licence condition being opposed, as opposed to an enforceable undertaking, would be a more appropriate remedy.
Ms O’Loughlin—I think also there is application to the Federal Court. We are not alone in looking at trying to enforce Australian law with overseas providers, but issues such as enforcing court orders through the Federal Court would also be something that we could pursue.82
During the supplementary budget estimates hearing on 19 October 2009, the Minister,
Stephen Conroy, indicated that he had received some specific material about Al-Manar
Television from individuals.83 This material, which was forwarded to ACMA, provided the impetus for the third investigation into Al-Manar Television in 2010. ACMA considered a number of grounds of breach in this investigation. First, it considered breaches of the Open Narrowcast Television Codes of Practice in regard to racial hatred and vilification of Jewish people, and bias in its news and current affairs
82 Evidence to Environment, Communications and the Arts Legislation Committee, Supplementary Budget Estimates, Parliament of Australia, Canberra, 19 October 2009, 119–120 (Chris Chapman, Nerida O’Loughlin). 83 Evidence to Environment, Communications and the Arts Legislation Committee, Supplementary Budget Estimates, Parliament of Australia, Canberra, 19 October 2009, 121 (Stephen Conroy, Minister for Broadband, Communications and the Digital Economy). 223 programming.84 Second, it considered breaches of the Anti-Terrorism Standards.85
Third, it considered the conditions applicable to broadcasting services provided under a class licence.86 Two breach findings were made. The first breach concerned the presentation of a program in breach of clause 1.2, which requires that news and current affairs programming be presented in a fair and unbiased way. The second breach finding concerned racial hatred and vilification of Jewish people.87 Reasons for the breach finding were published in a publicly available investigation report.88 The investigation found no breach of the Anti-Terrorism Standards and no reasons were published for the non-breaches.89
This third investigation triggered a review of the Anti-Terrorism Standards by ACMA on account of the high volume of military-style programming, martyr memorials and unmediated political programming on the channel90. It was thought that the prevalence of such material had the potential to amount to advocacy of a terrorist act in cases of heightened conflict within the region.91 However, the code provisions dealing with racial hatred, vilification and discrimination were considered appropriate for dealing with racial hatred and vilification and with bias. ACMA concluded that the codes of practice were inadequate for safeguarding the community in regard to material that advocates conducting a terrorist act, as distinct from recruitment or financing, which are covered by the standards.
84 Open Narrowcast Codes of Practice 2009, cl 1.2 (fairness) and cl 1.3 (gratuitous vilification on basis of ethnicity and religion). 85 Broadcasting Services (Anti-terrorism Requirements for Open Narrowcasting Television Services) Standard 2008. 86 Broadcasting Services Act 1992 (Cth) sch 2, ss 11(1)(b), 11(1)(c) and 11(3). 87 Australian Communications and Media Authority (Cth), above n 80, 17–26. 88 Ibid. 89 Ibid 22–23. 90 Ibid 24–27. 91 Ibid 36–37. 224 Given the co-regulatory context, there were no real repercussions for Al-Manar
Television in regard to the breach findings. In answer to a question on notice from the senate in 2011, the most that ACMA could say regarding the consequences for Al-
Manar Television was:
The repercussions from the breach findings in the Al-Manar investigation have been twofold. Firstly, the Australian Communications and Media Authority (ACMA) made formal representations to Al-Manar outlining the findings of the investigation, their breaches of the Open Narrowcast Television Code of Practice (‘the Code’) and the legal obligations that arise for them as the provider of a service that can be received in Australia. Secondly, there will be increased regulation of open and subscription narrowcasting television services, such as Al-Manar, as a result of an ACMA decision to reform the Anti-Terrorism Standards.92
The normal process in regard to a breach finding is that the Authority will enter into negotiations with the broadcaster about a remedy for the breach.93 If there is a breach of program standards, usually the negotiation results in an enforceable remedy, such as the offering up of an enforceable undertaking by the licensee.94 For code breaches, the remedy is often a lesser obligation, such as an informal commitment to train staff in compliance with the code. Racial vilification and hate speech—though covered by the code, not the standards—are usually treated as a serious matter by ACMA.95
Broadcasters found to have breached their obligations are brought into a negotiation
92 Senate Standing Committee on Environment and Communications, Answers to Senate Estimates Questions on Notice Additional Estimates Hearings, Program No. ACMA, February 2011, Hansard Reference EC 93-93, Broadband, Communications and the Digital Economy Portfolio, Australian Communications and Media Authority, Questions on Notice, Question Number 73
Al-Manar Television. The only repercussions for Al-Manar were formal representations from the Authority outlining the breaches and reminding them of their legal obligations.97
Regulatory negotiation only functions when a negotiation occurs between two parties willing to cooperate. In this instance, it appears that the regulator could not or would not engage in a regulatory negotiation with Al-Manar Television or the satellite operator for a number of unarticulated but inferable reasons. The fact that Al-Manar Television broadcasts its service for a Lebanese audience was acknowledged by ACMA in its investigation report. The fact that the service is carried on an Indonesian satellite and is a fortuitous broadcast—in the sense that it is permitted only because the operation of satellite technology allowed the ‘footprint’ of the Indosat satellite to cover parts of
Australia—further complicated the scenario. For the Australian Government to negotiate in this case, it would need to approach Indosat and ask it to cease carrying the service. Such a request would have diplomatic consequences. Senator Birmingham’s questioning goes straight to this point when he stated:
Okay—practically, if you could, for those of us who do not understand all of the codes and all of the implications. Al-Manar is produced by Hezbollah. It is, I gather, broadcast into Australia by providers out of Indonesia, if my recollection is correct. So in terms of your opportunity through the anti terrorism standards to have recourse to the Federal Court, or those three points that you raised, what are the practical outcomes for Al-Manar’s capacity to broadcast—or, hypothetically, anybody else who breached the standards to
96 Australian Communications and Media Authority, above n 80, 4–5. See also Chris Chapman, above n 1, 126. 97 Senate Standing Committee on Environment and Communications, above n 92. 226 broadcast—by following those things? Would you be able to get the signal broadcast into Australia blocked?98
The ACMA officer answered this question by suggesting that ACMA or the Australian
Government would use its overseas arrangements to manage such circumstances.
ACMA’s Andree Wright answered:
As I understand it—perhaps we can provide a more precise answer to you on notice—we do have international arrangements in some of these circumstances with overseas countries in relation to these services, and the standard would enable us to leverage those. But, as I said, we are happy to take that on notice and provide you with more detail.99
Senator Birmingham continued to pursue this line of questioning by asking:
So we would expect that another country would help us to enforce a Federal Court order barring the transmission of a signal of something into Australia— that is the type of agreement you are talking about?100
The Chairman of ACMA replied:
I do not think it goes that far. I think it is fair to say that, with respect to the enforcement of any order we would seek from the Federal Court, the ability to serve that order and have an impact on a body that supplies outside the Australian jurisdiction is a practical and pragmatic shortcoming that any number of organisations face with respect to organisations outside their jurisdiction. In that sense we are no different.101
Unlike Europe and the US, ACMA has no mechanism to ban narrowcasting services.
Under further questioning in the senate on 18 October 2011, ACMA officers responded as follows:
Ms McNeill: There is no facility to ban narrowcasting, as you call it, in Australia. What the standards do is proscribe certain material being broadcast.
98 Evidence to Environment and Communications Legislation Committee, Parliament of Australia, Canberra, 22 February 2011, 134 (Simon Birmingham). 99 Evidence to Environment and Communications Legislation Committee, Parliament of Australia, Canberra, 22 February 2011, 134 (Andree Wright). 100 Evidence to Environment and Communications Legislation Committee, Parliament of Australia, Canberra, 22 February 2011, 134 (Simon Birmingham). 101 Evidence to Environment and Communications Legislation Committee, Parliament of Australia, Canberra, 22 February 2011, 134 (Chris Chapman). 227 They do not pertain, for example, to a particular channel. It is not assumed, for example, that all content broadcast by Al-Manar or any other narrowcaster would necessarily fall within the ambit of the proscription.
Senator BIRMINGHAM: What then, is the review mechanism or basis on which such services as al-Manar are assessed or checked for whether they contain such proscribed content?
Ms McNeill: It is essentially a complaints based mechanism, and since the standards commenced on 1 July this year we have not received any complaints, in relation to al-Manar or any other narrowcaster, raising issues under the new standards.
Senator BIRMINGHAM: In a summary sense, what is the content that is proscribed and would trigger action were a complaint to be upheld?
Ms McNeill: The sort of material which it is proscribed to broadcast is the activity of indirectly counselling or urging the doing of a terrorist act—things of that nature. It is not proscribed to promote the beliefs or opinions of terrorists. The distinction between those two sorts of broadcasts, proscribed and permissible, was something that was pursued by the Senate Standing Committee on Regulations and Ordinances.
Senator BIRMINGHAM: So essentially it is direct recruitment to activities, direct fundraising, direct call to arms, as such, that is proscribed, and that is about where the line is drawn?
Ms McNeill: Direct and indirect; that is right.102
The narrative between the ACMA officer and the member of parliament reveals that
ACMA had very limited options available to it vis-a-vis Al-Manar Television. Al-
Manar Television was arguably never intended for Australian audiences, as it was an alleged fortuitous broadcast, permitted only because the Indosat satellite footprint covered parts of Australia. For this reason, Al-Manar’s interest in the outcome of an investigation by an Australian regulator was very low.
7 The 2011 Anti-Terrorism Standards
102 Evidence to Environment and Communications Legislation Committee, Parliament of Australia, Canberra, 18 October 2011, 132 (Jennifer NcNeill). 228 Despite finding no material that advocated the commission of a terrorist act, ACMA opted to remake the Anti-Terrorism Standards yet again, by inserting the wording of 9A of the Classification (Publications, Films and Computer Games) Act 1995 (Cth) into the standards. Section 9A requires that a publication, film or computer game that advocates the doing of a terrorist act must be classified RC. A publication, film or computer game advocates the doing of a terrorist act if:
(a) [I]t directly or indirectly counsels, promotes, encourages or urges the doing of a terrorist act; or (b) it directly or indirectly provides instruction on the doing of a terrorist act; or (c) it directly praises the doing of a terrorist act in circumstances where there is a substantial risk that such praise might have the effect of leading a person (regardless of his or her age or any mental impairment (within the meaning of section 7.3 of the Criminal Code) that the person might suffer) to engage in a terrorist act.103
To protect free speech, the provision excludes the depiction or description of terrorist acts reasonably considered done ‘merely as part of public discussion or debate or as entertainment or satire’.104
This provision was considered better suited to capturing material that advocates the doing of a terrorist act and to harmonising the Anti-Terrorism Standards with classification law and the criminal law.105 Thus, the new standard was designed to close a perceived loophole by clearly prohibiting advocacy for the doing of a terrorist act.
However, if a serious national security offence was committed by a narrowcaster based outside, the Anti-Terrorism Standards are wholly inadequate. Al-Manar Television exposed the flaws of enforcement for any kind of breach in regard to terrorism-related content broadcast into Australian territory from an overseas satellite narrowcasting service.
103 Classification (Publications, Films and Computer Games) Act 1995 (Cth) s 9A(2). 104 Classification (Publications, Films and Computer Games) Act 1995 (Cth) s 9A(3). 105 See Evidence to Environment and Communications Legislation Committee, Parliament of Australia, Canberra, 22 February 2011, 139 (Chris Chapman). 229 Given that there was already a mechanism for regulating terrorism content through the codes of practice and the Anti-Terrorism Standards (which prohibited programming that recruited and solicited funds for terrorist organisations), it is worth reflecting on what was to be gained by ACMA further refining new Anti-Terrorism Standards in 2011 for open and subscription narrowcasting services to regulate programming content that advocates the doing of a terrorist act.
ACMA justified its decision to make new standards that incorporated the RC category on the grounds that the codes of practice were not providing adequate community safeguards in regard to material that contain terrorism advocacy. The codes failed, according to ACMA, because, among other things, they made it difficult for concerned citizens to make strong allegations against the licensee. ACMA also argued that the material was serious enough to warrant stronger regulatory action and that the approach of the codes does not reflect other terrorist-related complaints processes available in the
Australia. Most revealing of all, however, was ACMA’s final point about the inappropriateness of co-regulation in the context of terrorism content.106 ACMA argued that a standard was more appropriate because:
Standards impose conditions on licences and are therefore more appropriate than the co-regulatory approach of industry codes when it comes to regulating content that is of serious concern. It also provides more and better options in the event of a breach of the provision.107
Thus, to resolve these issues, ACMA reverted to regulation based upon the program standards model, which meant that breaches of the standard provisions are a breach of the narrowcasting class licence conditions, which, in turn, are a breach of the BSA. In theory, this means that ACMA has stronger enforcement options available to it. In
106 See Evidence to Environment and Communications Legislation Committee, Parliament of Australia, Canberra, 22 February 2011, 133 (Andree Wright); Australian Communications and Media Authority (Cth), above n 80, 40. 107 Ibid. 230 reality, however, these amendments to the Anti-Terrorism Standards will have little to no effect on the content of the Al-Manar service and will not change the effectiveness of the enforcement action that ACMA may take in the event of a breach.
This outcome reveals a major failing in the co-regulatory framework in the context of regulating terrorist-related content. It also demonstrates the difficulties with conducting regulatory negotiations with broadcasters outside Australia. The transnational aspect of
Al-Manar’s broadcasts, combined with its controversial and foreign-based ownership, make it an almost impossible entity to work with inside a collaborative governance framework within Australia.
In the Senate Estimates Committee hearings of 2009, the Chairman of ACMA admitted that the Al-Manar Television investigation was an example of a situation where the usual co-regulatory mechanisms would not be appropriate. In response to Senator
Birmingham, who asked ‘but those types of undertakings and so on are unlikely to succeed with a satellite broadcaster based out of another country?’, the Chairman replied:
That is a very good example of where an enforceable undertaking would be just a totally inappropriate approach and a licence condition would be far more direct. You then still have the question of subsequent enforceability issues, but I think it is a good example of where a licence condition being imposed, as opposed to an enforceable undertaking, would be a more appropriate remedy.108
This comment overlooks the uncertainty as to which entity was the licensee and masks the reality of few enforcement options existing against Al-Manar Television. Neither an enforceable undertaking nor a licence condition would work in this scenario. Even if a licence condition was added to the narrowcasting class licence created by the BSA, it
108 Evidence to Environment, Communications and the Arts Legislation Committee, Parliament of Australia, Canberra, 19 October 2009, 120 (Chris Chapman). 231 would have no effect on overseas broadcasters who choose not to comply with
Australian law or who believe that the Australian Government has no jurisdiction over the content of their services. Even a new standard with stronger conditions will be ineffective in this scenario if the relevant narrowcasters are out of the jurisdiction and out of the corporatist network.109
As the facts of the Al-Manar Television investigations demonstrate, there is no need for
Al-Manar to have a physical presence outside Lebanon for its programming to influence
Australia. The international satellite broadcasting platforms that carry Al-Manar TV, as well as online platforms, enable Al-Manar Television to reach multiple jurisdictions.
Yet, the third investigation was entirely silent on how the breach of the narrowcasting codes (for bias and racial vilification) could be enforced in this situation. Jurisdiction may be regarded as a natural limit of the negotiation model but jurisdiction does not, of itself, exclude stakeholders from corporatist governance nor stop entreaties to co- operate if the ‘outsider’ is an economic elite. Al Manar is insignificant from a corporatist governance perspective. This is only partly to do with jurisdiction. It is not in the corporatist network or a potential member of it because it is not economically powerful. But as an outsider, it has the potential to be disruptive of Australian broadcasting law and norms, and in relation to national security. In contrast, it is reasonable to assume that if Al-Manar Television had a presence in Australia, then the regulatory negotiation may have been far more successful in terms of achieving a negotiated outcome on enforcement of the breaches.. This is what happened in relation to the second example in this case study, concerning Synergy Media’s broadcasts of
GTV, discussed below.
109 ACMA’s approach to enforcement is graded. Under the BSA, a breach of an additional licence condition requires ACMA to issue a remedial direction before any further sanctions will be considered, whereas breach of an Enforceable Undertaking can go straight to the Federal Court for enforcement. See Australian Communications and Media Authority, above n 93, 3–4. 232 B The GTV Investigation, 2008–2009
It could be argued that the Al-Manar investigations involved an intractable problem, which, although not entirely new, has always been beyond the scope of any national regulatory scheme. However, in the post-September 11 context, it is incumbent on government to attempt and, perhaps just as importantly, to be observed attempting to prevent circulation of inflammatory material and hate speech from abroad. The example of GTV discussed in this section involves a similar attempt to enforce the Anti-
Terrorism Standards but, in this case, there was greater potential to influence provision of the service. ACMA’s GTV investigation was undertaken concurrently with the Al-
Manar Television investigation.
Synergy Media Group is a Sydney-based subscription television service provider that offered the GTV channel on its service. The channel was broadcast on the Optus D2 satellite. Synergy Media Group services the Tamil-speaking population of Australia, with programming broadcast in the Tamil language. In this case, the complainant, unidentified in the investigation report, alleged that Synergy Media Group had breached the Broadcasting Services (Anti-Terrorism Requirements for Subscription
Narrowcasting Television Services) Standards 2006 by broadcasting material that recruited or solicited funds for an alleged terrorist organisation, namely the Liberation
Tigers of Tamil Elam (LTTE) (also known as the Tamil Tigers). The complainant did not complain about specific material broadcast on the GTV service, instead alleging that the satellite subscription narrowcasting service was:
233 [B]eing used as an organ not only for LTTE propaganda but also as a tool to raise funds for the terrorist organisation’s weapons and ammunition that have been used to harm civilians in Sri Lanka.110
The complainant alleged that governments in other countries had banned the service, referred to elsewhere as Tharisnam TV.111 The complainant alleged that an Israeli satellite company had ceased carrying the service and, hence, all broadcasts into Europe had also ceased.112
ACMA commenced an investigation pursuant to section 149 of the BSA, which required ACMA to investigate all complaints it received about broadcasting services.113
The complainant did not complain about a specific piece of programming. As a result,
ACMA reviewed a random selection of programming material supplied by the broadcaster.114 In reviewing the material, no prohibited content was identified. The programming reviewed by ACMA included political, documentary, entertainment and current affairs programming. Two programmes were selected for full translation on the basis that the Anti-Terrorism Standards could cover the material. No breach of the Anti-
Terrorism Standards was found.
The investigation report clarified the operational aspects of investigations under the
Anti-Terrorism Standards and, in doing so, the report provided insights into the conduct of most ACMA broadcasting investigations. It noted that:
Prior to beginning the formal investigation, the ACMA requested information from the licensee concerning the nature of its service and the type of programming it offered. In response to the ACMA’s enquiries, the licensee
110 Australian Communications and Media Authority (Cth), Investigation Report No 2233—Global Tamil Vision GTV (Commonwealth of Australia) 2. 111 Synergy Media Group informed ACMA prior to the commencement of the formal investigation that Tharisanam TV had changed its name to GTV in August 2008. See ibid 2–3. 112 Ibid 2. 113 In 2014, s 149 was amended, providing ACMA with discretion to investigate a matter on the basis of a complaint ‘if the ACMA thinks that it is desirable to do so’: see Omnibus Repeal Day (Autumn 2014) Act 2014 (Cth) s 6. 114 Australian Communications and Media Authority (Cth), above n 110, 9. 234 included a general statement countering allegations made by the complainant. The licensee submitted that it ‘strenuously denies that the service has any connection whatsoever with LTTE or promotes or advocates any unlawful activity in any way’.115 The licensee also submitted [that] ‘Synergy has never provided funding to or on behalf of LTTE and Synergy has never received funding from or on behalf of LTTE; and Synergy has never broadcast content provided to Synergy by or on behalf of LTTE on the channel. However, some of the activities of LTTE, for example, public statements by its leaders, are legitimately newsworthy, and Synergy, in common with other international news organisations, sometimes broadcasts this material. When this occurs, the material is not sourced from LTTE and Synergy makes no payment to LTTE for it’.116
Given its presence inside the jurisdiction, Synergy Media Group was represented by local Australian lawyers. Thus, Synergy Media could be treated as an ordinary broadcaster, which resulted in a standard investigation. From the investigation report, it can be observed that, in contrast to the Al-Manar case, correspondence was entered into with the legal representatives of Synergy Media. The report also indicated that Synergy
Media cooperated with ACMA, as it provided programming material for ACMA to review.
The GTV investigation and the first and second Al-Manar Television investigations are similar, in that they are both investigations undertaken under the Anti-Terrorism
Standards, and no breaching content is found in any of the investigations. However, there is a key procedural difference between the two licensees because one has a presence in Australia, and the other is outside Australia. In addition, the local presence of Synergy Media and its ability (and willingness) to cooperate also demonstrate a difference with Al-Manar.
IV INDICATORS OF GOVERNMENT TO GOVERNANCE
The changing role of the state in the administration of national security law, policy and coordination can be critically assessed using the modes of government and governance
115 Ibid 3. 116 Ibid. 235 outlined in Chapter Three. This part of the chapter will examine two of the three indicators of government to governance to analyse the cooperative structures that have developed in relation to the regulation of terrorism content on narrowcasting services.
As was the case for telecommunications, although different modes suggest either government or governance, it is mainly the case that the indicators of government and governance are mixed. The indicators assist in characterising the relationship between industry and government as corporatist governance.
A The Relationship between ACMA and Private Actors
This section reflects on what ACMA does and how it carries out its functions. As noted,
ACMA is the independent statutory authority tasked with primary responsibility for regulating the broadcasting sector. In investigating potential breaches of the various codes and standards it administers, ACMA performs its functions and makes findings independently, although with the support of broadcasting licensees and peak industry associations. However, there are clearly political ramifications of ACMA’s decisions, especially when the inquiry concerns national security and terrorism. This section considers the governance networks, structures and processes that ACMA uses to conduct its investigations and to revise codes and standards.
The co-regulatory framework for broadcasting is a structure that facilitates processes of
‘confidentiality, mutual protection of interest, closeted relationships and mutually beneficial bartering’.117 Therefore, ACMA was presented with a quandary in attempting to deal with the Al-Manar Television case through its normal processes for regulatory negotiations with broadcasters over compliance with codes and standards. Governance scholars have noted the increasing reliance of the state on the cooperation and resources
117 Patrick Birkinshaw, ‘Corporatism and Accountability’ in Andrew Cox and Noël O’Sullivan (eds), The Corporate State: Corporatism and the State Tradition in Western Europe (Edward Elgar, 1988) 52. 236 of non-state actors.118 The narrower forms of governance in existence, such as corporatism, do not admit a broad range of private actors into the law and policymaking forums.119 In a corporatist setting, the framework of regulatory negotiation operates effectively when all parties are willing to cooperate and actually negotiate an outcome.
It requires goodwill and shared political values (to some extent) around the benefits of cooperation with the state and its bureaucracy and that all parties have a reason to participate in the corporatist networks, structures and processes.
Thus, the participation of private actors in governing complicates any formal or top- down accounting of the legal order. The third investigation into Al-Manar Television was arguably only initiated because of the direct involvement of the minister and the material that he received from individuals.120 Those individuals were clearly motivated and knowledgeable enough to use political methods to sway ACMA to further investigate Al-Manar Television. In addition, the Australia–Israel and Jewish Affairs
Council were active in the news media and continued to express their ongoing concern about the Al-Manar Television service over the course of the investigations.121
The Chairman of ACMA drew a distinction between direct and indirect methods of regulating broadcasters in such circumstances where compliance is an issue. In this instance, there was no breach found and, thus, the thorny issues of negotiating an outcome were not broached. However, the Chairman of ACMA promised to continue monitoring Al-Manar and to conduct a further broad-ranging investigation that would
118 Elke Krahmann, States, Citizens and the Privatisation of Security (Cambridge University Press, 2010) 6. 119 Chris Ansell and Alison Gash, ‘Collaborative Governance in Theory and Practice’ (2008) 18(4) Journal of Public Administration Research and Theory 543, 547. 120 On 8 September 2009, members of the Executive Council of Australian Jewry met with the Minister for Broadband, Communications and the Digital Economy, Senator Stephen Conroy, in Parliament House, Canberra. Executive Council of Australian Jewry, above n 75, 7–8. 121 Evidence to Environment, Communications and the Arts Legislation Committee, Supplementary Budget Estimates, Parliament of Australia, Canberra, 19 October 2009, 112 (Nerida O’Loughlin). 237 cover compliance with both the Open Narrowcast Television Code of Practice, a product of regulatory negotiation, and the Anti-Terrorism Standards, also a creation of regulatory negotiation, although less obviously so.
As these examples indicate, in questioning before the senate, ACMA reverted rhetorically to mechanisms that are on the government (rather than governance) end of the spectrum to deal with Al-Manar, whereas GTV was handled through the corporatist co-regulatory framework. The ability to make decisions and enforce them is a characteristic of government.122 However, in the Al-Manar investigations, ACMA was unable to enforce or influence the outcome. In the GTV investigation, the relevant broadcaster and its legal representatives provided full cooperation. The reason that
ACMA switched between the two frameworks was largely pragmatic, with the shift to the government end of the spectrum driven by a perceived need to maintain a modicum of authority in a domain where there was little scope to enforce the outcome.
B Relations between Policy Levels
The Al-Manar Television investigations and the GTV investigation demonstrate the complexity of the relationships between industry players and government in a corporatist governance environment set up for negotiations between known stakeholders. However, the relationships between different parts of government and those in the international arena are equally important for determining government and governance elements in the administration of communications sector security.
Although it is not the focus of this chapter, it is worth noting here that, in an international setting, the regulation of Al-Manar Television is equally fraught. Research commissioned by ACMA demonstrated that Al-Manar Television sits uncomfortably
122 Gerry Stoker, ‘Governance as Theory’ (1998) 50(155) International Journal of Social Sciences 17. 238 within the international regulatory framework for satellite broadcasting. Its carriage is determined by private contractual arrangements with satellite service providers, such as
Indosat, Arabsat and Nilesat, and its regulation by the national states of Europe and the
US has been piecemeal and reactionary. Even within Arab nations, Al-Manar Television sits outside the regional framework. The instability in the international regulatory environment, which features a combination of national laws, international cooperation and private solutions, demonstrates the difficulties the service posed for ACMA when it came to investigate Al-Manar Television under the Australian co-regulatory framework.123
1 The AGD and ACMA
As discussed in Chapter Three, the state is active across the policy levels, through the national security community, in the administration of national security law, policy and coordination in the Australian communications sector. There are many government actors—including independent agencies, portfolio departments, police and security services—who play a role in this community, and the communications sector negotiates with these multiple branches of government at different levels of formality and in different forums, both formal and informal.
While negotiations with ASTRA over the amendments to the 2008 Anti-Terrorism
Standards were occurring, information released on the AGD’s FOI disclosure log reveals that, concurrently, informal disclosure arrangements were being developed between the AGD and ACMA on matters related to terrorism content. A draft memorandum of understanding was circulated between the Department and ACMA in
November 2010. In an email, an AGD officer explained to an ACMA officer that:
123 Ben Saul and Daniel Joyce, International Approaches to the Regulation of Al-Manar Television and Terrorism-related Content: Final Report for the Australian Communications and Media Authority (June 2010) 22. 239 As we discussed, we were thinking of an exchange of letters … to outline our shared areas of interest and facilitate enhanced information between ACMA and Security Law Branch on matters relating to terrorism … We note that we are aiming to keep this fairly informal, whilst also trying to meet the AGs desire to have some form of arrangement about referrals and investigations of terrorism matters that fall within the ACMA’s mandate.124
The ACMA officer also suggested that the informal arrangement be extended to matters of mutual concern beyond terrorism-related materials, such as euthanasia and bulimia content.125 The actual details of the document of mutual understanding between the
AGD and ACMA were redacted, pursuant to section 47C(1) of the FOI Act 1982. That provision holds that material that discloses deliberative processes is exempted from disclosure under an FOI request. The FOI Guidelines developed by the Office of the
Australian Information Commission defined a ‘deliberative process’ as ‘those processes which may include the recording or exchange of opinions, advice, recommendations, a collection of facts or opinions, interim decisions and deliberations’.126
Although the detail of the agreement is not available, the email exchange released under
FOI provides an important insight into the way in which terrorism-related matters are operationalised within the communications environment, as exemplified by the situation between ACMA and the AGD. It provides clues as to how information is shared and how regulatory outcomes are negotiated between government agencies.
2 Other Government Actors
124 Email from Laura Munsie, Principal Legal Office, Security Law Branch, Attorney-General’s Department to Jonquil Ritter, Australian Communications and Media Authority, Monday 8 November 2010, SLB – National Security – Draft document of understanding between ACMA and AGD – November 2010, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-22. 125 Email from Jonquil Ritter, Executive Manager, Citizen and Community Branch, Australian Communications and Media Authority to Laura Munsie, Principal Legal Officer, Security Law Branch, Attorney-General’s Department, Friday 12 November 2010, SLB – National Security – Draft document of understanding between ACMA and AGD – November 2010, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-20. 126 Office of the Australian Information Commissioner, FOI Guidelines (Version 1.3, Australian Government, December 2016), pt 6: Conditional Exemptions. 240 Other government actors were involved in the Al-Manar Television investigation.
ACMA revealed the names of the government bodies with which it consulted during the
Al-Manar Television investigation in 2010 as a result of questioning in the senate:
Senator BIRMINGHAM—I appreciate that it has been a very thorough job and we will look forward to seeing the outcome of that. In regard to the organisations that you have consulted or engaged along the way, have you sought information from other international expert bodies or expert bodies in intelligence or terrorism fields other than of course perhaps your colleagues in the communications regulatory sector?
Mr Chapman—Again, I think it will become apparent that we have been extensive in our review and our consultation. We do dip into the expert advice of the Australian Federal Police, Attorney-General’s department and some of our colleagues in Foreign Affairs. They are examples of the sort of consultations we have been undertaking.127
Here, the Chairman was referring to the informal networks within government that can be activated as and when the need arises, in a similar vein to the conclusions that
Shanahan reached in his study of leadership in the national security community.128 The
Al-Manar investigation possessed a number of characteristics that made it ripe for contact between government actors: it involved Hizbullah, a listed terrorist organisation; it was allegedly fundraising for a terrorist organisation, which is covered by the anti- money laundering and anti-terrorism financing laws, in addition to being a criminal offence; and it involved recruiting for a listed terrorist organisation, which is a criminal offence under the Criminal Code. It involved the carriage of the service by an
Indonesian owned and controlled satellite. Thus, the subject matter and its implications were broader than just the programming content reviewed by ACMA. The internal government networks were necessary to provide ACMA with guidance and expert
127 Evidence to Senate Standing Committee on Environment, Communications and the Arts, Parliament of Australia, Canberra, 19 October 2010, 103 (Chris Chapman). 128 Shanahan, above n 46, 39. 241 advice, but they also worked as a feedback loop, providing those interested agencies and departments with information about subject matter within their remit.
3 The Value of Feedback Mechanisms
The feedback mechanisms between ACMA and the AGD, and between other government departments, are designed to refine processes and effectiveness and to assist in developing a response to the perceived problems of regulating terrorist content in a globalised communications environment. The informal networks are not necessarily openly acknowledged by the agencies that utilise them. As in the case study presented in Chapter Six,129 except for the FOI request, the detailed information about the contact between the organs of the state would have remained out of the public domain, except perhaps, to the extent that ACMA and AGD officers could be questioned about such matters during future senate estimates hearings.
The value of identifying the networks, structures and processes between policy levels in this case study has been to provide a sense of the spaces in which the state is active and where decisions are made, perhaps informally and voluntarily, which have consequences for democratic scrutiny.130
C The Limits of Corporatist Governance
Examined from the perspective of corporatist governance, the investigations under examination provide examples of the limits of corporatist governance when a foreign- based, listed terrorist organisation or suspected terrorist entity is involved. More broadly, they demonstrate the wider problem of corporatist governance networks, structures and processes. Who is admitted? Who is excluded? On what grounds are
129 See Chapter 6 on Operation Neath. 130 Stoker, above n 122, 18. 242 entities excluded from the privileged access and representation? In terms of national security concerns, there are obvious exclusions—entities owned by foreign governments or political parties not allied to Australia—but these exclusions become more complex and fraught in a globalised, converged communications environment.
The contrast between the investigation into Al-Manar and the investigation into GTV demonstrates a weakness in corporatist governance frameworks that rely so fundamentally on regulatory negotiation and cooperation to effect satisfactory regulatory outcomes with ordinary broadcasters. ACMA has powers of compulsion to require information provision, and it uses these powers in instances where there is a risk that information will not be forthcoming.131 However, for the most part, ordinary broadcasters and ACMA frame the provision of information, the conduct of investigations and shape the outcomes through negotiation.
In the Australian broadcasting landscape, the case of Al-Manar Television is an exception. It appears there is no provision for media entities that do not fit within the domestically oriented schema. In the age of global media and terrorist threats, which are most likely to emanate from abroad, this is a major limitation to the regulatory scheme and an identifiable shortcoming of corporatist governance.
V CONCLUSION
This chapter has offered an insight into the governance mechanisms used to combat terrorism in the broadcasting sector, which are not well understood. In part, this is because many governance mechanisms used in the coordination of national security law and policy are not naturally open to democratic scrutiny. It is also the result of the operation of law and policy around secrecy and confidentiality, and the very nature of
131 Broadcasting Services Act 1992 (Cth) pt 13. 243 the governance mechanism itself. This chapter has exposed the important role of traditional democratic mechanisms, such as parliamentary scrutiny, to both understand processes and potentially to bring pressure to bear on government and industry stakeholders to more fully account for their actions. This case study also shows that other mechanisms, such as news media coverage, or stakeholder access to the minister, may be more effective against the threat presented by Al-Manar Television than any attempt to enforce the Anti-Terrorism Standards.
The law examined in this chapter, the Anti-Terrorism Standards, involves an obligation and accountability framework, which, in theory, created the ‘networks of responsibility’132 necessary for ACMA to control narrowcasting services. Law provides the basis of the obligations on industry stakeholders. Its presence or absence guides stakeholders in decisions concerning their obligations and in shaping responses that have a direct effect on their business interests. Laws also provide important indicators of societal norms.
Program standards, which are legislative instruments, have been scrutinised by parliamentary committee;133 they provide an important indication to broadcasters of what is expected of them. Citizens can be confident that these legally enforceable commands have been democratically formulated and scrutinised.
However, democratic norms need a community of reference and there was limited potential for that in the case of Al-Manar. In considering the Al-Manar investigations
132 Elizabeth Fisher, ‘Environmental Law as “Hot” Law’ (2013) 25(3) Journal of Environmental Law 347, 350. 133 The Senate Standing Committee on Regulations and Ordinances has considered the Broadcasting Services (Anti-terrorism Requirements for Open Narrowcasting Television Services) Standard 2006, 2008 and 2011 and the Broadcasting Services (Anti-terrorism Requirements for Subscription Narrowcasting Television Services) Standard 2006, 2008, 2011. See, for example, Senate Standing Committee on Regulations and Ordinances, ‘Report of the Work of the Committee in the 41st Parliament (Report No 114, November 2004–2007) 61. 244 and the role of the communications regulator, the difficulty faced by the regulator is that
Al-Manar was not an ordinary broadcaster and, thus, the entrenched networks, structures and processes for dealing with ordinary broadcasters did not operate effectively in these circumstances.134 In such a situation, there can be no negotiation, no enforcement and, in reality, no hope of future compliance. Andree Wright from ACMA explained the outcome of the investigation in terms of the strengthening of the Anti-
Terrorism Standards:
As Mr Chapman has said, there are challenges in enforcing a code when you are looking at an overseas service. However, it has informed our view that it would be appropriate to further augment the antiterrorism standards, because if a breach is found against a standard there are a number of actions that we can take. We can issue a direction to the licensee of al-Manar directing action to ensure that it does not breach the standards, or we can apply to the Federal Court for an order directing that the service providers cease providing the service, or we can apply to the Federal Court for the imposition of a civil penalty. So we have reached the position where we think that co-regulatory approaches under a code in an area such as this are no longer appropriate and augmentation of the standard will provide the ACMA with the opportunity to move directly in future should we need to.135
Suppose that the circumstances described earlier by Senator Simon Birmingham eventuated, that Al-Manar Television posed a real threat to national security, that
ACMA found breaches of the Anti-Terrorism Standards (even the ‘augmented’ standards referred to in the quotation above and discussed in more detail below) and found that Al-Manar Television used the broadcasting service to commission terrorism offences under the Criminal Code Act 1995 (Cth). From the evidence presented in this chapter, it is reasonable to assume that ACMA would have referred the matter to the
AFP for investigation under the criminal law and to ASIO for assessment. Perhaps a breach finding under the Anti-Terrorism Standards would have bolstered the case for
134 Evidence to Environment and Communications Legislation Committee, Parliament of Australia, Canberra, 22 February 2011, 133 (Andree Wright). 135 Ibid. 245 proscribing Al-Manar Television and the Lebanese Communication Group along with the rest of Hizbullah.
What can ACMA do when satellite narrowcasters, such as Al-Manar, fall outside the
‘networks of responsibility’ set up by the co-regulatory framework? As revealed by the quotation above, ACMA considered the Anti-Terrorism Standards to be a strong lever to obtain assistance, rather than an enforcement tool.136 In such a context, it may be useful to consider Leighton McDonald’s challenge to think differently about the rule of law, ‘so as to maintain its relevance as a norm to which regulation should routinely aspire’.137 That is, the wider principles of legality—such as those that oppose arbitrary and unaccountable governance—may need to be applied to the regulatory contexts under examination to maintain the relevance of the rule of law to these contexts.
As noted in Chapter Three, there is a public interest in citizens having knowledge about the workings of their democratically elected government. Governance theory permits an examination of regulatory mechanisms as government mechanisms or governance mechanisms, which, in turn, assists in determining the relative roles of law, parliament and the courts in the regulatory practice of national security law, policy and coordination in the Australian communications sector. In this case study, parliamentary scrutiny played an important role in ensuring accountability and transparency about the conduct and outcome of the Al-Manar investigations, and the making of the Anti-
Terrorism Standards. In contrast, notwithstanding the publication of the investigation
136 Ibid 134. 137 Leighton McDonald, ‘The Rule of Law in the “New Regulatory State” ’ (2004) 33(3) Common Law World Review 197, 220. 246 report, the GTV investigation, which involved no breach and, thus, no issues of enforcement, was not subjected to the same level of public scrutiny.138
Finally, in the context of the administration of national security law, policy and coordination in the Australian communications sector, where the rhetoric of shared responsibility and private–public partnership is ubiquitous,139 the Al-Manar investigations demonstrated a sharp departure from the rhetoric. The service propagates
Hizbullah’s political ideology and Hizbullah is a listed terrorist organisation in
Australia. In a sectarian political environment, it makes sense that the media would reflect the sectarian divisions. However, this is problematic in the regular Australian broadcasting market, where programming codes and standards require that programs be free from bias, racial vilification and hatred, and that terrorism-related RC material not be broadcast. However, in a corporatist environment, it is the association with
Hizbullah, the listed terrorist organisation, that is problematic.
In an environment where the regulator and the regulated negotiate the regulatory outcomes in regard to any disputes, from a corporatist governance perspective, an organisation such as Hizbullah or its media outlet, Al-Manar Television, cannot be part of the governance networks, structures and processes, which rely on nested relationships between industry and government for their proper functioning. Al-Manar Television is an extreme case in point. However, it provides an insight into the exclusivity of
138 See Australian Communications and Media Authority, above n 110. 139 For example, Australian Mobile Telephone Association and Communications Alliance, Joint Submission No 16 to the Legal and Constitutional Affairs References Committee, Inquiry into Comprehensive Revision of Telecommunications (Interception and Access) Act 1979, 27 February 2014, 2–3. 247 corporatist networks, structures and processes, and the potential for regulatory failure when an industry participant is an ‘outsider’.140
The telecommunications sector faces similar challenges from the telecommunications company, Huawei, and cloud service provider, Alibaba, both Chinese owned and operated companies with alleged links to the government of the People’s Republic of
China. From a national security perspective, it is natural that such companies should be excluded from the corporatist networks, structures and processes that operationalise national security law, policy and coordination.
Convergence and globalisation also complicate the regulatory setting.141 In a globalised economy and society, it is harder to maintain the exclusion from a practical perspective, as the products and services of these companies are accessible to Australian citizens and companies.142 How is their influence and reach to be contained? Obviously, limiting access to sensitive national security information by not admitting them to the corporatist forums for coordinating national security law and policy in the communications sector is a key method. However, exclusion is not always feasible, as Huawei’s membership of the CA’s Communications Security Reference Panel demonstrates.143
140 Christian Hunold, ‘Corporatism, Pluralism, and Democracy: Toward a Deliberative Theory of Bureaucratic Accountability’ (2001) 14(2) Governance: An International Journal of Policy and Administration 151, 158. 141 ASTRA had raised concerns about the inequity of the proposed standards in a global converged media environment in its submission to ACMA, but it is not clear from the public source material whether or how the concerns of the industry were taken into account when the Anti-Terrorism Standards were made in 2011. See Australian Subscription Television and Radio Association, above n 37, 2. 142 Bowrey mentions Cisco Systems sale of routers to China, Kathy Bowrey, Law and Internet Cultures (Cambridge University Press, 2005) 192. 143 See Communication’s Alliance Ltd, Communications Security Reference Panel (CSRP)
However, a key question is whether democratic institutions can be relied on in an age of corporatist governance.
249 CHAPTER SIX BETWEEN LITIGATION AND LEGISLATION: OPERATION NEATH AND THE ATTORNEY-GENERAL’S ROUNDTABLE
It is unacceptable, in our democratic society, that there should be a restraint on the publication of information relating to government where the only vice of that information is that it enables the public to discuss, review and criticise government action. Accordingly, the Court will determine the Government’s claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected. The court will not prevent the publication of information that merely throws light on the past workings of government, even if be not public property, so long as it does not prejudice the community in other respects. Then disclosure will itself serve the public in keeping the community informed and in promoting discussion of public affairs. If, however, it appears that disclosure will be inimical to the public interest because national security, relations with foreign countries or the ordinary business of government will be prejudiced, disclosure will be restrained.1
I INTRODUCTION
The opening excerpt is from Justice Mason’s judgment in the case of Commonwealth of
Australia v John Fairfax & Sons Ltd. The case concerned an action for injunctive relief to restrain publication of documents relating to the Indonesian invasion of East Timor.
The documents of concern were leaked government documents regarding Australian defence and foreign policy between 1968 and 1975.2 The government of the time realised that the media was an unwelcome watchdog in the case of East Timor.
However, the media can also facilitate the government’s public messaging.3 The
Australian Government and the press are bound together in a complicated, symbiotic, long-term relationship. There is no one-way or straightforward relationship with the fourth estate. The case study in this chapter, Operation Neath, brings out some of the complexity of this relationship in the context of the policing of terrorism.
1 Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 per Mason J [51]. 2 Judith Bannister, Gabrielle Appleby and Anna Olijnyk, Government Accountability (Cambridge University Press, 2015) 208. 3 Nicola McGarrity, ‘Fourth Estate or Government Lapdog? The Role of the Australian Media in the Counter-Terrorism Context’ (2011) 25(2) Continuum 273, 274; Steven Livingston, ‘Theorizing State– Media Relations during War and Crisis’ in Piers Robinson, Philip Seib and Romy Fröhlich (eds), Routledge Handbook of Media, Conflict and Security (Routledge, 2016). 250 The chapter focuses on events in 2009 surrounding Australia’s second largest counter- terrorism operation. Operation Neath was a joint Victorian Police and AFP operation that led to the arrest of a number of men subsequently found guilty of terrorism offences.4 The Australian newspaper published the details of a search warrant prior to the warrant being executed.5 The information leaked to The Australian regarding the investigation led to the arrest and subsequent sentencing of a Victorian detective, who was accused of disclosing information about the investigation to a newspaper journalist from The Australian, Cameron Stewart.6 Both the Australian Commission for Law
Enforcement Integrity (ACLEI) and the Victorian Office of Police Integrity (VOPI) investigated the leaking of the information.
In the aftermath of Operation Neath, then Attorney-General Robert McClelland convened a roundtable with the major print and broadcast media industry participants to negotiate an agreement about the future publication of sensitive national security information. This led to the formulation of a 24 hour, 7 day per week contact list (the
24/7 contact list), which purported to provide appropriately briefed contacts within agencies and media organisations to deal with any ‘issue at hand’.7 The 24/7 contact lists that emerged from the roundtable represents a soft governance mechanism for controlling the publication of sensitive national security information. The core concern of this chapter is the roundtable facility, which is another governance mechanism that directly utilises corporatist networks, structures and processes to achieve a negotiated
4 Australian Commission for Law Enforcement Integrity, Investigation Report 04/2010 (Australian Government, Canberra) 1. 5 Cameron Stewart, ‘Rolling the Press on Terror Raid’, The Australian (online), 10 August 2009. This article gives background to the publication of the actual story on the morning of Tuesday 4 August 2009. 6 Cameron Stewart, ‘How I Was Drawn into Toxic Police Politics’, The Australian Broadcasting Corporation (online), 15 December 2012. 7 Letter from the Hon Robert McClelland to Professor Julian Disney, Chair, Australian Press Council, 4 May 2011, released under FOI Act 1982 by the Attorney-General’s Department., FOI-29. This is an example of a follow-up letter. All follow-up letters to media stakeholders were identical. Follow-up letters to government stakeholders all contain the ‘Overarching Principles’ and ‘Points to Note’. 251 outcome. The public dispute that ensued between the AFP and Victoria Police and the acrimony between The Australian newspaper and its critics have clouded the real implications of Operation Neath for the publication of sensitive national security information. The complex and dependent relationship between government and industry in the administration of national security law, policy and coordination is brought into sharp focus in this case study.
The first part of the chapter, Section II, broadly considers the applicable law and regulation, setting out details of the historical relationship between the media and government on the publication of national security information. This includes discussion of the formal and informal regulatory mechanisms associated with the D-
Notice system, which used to regulate what sensitive information could be disclosed.
Then, Section III outlines the facts of Operation Neath and the Attorney-General’s roundtable. In Section IV, the chapter then considers the indicators of government to governance, with a particular focus on industry opposition to the development of protocols governing the exchange of information over national security reportage.
Finally, conclusions are drawn in Section V regarding the role of the fourth estate in the light of the corporatist networks, structures and processes identified, in particular, the utilisation of the corporatist networks within the print and broadcast media by the
Attorney-General, following the fallout from Operation Neath.
II APPLICABLE LAW AND REGULATION
A Law, Legislation and the Fourth Estate
In Australia, in contrast to the situation for telecommunications and broadcasting, there is no cooperative statutory framework that regulates the print media, despite
252 recommendations that one be introduced.8 It is also generally the case that the media has no special institutional recognition as ‘the media’ in the legal and regulatory frameworks that impact on its operation. The regulatory framework for the print media industry is self-regulatory and is undertaken by the Australian Press Council (APC) and, to a lesser extent, the Media and Entertainment Arts Alliance (MEAA), the union representing journalists and other workers in the media, entertainment and arts industries.9 There are historical reasons for this, principally relating to recognition of the desirability of the ‘free press’ operating as a check on democratically elected governments.10
Since the concept of the fourth estate developed in the late eighteenth century,11 it has been considered that it performs an important institutional and political role.12 The fourth estate has stood, theoretically and practically, as an additional bulwark of democratic scrutiny, with a societal role of checking and holding power to account.13
Although this ideal still exists,14 there are constant challenges to the media’s ability or desire to meet the ideal, including the global nature of mass media, its level of independence, the changes to its ownership and market structure since the mid-1980s and the proliferation of non-traditional news sources following the widespread adoption
8 Raymond Finkelstein, Report of the Independent Inquiry into Media and Media Regulation (Department of Broadband, Communications and the Digital Economy, 2012) 8. The Finkelstein Review recommended the creation of an independent statutory agency called the ‘News Media Council’, funded by government out of consolidated revenue (290–300). The Gillard government also proposed a new semi-statutory framework as part of a package of legislative amendments that was ultimately withdrawn following resistance from media organisations and others. See, for example, the News Media (Self- regulation) Bill 2013 and the News Media (Self-regulation) (Consequential Amendments) Bill 2013. 9 Ibid 8, Section 8, 205–244. The MEAA Journalist Code of Ethics applies only to journalist members of the MEAA. See
However, there is law and legislation that directly influences the media, in terms of content produced and published, ownership and the work of journalists. This body of law and legislation is well canvassed by academic literature, media reporting, government inquiries and judges.18 This chapter cannot cover that literature or these vast areas of law in any detail. For the sake of brevity and completeness, it is sufficient to say that there are discrete laws that govern the operation of media entities and their content, their ownership and their conduct. Most of these laws are not specific to the media, but apply generally to the population, such as laws relating to defamation, sedition, confidential information, privacy and surveillance, official secrets, contempt of court, discrimination and racial vilification.19 Other laws apply specifically to media entities as corporations, such as foreign ownership, taxation and competition law.
In addition, there are the national security–related laws of relevance to this thesis.
Again, this body of law has been reasonably well covered by academic literature, media
15 Simons, above n 12, 50–51. 16 Yochai Benkler, ‘WikiLeaks and the Networked Fourth Estate’ in Benedetta Brevini, Arne Hintz and Patrick McCurdy (eds), Beyond WikiLeaks: Implications for the Future of Communications, Journalism and Society (Palgrave MacMillan, 2013) 11, 12–14. 17 Schultz, above n 13, 6. 18 For an overview of Australian law, see David Rolph, Matt Vitins, Judith Bannister and Daniel Joyce, Media Law: Cases, Material and Commentary (Oxford University Press, 2015); Finkelstein, above n 8; Australian Law Reform Commission, Traditional Rights and Freedoms (Report No 129, 2016); Des Butler and Sharon Rodrick, Australian Media Law (Law Book Co, 3rd ed, 2007); Lesley Hitchens, Media Law in Australia (Kluwer Law International, 2014). 19 Some of these general laws include specific exemptions or concessions for media organisations, such as the exemption in s 7B of the Privacy Act 1988 (Cth) for acts done ‘in the course of journalism’, as well as the ‘publisher’s defence’ and the exemption for ‘information providers’ in Australian Consumer Law ss 148, 19. 254 reporting and government inquiries.20 These laws allow interception and access under warrant or authorisation to communications and information that media entities or their employees may hold or disclose.21 There are new warrant processes for obtaining
‘journalist information’, which are secret proceedings, of which journalists and media entities are not made aware.22 There are laws against disclosure of sensitive national security information, such as secrecy laws, and against the disclosure of information about ASIO’s special intelligence operations.23
Additional anti-terrorism offences under the ASIO Act and the Commonwealth
Criminal Code affect the work of journalists and media entities.24 Offences include association with terrorists or terrorist entities and disclosure of operational information about ASIO’s activities, including execution of its warrants and preventative detention orders.25 There are powers of detention if there are reasonable grounds to suspect an individual is involved in a terrorist threat. In the course of judicial proceedings, laws of procedure restrict the disclosure of and access to national security information, in addition to the court’s inherent jurisdiction to control its own proceedings, through injunctive relief and suppression orders.26 These are the hard governance mechanisms that frame the activities of the print media. A co-regulatory legislative structure, such as exists in broadcasting and telecommunications, does not exist for print media.
20 For example, McGarrity, above n 3; Jacqui Ewart, Mark Pearson and Joshua Lessing, ‘Anti-Terror Laws and the News Media in Australia Since 2001: How Free Expression and National Security Compete in a Liberal Democracy’ (2013) 5(1) Journal of Media Law 104; Adam Zwi, Security Law Watchdog Recommends Relaxing Secrecy Provisions for Journalists’ (2016) 31(1) Communications Law Bulletin 9– 11. 21 Telecommunications (Interception and Access) Act 1979 (Cth) divs 4C, 6. 22 Ibid. 23 Australian Security Intelligence Act 1979 (Cth) s 35P 24 Criminal Code Act 1995 (Cth) pt 5, ss 80.3, 102.8(6). For an overview, see Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism (Cambridge University Press, 2011) 319, 347; McGarrity, above n 3, 277–280, citing Mark Pearson and Naomi Busst, ‘Anti-Terror Laws and the Media After 9/11: Three Models in Australia, NZ and the Pacific’ (2006) 12(2) Pacific Journalism Review 9, 16. 25 Charter of the United Nations Act 1945 (Cth) ss 20–21; Criminal Code Act 1995 (Cth) pt 5.3. 26 McGarrity, above n 3, 276–277; Butler and Rodrick, above n 18, 333–352. 255 B The Media and National Security Law, Policy and Coordination
To understand the regulatory trajectory of the Attorney-General’s roundtable it is first necessary to consider the context of the relationship between the media and the governance mechanisms that have developed over time. In the context of state–media relations, Steven Livingston found that:
The state needs an independent news media—or at least what appears to be an independent media—while the news media require state institutions and officials for broad ideological guidance for the anchoring of ‘objectivity’ and as counterparts in a highly synchronised exchange process.27
Livingston was referring to the way in which the state and formally independent news organisations are bound together in what he calls ‘a mostly stable symbiotic relationship’.28 In the media sector, co-dependence is something that pervades and influences the regulation of media more broadly. In the national security context, the examination of the D-Notice system below provides historical insight into the
Australian version of this ‘highly synchronised exchange process’.29
1 The D-Notice System
The D-Notice system was established in the UK in 1912, with the formation of the
Admiralty, War Office and Press Committee.30 It was a product of the British
Government’s desire to control the press during the build-up to the First World War and in the years after hostilities had ceased. A D-Notice system based on the UK scheme was introduced into Australia in 1952, as a response to the Cold War.31 Pauline Sadler,
27 Livingston, above n 3, 118. 28 Ibid. 29 Ibid. 30 Pauline Sadler, National Security and the D-Notice System (Ashgate, 2001) 14. 31 Ibid 67. 256 one of only two Australian academics to research the D-Notice system,32 explained that a D-Notice is:
An arrangement between the government and the media whereby the media agrees not to publish certain government information which is sensitive on the grounds of being a threat to national security. The system exists only in the UK and Australia, and has been described as ‘uniquely British’.33
An initially secret committee consisting of representatives from the media industry and the government administered the D-Notice system. Sadler explained that the D-Notice system was ‘voluntary and extra-legal, that is, there is no legal requirement for the media to participate and the system itself provides for no legal penalties in the event of a breach’.34 Sadler further explained that the first meeting of the Defence, Press and
Broadcasting Committee took place at Victoria Barracks in Melbourne in July 1952, with Prime Minister Menzies acting as Chairman. The Australian system was identical to the one operating in the UK and was introduced after discussions between the two governments.35
The D-Notice itself contained a list of matters that the government preferred the press not report on in the interests of national security. The subjects were decided by the
Defence, Press and Broadcasting Committee and provided to the press. In the early years of the system’s operation, the D-Notices were limited to matters of defence and covered issues such as the UK’s atomic tests in Australia, aspects of naval shipbuilding, official ciphering, the number and deployment of Centurion tanks, troop movements in the Korean War, weapons and equipment, aspects of air defence, and certain aerial
32 The other is historian Lawrence Maher, whose work is also referenced in this thesis. See Laurence W Maher, ‘National Security and Mass Media Self-Censorship: The Origins, Disclosure, Decline and Revival of the Australian D Notice System’ (1997) 3 Australian Journal of Legal History 171. 33 Sadler, above n 30, 1. 34 Ibid 2. 35 Ibid 67. 257 photographs.36 By the 1970s, the number of D-Notices had been reduced to four topics, which reflected the continuing defence concerns of the day and the political controversies of the time. The topics, as listed by Sadler, included technical information regarding navy, army and air force weapons, weapons systems, equipment and communications systems; air operational capability and air defences; the whereabouts of Mr and Mrs Petrov; and ciphering and monitoring activities.37 Sadler noted that a
‘fifth notice relating to the Australian Secret Intelligence Service (ASIS) was added in
1973, the government thereby formally acknowledging the existence of the service for the first time’.38
The D-Notice system operated in secret until 1967, when The Australian newspaper, with Rupert Murdoch as its managing director, indicated that it would publish an article on domestic diplomatic espionage.39 The article was never published but soon after, then Prime Minister Harold Holt told parliament that there was a D-Notice system operating in Australia.40 Harold Holt answered questions on notice about the system and its operation on 8 and 9 November 1967.41 The prime minister explained the operation of the system as follows:
The Defence, Press and Broadcasting Committee is a committee established by agreement between the Commonwealth Government and the press, radio and television interests in Australia. The Committee consists of fourteen members, with government members in a minority. I do not feel that it is appropriate that I indicate current membership by name. However, nine members represent a cross-section of the morning, evening and provincial press, and broadcasting and television stations. Five members represent the Defence group of Departments. The Committee’s function is not to recommend, but in fact to issue D-notices to the press, radio and television. A D-notice is a confidential request in the interests of national security not to
36 Ibid 68. There is some dispute over whether there were seven D-notices or eight, but Sadler reports that there were eight. 37 Ibid 68–69. 38 Ibid 70. 39 Maher, above n 32, 198. 40 Ibid 98. 41 Sadler, above n 30, 69. 258 make public specific matters referred to in the notice. The system is a voluntary one and non-compliance carries no penalties. A request for a D- notice originates with a government department and is referred to the committee, which can either approve, refuse or suggest amendment. When it approves the committee’s secretary issues the notice on a confidential basis to editors and managers. It if does not approve, the notice does not issue. The number of D notices currently in force is small and it is not in the national interest to disclose the precise number or the subjects to which they relate. The Defence Press and Broadcasting Committee renders a valuable public service and it is appropriate to record the Government’s appreciation of its work.42
From this quotation, it can be observed that the D-Notice system was operating as a cooperative governance mechanism, requiring agreement with industry to function.
Sadler made the point that the Australian D-Notice system was embedded in the executive and the bureaucracy, without the ‘interface of any independent broker’ between them and the media side’.43 In terms of the composition of the Defence, Press and Broadcasting Committee, Sadler explained that ‘the Chairman is the Minister for
Defence, the executive secretary is a bureaucrat from the Ministry of Defence in
Canberra, and the system operates under the administrative responsibility of the
Minister for Defence’.44 In this scenario, the state retained control over the public disclosure of the content of D-Notices and membership of the committee.
There is an obvious tension and conflict of interest arising out of this mode of governance. The media’s role as the fourth estate comes into conflict with its role on a cooperative governance committee, which agrees to restrict the publication of national security information, as there may be a case to publish the information in the public interest. Sadler’s work outlined the activities of certain media outlets in the mid- to late-
1970s, such as The National Times and the Nation Review, which consistently published articles concerning D-Notice subject matter, in full knowledge that they were breaching
42 Commonwealth, Parliamentary Debates, House of Representatives, 4 October 1967 (Harold Holt) cited by ibid 69–70. 43 Ibid 78. 44 Ibid 79. 259 the D-Notices in question, to make the D-Notice system more transparent and accountable.45 More information about the D-Notice system became available on account of a long campaign by the media, some of whom were members of the Defence,
Press and Broadcasting committee, to force more openness and transparency on the government in respect of its intelligence agencies and their work.46
In addition, the Australian Journalists Association (AJA) publicly stated its opposition to the ‘voluntary censorship embodied in the ‘D’ Notice system’.47 The members of the
AJA went as far as to call ‘on all media companies to relinquish their membership of the Defence, Press and Broadcasting Committee as being inimical to the traditions of journalism and to the public’s right to freedom of information’.48 This example highlights the inherent tension in cooperative governance mechanisms that utilise corporatist media industry networks.
In the 1980s, the membership of the Defence, Press and Broadcasting Committee was extensive, covering the major media entities of the time, some of which still exist today.
The members of the committee were the Australian Newspapers Council, News
Limited, John Fairfax and Sons, The Herald and Weekly Times, The Age, Regional
Dailies of Australia, Australian Consolidated Press Limited, West Australian
Newspapers, Federation of Australian Commercial Television Stations, Australian
Newspapers Council, Australian Provincial Press Association, Australian Broadcasting
Commission, Federation of Australian Radio Broadcasters, Peter Isaacson Publications,
SBS and the Australian Magazine Publishers Association. The Secretary of the
Department of Defence, the Chief of Defence Force Staff, the First Assistant Secretary,
45 Ibid 72–73. 46 Ibid 72. 47 Ibid 72–73. 48 Ibid 72. 260 Policy Coordination Division, and the director of the Joint Intelligence Organisation represented the Government members.49
In 1982, the D-Notices were amended again. This time they covered the capabilities of the ADF, including aircraft, ships, weapons and other equipment; the whereabouts of
Mr and Mrs Vladimir Petrov; signal intelligence and communications security (the
Defence Signals Directorate, once the highly secret intelligence agency of defence); and the ASIS.50
2 Review of the D-Notice System
The D-Notice system was subject to government review in the late 1990s, after a period of almost continual antagonism between the government and the press over the operations of ASIS, the subject of a D-Notice.51 In May 1998, a meeting was held between the media and government to discuss the ‘feasibility of a voluntary D-Notice system for the protection of national security information’. The outcome of the meeting was that there was support for a voluntary system in lieu of legislation.52 Sadler, reporting on the outcome of the meeting, noted that:
[I]t was more or less readily agreed that the media and government should be able to co-operate to reduce the damage that could be done by publication of some types of material, and acceptance of the legitimacy of the Government seeking to establish such cooperation, in that it was not contrary to Australia’s principles of press freedom. What has not been agreed anywhere yet is how the new D-Notice system would operate. And what continues to frighten the media off is the possibility (however remote) of penalties for secondary disclosure after they have ignored the D-notice principles.53
49 Ibid 79. 50 Ibid 68. 51 Ibid 74–78, 198–202. Another interesting adjunct to the history of the D-notice is how ASIS, once incredibly secret, now has a website and advertises for graduates in the same way as any other Commonwealth government department. Secret intelligence is just another job in a government department that can be applied for through a website. 52 Ibid 82. 53 Ibid. 261 In the 1990s, a commission of inquiry was conducted by Gordon Samuels into the operations and management of ASIS, which included an examination of the effectiveness of the D-Notice system as a means of preventing the publication of sensitive national security information. Following this period of turmoil, the D-Notice fell into ‘abeyance’.54 When conducting her research on the D-Notice system, Sadler found it difficult to obtain information about the operation of the Defence, Press and
Broadcasting Committee, until finally she was advised that there would be no such committee in operation ‘while Parliament decides how and if it should be reconstituted’.55 Sadler made the salient point that this was a strange response, as parliament had never had anything to do with the committee in the first place.56
In conclusion, the emphasis on a voluntary, cooperative mechanism between select industry and government is what characterises the D-Notice system as a corporatist governance mechanism. The D-Notice system highlights the conflicting role of the media as the fourth estate vis-a-vis its obvious role as a privileged member of the economic elite, powerful enough to bargain with government over the terms and conditions of its regulation. The next part of the chapter will outline the facts of
Operation Neath, which led to the establishment of the Attorney-General’s roundtable.
III OPERATION NEATH AND THE FOURTH ESTATE
A The Facts of Operation Neath
Operation Neath was a counter-terrorism investigation undertaken in 2009. It was a joint effort between the Victorian Police and the AFP. An AGD background briefing released under the FOI Act 1982 described the facts of Operation Neath as follows:
54 Ibid 74–82. 55 Ibid 80. 56 Ibid. 262 On 5 August 2009 five persons were arrested in Melbourne under the Australian Federal Police (AFP) Investigation known as ‘Operation Neath’. On 30 July 2009, prior to the arrests, the AFP was contacted by a journalist from The Australian newspaper advising that he had sensitive information relating to a joint terrorism investigation in Melbourne. Following consultations with other agencies, the AFP requested The Australian delay publication of the story until the investigation was ready to be resolved. The Australian agreed not to publish the story in accordance with the AFP request. The agreement by The Australian not to publish sensitive details of the matter was based on the goodwill of the management and was not based on any formal protocol or agreement with the government. There was some confusion around the timing of the publication, with early editions of the newspaper available before all the search warrants had been executed.57
The journalist who contacted the AFP was The Australian newspaper’s national security correspondent, Cameron Stewart. Stewart and his editor, Paul Whittaker, allegedly agreed not to publish the story until after the execution of the warrant. In the background briefing, the AGD appears to be at pains to point out that ‘the agreement by
The Australian not to publish sensitive details of the matter was based on the goodwill of the management and was not based on any formal protocol or agreement with the government’.58
An investigation was commenced into the circumstances behind the leaking of the information and the publication of the story, as, allegedly, there was confusion between the AFP and The Australian about the timing of the story’s publication. Victoria
Police’s Simon Overland considered that this situation unduly prejudiced the investigation and put the lives of officers and others involved at risk.59 Both the VOPI and the ACLEI were tasked with investigating the matter.
57 Attorney-General’s Department (Cth), Background Brief, Round Table, Thursday 14 April 2011, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-51
In 2011, prior to the sentencing of Artz, the Legal and Constitutional Affairs Legislation
Committee questioned the commissioner of the AFP, Tony Negus, during its budget estimates hearings. Negus was asked to explain the relationship between the AFP and media organisations. Negus responded:
To answer your question, what I can say is that on occasion journalists will come into possession of material which, in the course of their inquiries, they then test with the police. Sometimes that relates to operations which are currently underway, and it could be very difficult for the police if those stories were to be published prematurely—it could blow a particular operation or put people's lives at risk. That was the case in this circumstance, and the newspaper decided that it was in its best interests not to publish at that time. That is what happened … My comments are that—not all the time, but on occasion—there will be circumstances where newspapers or individual journalists will need to have confidential conversations with the police where agreements are reached about what information can be shared with the public at a particular time and what cannot. I am not saying that this is the case all the time and I am not saying there will ever be a particularly trusting relationship between the two, but there needs to be a level of trust which can protect national security when the time is appropriate.65
60 Nationwide News Pty Ltd v Integrity Commissioner [2010] FCA 385 (22 April 2010). 61 Margaret Simons, ‘Simons: The View from Inside an Australian Hatchet Job’, Crikey (online), 18 December 2012. 62 Australian Commission for Law Enforcement Integrity, above n 4. 63 Chip le Grand, ‘Victoria Detective Simon Artz Gets Suspended Four-Month Jail Sentence’, The Weekend Australian (online), 5 February 2013. 64 Australian Commission for Law Enforcement Integrity, above n 4. 65 Evidence to Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Canberra, 18 October 2011, 79–80 (Tony Negus). 264 Operation Neath brought to light the web of informal relationships between the traditional news media and government, in which pragmatic and practical negotiations occur over the publication of national security information. There was a major political fallout over the publication of the story between the AFP, the Victorian police and The
Australian newspaper.66 ASIO was involved in the Operation Neath investigation as a partner agency,67 but appears to have remained outside the media scuffle that ensued.
The consequences of this incident led to the call for a roundtable of industry and government participants. The round table was initiated by Attorney-General Robert
McClelland, after an initial call for a ‘new protocol’.68 The roundtable was held on 14
April 2011, at the Inter-Continental Hotel in Sydney, from three o’clock to five o’clock, in addition to which there was ‘an informal drinks function for one hour after the Round
Table’.69 There is no published account of these informal discussions. However, after the round table, the Attorney-General wrote to participants to summarise the outcome of the event. In a letter to government stakeholders70 the outcome was reported in the following terms:
66 Stewart, above n 6; Australian Broadcasting Corporation, ‘The Australian v Victoria Police’, Media Watch, 20 March 2010. 67 Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Review of Administration and Expenditure (2009–2010)—Australian Intelligence Agencies (18 June 2012) 5–6 [2.15]. 68 ‘McClelland Wants New Media Policy for Sensitive Leaks’, The Weekend Australian (online), 6 August 2009. 69 Attorney-General’s Department (Cth), Submission No 503, File No 09/23436, National Security Media Arrangement Round Table—Invitations to Media and Law Enforcement, 23 March 2011, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-1. 70 The recipients of the Attorney-General’s letter were the Prime Minister, the Hon Julia Gillard; Senator the Hon Stephen Conroy, Minister for Broadband, Communications and the Digital Economy; Commissioner, Western Australia Police; Commissioner, Northern Territory Police; Commissioner, Tasmania Police; Commissioner, South Australia Police; Media Entertainment and Arts Alliance; Director of News and Programming, Sky News; ABC, The Australian Newspaper; SBS; FreeTV Australia; CRA; Fairfax Media Limited; Australia’s Right to Know Coalition; National Security Advisor, Department of the Prime Minister and Cabinet; ASIO; New South Wales Police; Victoria Police; AFP; Australian Press Council; The Hon Stephen Smith, Minister for Defence; The Hon Kevin Rudd, Minister for Foreign Affairs; The Hon Brendan O’Connor, Minister for Home Affairs and Justice; The Hon Chris Bowen, Minister for Immigration and Citizenship; The Hon Mark Dreyfus, Cabinet Secretary; The Hon Wayne Swan, Deputy Prime Minister. 265 The Round Table was a positive step in facilitating greater communication and co-operation between media, law enforcement and security agencies. A summary of the overarching principles and ‘points to note’ raised during the meeting is at Attachment B. As a result of the meeting, my Department has agreed to develop a 24/7 contact list containing key contact points at law enforcement and security agencies. The list will be distributed to major media organisations, with the limited circumstances in which the contacts are to be used also stated on the list. Media organisations will also be providing relevant contact details to my Department for distribution to agencies.71
The ‘overarching principles’ set out in the attachment to the follow-up letter stressed the following matters:
The overriding importance of preventing harm to the public and operational security and law enforcement personnel; the preservation of freedom of speech and editorial independence; the requirement for the protection of sensitive security and law enforcement information, including in order for security and law enforcement agencies to effectively conduct their operations; and the inherent public interest in news relating to security matters.72
The ‘points to note’ were much like a protocol for approaching the 24/7 contact list and what it regulated. They canvassed a wide range of issues that were considered the subject of the regulatory negotiation and included the following:
A media organisation who calls an agency with potentially sensitive information, seeking clarification on the basis of that information (interest in preserving the commercial value of being the sole media organisation privy to the information). That said, it also needs to be understood there may be circumstances where more than one organisation will be aware of the information, in which case care will need to be taken to record that fact while also maintaining confidentiality.
• There needs to be a set of parameters regarding access to the contact numbers and the circumstances under which they are used.
• The point of contact within agencies and media organisations must be someone who has been appropriately briefed to effectively deal with the issue at hand. The contact point must be able to quickly contact the
71 Letter from The Hon Robert McClelland to Senator the Hon Stephen Conroy, Minister for Broadband, Communications and the Digital Economy, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-75. 72 Letter from the Hon Robert McClelland to Professor Julian Disney, Chair, Australian Press Council, 4 May 2011, released under FOI Act 1982 by the Attorney-General’s Department, FOI-29. 266 appropriate authority to make decisions, who can then properly engage with their agency/media organisation counterpart.
• The decisions made at the executive level must be communicated effectively to the operational level.
• Media organisations reserve the right to question the information provided by agencies.
• Law enforcement and security agencies will in some circumstances neither confirm nor deny information.
• If there is concern that these arrangements are not being implemented properly, the particular issue should be raised with the Federal Attorney-General’s Department.
• The arrangements apply to enquiries from professional journalists. Enquiries received by academics or other interested persons would be treated in accordance with agency policies.73
The Attorney-General promised to ‘ensure that communication channels between media, law enforcement and security agencies are working on a practical level, ensuring timely responses and realistic solutions’.74 The follow-up letter to actual participants in the negotiation was differently worded, but the sentiment was the same. For example, the follow-up letter to David Irvine, former Director-General of ASIO, stated:
I believe our meeting was successful in facilitating the development of practical solutions to enable better communication and co-operation between agencies and media organisations. As discussed at the Round Table, a summary of the overarching principles and ‘points to note’ raised during the meeting is attached for your consideration. Of particular significance is the understanding that any contact points nominated by agencies or media organisations must have authority to effectively deal with potentially sensitive law enforcement or national security information. The contact point must be able to quickly contact the person with appropriate authority to make decisions in relation to such information.75
73 Ibid. 74 Letter from The Hon Robert McClelland to Senator the Hon Stephen Conroy, Minister for Broadband, Communications and the Digital Economy, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-75. 75 Letter from The Hon Robert McClelland to David Irvine, Director General, Australian Security Intelligence Organisation, 4 May 2011, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-75. 267 The AGD, in a submission to the Attorney-General dated 24 April 2011,76 reported that:
At the Round Table, it was agreed that a 24/7 contact list would be developed by the Public Affairs Branch of the AGD. It was also agreed that letters would be exchanged with a view to seeking consensus on the ‘points to note’ from the meeting. It was also suggested that a similar meeting be held annually, to facilitate the ongoing co-operation and effective communication between media, law enforcement and security agencies.77
The brief explained that the media organisations had indicated their support for the 24/7 contact list ‘where the contact point was quickly able to contact the appropriate decision point, to facilitate timely decision-making’.78
B The Role of the Media in Covering Police and Security Operations
The responses to Operation Neath reveal different views about the appropriate role of the media in covering police operations. Those who work outside the informal information channels are more circumspect about the ethics of the media engagement with police. For example, journalism academic, Margaret Simons, criticised the actions and conduct of The Australian’s editor, Paul Whittaker, and the journalist, Cameron
Stewart.79 Simons argued that there was no good public interest reason for The
Australian to negotiate in the way it did with the AFP over the publication of the story.
The conduct of The Australian was based, Simons argued, on wanting a scoop.80 She raised the potential problem of cooption of the media because of the commercial advantage that flows from a special relationship with law enforcement agencies. In response, The Australian ran what was arguably a very personal public smear campaign
76 Attorney-General’s Department (Cth), Submission, National Security Media Arrangement—Follow-up Letters, File No 09/23436, cleared by Geoff McDonald, First Assistant Secretary, 29 April 2011, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-32. 77 Ibid. 78 Ibid. 79 Simons, above n 61; Robert Manne, ‘Margaret Simons and the Australian’, The Monthly (online), 25 May 2012; Margaret Simons, ‘Simons: More Questions for The Oz, Police on Operation Neath’, Crikey (online), 22 November 2010; Margaret Simons, ‘The Decline of the “Australian” ’, The Monthly (online), July 2014. 80 Margaret Simons, ‘When the Oz Muscles the AFP, That’s a Story’, Crikey (online), 3 November 2011. 268 against Margaret Simons.81 Again, Simons argued that The Australian newspaper did this to intimidate and discourage its critics.82
In Operation Neath, the journalist, Cameron Stewart, and his source, Detective Simon
Artz, were publicly castigated for their actions.83 Artz was sentenced to four months in prison for his disclosure of sensitive information about Operation Neath.84 Artz’s relationship with the journalist was called into question.85 Artz was accused of hubris86 or naivety87 in his dealings with Stewart. In his sentencing hearing, Artz’s counsel referred to his client’s ‘complete meltdown of judgment’.88 Counsel even went so far as to suggest that Artz’s actions were an ‘issue of human frailty’.89 Judge Mark Tafts agreed that the leak displayed a ‘colossal level of naivety’.90
There is a broader, systemic issue at stake here, namely the survival of independent journalistic practices within the symbiotic, combative and opportunistic relationships and networks that exist between industry and government. Stewart and Artz were operating within an environment that encourages such relationships and networks.
Arguably, Artz’s role included direct media liaison. Artz was open with his superiors about liaising with Stewart and in fact made file notes of the meeting.91 On this view,
81 For example, Cameron Stewart, ‘Don’t Let Hate Get in the Way of a Good Story’, The Australian (online), 20 December 2012. 82 Simons, above n 61. 83 DPP v Artz [2013] VCC 56 (5 February 2013). 84 Ibid. Mr Artz’ sentence was wholly suspended for 12 months. 85 Ibid. 86 See ‘Leak Cop Simon Artz Seeking Return to the Force’, The Australian (online), 25 January 2013; ‘Like a Footballer Meltdown Artz Awaits Sentence in Oz Terror Trial’, Crikey (online), 24 January 2013. 87 Sentencing remarks of Judge. See DPP v Artz [2013] VCC 56 (5 February 2013). 88 ‘Like a Footballer Meltdown’, above n 86. 89 Ibid. 90 Ibid. 91 Andrew Crook, ‘Colleague Says Artz Dotted the I’s and Crossed the T’s’, Crikey (online), 10 November 2011. Crikey reported that ‘Victoria police superintendent Stephen Porter, who served above former Security Intelligence Group investigator Simon Artz in the VicPol chain of command, agreed that his former colleague had done the exact thing expected of him following a lunchtime chat with Stewart outside the newspaper’s Southbank headquarters on 30 July 2009. The court heard that Artz had told his superiors at the first available opportunity—including detective senior sergeant Peter Greaney—of the meeting with Stewart, had diarised the contact and prepared an information report in line with official 269 The Australian and the journalist were merely pursuing leads to file copy, to obtain the scoop and to report the news in the normal way.92 Finally, from the facts, it is clear that the federal and state police forces, by providing the newspaper with a briefing on the operation, were also attempting to control the publication of information about the operation.
C Reconsidering Expectations about the Role of the Press
Schultz has observed that the institutional role of the media as the fourth estate is flawed. As Schultz explained, ‘concentrated ownership clearly limited diversity; skewed representation of individuals, groups and ideas was both morally wrong and commercially short-sighted; and the political power and influence of media owners was disproportionate’.93 Journalists, on the other hand, operate on a different plane to their employers and have the potential to buck the trend and ‘make a difference’.94 Thus, accessing and maintaining sources within government are crucial to the work of journalists, as the foot soldiers of the fourth estate. A journalist such as Stewart, or any of his ilk, would not let an opportunity such as that presented by Artz remain uninvestigated. Thus, the idea of the media as an inept watchdog is too simplistic.95
Taking the contrasting view, however, it must be asked, where are the lines drawn that allow for the public interest to be considered? And who should decide the balance
police procedure. Asked by Bill Stuart, SC, for Artz, whether he would have done the same thing if he’d been in Artz’s shoes, Porter gave an unequivocal “yes”.’ 92 Letter from Christopher Warren, Federal Secretary, Media, Entertainment and Arts Alliance to Geoff McDonald, First Assistant Secretary, National Security Law and Policy Division, Attorney-General’s Department, 16 February 2011, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-23. 93 Schultz, above n 13, 12. 94 Ibid. 95 McGarrity explains ‘One of the most important of these factors is the limited information available to the media about national security matters, due to both the tight grip maintained by the executive branch of government on relevant information and the legal restrictions on access to information about ongoing investigations and judicial proceedings’ (McGarrity, above n 3, 280). 270 between disclosures in the public interest and maintaining secrecy in the national interest? Traditionally, this has been the role performed by courts.96
Similarly to the D-Notice system, the facts of Operation Neath disclosed details of the corporatist networks, structures and processes associated with the administration of national security law, policy and coordination. Section IV below considers the theme of government to governance as evident in those corporatist networks, particularly as government attempted to negotiate with The Australian newspaper over the publication of sensitive national security information.
IV INDICATORS OF GOVERNMENT TO GOVERNANCE
A key theme of this thesis is that the indicators of government to governance provide a convenient frame, through which to assess the complexity, dynamism and variability in the governance networks, structures and processes of the administration of national security law, policy and coordination, including, in this case, the power-sharing arrangements with the media.
To date, much of the legal academic writing on the publication of sensitive national security information has focused on two topics, the effect of media regulation on free speech97 and the mechanisms for preventing the publication of sensitive national security information.98 Most legal literature is concerned with the ‘chilling effect’ of law, policies and practices that seek to restrict speech or have the effect of restraining speech.99 For example, Lawrence McNamara’s research on Australian counter-terrorism
96 Commonwealth of Australia v. John Fairfax & Sons Ltd (1980) 147 CLR 39 (Mason J). 97 For example, Lawrence McNamara, ‘Closure, Caution and the Question of Chilling: How have the Australian Counter-Terrorism Laws affected the Media?’ (2009) 14(1) Media and Arts Law Review 1; Ewart, Pearson and Lessing, above n 20. 98 McGarrity, above n 3. 99 Ben Saul and Daniel Joyce, International Approaches to the Regulation of Al-Manar Television and Terrorism-related Content: Final Report for the Australian Communications and Media Authority (June 2010); Kirsten Morrin, ‘Official Secrets and Freedom of Speech’ (2002) 13(1) Polemic 19; Susan Harris 271 laws and the media is concerned with the self-censoring in which journalists may engage on account of the operation of those laws, and the chilling effect of those laws on speech.100 Although the legal literature generally does not examine the corporatist governance mechanisms that regulate the publication, suppression and non-publication of matters of national security in those terms,101 the political economy literature has researched and documented media practices for obtaining information and negotiating publication.102
Access to national security information and negotiation over its publication occurs in multiple contexts. Negotiations occur within the formal structures of command and control mechanisms, such as injunctions and criminal proceedings, both of which involve the intervention of the courts. Alternatively, negotiations occur through cooperative, voluntary and informal means, as a way of avoiding enforceable legal obligations. Scuffles between newspapers and governments are commonplace and, without behind-the-scenes agreement, may be publicly decided by courts after a balancing exercise has been undertaken.103
There is a constant tension between ‘the right to know’ and perceived needs for suppression and secrecy. Rights-based narratives do not examine the relationship between government and media in corporatist terms closely enough. The formal and informal relationships and networks between the traditional media and government are
Rimmer, ‘Spy versus Spy: Government Control of Sensitive Information’ (2006) (13) Parliamentary Library Research Brief 1; Andrew Lynch, ‘Maximising the Drama: “Jihad Jack”, the Court of Appeal and the Australian Media’ (2006) 27 Adelaide Law Review 312; Pearson and Busst, above n 24. 100 McNamara, above n 97, 1–30; Lawrence McNamara, ‘Counter-terrorism Laws and the Media: National Security and Control of Information’ (2009) 5(3) Security Challenges 95–115. 101 Although, Ewart, Pearson and Lessing’s article (above n 20, 122) does touch on the Attorney- General’s Roundtable in very general terms. 102 See for example, Livingston, above n 3. 103 Commonwealth v Fairfax (1980) 147 CLR 39. 272 what makes the information flow.104 Livingston found, in the context of war and conflict, that:
From the start of the modern era, war, information and the state were entwined in a tightly coiled recursive relationship. State–media relations during conflict and political stress involves more than administrative mechanisms of management, control and manipulation, though that, too, is a part of it. Information management systems are constitutive of the state itself. Likewise, war fuelled the processes leading to consolidated statehood. War, media and the state are in this sense mutually constitutive.105
In other words, journalists need trusted government sources to conduct their work and governments need structures and processes, formal and informal, to control the flow of information. This reciprocity enables the relationships to function at both the micro
‘journalist to source’ level and the macro ‘corporate entity to government’ level. The relationships are built on trust, mutual intent and, at times, even on friendship. Some relationships have lasted for decades.106 In the context of Operation Neath, at the micro level, the journalist Cameron Stewart was intensively questioned under cross- examination about all of his sources across the national security community and asked to reveal them, during the committal hearing of Simon Artz, the Victorian detective accused of unauthorised disclosure of national security information to Stewart.107
Stewart, who was a self-described ‘spook’ with the Defence Signals Directorate,108 refused to do so. At the macro level, the call for a roundtable to discuss a protocol for publishing sensitive national security information with the major print and broadcast media stakeholders shows the state’s desire to shape and control national security
104 Livingston, above n 3, 124–127. 105 Ibid 126. 106 Rodger Shanahan’s research paper on collaborative leadership in the national security community confirms that the leaders of the national security community have close relationships with each other, some of which span decades. Rodger Shanahan, ‘Key Events in Lebanese Politics December 2008 – January 2010 and the Role of Hizbullah’ (Research Report, Australian Communications and Media Authority, 2010) 39. 107 Andrew Cook, ‘Stewart Grilled over Sources in Artz Case, But Won’t Have a Bar of It’, Crikey (online), 11 November 2011. 108 ‘Cameron Stewart—Associate Editor’, The Australian (online), 26 October 2007. 273 information flows, but also the media’s desire to shape and control regulation. The roundtable itself and the agreed outcomes also provided a level of protection for the media as a participant in setting the regulatory boundaries.
Chapter Three outlined Hysing’s three proposed indicators of government and governance.109 In his examples, command and control modes of governing, that is, laws and legal sanctions, are the most government-like of the governing instruments and styles, whereas voluntary instruments are the most governance-like. The private–public relationships were characterised by hierarchy at the government end of the spectrum, whereas private self-governing is the hallmark of governance. Finally, the policy indicators showed the nation state as the government indicator, whereas ‘governing by global civil society’ was an example of a governance indicator.110 Along the spectrum of government to governance lie the other modes of governing or regulatory mechanisms, which the state and private actors use to steer a particular regulatory setting or sector of the economy.
Using the government to governance indicators, this section evaluates the governing styles and relationships that have developed between government and the main participants in Australia’s print and broadcast media. As already noted, negotiation is a core mechanism in the decision to publish national security information. In between the hard mechanisms, comprising procedural restrictions, injunctions, legislation and criminal offences, the informal mechanisms reside in the form of codes of ethics, general principles, D-Notices, voluntary agreements and other modes of regulation based on cooperative networks and negotiated outcomes. What is most distinctive about
109 Erik Hysing, ‘From Government to Governance? A Comparison of Environmental Governing in Swedish Forestry and Transport’ (2009) 22(4) Governance: An International Journal of Policy, Administration, and Institutions 647. 110 Ibid 650. 274 the practice in this area is the industry fear of government and of the possibility of more hard law initiatives impinging on media practice. Carol Harlow’s characterisation of the state’s ‘hidden paw’ is to be found in the cooperative frameworks of the decentred regulatory state.111
Although governance, rather than government, is the evident approach of the Attorney-
General’s roundtable, the threat of hard law was a distinctive presence in the corporatist forum established to negotiate acceptable terms for the publication of national security- sensitive information. This case study shows that, although Hysing’s continuum of government to governance is helpful, the two concepts remain related and intermingled in the dynamics in play.
A Styles in Operation Neath
In dealing with matters of national security, the government always has the option to revert to command and control governance mechanisms because of its monopoly over the legitimate use of coercive powers.112 Yet, historically, and as shown in Operation
Neath, governments have been reluctant to be heavy-handed with the elite economic stakeholders with whom they must negotiate. Historically, regulatory negotiation has been a part of the regulatory interface between government and the press over the publication of national security information, with the exception of war-time censorship.
Regulatory negotiations take place between government and industry stakeholders over the form and substance of disclosure. It is clear that LENSAs are implicitly permitted to negotiate with the media, strike informal agreements and brief the media on matters of national security in the context of current and pending investigations.
111 Carol Harlow, ‘The Hidden Paw of the State’ in David Dysenhaus, Murray Hunt and Grant Huscroft (eds), A Simple Common Lawyer: Essays in Honour of Michael Taggart (Hart Publishing, 2009) 77–78. 112 Livingston, above n 3, 124. 275 In the case of Operation Neath, The Australian newspaper had a scoop and they wanted to preserve it. The AFP realised there had been a leak of significant detail to the relevant journalist, Cameron Stewart. Yet, the Victorian police officer accused of leaking the material to the journalist, Artz, has maintained to this day that Stewart, a former employee of the ONA, was protecting his true source.113 This adds further intrigue to the circumstances of Operation Neath. Stewart admitted in court evidence that 75 per cent of the material from his story came from the briefing he received from the AFP. A more detailed examination of the facts is necessary to understand the style of these negotiations between News Limited and the AFP, and the Attorney-General’s subsequent roundtable.
Stewart initially had information leaked to him by Artz. Stewart then approached the
AFP with the information that he had gleaned from the Victorian detective. According to the ACLEI report, the negotiations between the newspaper and the AFP escalated when it became clear to the AFP that the journalist had information that would prejudice the investigation if published. As with the issuing of D-Notices, it appears that the AFP only had loose leverage and the decision not to publish was based on the goodwill of the newspaper management.
The ACLEI report was an own-initiative investigation, which examined possible corrupt conduct by the AFP as a result of the disclosure of the warrant information.114 The report stated that the ‘management of information relating to law enforcement operations presents a constant, serious and difficult-to-manage corruption risk’.115 The facts regarding the disclosure of the information about Operation Neath to the journalist are as follows:
113 Cook, above n 107. 114 Australian Commission for Law Enforcement Integrity, above n 4. 115 Ibid 1. 276 The details which the journalist provided to the AFP were largely accurate, indicating that a knowledgeable and up-to-date law enforcement source may have ‘leaked’ the information. The AFP immediately informed its partner agencies of the journalist’s telephone call. In the context of Operation Neath, ‘leak’ or unauthorised disclosure of information represented both a significant risk to, and a breach of, operational security. A meeting of senior representatives from all partner agencies, known as the Joint Management Group (for Operation Neath), took place later that afternoon, at which possible courses of action were discussed. The partner agencies agreed that the AFP should negotiate with the newspaper to delay publication of the story, which was scheduled for the following day. As a result of those negotiations, The Australian agreed to delay publication of information about Operation Neath. In the following days, senior members of the AFP provided official briefings to the newspaper about Operation Neath. The information contained in those briefings, combined with what the journalist already knew, formed the basis of the two articles that the newspaper published on the morning of the searches and arrests.116
The ACLEI commissioner was searching for instances of corruption. The report is useful for its insight into the regulatory negotiation that took place between The
Australian newspaper and the AFP. The extent of the briefing that the newspaper received was a case in point. The report stated:
The briefing given to the newspaper was extensive. In addition, at the point the briefing was provided, some of the information was still operationally sensitive and may have attracted protection under Commonwealth legislation. AFP witnesses stated in evidence that they believed they needed to engage genuinely with the newspaper to continue to mitigate the perceived risk of premature publication. They were also aware of the need to protect certain information and to take care not to prejudice the fair trial of any persons who may be charged with criminal offences. Accordingly, officers of senior rank briefed the journalist, based on information that would be tendered to court if arrests were made, and agreement was reached that the draft text of the resulting articles would be vetted by Operation Neath partner agencies, which occurred. In the final event, The Australian withheld some information from publication at the AFP’s request.117
Regarding the extent of the briefing, the ACLEI report concluded that ‘it is arguable that a less extensive briefing would just as well have met the AFP’s goal of controlling
116 Ibid. 117 Ibid 5. 277 the security breach. However, I note the account of the key AFP witnesses, namely that, in their judgement, the action taken was warranted in the circumstances they faced’.118
It was acknowledged that the agreement negotiated between the AFP and Cameron
Stewart was not fully thought through in terms of the production processes associated with printing the newspaper. The report explained:
Agreement had been reached that only the final edition of the newspaper would carry the story, and The Australian had also committed not to publish the articles on-line until later in the morning (after which, it was assumed, any risk to safety would have passed). On the day, some copies of the final edition of the newspaper were available in Melbourne from about 2am, introducing the possibility that the information would become known to the subjects of Operation Neath before the searches were to commence. The situation led to criticism of the AFP for not delaying the publication of the articles until the day after the searches had concluded and the arrests had been made.119
The ACLEI report concluded with a finding of no corrupt conduct by an officer of the
AFP and no evidence of a criminal offence arising as a result of the AFP’s handling of the breach. In response to criticism of the AFP regarding the timing of the release of the newspaper, the commissioner reported that:
The documentary evidence shows that a misunderstanding meant that the AFP was not aware that distribution of the newspaper could occur earlier than had been discussed in the planning stages, which was the foundation of agreements about the day the articles would be published.120
This suggests that, during the negotiations, there was a preoccupation with the editorial content of the publication, rather than the actors focusing broadly on the whole process associated with the publication of the story, including distribution of physical copies of the newspaper. In 2009, the circulation figures for hard copies of newspapers were
118 Ibid. 119 Ibid 6. 120 Ibid. 278 higher than they are now.121 As a consequence of Operation Neath, the ACLEI recommended that government agencies with national security responsibilities review their management processes for future compromises in sensitive investigations.122
Negotiation was the governing style identified in this section, demonstrating the high- pressure negotiating environment in which publication of national security information occurs. Governing through negotiation is a soft mechanism, as was the voluntary agreement reached between the actors.123
Although the state actors in this scenario may have been able to access hard mechanisms, such as applying for urgent interlocutory injunctive relief through the courts,124 they chose not to do so, for reasons that are not apparent from the public record. However, it is reasonable to assume that the AFP did not seek to restrain publication using the courts because it was faster and more efficient to negotiate with the newspaper directly on the terms of publication and to reach a mutually beneficial outcome by agreement. This is a typically corporatist style of governance, where the state and the relevant industry participant secure agreement and consent to do, or not do, something through negotiation, playing hardball or softball, as the case requires. Of course, the state actors always have the option of pursuing an injunction if negotiations break down, and the industry actors always have the option of opposing such an application.
121 In 2009, The Australian’s quarterly average paid net print sales circulation figure for the period ending March 2009 was 138,765. As of June 2017, the reporting changed from quarterly to half yearly (13 weeks to 26 weeks). In 2017, The Australian’s half yearly average paid net print sales circulation figure was 94,448 (Audited Media Association of Australia, ABC Average Net Paid Print Sales
In the context of the negotiations outlined above, this section seeks to further investigate why there is support for corporatist governance networks and processes from industry participants, and what are their concerns that arise in discussion with the state. The way that industry relates to government and governance is demonstrated, with the two concepts regarded as polar opposites in some circumstances, but as closely related in others. This section shows that, whereas Hysing’s scheme is a useful tool for explaining the state of governance, there is no simple, universal truth in terms of the application of the government to governance tools to contemporary affairs.
1 An Invitation to Participate in the Attorney-General’s Roundtable
In November 2010, three months after the Operation Neath story had broken in The
Australian newspaper, Attorney-General Robert McClelland approached the media and print industry stakeholders with a view to developing ‘mutually agreed arrangements relating to the publication of sensitive national security and law enforcement information’.125
The list of invitees to the Attorney-General’s roundtable included all of the major print and broadcast media industry participants. Thus, it included the chief executive of Sky
News, the editor of The Australian, the managing directors of SBS and the ABC, the federal secretary of the MEAA, FreeTV, CRA, ASTRA, Fairfax Media Limited, News
Limited, the executive producer of Media Watch, the NSA, Duncan Lewis, the Director-
General of ASIO, David Irvine, the commissioner of the AFP, the chief commissioner of Victoria Police, the commissioner of NSW Police and the Australia’s Right to Know
125 Letter from The Hon Robert McClelland to Mark Scott, Managing Director, Australian Broadcasting Corporation, 23 November 2010, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-33. 280 (ARK) coalition. As discussed in Chapter Three, a roundtable that only includes the major economic stakeholders in the industry is a clear example of a corporatist governance mechanism. It provides a context in which government and industry are able to negotiate an outcome to a problem without recourse to law, parliament or courts.
The Attorney-General’s invitation set out the form of arrangements envisaged by government, including the intention to develop a ‘stand-alone document that outlines some guiding principles and steps to be taken by the media and government with respect to the publication of sensitive national security and law enforcement information’.126 The Attorney-General emphasised the voluntary nature of the proposed arrangements and that the principles would be guiding principles. The Attorney-
General’s letter to participants envisaged that the scope of arrangements:
Would apply to the publication of sensitive national security and law enforcement matters, where inadvertent or pre-emptive reporting could endanger the life and safety of personnel or the public or could compromise that investigation or operation.127
The objects and guiding principles of the proposal were based on a balance between the public interest in allowing law enforcement and national security agencies to undertake investigations and operations that were against the public interest in keeping the public informed about national security and law enforcement matters. The Attorney-General was at pains to assure the media that:
An arrangement would be designed to facilitate such reporting in a manner that avoids risk to life or safety or compromise of important investigations or operations.128
The Attorney-General provided guidance to media stakeholders on how an agreement would be reached:
126 Ibid. 127 Ibid. 128 Ibid. 281 The arrangements would need to be capable of being adapted to the fluid operational environments of law enforcement and other agencies and the media. It could outline steps or guidelines for government agencies and media in reaching agreement on the publication of sensitive national security and law enforcement information. At the same time, it would need to avoid an approach that is too prescriptive, as agreements may need to be made or varied quickly and outside of normal business hours.129
The arrangements explicitly recognised that the decision to publish sensitive national security and law enforcement information would be the result of a regulatory negotiation between stakeholders. The arrangements suggested by the Attorney-General attempted to provide a focal point and consistency for the regulatory negotiations, by framing the negotiations around matters that included:
Publishing factual details of the investigation or operation with any sensitive details omitted; delaying publication of the story until after a certain date or event; and providing additional publishable information relevant to the investigation or operation so that the sensitive information does not need to be reported.130
In addition, the Attorney-General noted that:
One of the key practical aspects of the arrangements would be to identify appropriate points of contact within government and also in the media. An important consideration would be to ensure that those persons involved in negotiating any agreement on the publication of sensitive national security or law enforcement information have appropriate authority to make and implement an agreement. Within government, initial points of contact would primarily be the media liaison areas of relevant agencies. While the media liaison area may not be in a position to negotiate a particular agreement, arrangements would be in place to ensure prompt and appropriate action.131
This quotation contains the basis for the subsequent discussions about the development of the 24/7 contact list, being the ‘arrangements’ in place that would ensure ‘prompt and appropriate action’. The Attorney-General sought views and comments on the proposal by early 2011. In a bundle of documents released under the FOI Act, it appears that the
129 Ibid. 130 Ibid. 131 Ibid. 282 letters went out to the following stakeholders: ABC, SBS, the Community Broadcasting
Association of Australia, Free TV Australia, Police Federation of Australia, Media
Entertainment and Arts Alliance, APC, ASTRA, the Commercial Radio Australia and the Australian Federal Police Association.
The AGD’s reasoning is contained in a submission to the Attorney-General on the issue of a media protocol released under FOI legislation. The AGD advised the Attorney-
General that:
We consider the proposed approach of you writing to media and police bodies with some preliminary proposals would be the most effective way to seek constructive feedback and develop a cooperative arrangement with the media.132
The AGD considered that it ‘would be more productive and conducive to reaching a cooperative arrangement to provide media and policy bodies with some general broad principles for comment’ rather than a draft protocol.133 The emphasis of that briefing was on cooperation and informality, rather than prescription and enforceability. In the
AGD’s background briefing, the emphasis on the informal aspects of the arrangements shows that it was based on negotiation and cooperation, as opposed to anything formal or even remotely enforceable.
This is a characteristic of corporatist governance; it seems that the AGD was stating that the state had a loose leverage over any decision that The Australian might make in regard to publishing. That the state is not able to fetter the discretion of editors of independent newspapers and other media appears to be positive in democratic terms.
However, it is also problematic when a situation like Operation Neath occurs. The loose
132 Attorney-General’s Department (Cth), Submission No 847, File No 09/23436, Media Protocol— Consultation with Media Representatives, 21 October 2010, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-1. 133 Ibid. 283 leverage to negotiate an outcome is undermined when there is a misunderstanding or a breakdown of communications such as allegedly occurred in the case of Operation
Neath.
The APC suggested that the Attorney-General convene a roundtable to consider developing an agreement about the publication of security-sensitive information in the media.134 The APC explained that it had experience running roundtables to assist with the development of guidelines on particular issues. The Attorney-General agreed that a roundtable ‘would present a good opportunity for both national security and law enforcement agencies as well as media organisations to convey their respective needs and interests in relation to this issue, as well as develop mutually beneficial and effective options’.135
2 Industry Responses to the Invitation
Most stakeholders contacted during the Attorney-General’s initial approach responded positively to the suggestion that some form of loose structure, such as a contact list, be created for negotiations over publication of sensitive national security material.
However, the MEAA rejected the need to develop a protocol or guidelines, arguing that
Operation Neath was actually an example of normal journalistic practice. Federal
Secretary Christopher Warren submitted that:
My reading of that episode is that the media outlet acted in accordance with normal journalistic practice, contacting the relevant authorities in order to verify facts. Thus it was an informal relationship struck which allowed both parties to agree on a mutually satisfactory arrangement for publication.136
134 Letter from Julian Disney, Chair of the Australian Press Council to Robert McClelland, 22 December 2010, released under the FOI Act 1982 by the Attorney-General’s Department. 135 Letter from Robert McClelland to Mr Julian Disney, 24 February 2011, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-30. 136 Letter from Christopher Warren, Federal Secretary, Media, Entertainment and Arts Alliance to Geoff McDonald, First Assistant Secretary, National Security Law and Policy Division, Attorney-General’s 284 The MEAA also argued that:
In all cases where a journalist becomes privy to sensitive information relating to national security or law enforcement they would contact the appropriate agency to check that information. This is the point at which, logic dictates, any arrangement relating to publication will most effectively be made, with specific reference to the situation at hand. I am concerned that to attempt to come up with a set of guidelines relating to all possible circumstances will be unworkable and risks a chilling effect on free speech. However, we believe it would be appropriate to set up and maintain a contact list so that media outlets can contact the relevant Commonwealth and state or territory authority at any time if they come into possession of what they believe to be sensitive material. Likewise, if any authority becomes aware that a media outlet has possession of sensitive information, they should be able to contact that outlet to ensure that the editorial managers are made aware of all the facts and sensitivities concerned.137
The MEAA were concerned about the prospect of a voluntary standard or protocol becoming mandatory down the track.138 If a protocol was found to be necessary, the
MEAA stated that:
[It] must be stressed that editorial independence is critical and that the protocol must make it clear that it does not give government agencies the ability to influence what a media outlet is able to publish.139
There is a shadow of hierarchical government by command that overhangs the discourse presented here. There is buy-in from industry because it thought that agreement to a protocol could prevent or forestall the imposition of a mandatory code or standard. The soft law option was judged more desirable because law would impede the industry’s capacity to function as a responsible fourth estate, checking and holding governments to account. The protocol may have achieved little in practice if it reflected nothing more than current journalistic practice. But as a ‘soft’ mechanism, it has some power to
Department, 16 February 2011, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-23. 137 Ibid. 138 Ibid. 139 Ibid. 285 influence outcomes if it is accepted by industry participants as a legitimate constraint on their operations.
The Australian newspaper was cautiously supportive of putting in place ‘prior arrangements so that government agencies and the media are clear with whom they should be dealing, on rare occasions, when these issues arise’.140 The Australian was entirely opposed to any form of formal protocol or guidelines that would have the effect of restricting publication of information. It argued that the media and government were successfully deploying informal mechanisms, submitting that
Responsible media outlets such as The Australian have shown a willingness to consult law enforcement agencies over the publication of sensitive material and, in appropriate circumstances, have even been willing to delay publication and omit certain material. Such decisions are entirely the responsibility of the media and any attempt by government to intrude on this process will be strongly resisted.141
Reflecting the traditional fourth estate position, The Australian further submitted that government should at most establish clear lines of communication ‘and should not venture into the dangerous territory of establishing guidelines on what can and cannot be reported’.142
The ARK coalition,143 formed by the mainstream media and broadcasting industry participants in May 2007 to address concerns about free speech in Australia, was entirely against the need for more formal arrangements. ARK submitted that,
140 Letter from Paul Whittaker, Editor, The Australian to Robert McClelland, 10 February 2011, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-21. 141 Ibid. 142 Ibid. 143 Membership of Australia’s Right to Know includes both print and broadcast media, such as News Limited, Fairfax Media, The Australian Broadcasting Corporation, The Special Broadcasting Service, among others. From its website, ARK does not appear to have been active since 2010, issuing a media release on 13 May 2010 concerning legislative changes to the Freedom of Information Act 1982 (Cth) See
Responsibility in this context appears to mean that journalists and media entities will be regarded as acting ‘responsibly’ when they liaise with government agencies and police over the facts of stories to determine the sensitivity of the subject matter, the implications of reporting on a particular matter and they reach, by negotiation, an agreement on whether to run a story and at what time. A ‘responsible’ media entity or journalist has a similar ring to ordinary broadcaster, as described in the previous chapter, Chapter Five.
ARK was highly concerned to resist any encroachment on editorial independence by protecting the freedom of journalists to negotiate, without additional regulatory overlays. This process of liaison and negotiation, which sits within the legal and ethical framework governing the conduct of journalists, is fundamental to the work of journalists and media businesses. It provides the opportunity to check facts, obtain information and reach agreement. As the example of Operation Neath showed, in the case of the reported conversation between the then head of the AFP, Tony Negus, and
The Australian Editor, Paul Whittaker, that agreement can be reached through the use of hard, unpalatable tactics.145
ARK raised concerns about the relative informality of the proposed arrangements. This is not surprising in the context of the fourth estate. ARK appeared to characterise the
144 Letter from Creina Chapman, on behalf of Australia’s Right to Know Coalition to Geoff McDonald, First Assistant Secretary, National Security Law and Policy Division, Attorney-General’s Department, 18 February 2011, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-17. 145 Tony William Negus, Commissioner of the Australian Federal Police, Affidavit, 7 September 2009, 7. Published by Australian Broadcasting Corporation, Media Watch, 2 November 2011
If an authority wishes to use a range of remedies against a media outlet including contempt, and injunctive powers, they are able to do so. But if there are to be any additional powers we strongly believe that is a matter for legislative action, after comprehensive public debate. Additional avenues for secrecy should not come via the back door, even if on first impression they appear informal. We are concerned that what may be informal guidelines or a protocol today will gain greater status over time.146
ARK was highlighting its suspicion that informality is not necessarily non-coercive; its conventions can lead to norms, and these can then become laws. ARK repudiated the use of back channels, the ‘additional avenues for secrecy’, which its journalists utilised in the normal course of their work, because it feared the potential for those practices to end up in legislative form. Further, if there were to be new laws, the media entities wanted those laws debated in a public forum, in which journalists could evaluate the proposals and public opinion could be influenced. In governance terms, a soft, non- legislative option still involves negotiation on a case-by-case basis, but with less transparency and accountability. In addition, there is the ever-present threat of legislative action if the mutually agreed conventions are ignored, that is, if the accord is broken.
In the event that a protocol was to be introduced, ARK reiterated the position of the
MEAA: as editorial independence is paramount, it is inappropriate to direct a media company about what it can and cannot publish. ARK insisted that the adoption of any protocol must be voluntary and that it must apply only where a media outlet can reasonably be expected to know that information is in their possession.147 Thus, there it
146 Letter from Creina Chapman, on behalf of Australia’s Right to Know Coalition to Geoff McDonald, First Assistant Secretary, National Security Law and Policy Division, Attorney-General’s Department, 18 February 2011, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-17. 147 Ibid. 288 was attempting to reduce exposure to problems that can arise through reporting practices.
SBS also responded to the Attorney-General’s request for views and comments on the development of a protocol or other arrangement between government and the media relating to national security and law enforcement information. SBS argued that there was no demonstrable need for the protocol, as there was no evidence of irresponsibility on the part of the media, including in the context of Operation Neath. SBS referred to
The Australian being cleared of any wrongdoing and submitted ‘there has been no suggestion that any Australian media outlet acted irresponsibly with regard to national security information in relation to material it chose to publish from the WikiLeaks revelations’.148 SBS made reference to the D-Notice scheme by arguing that:
The D-Notice scheme bears some similarity in subject matter and scope to the proposed Security Protocol. However, D-Notices have not been meaningfully used since the Cold War. This lack of use should not be seen as a motivator for reform, but rather as a sign that these measures have no relevance in the current media and political landscape.149
There is a link between government and governance mechanisms, working in tandem within the regulatory environment. Regulatory negotiations between stakeholders are very much the preferred form of regulatory mechanisms in the communications industry, yet SBS was very concerned about the potential coercion associated with the informality of the regulatory mechanism under consideration. SBS further submitted that:
Of particular concern to SBS is the importance of our editorial independence. The Special Broadcasting Service Act imposes an obligation ‘to maintain the independence and integrity of the SBS’. Editorial decisions in relation to the
148 Letter from Shaun Brown, Managing Director, Special Broadcasting Service to Geoff McDonald, First Assistant Secretary, National Security Law and Policy Division, Attorney-General’s Department, 16 February 2011, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-15. 149 Ibid. 289 publication of potentially sensitive material should be made by SBS in accordance with its Act. Further, the very existence of an ‘understanding’ between SBS and the government could undermine the perception of our editorial independence. It is of particular import that a public broadcaster such as SBS is seen as independent of the government, and capable of giving unbiased, accurate information to the public. An arrangement such as the Security protocol risks the public perception that SBS may sacrifice our role to inform, in favour of a preference dictated by the government and law enforcement authorities. This would be unacceptable.150
As with ARK, the inference was that informality was a Trojan horse, disguising the government’s intention to impose a command structure, using a process that was invisible to the courts or any other form of public scrutiny.151 This echoed Carol
Harlow’s point about the state’s ability to achieve its goals in the informal governance mechanisms of the ‘decentred’ state. Harlow’s point was that the ‘colonisation of the private by the public is the true characteristic of contemporary government and that the state, far from ceding power to the public sector, was everywhere active behind the scenes’.152 Thus, rather than informality being regarded as low key and a cooperative solution, as the government expected, it was treated with suspicion by the media players. From a governance perspective, industry representatives cast what was being proposed as an attempt to return to a D-Notice system, which is a hybrid mechanism. It is a command-style instrument, as, historically, it has been constituted by formal, hierarchical government committee, and has produced something—a D-Notice—but it is also informal and voluntary, more akin to the governance end of the spectrum.
SBS also made a practical point about informal regulatory mechanisms in the ‘current era of media fragmentation’, submitting that:
The media landscape has changed dramatically since the D-Notice regime was in use. In the current era of media fragmentation, it is difficult to see how a voluntary protocol agreed to by particular media organisations and the
150 Ibid. 151 Harlow, above n 111, 77–78. 152 Ibid. 290 government will have any real impact given the proliferation of ‘citizen journalists’, disseminating information in ever new and evolving platforms. Given that many content-generators are unlikely to be aware of the protocol (let alone invited to develop or adopt it) this could result in a scenario where major news organisations are held to one standard but other media operators are held to another.153
SBS, in concord with the MEAA and ARK, supported practical suggestions for improved channels of communication between media and government:
Clearer points of contact with the relevant departments on sensitive issues would be of great benefit to SBS. But this development does not require the framework of the Security Protocol in order to function.154
From a submission dated 23 February 2011, which was prepared by the AGD for the
Attorney-General, it appears that another party made submissions to the Attorney-
General on the proposed arrangements. However, that submission, whoever it was from and whatever it entailed, was redacted in the version of the document released under the
FOI Act.155 It also expressed this party’s view ‘they do not see a need for a formal arrangement’, but noted that an up-to-date list of agency contacts would assist media to engage in prompt consultation with agencies where necessary.156
The assertion of editorial independence is also an assertion of equality and equal power in the negotiation over national security information. Again, The Australian revealed its position by submitting:
[W]e do respect the government’s efforts to protect the integrity of the operations of law enforcement agencies. We call on the government and its agencies to ensure that the proposed mechanism provides exactly the same
153 Letter from Shaun Brown, Managing Director, Special Broadcasting Service to Geoff McDonald, First Assistant Secretary, National Security Law and Policy Division, Attorney-General’s Department, 16 February 2011, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-15. 154 Ibid. 155 Attorney-General’s Department (Cth), Submission No 327, File No 02/23436, National Security Media Arrangement—Consultation with Media Representatives, 23 February 2011, released by the Attorney-General’s Department under the FOI Act 1982, FOI-25. 156 Ibid. 291 degree of respect for the operations of the media. Such an approach would ensure a successful outcome.157
The ABC contributed along similar lines to its industry counterparts, submitting that:
The national broadcaster has examined this matter in detail and is not convinced that the recent developments, like Operation Neath joint counter- terrorism operation, demonstrate any need to shift from the existing informal working relationship between relevant agencies and the media.158
The Managing Director of the ABC, Mark Scott, further argued that:
The existing system has served both sides well: achieving the balance that the Minister refers to in his letter of November 23 between the protection of sensitive information and the public’s right to the publication of news. In an era of globalisation and media fragmentation, where the difficulty of suppressing information is magnified, such a system remains the best means of achieving the Minister’s aims.159
The ABC’s submission went on to explain the usual operations between the ABC and its agencies when it negotiates the disclosure of information. For example:
The ABC News Division is regularly in contact with agencies in regard to sensitive stories. I can cite a recent Four Corners story identifying people smugglers linked to the Christmas Island shipwreck on December 15 last year. I was aware of four or five conversations with Federal Police to identify the comfort level around the publication of the alleged smuggler’s identity. The ABC has established an upwards-referral system for dealing with sensitive news stories… [t]he Four Corners case…[d]emonstrates the flexibility inherent in the existing informal arrangements. To facilitate a two-way process, acknowledging that often agencies themselves seek media cooperation in publicising certain aspects of sensitive issues. At the request of authorities, the ABC has shown a preparedness to omit sensitive material in reports to delay publication and to provide additional relevant material.160
The inherent flexibility of the current informal arrangements were regarded as crucial to the smooth operation of the news room. The ABC further submitted that:
157 Letter from Paul Whittaker, Editor, The Australian to Robert McClelland, 10 February 2011, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-21. 158 Letter from Mark Scott, Managing Director, Australian Broadcasting Corporation, to Geoff McDonald, First Assistant Secretary, National Security Law and Policy Division, Attorney-General’s Department, 17 February 2011, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-11. 159 Ibid. 160 Ibid. 292 A more formal framework to regulate media conduct, specifying procedures that must be followed before sensitive stories can be published, is unlikely to work and could even be counterproductive.161
The ABC continued its critique of even ‘mutually acceptable’ frameworks for managing the flow of national security information, arguing that:
Experience shows that frameworks, even those ‘mutually acceptable’, can harden into inflexible codes of conduct and then into legislation. Rigid codes deny both sides—the media and the agencies—the ability to deal with the nuances of individual cases. Rigid policies or law-based frameworks are undesirable in principle and in practice. They would be a limit on freedom of the media disproportionate to what is necessary in a democratic society, and they would reduce the flexibility that such arrangements require if they are to work well.162
The ABC then foretold the breakdown of the current system, arguing that:
A foreseeable consequence of a rigid system would be reluctance among media organisations to bring matters that fall into the grey area of ‘sensitivity’ up for discussion. The existing system already has law-based safeguards. Agencies can pursue legal avenues, which would include potential injunctions.163
The submission then turns to negotiating with the Attorney-General the regulation that the ABC would find acceptable:
[T]he ABC agrees with the Minister that there is scope to improve the ‘practical aspects’ of the existing system, most notably the flow of communications. This could form the basis of the stand-alone document the Minister desires. The document would provide clear contact points on both sides. If an agency is aware that a media outlet is planning to broadcast or publish sensitive information, then efforts should be made, via a formal contact list, to ensure that all material, such as operational and public safety risks, are communicated. Similarly the onus rests with a media organisation to use the contact list to appraise itself of all relevant material before publishing or broadcasting.164
161 Ibid. 162 Ibid. 163 Ibid. 164 Ibid. 293 Missing from this list of submissions are those from the LENSAs, who, for the most part, are exempt from disclosing information under FOI legislation. There is a sense of collusion between the media industry participants based on the similar positions put forward in the submissions, suggesting that they may have decided on their negotiating position prior to making their submissions and meeting with the Attorney-General. A unified position is a powerful position from which to broker a regulatory deal.
Much of the discontent expressed in the submissions concerned the idea that a protocol could usefully construct the terms of cooperation between government agencies and the media. A protocol is, at minimum, little more than a formally unenforceable statement as to an agreed formulation on how to proceed in a given set of circumstances. Here, as discussed above, the actual content of the protocol was not the issue. Industry participated in the formulation of the contact list and agreed to the overarching aims. It was the prospect that the formulation would be given a quasi-legal status and the naming of the agreement as a ‘protocol’ that posed the problem.
The informal nature of the arrangements is arguably a characteristic of media self- regulation and the role of the decentred state in a deregulated communications market.
However, put more accurately, it is an example of an established pattern of regulatory negotiation between successive governments and the press over publication and access of national security information. Thus, there is nothing particularly unusual or unique about the use of informal regulatory mechanisms in this area and with respect to
Operation Neath.
C Negotiation Styles and the Nature of the Relationship
The styles of governance identified in Operation Neath are, for the most part, soft; that is, they are informal, voluntary and unstructured. A typical example is police officers 294 meeting with journalists for coffee, who then ring their (presumed) contacts at the other policing organisation involved, to seek clarification and more detail. Formal and informal media liaison is commonplace between government departments, police forces, security agencies and the press, garnering cooperation and collaboration on the issue of publication of sensitive security information.
In this scenario, hard mechanisms, such as law, become the mechanism of last resort, on account of the ease with which ‘extra-legal’ mechanisms fill the gaps and ease the regulatory burden on both government and stakeholders. Legislation and formal rules bring the added burden of compliance and enforceability for industry, and parliamentary and judicial scrutiny and debate for government.
Similarly to telecommunications interception and broadcasting content, for the media, the negotiating context is no longer an easily identifiable state and an equally identifiable industry stakeholder. Today’s fragmented media market—which is comprised of newspapers, broadcasters, online content providers, ISPs, data aggregators, bloggers, user-generated content providers and technocratic organisations, such as WikiLeaks—means that the negotiation of informal agreements in regard to national security information is increasingly difficult, is deliberately light touch and, in an online and social media context, is practically unenforceable. The same is arguably true for ‘hard’ mechanisms.
The mainstream ‘responsible’ media may participate in the negotiating forums over the scope and scale of regulation, but new media players are not part of the governance network. WikiLeaks was not invited to the post-Operation Neath roundtable and, even if it had been invited and attended, it is unlikely that it would agree to be bound by the outcome. Other publishers and news aggregators, such as Google, Facebook, Microsoft,
295 Twitter and Apple, were not invited to participate. Again, it is uncertain whether these corporate entities would participate, given their argument that they are platforms, not publishers,165 or who in Australia would be qualified or appropriate to represent the company position.166
In this context, with the decline of traditional media outlets, negotiations will become increasingly more complex along with the changes in the media landscape. Thus, it is worth considering whether, in the longer term, there would be any point in persisting with negotiating. Arguably, there has been little development of alternate styles of governing that could actually fill the void. In the field of national security, the state is dominant. However, the significant reordering of national and global economies over time has fundamentally challenged the state’s remit to command and control. Most of
Australia’s communications infrastructure is privately owned or operated.167
Corporations share the provision of security with the state, sometimes providing that security independently of the state.168 This fact necessitates negotiations with communications industry stakeholders.
165 Philip Napoli and Robyn Caplan, ‘Platform or Publisher’ (2017) 44(4) Intermedia 26, 26–31; But also see, Emily Bell, Taylor Owen, Peter Brown, Codi Hauka and Nushin Rashian, The Platform Press: How Silicon Valley Reengineered Journalism (Tow Centre for Digital Journalism, 2017) 14–15, 75: ‘[b]ut something notable has changed. Platform companies have become the establishment they once derided. Whereas platform companies once railed against government regulation and the pre-internet laws that they felt constricted innovation, they have now expanded into areas where government collaboration is critical (aerospace, health technology, surveillance and national security, and the auto sector)’. 166 This position has changed. See Malcolm Turnbull, ‘Remarks at the Cyber Security Roundtable’, Parliament House, Canberra, 31 May 2017
D The Outcome of the Attorney-General’s Roundtable
As previously mentioned, the idea of the Attorney-General’s roundtable was initially suggested by Professor Julian Disney of the APC as a successful form of consultation to help resolve complex and difficult issues associated with the press. A roundtable suggests a non-hierarchical arrangement, where parties are equal in the discussion and free to engage or not engage, as they see fit. It is informal, yet agreement can be reach through mutual acceptance and recognition of the issues at stake. The roundtable option was also a way of lowering the risks for government and corporate actors. The briefing material released under FOI legislation implies that low key approaches to industry were preferred.170 The roundtable option was pursued because it would provide ‘a good opportunity to explore the proposal further and develop some options’.171 A meeting of the public information subcommittee, a committee of the AGD, reported that the round table would:
169 John Braithwaite and Peter Drahos, Global Business Regulation (Cambridge University Press, 2000) 341–342. 170 Attorney-General’s Department (Cth), Media Arrangement to Protect Sensitive Law Enforcement and Counter-terrorism Information, Sub No 3840, File No 09/23436, 30 November 2009, 3 [17], released under the FOI Act 1982 by the Attorney-General’s Department, FOI-60. 171 Attorney-General’s Department (Cth), Submission No 327, File No 09/23436, National Security Media Arrangement—Consultation with Media Representatives, 29 February 2011, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-25. 297 Provide an opportunity for discussion about the publication of sensitive national security and law enforcement information between media and policy bodies.172
At the time, the Attorney-General publicly declared that the government did not want to regulate industry on this matter, but wanted to establish a way of managing the flow of information in a manner that was mutually beneficial to both industry and government.173 In the language of governance, the softness of a roundtable was the preferred mechanism, rather than harder options, such as legislation or litigation.
V CONCLUSION
This final case study identified the limited nature of the corporatist networks, structures and processes in this space because of the reality of an evolving media, communications and technology environment. Rogue-technocrats such as WikiLeaks and individuals, such as Edward Snowden, do not operate within the constraints of journalistic ethics, let alone the corporatist networks of the print and broadcast media. In this context, how is a
24/7 contact list to be effectively utilised? How can its influence and effectiveness even be measured? More questions are raised than answered by this case study.
The implications of the roundtable and the 24/7 contact list may never be fully understood. The problem with it, in democratic terms, is that there is no way that citizens can know how the 24/7 contact list is to be used, what information will not be published as a result and how the list is operating. Journalists may have been absorbed into the workings of government and the media. Or the list may serve merely to provide an additional source of contacts. Whatever has happened to it, the public does not know
172 Annette Willing, Public Information Sub-Committee Meeting, Media Arrangement for Publication of Sensitive National Security and Law Enforcement Matters, Attorney-General’s Department, 8 March 2011, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-1. 173 ABC Radio National, ‘Interview with Robert McClelland’, Radio National Breakfast with Fran Kelly, Thursday, 6 August 2009 (Robert McClelland)
More extensive use of FOI legislation in this area in the future may bring further details to light, but it may also be the case that the media organisations involved—the traditional heavy users of the FOI system— have no interest in shedding a critical light on these regulatory dynamics, except when their interests are directly affected. In any event, the Attorney-General’s roundtable stands as an example of corporatist governance at its least transparent and, over a decade later, perhaps its least successful.
The creation of the 24/7 contact list was not so different from the D-Notice system.
Although the D-Notice system involved a level of formality and specificity in terms of subject matter, the informal, advisory nature of the mechanism was built on relationships of trust and regulatory negotiation over the form and substance of disclosure. The same heads of the print media, now called key stakeholders, were then invited to sit on a similar kind of committee to the Defence, Press and Broadcasting
Committee. Further, the AGD planned to establish an annual event to continue to build those trust relationship into the future and to include new personnel as industry representatives change over time.
Similarly to the CSER convened by ACMA, or the NTC for the telecommunications industry, these informal negotiating forums are able to smooth relationships and contain
299 issues with little to no scrutiny, except that which is reported in the news media,174 released under FOI legislation or released publicly if the government so decides.
The revision of the D-Notice system was considered an option for developing a media arrangement after Operation Neath. In the briefing material to the Attorney-General released under FOI legislation, the briefing note advised that:
[T]he UK still actively uses a DA-Notices system. This system could be used as a precedent for revising and improving the D Notice system in Australia. It is noted however that you have recently expressed your preference for not reinvigorating the D Notice system, or to adopting the DA-Notice system currently used in the United Kingdom [ABC Interview with Fran Kelly, 6 August 2009]. We consider any attempt to reinvigourate a D Notice system in Australia would ignite much media controversy and detract significantly from the purpose which any new arrangement might wish to achieve.175
The D-Notice system was also voluntary. The differences between it and any other option pertain more to the certainty of the subject matter contained in a D-Notice and the fact that D-Notices dealt with manifest concerns. Yet, by way of comparison, the agreed mechanism, a 24/7 contact list, is extremely light in touch in that it deals with matters on a case-by-case basis, in regard to undefined subjects and subject matter.
Ironically, officers of the AGD cautioned the Attorney-General against ‘ad hoc’ arrangements, commenting that:
Whilst we have no other specific details, ad hoc arrangements may be used on occasions with the media on non-publication of sensitive information, as occurred with the Operation Neath matter. Whilst these ad hoc arrangements are useful in allowing flexibility to negotiate with the media in tailoring any non-publication arrangement to sensitive matters on a case-by-case basis, it would be more useful that a protocol or similar arrangement be used to provide a framework for these negotiations.176
174 Cameron Stewart, ‘Attorney-General Robert McClelland Urges Media to Accept Security Curbs’, The Australian (online), 26 November 2010. 175 Attorney-General’s Department, above n 170, Attachment B: Options for Developing a Media Arrangement, 9. Released under the FOI Act 1982 by the Attorney-General’s Department, FOI-37. 176 Ibid, Attachment A: Previous and Current Arrangements between Media and Government in Australia, 5. 300 The ‘points to note’ raise more questions than answers. There are questions around who might be empowered to use the contact list, and who might be excluded. The mutual interest being manipulated is the ability to continue to negotiate freely, without any protocols or onerous obligations.
The negotiations around publication of national security information always have a high-stakes aspect to them. Operation Neath provides insight into those negotiations and how the decisions that arise from those negotiations are operationalised. For the AFP, arguably, the original decision to brief The Australian extensively facilitated a stronger negotiating position with the newspaper over publication. However, once the premature publication was apparent, the Attorney-General sought to regularise the practices and procedures that would pertain to future ‘informal’ discussions with journalists of preferred media organisations. There were options available to the Attorney-General to apply less soft measures.177 In this instance, however, the softest option was put forward.
At a public information subcommittee meeting, it was noted that the media had outright rejected a protocol or guideline for publishing sensitive national security information, on the basis that contacting the appropriate agency when a journalist becomes privy to sensitive information ‘is a matter of normal journalistic practice, and consistent with existing codes of practice’.178 The Attorney-General was at pains to dismiss the idea
177 At the time, a range of options were put to the Attorney-General, including an exchange of letters between the Attorney-General and media bodies, an Amendment to the MEAA Code of Ethics, a protocol between government and the media, a Fact Sheet and revision of the former D Notice System (Ibid, Options for Developing a Media Arrangement, 9). As previously mentioned, in 2014, legislative measures were introduced that prohibit the publication of information about ASIO’s ‘special intelligence operations’ (SIO). A reasonable assumption might be that one of the consequences of rejecting the state’s cooperative advances is that the state will retaliate with ‘hard’ mechanisms, which the SIO legislation arguably represents. The journalism information warrants are part of the same ‘retaliation’ for want of a better word. There may be no causal link, but it is interesting especially since it crossed party lines (ALP government to Coalition government). See National Security Legislation Amendment Act (No.1) 2014 (Cth) and Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth). 178 Willing, above n 172. 301 that there was an attempt to revive the D-Notice system. An interview with Fran Kelly, the presenter of the ABC Radio National’s program, ‘Breakfast’, revealed the government’s position on D-Notices:
KELLY: And just finally, Attorney-General, the furore over The Australian's publication of the details of this operation on the morning of the raids, the Victorian Police Commissioner says he's determined to find out the leak. There are law enforcement agencies now demanding the Government give them the capacity to censor the media in the future. Are you considering that? Are you concerned about this?
McCLELLAND: That was a nightmare night for me. I mean, we were waiting for a response from the management of The Australian as to what their intentions were. So, in the meantime, I was looking at the possibility of getting a legal team together for an urgent injunction, which wouldn't have been in anyone's interest. Obtaining that on the basis of protected information would've been challenging all round, but if it was successful, there would've been tremendous wastage of the newspaper. So, it was unsatisfactory waiting for the goodwill, and I must say ultimately, goodwill did come from the management of the newspaper. There needs to be a better way. I would like to see a protocol developed that can be activated, rather than waiting for the good officers of the relevant organisation. I would be reluctant to go to something that the British have for instance, ‘D Notices’. We certainly had that capability, I understand, until the Whitlam Government abolished the concept. I wouldn't like to go there, but I think we need to do it better. I think we need to sit down and develop a protocol because it was unsatisfactory all round. I mean, the fact that the agreement wasn't reduced to writing so people didn't know precisely their obligations has to be seen as being unsatisfactory. We need a better mechanism, there is no doubt about that. But to answer your question, we would be reluctant to go to a similar thing such as the British ‘D Notices’.179
The interesting outcome from the Attorney-General’s interview with the ABC is the reluctance, at this juncture, to use any formal legal mechanisms to achieve the outcome required. There is a focus on the practicalities. Normal journalistic practice entails negotiation in an ad hoc manner with security agencies and law enforcement over material that a journalist may have in their possession or over material they are seeking to confirm.
179 ABC Radio National, above n 173. 302 At present, journalistic practices are not formally recognised and there is no mapping of any structure to them. To some extent, the lack of mapping of negotiations is suggestive of a level playing field. Indeed, The Australian submission suggested that arrangements should, of necessity, be ad hoc. In every instance, law enforcement agencies that engage with journalists to delay publication or have certain material omitted need to argue their case. As the facts of Operation Neath demonstrate, The Australian had shown itself to be open to considering matters concerning national security. However, the agencies must also be aware that there will be occasions when this newspaper, and others, will publish material despite the expressed views of the agencies.180 Finally, actors, such as
Detective Sergeant Artz, empowered by the facilitative and cooperative aspects of their day job, feel able and authorised to speak to the media about the work they are undertaking, to publicise that work.181
The case of Operation Neath and the Attorney-General’s roundtable ignited the long standing debate over the appropriate regulatory mechanisms for regulating the publication of national security information by the press. Already subject to extensive external legal controls through the injunctions, official secrecy, criminal offences and court procedures, and national security legislation, the print and broadcast media stakeholders rejected the proposal for more formal arrangements to regulate their conduct. The resulting 24/7 contact list is a light touch regulatory mechanism, which is voluntary in nature and without prescription or enforceability beyond the willingness of industry stakeholders to engage with it. As noted by Weeks, such soft law mechanisms
180 Letter from Paul Whittaker, Editor, The Australian to Robert McClelland, 10 February 2011, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-21. 181 Crook, above n 91. 303 take effect through influence.182 They sit outside any legal framework for managing the publication of national security legislation.183
With the benefit of hindsight, it is reasonable to conclude that the subsequent application of hard law mechanisms by the Liberal government in 2014, which had
Labor’s support,184 and which introduced the special intelligence operation laws to journalists,185 and the inadequacy of protection of journalist sources in the data retention regime,186 have some connection to the incumbent media’s dismissive response of
Robert McClelland’s soft overtures in 2011 to form an accord on the publication of sensitive national security information.187 Harlow’s state, with its ‘hidden paw’,188 has claws.
182 Greg Weeks, Soft Law and Public Authorities: Remedies and Reform (Hart Publishing, 2015) 15. 183 Such as various provisions of the Australian Security Intelligence Organisation Act 1979 (Cth) ss 92, 35P; Criminal Code Act 1995 (Cth) s 149; Crimes Act 1914 (Cth) s 79. 184 Jonathon Holmes, ‘A Chilling Step Closer to Australian Secret Police’, The Sydney Morning Herald (online), 22 April 2015; Australian Broadcasting Corporation, ‘Security, Secrecy and the New Anti-terror Law’, Media Watch, 6 October 2014 (Paul Barry). 185 Australian Security Intelligence Organisation Act 1979 (Cth) s 35P. 186 Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth). 187 The Australian’s national security correspondent, Cameron Stewart, has publicly commented that his reporting of Operation Neath may not have been possible under the new ‘special intelligence operations’ laws (see Australian Broadcasting Corporation, above n 184). It was Stewart who reported on Robert McClelland’s ‘soft’ option in 2010 (see Stewart, above n 174). The ‘soft’ option was eventually rejected (see Philip Dorling, ‘ “Chilling” Bid by Government to Control the Media Rejected’, The Sydney Morning Herald (online), 20 October 2011). 188 Harlow, above n 111, 77–78. 304 CHAPTER SEVEN CONCLUSION: THE UNFINISHED CANVAS—THE EVOLVING FUTURE OF NATIONAL SECURITY AND THE AUSTRALIAN COMMUNICATIONS SECTOR
[T]he rule of law engages us in fundamental issues of politics, morality, philosophy, and law (not to mention economics, which I don't mention only because I don't understand it). Instead, while we should start from traditional understandings and insights, we cannot end there. We must also be prepared to amend them, indeed re-imagine them quite radically, where they mislead or do not lead far enough. So much so, that to further the ends of the rule of law, we might need to leave conventional imaginings of it far behind.1
I INTRODUCTION
Over a decade ago, former Attorney-General Philip Ruddock referred to the national security legislative framework as an ‘unfinished canvas’.2 Mr Ruddock was not only referring to the anti-terrorism and counter-terrorism legislation before the Australian parliament at the time. He was also referring to the Commonwealth Government’s broad remit to legislate in the name of national security. Over a decade later, Prime
Minister Malcolm Turnbull and Attorney-General George Brandis commenced a public relations campaign to wrangle Facebook, Twitter, Google and Apple into the extended national security community identified in this thesis. In the press conference, the Prime
Minister indicated that the government was seeking changes to the law that would allow intelligence agencies to decrypt communications occurring in OTT services. The Prime
Minister and the Attorney-General also indicated that they would be ‘soliciting the cooperation of companies like Apple and Facebook and Google and so on’.3
1 Martin Krygier, ‘Re-Imagining the Rule of Law’ (Speech delivered at the Dennis Lesley Mahoney Prize Lecture, Sydney, 7 September 2017). 2 ‘I have always said that the national security legislative framework is an unfinished canvas’ (Philip Ruddock, ‘Protecting National Security Information in Civil Proceedings’ (Media Release 113/2005, 21 June 2005)). 3 Gareth Hutchens, ‘Coalition Wants Law Changed to Allow Decryption of Terrorist Communications’, The Guardian (online), 11 June 2017. 305 A few weeks later, in June 2017, the PJCIS released its Advisory Report on the
Telecommunications and Other Legislation Amendment Bill 2016.4 The Bill, when passed by parliament, will usher in reforms to the telecommunications sector security regime in the Telecommunications Act 1997 (Cth) and associated legislation, requiring industry participants to, among other things, protect their networks and facilities from unauthorised interference and unauthorised access for the purpose of security.5 The reforms will affect the business operations of communications industry stakeholders covered by the Telecommunications Act 1997 (Cth) and the Telecommunications
(Interception and Access) Act 1979 (Cth).
These two contemporary examples are raised for a number reasons. First, they point to the central argument of the thesis that the relationship between government and industry in the Australian communications sector in coordinating national security law and policy is best understood as corporatist governance. In the preceding case studies chapters, corporatist governance is characterised as an accord between industry and government. As explained in Chapter One, this accord is not to be understood as a formal arrangement, like the Australian industrial relations Accord of the 1990s, but as an informal accord or compact that exists in the networks, structures and processes identified as corporatist, encompassing formal and informal governance mechanisms for achieving consensus. Second, the contemporary examples serve to reinforce the conclusions of the thesis that 1) corporatist governance is not a problem per se, but the lack of accountability and transparency of corporatist governance mechanisms is the problem and 2) in such circumstances, corporatist governance may pose a threat to
4 Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, ‘Advisory Report on the Telecommunications and Other Legislation Amendment Bill 2016’ (30 June 2017). 5 The Telecommunications and Other Legislation Amendment Bill 2016 (Cth) amends the Telecommunications Act 1997 (Cth) and related legislation to ‘introduce a regulatory framework to better manage national security risks of espionage, sabotage and foreign interference to Australia’s telecommunications networks and facilities’. 306 democratic scrutiny. The contemporary examples point to the same mix of approaches and tools identified in the case studies; an approach to regulatory design that goes beyond a threshold choice between legislation, co-regulation or self-regulation. The accord reinforces the exclusivity, stability and continuity of corporatist governance techniques, even with the shifts in technology, economies and business models that have occurred since 11 September 2001.
In the first contemporary example, the approach is voluntary, collaborative, interactive and soft. The Prime Minister, a self-described ‘highly transactional businessman’,6 was opening up a negotiation with the new media platforms about the terms of engagement for their involvement in the coordination of Australian national security law and policy.
The level of accountability and transparency in this example is low. Through the case studies, the thesis shows that these mechanisms are entrenched and cut across party political lines.
The second example relates to a new legislative framework for securing telecommunications networks that, on its face, is hierarchical, formal and hard. The
PJCIS report noted that the bill ‘is the outcome of substantial cooperation and negotiation between industry and government over several years’.7 The extensive consultation about the proposed reforms between the telecommunications industry and government commenced in 2012. The level of accountability and transparency in this example is high. The committee reported that ‘industry feedback “shaped the detail of the proposed reforms” ’,8 and also that the ‘[s]ecurity agencies’ concern that the current framework is ineffective and inefficient to manage the national security threat to
6 Greg Miller, Julie Vitkovskaya and Reuben Fischer-Baum, ‘ “This deal will make me look terrible”: Full transcripts of Trump’s calla with Mexico and Australia’, The Washington Post (online), 3 August 2017. 7 Parliamentary Joint Committee on Intelligence and Security, above n 4, 3. 8 Ibid 5. 307 telecommunications infrastructure necessitates consideration of improvements to the current framework’.9
These contemporary examples hint at the larger relevance of the research undertaken in this thesis. They show that national security law, policy and coordination continues to be closely calibrated with communications regulation, in an attempt by governments to keep up with the rapid shifts in technology, service offerings and business models in the communications sector. The PJCIS has conducted five reviews of national security legislative reforms relevant to the communications sector in the last decade.10 All of these reviews are the direct result of successive governments’ attempts to define, contain and comprehend the abstract and practical operational risks and implications posed by ‘the permanent whitewater’11 rhetoric and reality of the communications environment to the coordination of national security law and policy.
This thesis has mapped the reimagining of corporatist governance in Australia to show that any contemporary understanding of the operational interdependence between the communications sector and the state on national security law, policy and coordination must involve more than simply examining the legislation. Most of Australia’s communications infrastructure is privately owned or operated.12 Most significantly, the
9 Ibid 12. 10 See Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Report of the Inquiry into Potential Reforms of National Security Legislation (2013); Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Inquiry into the National Security Legislation Amendment Bill (No. 1) 2014 (2014); Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Advisory Report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 (2015); Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Inquiry into Authorisation of Access to Telecommunications Data to Identify a Journalist’s Source (2015); Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Review of the Telecommunications and Other Legislation Amendment Bill 2016 (Report, 2017). 11 Chris Chapman, ‘CommsDay Summit’ (Speech delivered at the CommsDay Summit, Sydney, 21 April 2015) 3. 12 Australian Government, Critical Infrastructure Resilience Strategy (Commonwealth, 2010) 4; Myriam Dunn-Cavelty and Manuel Suter, ‘Public–Private Partnerships Are No Silver Bullet: An Expanded Governance Model for Critical Infrastructure Protection’ (2009) 2(4) International Journal of Critical 308 state is not tasked with securing peace and good order on its own anymore.13
Corporations share the provision of security with the state, sometimes providing that security independently of the state.14
The introductory chapters and case studies show that there is no formal, multilateral agreement at the interface of the national security community and the communications industry as such. Instead, the research presents instances of formal and informal negotiations resulting in agreement, consensus and unity, as well as in contestation, disagreement and challenge, on a range of issues arising in the decade after 11
September 2001 within the specified regulatory contexts. By reimagining corporatist governance in this way, the thesis identifies the dynamic nature of the contemporary accord between industry and government and its future trajectory.
The remainder of this concluding chapter reflects on the characterisation that this thesis offers of the compact between government and the communications industry on national security law, policy and coordination; and on the construction of the public interest. The original research presented in this thesis raises potential areas of concern, specifically for democratic scrutiny.
II THE WAXING AND WANING OF THE NATIONAL SECURITY COMMUNITY
Chapter Two explains the rise of the concept of a national security community. The chapter shows that the informal networks of the national security community are based
Infrastructure Protection 179; Evidence to Senate Standing Committee on Legal and Constitutional Affairs, Reference: Telecommunications (Interception and Access) Amendment Bill 2007, Parliament of Australia, Canberra, 16 July 2007, 39–40 (Catherine Smith) 13 Les Johnson and Clifford Shearing, Governing Security: Explorations in Policing and Justice (Routledge, 2003) 16. 14 For an overview of the privatisation of security using private military companies, see Elke Krahmann, States, Citizens and the Privatisation of Security (Cambridge University Press, 2010); Carlos Ortiz, ‘The New Public Management of Security: The Contracting and Managerial State and the Private Military Industry’ (2010) 30(1) Public Money & Management 35–41. 309 on long standing relationships, spanning decades.15 The chapter refers to Rodger
Shanahan’s research, which explains that the national security community has expanded in scale and scope in the post-September 11 era. The expanded community has had the effect of breaking down the traditionally separate and hierarchical national security governance. Shanahan noted that the national security community has grown from its confines within the portfolios of the prime minister, foreign affairs, defence and the attorney-general, to include participants from many more departments and levels of government.16 Shanahan also observed that the wider community and business sectors play ‘vital roles in this policy area’.17 Each case study explores specific interactions between the industry participants and select members of the so-called national security community.
The case studies show that the national security architecture in the post-September 11 era means that more participants from more diverse backgrounds are partnering on national security law, policy and coordination issues.18 Chapter Two explains how only
ASIO, the AGD and the AFP are formally considered members of the national security community in policy documents.19 It notes that the lexicon has changed since it was first coined in 2008, but that its essence—a narrowly defined group of government departments and agencies—has remained the same.20 This research shows that reliance on this narrow definition of the national security community obscures the true extent of
15 Roger Shanahan, ‘An Idea in Good Currency: Collaborative Leadership in the National Security Community’ in National Security College Occasional Paper No 1 (Australian National University, November 2011) 39. 16 Ibid 2. 17 Ibid. 18 Ibid. 19 Duncan Lewis, ‘National Security Lecture’ (Lecture delivered at the University of Canberra, Canberra, 28 May 2010) 8–9. The national security agencies are listed at
A particular concern raised in Chapter Two is misunderstandings of the role of ACMA.
The statutory authority is not included in the narrow construction of the national security community because it does not make policy in this area, despite its specific operational role. Thus, the narrow definition sidelines ACMA’s role as ancillary or subordinate to the core national security community. ACMA is regarded as having relationships with members of the national security community, but not as being part of the community.22 A broader conceptualisation of the national security community is recommended that includes ACMA, in particular, because of the regulator’s long standing relationships within the communications sector in coordinating, advising and regulating national interest matters, and its statutory role in coordinating aspects of national security law and regulation.23
21 Margot McCarthy, ‘National Security: Past, Present and Future’ (Speech delivered at a joint event of the Department of the Prime Minister and Cabinet and the National Security College, Canberra, 15 June 2012) 5. 22 Chris Cheah, ‘Safety Agencies and the ACMA—The Australian Communications and Media Authority and the Public Safety Sector’ (Speech delivered at the Association of Public-Safety Communications Officials (APCO), Australasia 10th Annual Conference, Adelaide, 13 March 2013). 23 Ibid. 311 A broader definition would also take into account the significant role played by communications industry stakeholders. The research shows that identification with the concept of community in a corporatist governance setting affects the character and mode of informal governance, which is connected to implementing and administering national security policy, regulation and law in the communications sector. In corporatist governance terms, only the privileged elites who hold strategic resources are considered part of the community, as it is a consensus-building concept that the state uses to create a sense of shared values and mutuality, that is, it is a way of creating an ‘insider’ community. The case studies consider, in different contexts, who are the insiders and who are the ‘outsiders’ in the corporatist governance networks, structures and processes for coordinating national security law and policy.
Chapter Two, and each of the case studies in Chapters Four, Five and Six, reflect on the extent to which new communications industry participants, who exist as a result of the technological transformations in communications technologies and services that have occurred over the last 30 years, have been brought into the accord with the national security community. The research shows the shift in the position of new industry participants, with the rise of the economic elites who provide search and social media platforms, whose business operations fall outside the scope of the telecommunications interception regime and who do not consider themselves publishers or broadcasters of news content. These new participants have, nevertheless, received overtures from the state to enter into an accord with the Australian national security community.24 At a press conference on 14 July 2017 (noted in Section I of this chapter), the Prime Minister equated entering into an accord over decryption with moral responsibility:
24 Turnbull, above n 20. 312 JOURNALIST: What if Facebook and Apple just say no? What if they defy the Government in this space because you're asking for an obligation? Would you go as far to say as you'll ban iMessage and ban WhatsApp?
PRIME MINISTER: I'm not going to get into hypotheticals. The important thing is to recognise the challenge and to call on those companies to provide the assistance. I am sure they know morally they should. Morally they should.25
This kind of rhetoric is part of the Turnbull Government’s campaign to bring the new stakeholders, who have resources that the state needs, into the national security community. However, the research in Chapter Two shows that this is a familiar trope, used by law enforcement agencies under the Labor Government in 2010.26 One interpretation of the negative publicity campaigns against Facebook, and now in respect of all OTT providers,27 is that these elite stakeholders have resisted the overtures of the state to join in the accord and, in response, the state has revealed its ‘hidden paw’28 by threatening hard law sanctions.29
The size and influence of new media stakeholders, like Google, Facebook and Twitter, has led them to seek a role in shaping their regulatory environment, but on their own terms.30 Chapter Two explains the growing importance of industry associations and alliances, such as the AIMIA and the membership of its Digital Policy Group,31 in the
25 Ibid. 26 Patrick Gray, ‘Facebook “Hindering the Police”’, The Sydney Morning Herald (online), 26 May 2010; Caitlin Fitzsimmons, ‘Facebook Hits Back in Spat with Australian Federal Police’, The Australian (online), 31 May 2010. See also Sanja Milivojevic, ‘Social Networking Sites and Crime: Is Facebook more than just a Place to Procrastinate?’ (Paper presented at the Australian and New Zealand Critical Criminology Conference 2010, Sydney, 2010) 3–4. 27 The Turnbull Government has indicated it is planning ‘changes law that would allow intelligence agencies to decrypt communications occurring in OTT services’ (Hutchens, above n 3). 28 Carol Harlow, ‘The Hidden Paw of the State’ in David Dysenhaus, Murray Hunt and Grant Huscroft (eds), A Simple Common Lawyer: Essays in Honour of Michael Taggart (Hart Publishing, 2009) 98. 29 Turnbull, above n 20. 30 Emily Bell et al, ‘The Platform Press: How Silicon Valley Reengineered Journalism’ (Report, Tow Centre for Digital Journalism, 29 March 2017) 14–15, 75; Philip Napoli and Robyn Caplan, ‘Platform or Publisher’ (2017) 44(4) Intermedia 26–31; Matthew Knott, ‘Facebook rebuffs Malcolm Turnbull on laws to access encrypted messages for criminal investigations’, The Sydney Morning Herald (online), 14 July 2017. 31 Facebook, Google, eBay and Yahoo! are members of the Digital Policy Group. It was in this context that those new media companies made their submissions to the Parliamentary Joint Committee on 313 communications industry. These new stakeholders were an important part of the discussions between the AGD and industry on data retention.32
Finally, the research shows how outsiders, such as Huawei, Al-Manar Television and
WikiLeaks, in the complex contexts of telecommunications, broadcasting and the print media respectively, are not included in the corporatist governance networks, structures and processes.
III THE ACCORD REIMAGINED—CHARACTERISING THE RELATIONSHIP BETWEEN INDUSTRY AND GOVERNMENT AS CORPORATIST GOVERNANCE
The cited work of Australian political economists and commentators has provided valuable insight into Australian corporatism’s more general characteristics. Australian corporatism is most often discussed in connection with the economic liberalisation and industrial relations policies of the Hawke–Keating Government, the Accord being its most obvious manifestation.33 Australian commentators such as Encel provided an insight into how corporatism might be useful when studying economic and social affairs.34 Encel stated that corporatism:
[E]ntails a high level of state intervention in economic and social affairs, in close consultation with major interest groups. Indeed, the very notion of intervention is anachronistic. No modern economy is conceivable except as a nexus of relationships between the state and the whole spectrum of organised and unorganised producers and consumers.35
Intelligence and Security’s Inquiry into Potential Reforms of National Security Legislation. See Australian Interactive Media Industry Association, Digital Policy Group, Submission No 198 to Parliamentary Joint Committee on Intelligence and Security, Inquiry into Potential Reforms of National Security Legislation, 7 September 2012, 2. 32 Bernard Keane, ‘Revealed: Who the Government Talked With on Data Retention Plans’, Crikey (online), 2 November 2012. 33 Ian Hampson, ‘The End of the Experiment: Corporatism Collapses in Australia’ (1997) 18(4) Economic and Industrial Democracy, 545; Damien Cahill, ‘Labo(u)r, The Boom and the Prospects for an Alternative to Neo-Liberalism’ (2008) 61 Australian Journal of Political Economy 545. 34 S Encel, ‘Public Administration: Then, Now and in the Year 2000’ (1988) 47(3) Australian Journal of Public Administration 239. 35 Ibid. 314 This work has supplied the idea of the working partnership and other relationship- building mechanisms.36 The research presented in this thesis builds on that work by using the literature on corporatism and governance more generally to construct a concept of corporatist governance that can be applied in specific regulatory settings.
The research relies on Patrick Birkinshaw’s idea of the ‘corporatist embrace’, a relationship comprised of ‘confidentiality, mutual protection of interest, closeted relationships and mutually beneficial bartering’.37 The research identifies corporatist governance as operating within a variety of networks, structures and processes, which necessarily involve a narrow class of powerful, well-organised private interests and a shared conception of the public good.38 Although narrow in terms of representation, as a form of collaborative governance, corporatist governance is shown to have some deliberative aspects. Jane Mansbridge’s work is cited to show how corporatism encourages negotiations and reveals the deliberative functions and processes of interest group representation in highly regulated environments.39 Jody Freeman has argued that governance is a ‘set of negotiated relationships between public and private actors.
Under this view, public and private actors negotiate over policy making, implementation, and enforcement thereby decentralising the decision-making process’.40 The American literature cited suggests that regulatory negotiation is a deliberative process.41 In the context of corporatist governance, the state is regarded as a
36 Cahill, above n 33, 326. 37 Patrick Birkinshaw, ‘Corporatism and Accountability’ in Andrew Cox and Noël O’Sullivan (eds), The Corporate State: Corporatism and the State Tradition in Western Europe (Edward Elgar, 1988) 52. 38 David Johnson, ‘The Canadian Regulatory System and Corporatism: Empirical Findings and Analytical Implications’ (1993) 8(1) Canadian Journal of Law and Society 95, 104. 39 Christian Hunold, ‘Corporatism, Pluralism, and Democracy: Toward a Deliberative Theory of Bureaucratic Accountability’ (2001) 14(2) Governance: An International Journal of Policy and Administration 151, 160. 40 Jody Freeman, ‘The Private Role in Public Governance’ (2000) 75(101) New York University Law Review 543. 41 Daniel Fiorino, ‘Regulatory Negotiation as a Policy Process’ (1988) 48(4) Public Administration Review 764, 768. 315 practiced negotiator. Private actors, such as the corporations who own and operate valuable resources in the form of critical infrastructure, or who operate in sensitive sectors, enter into negotiation with the state over access, assistance and support around those resources, including negotiations about applicable law, policy and coordination.
In constructing the concept of corporatist governance, the thesis makes use of the cited governance literature to theorise the dynamic, complex and variable shifts within the modern Australian regulatory state in the specified contexts. The research relies on the idea of governance as the ‘structure, process, mechanism and strategy’42 for steering economy and society, and for understanding change. By change, governance scholars mostly mean, ‘new processes of governing, changed conditions of ordered rule, new methods by which society is governed’.43
This thinking is dominated by shifts from politics to markets, from hard law to soft law and from public authority to private authority, to name a few.44 The case studies consider these shifts in terms of hard mechanisms, which are hierarchical, command and control forms of governance,45 and soft mechanisms, comprised of self-regulation, co-regulation, cooperation, collaboration and negotiation.46
Together, these theoretical explorations assist in fleshing out the concept of corporatist governance that was used in the context of this thesis.
42 David Levi-Faur, ‘From “Big Government” to “Big Governance” ’ in David Levi-Faur (ed), The Oxford Handbook of Governance (Oxford University Press, 2012) 10. 43 R A W Rhodes, ‘The New Governance: Governing without Government’ (1996) 44(4) Political Studies 652. 44 Levi-Faur, above n 42, 7. 45 Amos Zehavi, ‘New Governance and Policy Instruments: Are Governments Going “Soft”?’ in David Levi-Faur (ed), The Oxford Handbook of Governance (Oxford University Press, 2012) 243–245. 46 Ibid 243. 316 A Corporatist Governance in Context
The case studies, using Hysing’s operative criteria,47 assess responsibility for coordinating national security law and policy in light of the regulatory frameworks in operation. Combined, the case studies describe how, within different regulatory frameworks, the state and powerful economic stakeholders negotiated different modes of governance, which utilised, engaged with or avoided law, the parliament and the courts, specifically in the area of national security–related obligations on communications industry stakeholders.
The research outlines who has responsibility for coordinating national security law and policy in the domestic communications sector by examining three distinct regulatory settings in the communications sector: namely telecommunications, broadcasting and the press. Chapters Two and Four reveal a shift from a situation where the communications regulator has the dominant government stakeholder role, balancing the demands of security agencies and the AGD with the requirements of competition policy and deregulation. Over time, the AGD has become the dominant government stakeholder with responsibility for coordinating national security law and policy in the communications sector, although there are departures from this norm. On the industry side, Chapter Two, together with the case studies, shows that the corporatist networks are fairly stable, but that shifts occur because of changes in technology, global economies and business models.
Chapter Four confirms that a network of elite industry stakeholders, closely allied with the national security community, participate in corporatist structures and processes. The
47 Erik Hysing, ‘From Government to Governance? A Comparison of Environmental Governing in Swedish Forestry and Transport’ (2009) 22(4) Governance: An International Journal of Policy, Administration, and Institutions 647, 667. 317 structures and processes are so deeply entrenched that they even operate to include the resistant OTT providers.48 One interpretation is that this is the result of the operation of the cooperative legislative framework of the Telecommunications Act 1997 and the
Telecommunications (Interception and Access) Act 1979 (Cth). It is also the result of other governance mechanisms that support the cooperative legislative framework, such as formal and informal consultative committees.49
Chapter Five explores the relationship between ‘out of the ordinary’ broadcasters and
ACMA. Broadcasters, who are not ordinary for the purposes of the co-regulatory framework, challenge the shared values and understandings of co-regulation. The Al-
Manar Television investigations provided insight into how the state behaves when an accord does not exist. In the Al-Manar Television investigations, there was nothing
ACMA could do, as a matter of practicality, under its legislative remit, to successfully prosecute Al-Manar Television for its breaches of Australian broadcasting law.50 As the
Chairman of ACMA remarked under questioning in the senate:
I think it is fair to say that, with respect to the enforcement of any order we would seek from the Federal Court, the ability to serve that order and have an impact on a body that supplies outside the Australian jurisdiction is a practical and pragmatic shortcoming that any number of organisations face with respect to organisations outside their jurisdiction. In that sense we are no different.51
48 Bernard Keane, ‘AGD Returns to Data Retention, wants Twitter, Facebook Interception Powers’, Crikey (online), 18 March 2014. 49 For example, the Data Retention Implementation Working Committee is comprised of the following members: the Attorney-General’s Department, the Department of Communications, the Australian Security Intelligence Organisation, the Australian Federal Police, the Australian Crime Commission, Telstra, Optus and the Communications Alliance. See Attorney-General’s Department (Cth), ‘Report 1 of the Data Retention Implementation Working Group’ (Australian Government, 14 December 2014). 50 ‘The consequences of breach of the code go to matters of pragmatism. The difficulty is that enforcing a code breach against Al-Manar, given that it is a class licence, is more problematic than would ordinarily be the case if the service originated in Australia’ (Evidence to Environment and Communications Committee, Parliament of Australia, Canberra, 22 February 2011, 133–134 (Chris Chapman)). 51 Ibid 134. 318 However, the case study shows that the state will revert to governance by command and control.52 Even if this strategy is ineffectual in some cases, the projection of the idea of command and control is what matters. That is, the government must be perceived as doing something about the problem.53
Chapter Five exposes the limits of corporatist governance. As was shown in the Al-
Manar investigations, corporatist governance does not admit listed terrorist organisations and their media outlets into its networks or processes, and nor should it.
Al-Manar Television, a foreign entity of marginal interest to Australia in the current political scheme, has no power to influence or negotiate in these corporatist networks, structures and processes. It is the insiders who create the conditions for success and some outsiders will not be welcomed into the corporatist governance networks and processes, even though they may be caught in its legislative structures.
The three case studies reveal the mix of hard and soft mechanisms used by industry and government stakeholders in the specified regulatory setting to achieve an outcome. For example, Chapter Four shows how telecommunications interception is framed by hard law mechanisms but operationalised using soft mechanisms. The shift from LEAC to
CSER is an example of a shift to an even softer mechanism, endorsed by industry.
LEAC, a formal statutory committee of ACMA, was dissolved and replaced with the
CSER, an informal open forum for stakeholders to discuss operational and regulatory issues. An Expert’s Group was formed to take on a strategic policy and regulatory role, run by the AGD and the communications portfolio.
52 In this case, the ACMA opted to ‘augment’ the Anti-Terrorism Standards to prohibit terrorism advocacy on the basis that it would give the ACMA more leverage to seek assistance. See Evidence to Environment and Communications Committee, Parliament of Australia, Canberra, 22 February 2011, 134 (Andree Wright). 53 Ibid 133–134. 319 Chapter Six provides similar observations about corporatist governance. The effect of new industry participants on the print media is considered in the light of the governance mechanisms that are identified. Chapter Six notes how dramatic changes in the media and communications environment, from ‘citizen journalists’ to WikiLeaks, has meant that many content generators would not be aware of, or interested in, an accord with government. This suggests that the use of soft mechanisms, which favour economic elites, will have little to no effect on outsiders.
B Limitations to the Working Partnership
The second case study, in Chapter Five, shows how corporatist governance can fail, challenging policymakers to consider how problems such as that presented by Al-Manar might be dealt with in future. It is not just Al-Manar that presents problems for corporatist governance networks, structures and processes. Outsiders can have effects ranging from highly significant, such as Edward Snowden’s disclosures about major communications companies’ involvement in the NSA’s surveillance program, to minimal or insignificant, such as Al-Manar Television in the Australian broadcasting market.
In the telecommunications space, the outsiders are the smaller telecommunications companies, OTT providers and smaller platforms. They are not included in the decision- making forums, unless they are members of the peak industry body, or stakeholders with economic power and resources. In the media space, alternative media sources, such as WikiLeaks, are not included in negotiations with government departments or agencies. To further complicate the regulatory environment, as mentioned previously, there are outsiders with insider status, such as Facebook, Apple and Twitter, who are being drawn into the decision-making forums.
320 The more difficult outsiders to assess in terms of influence are the Chinese owned and operated telecommunications companies, Huawei and ZTE. These companies have official outsider status, but are actively seeking insider status.54 Huawei, as noted in the introductory chapters, is not a member of CSER, but it is now a member of the CA
Security Reference Panel,55 a standing advisory committee of the CA with a remit to
‘oversee and coordinate Communications Alliance facilitated security initiatives, both current and prospective’.56 The CA is a member of CSER. What this development may mean for the future of national security law, policy and coordination is an open question.
This research confirms theoretical suspicions that, in the national security space, corporatist governance is exclusive, based on nested relationships and mutuality between economic and political elites. Even if there is some contestation and adversarial dealings, major telecommunications industry stakeholders, ordinary broadcasters and responsible journalists will have insider status. With insider status comes the ability to negotiate regulatory and policy outcomes.57
54 Evidence to Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Canberra, 14 September 2012, 18–28 (John Lord). See also Ben Grubb, ‘Telcos Could Face Huawei Ban, Malcolm Turnbull Confirms’, The Sydney Morning Herald (online), 27 July 2015. In the United States in 2011, the House Permanent Select Committee on Intelligence initiated an investigation to inquire into the counter-intelligence and security threat posed by Chinese telecommunications companies doing business in the United States (see Permanent Select Committee on Intelligence, Investigative Report on the US National Security Issues Posed by Chinese Telecommunications Companies Huawei and ZTE (US House of Representatives, 2011)). In the United Kingdom in 2013, Nicholas Winning, ‘Huawei’s Security Center Faces Closer Scrutiny in UK’, The Wall Street Journal (online), 18 December 2015, 5; ‘Huawei: The Company that Spooked the World’, The Economist (online), 4 August 2012; ‘PM Defends Banning of Chinese Company’, The Sydney Morning Herald (online), 29 March 2012; Ben Packham, ‘Huawei Ruled Out of NBN Involvement on Advice From ASIO’, The Australian (online), 30 October 2013; James Hutchinson, ‘ASIO Rejects Politics Claims in Huawei Ban’, The Australian Financial Review (online), 18 October 2012. 55 See Communications Alliance, Communications Security Reference Panel (2017)
These outsiders may wish to be included as insiders, or to remain outsiders, so that they may influence law and policy with subtlety and guile, and glean information, even official secrets, for espionage, or simply to gain an economic advantage.
IV REFLECTING ON THE CONSTRUCTION OF THE PUBLIC INTEREST IN THE CONTEXT OF CORPORATIST GOVERNANCE
From a practical perspective, the goal of the research was to explore, using a multiple case study approach, the workings of Australia’s democratically elected government as it engages with industry participants on matters of national security law, policy and coordination. To this end, the research methodology supports the public interest as described because first, this thesis only references publicly available sources and information lawfully released under FOI legislation, and second, I have disclosed my specialist academic and professional background and knowledge and how these influenced the process of sourcing publicly available information.
In the introductory chapters, Chapters One and Two, the concept of the public interest is treated, deliberately, as self-evident. It is assumed that there is a public interest in citizens having access to knowledge about the workings of their democratically elected
58 For example, the technological advancements of the ‘internet of things’ and the ‘internet of everything’ are emerging, Australian Communications and Media Authority (Cth), ‘Internet of Things and the ACMA’s Area of Focus—Emerging Issues in Media and Communications’ (Occasional Paper, November 2015) 1, 5–6 and 11. 322 government,59 that there is a public interest in protecting confidentiality,60 that there is a public interest in citizens being confident that national security law, policy and coordination is undertaken in a manner consistent with the rule of law61 and that there is a public interest in accountable government.62
However, the deeper aim of the research was to reflect on the construction of the public interest in the context of corporatist governance, with a view to raising some of the implications and risks, both abstract and practical, for democratic scrutiny. The concept of the public interest arises often in the context of democratic scrutiny. The research posits the fate of democratic scrutiny in corporatist governance networks, structures and processes as its normative concern, deriving its concept of democratic scrutiny from public law and its associated values. Paul Daly, a public lawyer, identified the core values of public law as: the rule of law, good administration, democracy and the separation of powers.63
This research uses the concept of these public law values to formulate the normative concern of this thesis, that is, to construct concern about democratic scrutiny in terms of the rule of law, parliamentary scrutiny and the role of courts. The public law values reflect subsets of Paul Daly’s wider concerns, but also represent what public lawyers commonly understand as democratic scrutiny. Yet, how these core values can be brought to life in a corporatist governance framework in the context of national security
59 The FOI Guidelines state that a decision maker should always consider whether disclosure of a document would advance the objects of the Freedom of Information Act 1982 (Cth) s 3. The objects of the FOI Act include ‘increasing scrutiny, discussion, comment and review of the Government’s activities’. 60 Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 (Mason J). 61 Ibid 52 (Mason J). See also Telstra Corporation Limited and Department of Broadband, Communications and the Digital Economy [2010] AATA (15 February 2010) [228] (Forgie DP) for a discussion of the public interest in informed debate about the regulation of the telecommunications industry. 62 Freedom of Information Act 1982 (Cth) s 3; Commonwealth v Fairfax (1980) 147 CLR 39, 52 (Mason J). 63 Paul Daly, ‘Administrative Law: A Values-Based Approach’ in Mark Elliott, John Bell, Jason Varuhas and Philip Murray (eds), Public Law Adjudication in Common Law Systems: Process and Substance (Hart Publishing, 2015) 1. 323 is a significant challenge. As Martin Krygier observed in the opening quotation, ‘to further the ends of the rule of law, we might need to leave conventional imaginings of it far behind’.64
The leading public interest case specifically concerning national security is
Commonwealth of Australia v John Fairfax & Sons Ltd.65 Chapter Six explains that the case concerned an action for injunctive relief to restrain publication of documents relating to the Indonesian invasion of East Timor. The government of the time realised that the media was an unwelcome watchdog. Justice Mason’s judgment resonates in the contexts considered by the case studies. The judgment crystallised the public interest in knowing about the workings of a democratically elected government,
It is unacceptable, in our democratic society, that there should be a restraint on the publication of information relating to government where the only vice of that information is that it enables the public to discuss, review and criticise government action.66
The public interest is one of the most susceptible concepts to metaphors about
‘balance’.67 Justice Mason explained that:
If, however, it appears that disclosure will be inimical to the public interest because national security relations with foreign countries or the ordinary business of government will be prejudiced, disclosure will be restrained.68
This aspect of the judgment demonstrates that courts will protect the secrecy of the workings of government from foreign interference and espionage, and from prejudice in its business dealings. His Honour highlighted the need to balance the competing interests, which assumes a continuing role for courts. Justice Mason explained that:
64 Krygier, above n 1. 65 Commonwealth v Fairfax (1980) 147 CLR 39. 66 Ibid 52. 67 Ibid. 68 Ibid. 324 There will be cases in which the conflicting considerations will be finely balanced, where it is difficult to decide whether the public's interest in knowing and in expressing its opinion, outweighs the need to protect confidentiality.69
The Fairfax case recognised that state claims of national security could be used for political purposes and to avoid democratic scrutiny. It confirmed that, even in a national security context, there is a public interest in having a government that is accountable.
The research has shown that a variety of governance mechanisms are used to coordinate national security law and policy, from legislation to 24/7 contact lists. The case studies show that some mechanisms are subject to public accountability, such as the Anti-
Terrorism Standards, but others are not subject to the same level of scrutiny. These concerns resonate in the post-September 11 context, but they have been significantly challenged by more recent changes to the coordination of national security law and policy since 11 September 2001.70
Greg Weeks observed that the effectiveness of soft law is rarely, if ever, an issue.71 His extensive research found that soft law is often treated as something that needs to be complied with, often because the participants in the soft law process believe it to be enforceable or to have the force of law, even if it is legally unenforceable. An accountability problem arises because ‘soft law is not even subject to the minimal scrutiny of being tabled in parliament, or the exposure of being placed on the federal register of legislative instruments’.72
Soft corporatist governance mechanisms, such as secret voluntary agreements, committee structures, guidelines and protocols, were shown to be prevalent in all the
69 Ibid. 70 For example Jonathon Holmes, ‘A Chilling Step Closer to Australian Secret Police’, The Sydney Morning Herald (online), 22 April 2015. 71 Greg Weeks, Soft Law and Public Authorities: Remedies and Reform (Hart Publishing, 2015) 29–30. 72 Ibid. 325 case study contexts. Unless corporatist governance mechanisms can be made more democratically accountable—by opening the mechanisms up to scrutiny beyond that available in the use of FOI or exposed by the media—they remain susceptible to criticism and suspicion.
A Accountability, the Role of Law, Parliament and the Courts
Chapter Three and the three case studies, in Chapters Four to Six, showed that law, parliament and courts are still relevant and important within the corporatist networks, structures and processes studied. However, the research also shows that it is very complex terrain to map. The research subsequently identified aspects of corporatist governance that present the greatest risks to democratic scrutiny and the least risk to democratic scrutiny.
The greatest risks to accountability arise when the accord is fully functional, that is where agents of the state and select industry elites mutually agree to a course of action and there is no record of these deliberations. Chapter Five touches on the potential circumstances where scrutiny will not occur—specifically in the case of ordinary broadcasters. Those processes are inherently public where an investigation report may be published by ACMA. However, as Chapter Six comments, what would have happened in the case of mechanisms such as the 24/7 contact list if the material had never been released under FOI legislation or never disclosed in public? This is the space
Sarikakis referred to as ‘outside the sphere of normal politics.’73 The secrecy sphere is a regulatory space where policy and regulatory matters are no longer accessible by citizens. In a corporatist governance context, the research shows that business has
73 Katherine Sarikakis, ‘ “Making” Security: Citizenship, Public Sphere and the Condition of Symbolic Annihilation’ (work package 6, Challenge F6 Programme, 2006) 4. 326 greater access to those securitised policy questions and issues through its privileged place in the working partnership.
The accord between industry and government is least risky to democratic scrutiny when there are irreconcilable differences between the parties and negotiations break down, forcing parties into the public domain—it is here that parliament or courts may decide an issue, or where new laws may be proposed. The case studies reveal many instances of the accord in this state of contestation. The history of telecommunications interception outlined in Chapter Four is replete with these examples. The example of the
TIA Act, which introduced the concept of access into the telecommunications interception regime and enacted new ASIO and police powers to obtain telecommunications data authorisations, is an example of a heavily negotiated change to the statutory regime.
Finally, democratic scrutiny survives in the context of corporatist governance and national security when an issue is so high stakes, so outrageous or so politically damaging that the relevant government official or corporate employee feels compelled to put it into the public domain. The research shows that both insiders and outsiders will do this if the stakes are high enough.74 The most likely place for this to come to public notice is through the news media and FOI processes, but government officials and sitting members of parliament will also facilitate these public disclosures. For example,
Bernard Keane’s reporting on data retention in Crikey suggested that it is reasonable to assume that former Attorney-General Nicola Roxon referred the ‘inquiry into potential reforms of Australia’s national security legislation’ to the PJCIS in May 2012 as a consequence of, among other things, leaks to the media of the government’s secret consultations with industry on data retention in June 2010 and Senator Scott Ludlam’s
74 Edward Snowden is the obvious example (McCarthy, above n 21). 327 subsequent pursuit of the issue in parliament.75 This event was a precursor to the events a year later, when Edward Snowden released documents in his possession and shocked the world with revelations of the extensive, widespread involvement of governments and communications industry participants in wire-tapping.
B National Security, Corporatist Governance and the Public Interest
National security issues in the communications sector are high-stakes issues for citizens, business and government. National security policy ultimately works to reduce potential danger or threat and, significantly, the executive has expansive powers in this area of its remit. The public interest in having access to information and knowledge about the workings of government is often subordinated to the demands of national security, or the information that is made available is so modified and redacted, it is almost meaningless.
Determining how much citizens should be permitted to know about the governance networks, structures and processes that comprise the working partnership between government and the communications industry presents a quandary. This research shows that it is possible to respect the public interest in protecting the national interest and yet enable the democratic scrutiny of government action as provided by law, parliament and courts. The public does have a right to know what government and the communications sector are negotiating, especially if those negotiations will impinge on civic and human rights.
The research also shows that it remains possible today to trace the workings of the broader national security community from public record sources. In the case of
75 Bernard Keane, ‘Busy Times in National Security as the DHS Comes to Town’, Crikey (online), 7 May 2012; Bernard Keane, ‘A-G FOI Investigation: How Data Retention was Derailed’, Crikey (online), 4 October 2013. 328 telecommunications interception, the key players and governance networks, structures and processes can be mapped from public source information. Although, by definition, one does not know what one does not know; it is very difficult to completely erase any trace of particular agencies, committees or other corporatist governance mechanisms where the communications infrastructure is privately owned and operated, as inadvertent or deliberate disclosure may bring certain discussions, activities or negotiations to light.76
Since the changes to the telecommunications industry in the late 1980s, the statutory regime for telecommunications interception has been under continual revision and review. The five reviews of the interception regime since the 1990s have provided transparency and accountability over this detailed and complex regulatory interface.77
Regulatory negotiations are part of the processes for administering national security law, policy and coordination. For example, in 2012, Catherine Smith, an Assistant
Secretary in the AGD, explained to the PJCIS, in relation to the legal basis for compelling Facebook to keep metadata, that:
A number of American service providers do actually have points of contact in Australia. A lot of that has been a result of negotiating with them over the years for assistance to law enforcement, so they have seen that there is an operational need in Australia.78
76 The research provides many examples of disclosure of ‘secret’ mechanisms: for example, the ACMA did not publish the terms of reference for its review of the Law Enforcement Advisory Committee, nor did undertake public consultation. The Communication Alliance, who was invited to make a submission, published its submission in full on its website. See Chapter Four for more details. 77 Pat Barrett, ‘Review of the Long Term Effectiveness of Telecommunications Interception’ (Report, Department of Finance (Cth), 1 March 1994); Peter Ford, ‘Telecommunications Interception Policy Review’ (Report, Attorney-General’s Department, May 1999); Dale Boucher, ‘Telecommunications Interception Review—Review of the Longer Term Cost-Effectiveness of Telecommunications Interception Arrangements under section 332R of the Telecommunications Interception Act 1997 (Report, Australian Communications Authority (Cth), June 1999); Tom Sherman, ‘Telecommunications (Interception) Act 1979—Report of Review of Named Person Warrants and Other Matters’ (Attorney- General’s Department, June 2003); Anthony Blunn, ‘Review of the Regulation of Access to Communications’ (Report, Attorney-General’s Department, August 2005). 78 Evidence to Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Canberra, 2 November 2012, 6–7 (Catherine Smith). 329 Until its disclosure in the news media in June 2010,79 the accord on data retention existed in the secret sphere, within the entrenched corporatist governance networks, structures and processes, which utilised governance mechanisms of an informal and voluntary nature, based on negotiation and cooperation. Of course, this accord has shifted considerably since 2010, and the corporatist governance mechanisms have evolved into more formal structures.80 The language of cooperation and negotiation is still being used, but there is also the threat of legislative reform if agreement cannot be reached.81
The case study in Chapter Five shows that the Al-Manar Television investigations attracted a high level of public scrutiny, including parliamentary scrutiny, because of the nature of the television station’s ownership and its broadcasts. Chapter Five shows that the pursuit of Al-Manar Television by motivated individuals and community stakeholders with access to the minister were instrumental in applying political pressure to ensure scrutiny took place.82 The research shows that it is possible to understand the context in which ACMA operates vis-a-vis a foreign satellite narrowcaster, and to observe where the policy and regulatory failure occurred.
79 Keane, ‘A-G FOI Investigation’, above n 75. 80 For example, the creation of the ‘Data Retention Implementation Working Group’ is an example of a formalised corporatist governance mechanism. 81 Turnbull, above n 20. 82 On 8 September 2009, members of the Executive Council of Australian Jewry met with the Minister for Broadband, Communications and the Digital Economy, Senator Stephen Conroy, in Parliament House, Canberra. Executive Council of Australian Jewry, ‘Annual Report of the Executive Council of Australian Jewry Inc. 2009/5769-5770’ (9 November 2009) 7–8; Evidence to Environment, Communications and the Arts Legislation Committee, Supplementary Budget Estimates, Parliament of Australia, Canberra, 19 October 2009, 121 (Stephen Conroy, Minister for Broadband, Communications and the Digital Economy); Evidence to Environment, Communications and the Arts Legislation Committee, Supplementary Budget Estimates, Parliament of Australia, Canberra, 19 October 2009, 112 (Nerida O’Loughlin). 330 The outcome of the Al-Manar Television investigations was new program standards that prohibited terrorism advocacy.83 Law in this context is an important source of norms.
Even though Al-Manar Television is still receivable in Australia, ACMA has used its regulatory powers to make it clear that terrorism content is not acceptable on television programming received in Australia. This is an important outcome, even if it has been shown to be practically unenforceable. That a law is rarely enforced does not mean it has no utility or worth.84 In the broadcasting context, co-regulation operates effectively for ordinary broadcasters and the public interest, in the sense that most investigation decisions by ACMA are published in part or in full, and the enforcement outcomes are made public, through investigation reports, remedial directions, unenforceable undertakings and other enforcement action.85
The case study on Operation Neath in Chapter Six shows that the media will facilitate the government’s public messaging but it will also reject that messaging as it sees fit.86
The research reveals that the Australian Government and the press are bound together in a complicated, symbiotic, long-term relationship. There is no one-way or straightforward relationship with the media. The case study revealed the complexity of this relationship in the context of the policing of terrorism. The rhetoric of the ‘right to know’ is strong in the stakeholder submissions on the Attorney-General’s proposed
83 Broadcasting Services (Anti-Terrorism Requirements for Open Narrowcasting Television Services) Standard 2011 s 9; Broadcasting Services (Anti-Terrorism Services for Subscription Narrowcasting Services) Standard 2011 s 9. 84 For example, ACMA officers gave evidence to the Senate Environment and Communications Committee that the revision of the Anti-Terrorism Standards gave the ACMA a more powerful ‘lever’ with which it could negotiate assistance with other government stakeholders and overseas governments. The normative value of laws has been extensively researched and critiqued. For an introduction, see Denise Meyerson, Essential Jurisprudence (Routledge-Cavendish, 2006) 15–32. 85 The ACMA has dedicated public disclosure of its investigations and complaints management, compliance and enforcement activity. See Australian Communications and Media Authority (Cth)
From a corporatist governance perspective, regulatory negotiation constitutes a mode of governing utilised by the state, in lieu of other mechanisms, such as law. Regulatory negotiations are a key component of the governance of national security law, policy and coordination in Australia. Chapter Four shows how the content of law is negotiated between industry and government. Information obtained from the evidence given to parliamentary committees of scrutiny shows how ‘the definitional stuff’ is worked out behind the scenes.87 What is also important is how decisions are made. The conventions, practices and protocols of the negotiating forums can eventually turn into law. In 2007, telecommunications data was undefined and its content was worked out between industry and government. By 2014, it was defined in legislation and the whole regime was enhanced, based on negotiations with industry, including the establishment of the Data Retention Industry Working Group.88
The research shows that pure corporatist governance mechanisms, usually negotiated in secret, also operate to the exclusion of law, parliament and courts. Even if judicial intervention is available, courts may not be given the opportunity to intervene because of the operation of the corporatist networks, structures and processes comprising the
87 Evidence to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, 16 July 2007, 25–26 (Chris Althaus); Evidence to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, 16 July 2007, 25–26 (Michael Ryan). 88 Parliamentary Joint Committee on Intelligence and Security, ‘Advisory Report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014’, above n 10, 77, 87, 297. 332 accord between industry and government. The same is true for the rule of law and parliamentary scrutiny. The concluding parts of this chapter consider the implications of this research into corporate governance for the future for law, parliament and courts.
V POTENTIAL AREAS OF CONCERN FOR DEMOCRATIC SCRUTINY
In reviewing the public law literature on the post-September 11 national security legislative framework in Australia, the thesis reveals the preoccupation of that literature with the diminution of democratic principles. Jenny Hocking, among others, has argued that:
The core principles which distinguish liberal democratic regimes from authoritarian ones—‘the rule of law, openness and accountability of government; and the maintenance of a bond of trust and confidence between citizens and government that results from an electorate that is informed about public affairs’—have increasingly been put under strain by the continuing expansion of security operations according to a broad mandate of ‘counter- terrorism’.89
This thesis also emphasises this theme but, in contrast to Hocking and others, it focuses on plotting the corporatist governance networks, structures and processes for coordinating national security law and policy, and considers how those mechanisms have both retained and strained subsets of the core democratic principles. As mentioned above, Chapter One derives the concept of democratic scrutiny from public law, which posits a central role for the democratic institutions of scrutiny: the rule of law, parliament and the courts. If there is a public interest in making corporatist governance accountable and transparent, it is worth reflecting on the practical and abstract risks posed by corporatist governance to the institutions of democratic scrutiny.
89 Jenny Hocking, Terror Laws: ASIO, Counter-Terrorism and the Threat to Democracy (UNSW Press, 2004) 247. 333 A The Role of Law versus the Rule of Law
The concept of the rule of law serves the public interest in providing certainty and stability in regulatory contexts, because it is, ideally, public and not arbitrary.90 To assess the rule of law, it is necessary to first consider the role of law in the administration of national security law, policy and coordination in the Australian communications sector. It has been shown that law is an obligation and accountability framework, which creates networks of responsibility among those it regulates.91 Each of the three case studies in this thesis, in their respective introductory sections, broadly consider the extensive, complex and highly technical statutory frameworks and legal obligations, both direct and indirect, which influence the operations of communications industry stakeholders. These bodies of law are wide-ranging, comprising legislation, both primary and delegated, and the common law, across a number of fields, including but not limited to telecommunications, broadcasting, foreign ownership, equity, criminal law, terrorism financing and secrecy. The case studies illustrate the shifts away from traditional law described by Liz Fisher, when she argued that:
For some, law is seen as largely irrelevant because there has been an abandonment of traditional law for more fashionable concepts of regulatory governance. This development has taken many simultaneous forms including the abandonment of command and control regulation; the creation of reflexive law; and the negating of the public/private divide. In all cases, however, there appears to be not much role for law, which is seemingly, replaced by other forms of decision-making, in particular negotiation and/or other forms of accountability mechanisms such as audit.92
This thesis shows that law is not diminishing in the specified contexts, but it is used as an instrument by the state and, at times, with a claw in its paw. For example, the telecommunications interception case study shows that the telecommunications
90 Leighton McDonald, ‘The Rule of Law in the “New Regulatory State” ’ (2004) 33(3) Common Law World Review 204; Krygier, above n 1, 129, 141. 91 Elizabeth Fisher, ‘Environmental Law as “Hot” Law’ (2013) 25(3) Journal of Environmental Law 350. 92 Elizabeth Fisher, Risk: Regulation and Administrative Constitutionalism (Hart Publishing, 2010) 15. 334 interception statutory framework is detailed and technical. Interception agencies under the Telecommunications (Interception and Access) Act 1979 (Cth) do not require warrants for obtaining telecommunications data because it was enacted as an authorisation regime.93 The definition of ‘telecommunications data’ included in the amending legislation of 200794 was left to be determined within the negotiating forums between industry and government technical experts.95 After seven years of operation under this method, ‘telecommunications data’ was eventually defined in legislation after the accord on this particular issue fractured.96
There have been other instances of broken accords, such as the introduction of the laws regarding the disclosure of ASIO’s special intelligence operations,97 the retention of data relating to journalists’ sources98 and the scheme for warrants for access to journalists’ sources.99 These particular examples indicate an overall diminution of the role of courts, but also a serious breakdown in the accord between the responsible media and government. In this example, it appears that there was no accord sufficiently strong to prevent the need for the 2014 package of amendments to the TIA Act. Thus, in terms of the role of law, it is not the case that there is an absence of law, nor a case of bigger, better, stronger law. Rather, what this thesis demonstrates is increasing strategic
93 Telecommunications (Interception and Access) Act 1979 (Cth) pt 4-1. 94 Telecommunications (Interception and Access) Amendment Act 2007 (Cth) sch 3, pt 4-1. 95 Chris Althaus, above n 87. 96 For example, Evidence to Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Canberra, 27 September 2012, 47–55 (Stephen Dalby). 97 See Joint Media Organisations, Submission No 17 to Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Inquiry into the National Security Legislation Amendment Bill (No. 1) 2014, 6 August 2014; Guardian Australia, Submission No 12 to Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Inquiry into the National Security Legislation Amendment Bill (No. 1) 2014, 5 August 2014. 98 Joint Media Organisations, Submission No 125 to Parliamentary Joint Committee on Intelligence and Security, Inquiry into and Report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, 20 January 2015. 99 The Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth) introduced the ‘journalist information warrants’. Richard Ackland, ‘Data retention: “Journalist Information Warrants” are Warrants in Name only’, The Guardian (online), 23 March 2015. 335 references to the possible deployment of law, which is used as a tool, or even a weapon, to influence state and stakeholder negotiations.
The research also shows that threatening the use of law does not necessarily involve a shift to a command and control system. The introduction of the data retention regime in the telecommunications sector by the government was the result of extensive negotiation with the telecommunications industry in the intervening years. A similarly worthwhile future project would be to trace the life cycle of the ‘telecommunications data’ definition, from a vague concept to a statutory definition, and its wider effect on the communications sector, especially the news media. Similarly to the case studies, such an inquiry would provide insight into the shifting boundaries and actors involved and the extent of the negotiations that occur in administering the national security framework today.
Soft law is ever-present in the national security context today, notwithstanding the fact that the distinction between hard and soft law can be exaggerated. Weeks suggested that all soft law mechanisms have an accountability problem.100 The case studies show the varying degrees of commitment to accountability. As Chapter Six shows, in Operation
Neath, the 24/7 contact list has been subject to little to no scrutiny. Even today, information about roundtables, taskforces, consultations and think tanks, if made public at all, tends to be in the form of carefully crafted press releases or an entry, providing minimal information, on the Australian Government’s directory website.101
100 Weeks, above n 71, 30. 101 For example, the ‘Industry Consultation on National Security’ (ICONS), a new CEO-level consultative body chaired by the Attorney-General, was established on 25 May 2017 and was announced through a press release (George Brandis and Michael Keenan, ‘Discussions with Industry on National Security’, (Joint Media Release, 10 March 2016)). A short description is provided at
Krygier’s concern for the rule of law that frames the introduction to this chapter points to the need to account for, and keep in check, this kind of coercive economic power deployed by the state, and corporations, to achieve their political goals, through negotiation, and through hard and soft law.103 Chapter Four showed that the issues involved in balancing commercial and competition goals with national security obligations have been on the agenda since the late 1980s. The media may report on national security deliberations, including financial concerns being raised on the business pages of newspapers. Political and economic reporting may result in further questioning in the senate during budget estimates. Conversely, however, there may not be any time for committees to probe these points of concern. There are limited FOI opportunities
meetings in 2014 and 2016, 5 August 2016
The case studies show the varying degrees of commitment to accountability and demonstrate that, in a corporatist governance context, both soft and hard mechanisms can suffer an accountability deficit from a rule of law perspective. As noted, the 24/7 contact list that emerged following Operation Neath has been subject to little or no scrutiny. Operation Neath showed that hard law solutions, such as the journalism information warrant regime, can offer very little transparency and diffuse methods of accountability for the public.105 Accountability may occur to varying degrees in each specified context but, arguably, the case studies demonstrate a slide away from a commitment to the rule of law’s wider principles, designed to secure good governance.106
Finally, using law as a tool of corporatist governance is not consistent with the democratic concept of the rule of law. It may even denote a more fundamental problem with democratic scrutiny, signalling a failure of the rule of law to restrain arbitrariness or protect human rights. The characteristics of the rule of law are those already mentioned: its purpose is to provide certainty and stability and, ideally, it is public and not arbitrary. Chapter Three refers to Leighton McDonald’s work on the rule of law.
MacDonald argued that the challenge is to think about the rule of law ‘so as to maintain its relevance as a norm to which regulation should routinely aspire, albeit in ways which
104 Freedom of Information Act 1982 (Cth) s 3; Office of the Australian Information Commissioner, FOI Guidelines (Version 1.6, Australian Government, December 2016) 16–19. 105 Journalist information warrants sought by ASIO are issued by the Attorney-General with the Inspector-General of Intelligence and Security providing an oversight and audit role. 106 Harlow and Rawlings identify a ‘trilogy’ of values in the literature that reflect good governance— transparency, participation and accountability (Carol Harlow and Richard Rawlings, Law and Administration (Cambridge University Press, 3rd ed, 2009) 46–47). 338 are more sensitive to the insights of regulatory scholars’.107 By this, McDonald meant that it is useful to examine the underlying principles of legality in the rule of law. Thus, when it comes to analysing corporatist governance, it may be appropriate to apply those wider rule of law principles—such as those that oppose arbitrary and unaccountable governance—to the regulatory contexts under examination, to maintain the relevance of the rule of law to these contexts.
This research raises serious problems surrounding the existing corporatist governance mechanisms for the rule of law, by revealing contexts where there is little to no accountability or transparency over the content and application of soft and hard law mechanisms. The public interest is not served if the public does not have a sense of what information is being collected and how provisions are being interpreted.
B Parliamentary Oversight
Parliamentary scrutiny preserves the public interest in Australia’s citizens being confident that the overall policies of the national security community are consistent with their legal mandate.108 Harlow and Rawlings forcefully argued that:
We should be careful not to underrate the symbolism of formal parliamentary contribution to lawmaking. Parliament provides the ultimate seal of democratic legitimacy, marking the giving of assent on behalf of citizens to measures that are to have binding force.109
From the citizens’ perspective, democratic scrutiny provides the means by which citizens can understand the workings of their democratically elected governments.
107 McDonald, above n 90, 220. 108 Andrew O’Neil, ‘Influence without Power: Commissions of Inquiry and the Australian Intelligence Community’ in Stuart Farson and Mark Phyian (eds), Commissions of Inquiry and National Security: Comparative Approaches (Praeger Security International, 2011) 13. 109 Harlow and Rawlings, above n 106, 143. 339 The three case studies in this thesis explore the role of parliament in the specific regulatory settings. The research shows parliamentary scrutiny has played a prominent role in the development of the telecommunications interception statutory regime
(Chapter Four). Most of the primary source information about the corporatist networks, structures and processes relating to telecommunications interception was located in evidence and submissions put before parliament and parliamentary committees of review.
Chapter Five shows that ACMA was extensively scrutinised by parliamentary committee, providing insight into how ACMA deals with broadcasters outside the co- regulatory networks and processes. Putting aside the routine scrutiny of legislative instruments by senate committees, it is reasonable to assume that the Al-Manar
Television investigations were the subject of parliamentary scrutiny because of Al-
Manar Television’s links to a listed terrorist organisation, Hizbullah, and the actions of politically motivated community interests, who successfully utilised other democratic processes, such as lobbying the minister, to obtain that scrutiny.110
In contrast, there was no scrutiny in the case of GTV, even though the LTTE, a proscribed terrorist organisation, was potentially involved. The GTV investigation revealed that ordinary broadcasters, except in cases of severe breach,111 do not attract parliamentary or public scrutiny as a matter of normal regulatory practice. In terms of
110 Evidence to Environment, Communications and the Arts Legislation Committee, Supplementary Budget Estimates, Parliament of Australia, Canberra, 19 October 2009, 121 (Stephen Conroy, Minister for Broadband, Communications and the Digital Economy). 111 For example, in 2012, Today FM Sydney broadcast a prank call by two of its presenters to the hospital where the Duchess of Cambridge was interned for acute morning sickness. The ACMA investigated breaches of Clauses 1.3, 2.1(d), 2.3(d), 6.1 and 9.1 of the Commercial Radio Australia Codes of Practice and Guidelines 2011; The additional licence condition on commercial radio broadcasting licence No 3032 imposed by the Administrative Appeals Tribunal on 8 October 2012 under ss 43(1) of the Broadcasting Services Act 1992 (Cth) and the standard licence condition set out at 8(1)(g) of sch 2 to the Act. See Australian Communications and Media Authority (Cth), Investigation Report 2928 (Commonwealth of Australia, Canberra, 17 July 2015). 340 efficiency, in a ‘regulation by exception’ regulatory system, if no one is complaining, then the status quo prevails. The research shows that regulatory ‘failures’, such as the
Al-Manar Television investigations, are more likely to reveal the ordinary operations of corporatist governance.
Chapter Six, on Operation Neath and the print and broadcast media industry, shows that there was no parliamentary scrutiny of the actual governance mechanism suggested by
Attorney-General McClelland,112 but there was scrutiny in parliament of the relationship between the media and the AFP.113 Since then, there has been a large amount of parliamentary scrutiny around the introduction of the 2014 laws that prohibit disclosure of ASIO special intelligence operations and of the journalist information warrant regime.114 In 2015, the PJCIS undertook a short inquiry into authorisation of access to telecommunications data to identify a journalist’s source. This authorisation was eventually enacted by the Telecommunications (Interception and Access) Amendment
(Data Retention) Act 2015 (Cth).115 As mentioned above, it is reasonable to assume that the accord between the media and government was broken, and that there was a reversion to hard mechanisms and methods of negotiating—in public, through democratic means.
Overall, this research shows that there remains a strong tradition of parliamentary oversight around the national security apparatus of the state since the Hope Royal
Commission.116 This is a strong tradition built up alongside a slow, though limited,
112 There was also publicly available commentary outside the traditional news media. For example, Warren Reed, ‘No need for Protocols: Main Game is Voluntary Cooperation’, Open Forum, 13 August 2009
This adds up to a high level of scrutiny, which is heartening in democratic terms. Not all members of the national security community are subject to parliamentary scrutiny, with the Australian Signals Directorate and the Defence Intelligence Organisation being among those excluded. For the most part, however, parliament plays a crucial role in providing broad access to information about national security policy and coordination, and the workings of government and its agencies in this field. In addition to parliamentary scrutiny, there is the role of the IGIS, whose broad remit includes reviews of the legality and propriety of the activities of the Australian intelligence agencies, including the Australian Signals Directorate and the Defence Intelligence Organisation, to ensure their activities are conducted in a way that is consistent with human rights.
Reports from the IGIS are tabled in parliament and published on its website.117
Australian public lawyers, including George Williams, Andrew Lynch, Dominique
Dalla-Pozza and Greg Carne, and security analysts, including Tim Legrand, have extensively examined the role of parliament in scrutinising anti-terrorism and counter-
117 For example, the website of the IGIS contains all its public reports:
This research shows that extensive scrutiny continues to occur of the working partnership between industry and government on telecommunications interception, particularly interception capability. Senator John Faulkner’s questioning of officers from the AGD and from industry in 2007 arguably revealed the truth of how long industry had been negotiating over data retention and who was involved. However, parliament remained, to a large extent, in the dark on the behind-the-scenes negotiations, which may have included specific consultation with stakeholders, the creation of taskforces and other mechanisms.119 One interpretation of this situation is that, by the time a piece of legislation reaches parliament, it has already been negotiated and agreed within the working partnership, unless there has been a break in the accord.
Then, the public record will reflect different, opposing positions between stakeholders.
These findings provide the foundation for a discussion of whether the role of parliament is being eroded or diminished in the context of state–corporate relations. The answer is complex. Parliamentary scrutiny serves to bolster democratic governance and, ultimately, the fundamental rights and liberties of citizens. However, as noted above, parliament can only do this important democratic work if it is provided with accurate
118 Tim Legrand, ‘Modern Outlawry: The Magna Carta, Terrorist Organisations and the Erosion of Parliamentary Scrutiny’, The Eastminster Blog (9 February 2015)
There are formal mechanisms that may work to resolve this situation that would involve parliamentary scrutiny. For example, the IGIS has extensive powers to conduct inquiries and obtain information, including requiring any person to answer questions and compelling the production of relevant documents.121 The IGIS could have a role in ensuring the accountability and transparency of negotiations between the national security community and the communications sector. Any inquiries undertaken by the
IGIS would be tabled in parliament in the IGIS’s annual report and made available on the website, where appropriate.
Alternatively, the formation of a specialist committee—be it a subcommittee of the
PJCIS or a new committee in its own right, such as a Parliamentary Joint Committee on
Communications and Security—could provide accountability and transparency at the interface of the national security community and the communications sector.
C The Role of Courts
Finally, the public interest is secured through the working of the courts, and the principle of open justice in arbitrating disputes and permitting the media to report on matters of national security. Bringing an action in court is expensive and can be protracted. Nevertheless, theoretically, courts play an important democratic role in terms of being an arbitrator between government and the communications industry over
120 Legrand, above n 119. 121 Inspector-General of Intelligence and Security Act 1986 (Cth) ss 18(2)–(3). 344 the interpretation of legal obligations and restraints imposed on industry by government in the name of national security.122 Mark Pearson’s work on Australia’s anti-terror laws and their effect on the Australian news media demonstrated the crucial role of courts in settling disputes between the media and the government, security services and police over the publication of and access to national security information.123
Since September 2001, the role of courts in arbitrating national security cases has been changed procedurally by legislation specifically aimed at controlling the use and disclosure of sensitive national security information. The National Security Information
(Criminal and Civil) Proceedings Act 2004 (Cth) is mentioned in Chapter One as the key piece of legislation regulating the disclosure of ‘national security information’ during criminal and civil proceedings. The relevant point is that the principle of open justice can be at odds with the interest of national security. Courts traditionally provide experienced and impartial adjudication around this tension, being obliged to weigh the interests (even when their capacity to give equal weight to each is changed by legislation)124 and make decisions that serve the interests of justice, the public interest in knowing and open justice, or that do not prejudice national security.
In contrast to Pearson, McGarrity, and others, this thesis explores whether the democratic scrutiny provided by courts is diminished when the state and corporations negotiate outcomes, in secret, in lieu of adjudication through the courts. Chapter Six assesses the implications of industry and government negotiating outside the system of recourse to the courts to determine disputes between the media and government over the
122 For example, see Ben Saul, ‘Security and Fairness in Australian Public Law’ in Matthew Groves (ed), Modern Administrative Law in Australia: Concepts and Context (Cambridge University Press, 2014) 93; Caroline Bush, ‘National Security and Natural Justice’ [2008] 57 AIAL Forum 78; Jacqui Ewart, Mark Pearson and Joshua Lessing, ‘Anti-Terror Laws and the News Media in Australia Since 2001: How Free Expression and National Security Compete in a Liberal Democracy’ (2013) 5(1) Journal of Media Law 104–132. 123 Ewart, Pearson and Lessing, above n 122, 111–119. 124 McGarrity, above n 86, 276. 345 publication of and access to national security information. The research shows that the problem with the 24/7 mechanism developed throughout this negotiating process is its arbitrary, unaccountable nature. It is completely voluntary and has had no democratic scrutiny beyond that conducted in the press.
One interpretation is that it may be impossible to determine how these soft mechanisms influence the role of courts, given that there is no audit of the use of the 24/7 contact list on the public record. It is not known how the 24/7 contact list operates or whether it even exists following the change of government since it was implemented. Like the D-
Notice system before it, it operates in secret and its influence cannot be assessed in terms of whether the courts can hear and consider disputes about the publication of national security information by those accessing the list.
The laws introduced to restrict reporting on ASIO’s special intelligence operations and the warrant regime to access journalists’ sources all point to the narrowing of judicial oversight. The restrictions on representation, and the fact that journalists and publishers are not even made aware of any attempt to obtain a warrant to access their sources, points directly to the use of the law as a tool, in direct contrast with the democratic principle of the rule of law.
The conclusion drawn from these case studies is that, if an accord is not fully formed, or is easily broken, then the state and industry participants may use traditional democratic means to continue their negotiations. Unfortunately, the end result may not reflect or support those democratic ideals, and the judicial review mechanisms that operate do not reveal how the exercises of power by the Executive were made accountable.
346 VI A FINAL NOTE ON THE MAKING AND BREAKING OF THE ACCORD
This thesis concludes with a final point about corporatist governance—its most worrying trait if what has been mapped here is read in terms of its trajectory. When the accord is easily broken or is not fully formed, the case studies show that there is a retreat by the state to hard mechanisms for resolving the dispute or undertaking a negotiation, whether the retreat is presented as a threat or acted upon. The case studies also show that conflict is likely to become public, through administrative processes, parliamentary scrutiny or the media, at some point when there is a broken or breaking accord, or a power struggle over the terms of engagement, or as a result of an action by an outsider (or an insider, as the case may be). In contrast, if the accord remains intact, the negotiations take place in secret and a deal is made, then citizens will have no comfort that their interests were protected, beyond the ‘trust us’ rhetoric of politicians, security and law enforcement agencies and the communications industry giants.125
Corporatist governance may be efficient and able to produce mutually beneficial outcomes, without recourse to legislation or courts. However, it comes at a cost in terms of accountability because, following Weeks’ reasoning discussed above, secret arrangements, agreements or understandings are not even subject to a minimum level of scrutiny. If the parties are exempt from FOI or the subject matter is exempt from FOI, no one will know what the arrangement entails or its potential effects, except the parties to the accord. This is corporatism at its worst, its most secret and its least democratic.
The forms it takes in the case studies are not so dire because, ultimately, they were all
125 Ben Grubb, ‘Trust Spies and Police on Metadata Retention to Fight Terrorism and Crime, Attorney- General George Brandis pleads’, The Sydney Morning Herald (online), 21 February 2015. In response to a question about ASIO’s powers, former Director-General of Security David Irvine responded with, ‘You shouldn’t really be quite as worried as you seem to be in your questioning’ (Australian Broadcasting Corporation, ‘For their Eyes only’, Background Briefing, 21 October 2012 (Di Martin)
However, if an extreme example of corporatism signifies the future, then it should be regarded as a threat for the ongoing relevance of the rule of law and the democratic institutions of scrutiny. That vision of the future entails the executive, through its national security community—which includes economically powerful elites, some of whom have constituencies larger than nation states such as Australia—negotiating in secret under the cloak of national security. There is an absence of public accountability or scrutiny, or only diffuse forms of accountability, where the media breaks a story or where FOI enables access to the information. There is limited space for the public interest in this scenario. Citizens will not understand the workings of their democratically elected governments and the principles the rule of law guards against— arbitrariness and unaccountable governance—may sprout in unexpected ways in these circumstances. It could mean the triumph of ‘ruthless despotism’126 from either side of the negotiating table.
In the press conference about the proposed new decryption laws mentioned above,
Prime Minister Malcolm Turnbull was questioned by a journalist about the importance of cooperation in the success of the new laws:
JOURNALIST: Isn't it the case without the cooperation of these tech companies, these legal changes will essentially be ineffective? They won't mean anything?
PRIME MINISTER: Well I disagree with you there. The reality is we need to ensure that we have, of course, the cooperation of technology companies but we also need to recognise that we live in a society governed by the rule of law and the law applies to technology companies as it does to everybody else … So this is a question of whether you want the rule of law to prevail or whether
126 Livingston, above n 86, 118. 348 you want the internet to be used as a place, because of encryption technologies, criminals can hide from justice, criminals can hide from those whose job it is, like the men and women of the AFP we’ve seen today, who's [sic] job it is to keep us safe.127
Ruddock’s prophetic ‘unfinished canvas’ metaphor haunts these contexts, to wit the national security legislative framework truly is an unfinished canvas, under almost constant review and reform since 11 September 2001. With each technological revolution or ‘next big thing’, such as the internet of things or 5G networks, the canvas becomes more unfinished. With each executed, failed or thwarted terrorist attack, governments around the world have pursued new laws and powers128 and enhanced, reformed and clarified old laws and powers.129 The examples this thesis presents are suggestive of the state’s ‘hidden paw’130; there is always a threat of hard law obligations on recalcitrant corporate elites who reject the state’s overtures and, thus, break the accord between industry and government.131
Corporatist governance operates within the shadow of the rule of law, within the regulatory contexts this thesis outlines. Unless the Prime Minister is proposing ‘ruthless despotism’, which appears unlikely, then cooperation and collaboration with the technology companies will be crucial to the success of any new addition to the national security legislative framework. It is reasonable to suggest that the Prime Minister is evoking the rule of law as a rhetorical device in the government’s negotiation with
Facebook and Apple over proposed decryption laws, in the same way that evoking a moral obligation to cooperate is a similar tool of political rhetoric. This is simply a
127 Turnbull, above n 20. 128 See Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism (Cambridge University Press, 2011) 309–478; Tamara Tulich and Jessie Blackbourn, ‘Reactive Anti-Terror Laws Risk Further Eroding Freedoms without Making Us Safer’, The Conversation (online), 23 November 2015. 129 Andrew Greene, ‘Defence Force to Take Greater Role in Responding to Domestic Terrorism’, The Australian Broadcasting Corporation News (online), 17 July 2017. 130 Harlow, above n 28, 77–78. 131 Turnbull, above n 20. 349 recent public display of an accord that has not fully formed. Based on the research undertaken, the prediction of this thesis is that the accord will form. The challenge will be to ensure that it is transparent and accountable and that it champions the public interest as well as national and commercial interests.
If governments and industry were to reflect more closely on the democratic potential of mechanisms of scrutiny, they might see value in fostering a culture of accountability and transparency in the field of national security law and policy coordination in the
Australian communications sector that is neither ad hoc nor determined by political expediency or competitive corporate agendas. These topics are ripe for further enquiry and consideration of them will allow for scope to reimagine key constructs, such as the rule of law, and practices, such as regulatory negotiations, to improve the democratic hue of this unfinished canvas.
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Lloyd-Jones, Susanne, ‘Who is Singing the B-Party Blues: National Security and the Communications Industry’ (2006) 121(1) Media International Australia, Incorporating Culture and Policy 15
Loader, Ian and Neil Walker, Civilising Security (Cambridge University Press, 2007)
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Lucas, George, ‘NSA Management Directive #424: Secrecy and Privacy in the Aftermath of Edward Snowden’ (2014) 28(1) Ethics & International Affairs 29
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362 Lynch, Andrew and Alexander Reilly, ‘The Constitutional Validity of Terrorism Orders of Control and Preventative Detention’ (2007) 10(1) Flinders Journal of Law Reform 105
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Maher, Laurence W, ‘National Security and Mass Media Self-Censorship: The Origins, Disclosure, Decline and Revival of the Australian D Notice System’ (1997) 3(2) Australian Journal of Legal History 171
Mansbridge, Jane, ‘A Deliberative Theory of Interest Representation’ in M P Petracca (ed), The Politics of Interests: Interest Groups Transformed (Westview Press, 1993)
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Marsden, Christopher, ‘Convergence Reviews—or How Monopolists Extended Their Analogue Empires’ (2012) 62(3) Telecommunications Journal of Australia 38.1
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McGarrity, Nicola, ‘Fourth Estate or Government Lapdog? The Role of the Australian Media in the Counter-Terrorism Context’ (2011) 25(2) Continuum 273
363 McGarrity, Nicola and Edward Santow, ‘Anti-Terrorism Laws: Balancing National Security and a Fair Hearing’ in Victor Ramraj, Michael Hor, Kent Roach and George Williams (eds), Global Anti-Terrorism Law and Policy (Cambridge University Press, 2nd ed, 2012)
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McNamara, Lawrence, ‘Counter-Terrorism Laws and the Media: National Security and Control of Information’ (2009) 5(3) Security Challenges 95
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Meyerson, Denise, Essential Jurisprudence (Routledge-Cavendish, 2006)
Michael, Katina and M G Michael (eds), The First Workshop on the Social Implications of National Security (Workshop for the Social Implications of Information Security Measures on Citizens and Business) (University of Wollongong Press, 2006)
Michael, Katina and M G Michael, ‘Historical Lessons on ID Technology and the Consequences of an Unchecked Trajectory’ (2006) 24(4) Prometheus 365
Michael, M. G. and Katina Michael, ‘National Security: The Social Implications of the Politics of Transparency’ (2006) 24(4) Prometheus 359
Miller, Cheryl M and Deil S Wright, ‘Who’s Minding Which Store? Institutional and Other Actors’ Influence on Administrative Rulemaking in State Agencies, 1978–2004’ 33(3) PAQ 397
Molina, Oscar and Martin Rhodes, ‘Corporatism: The Past, Present, and Future of a Concept’ (2002) 5(1) Annual Review of Political Science 305
Morgan, Bronwen and Karen Yeung, ‘Regulatory Instruments and Techniques’ in Bronwen Morgan and Karen Yeung (eds), Introduction to Law and Regulation: Text and Materials (Cambridge University Press, 2007)
Morrin, Kirsten, ‘Official Secrets and Freedom of Speech’ (2002) 13(1) Polemic 19
Mörth, Ulrike (ed), Soft Law in Governance and Regulation: An Interdisciplinary Analysis (Edward Elgar, 2004)
Moyal, Anne, Clear Across Australia: A History of Telecommunications (Thomas Nelson, 1984)
Napoli, Philip and Robyn Caplan, ‘Platform or Publisher’ (2017) 44(4) Intermedia 26
Nash, Chris, ‘Freedom of the Press in the New Australian Security State’ (2005) 28(3) UNSW Law Journal 900
364 Nehme, Marina, ‘Enforceable Undertakings: Are they Procedurally Fair?’ (2010) 32(3) Sydney Law Review 470
Nicholls, Rob and Michelle Rowland, ‘Message in a Bottle: Stored Communications Interception as Practised in Australia’ in Katina Michael and M G Michael (eds), The Second Workshop on the Social Implications of National Security (from Dataveillance to Überveillance and the Realpolitik of the Transparent Society) (University of Wollongong Press, 2007)
Norton, Jim, ‘The Crisis in Our Critical National Infrastructure’ (2007–2008) 14(4) Public Policy Research 244
Novitz, T and P Syrpis, ‘Assessing Legitimate Structures for the Making of Transnational Labour Law: The Durability of Corporatism’ (2006) 35(4) Industrial Law Journal 367
Nunez, James, ‘The Implied Freedom of Political Communication: A Basis for Journalists to Challenge Australian Security Intelligence Organisation Act 1979 (Cth) s 35P?’ (2015) 20(3) Media and Arts Law Review 252
O’Neil, Andrew, ‘Conceptualising Future Threats to Australia’s Security’ in National Security College Occasional Paper No 3 (Australian National University, April 2012)
O’Neil, Andrew, ‘Influence without Power: Commissions of Inquiry and the Australian Intelligence Community’ in Stuart Farson and Mark Phyian (eds), Commissions of Inquiry and National Security: Comparative Approaches (Praeger Security International, 2011)
Olsson, J and E Hysing, ‘Theorizing Inside Activism: Understanding Policymaking and Policy Change from Below’ (2012) 13(2) Planning Theory and Practice 257
Ortiz, Carlos, ‘The New Public Management of Security: The Contracting and Managerial State and the Private Military Industry’ (2010) 30(1) Public Money & Management 35
Pal, Leslie A, ‘Case Study Method and Policy Analysis’ in Iris Geva-May (ed), Thinking Like a Policy Analyst: Policy Analysis as a Clinical Profession (Palgrave Macmillan, 2005)
Papagiannidis, Savvas, Joanna Berry and Feng Li, ‘Well Beyond Streaming Video: IPv6 and the Next Generation Television’ (2006) 73(5) Technological Forecasting and Social Change 510
Parker, Christine, ‘Restorative Justice in Business Regulation? The Australian Competition and Consumer Commission’s Use of Enforceable Undertakings’ (2004) 67(2) Modern Law Review 209
Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Advisory Report on the Telecommunications and Other Legislation Amendment Bill 2016 (30 June 2017)
365 Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Advisory Report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 (2015)
Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Report of the Inquiry into Potential Reforms of Australia’s National Security Legislation (24 June 2013)
Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Report of the Review of the Relisting of Hizballah’s External Security Organisation (2007)
Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Review of the Telecommunications and Other Legislation Amendment Bill 2016 (Report, 2017)
Parliamentary Joint Committee on Human Rights, Parliament of Australia, Thirty- Second Report of the 44th Parliament (Canberra, 1 December 2015)
Pearson, Mark, ‘National Security isn’t Always in the National Interest’ in Media, Entertainment and Arts Alliance, Progress Under Liberty. The State of Press Freedom in Australia 2010
Pearson, Mark and Mark Polden, The Journalist’s Guide to Media Law (Allen & Unwin, 4th ed, 2011)
Pearson, Mark and Naomi Busst, ‘Anti-Terror Laws and the Media After 9/11: Three Models in Australia, NZ and the Pacific’ (2006) 12(2) Pacific Journalism Review 9
Permanent Select Committee on Intelligence, Investigative Report on the US National Security Issues Posed by Chinese Telecommunications Companies Huawei and ZTE (US House of Representatives, 2011)
Peters, B Guy, ‘Governance as Political Theory’ in David Levi-Faur (ed), The Oxford Handbook of Governance (Oxford University Press, 2012)
Peters, B Guy and John Pierre, ‘Governance without Government? Rethinking Public Administration’ (1998) 8(2) Journal of Public Administration Research and Theory 223
Plante, Johanna, ‘The Australian Communications Industry Forum: Looking Forward and Looking Back’ (2002) 52(2) Telecommunications Journal of Australia 37
Price, David, ‘The New Surveillance Normal: NSA and Corporate Surveillance in the Age of Global Capitalism’ (2014) 66(3) Monthly Review 43
Productivity Commission (Cth), Broadcasting (Report No 11, 3 March 2000)
Provan, Keith G and Patrick Kenis, ‘Modes of Network Governance: Structure, Management, and Effectiveness’ (2008) 18(2) Journal of Public Administration Research and Theory 229
366 Pusey, Michael, Economic Rationalism in Canberra: A Nation-Building State changes its Mind (Cambridge University Press, 1991)
Rangone, Andrea and Alessandro Turconi, ‘The Television (R)evolution within the Multimedia Convergence: A Strategic Reference Framework’ (2003) 41(1) Management Decision 48
Raiche, Holly, ‘The Policy Context’ in Alasdair Grant (ed), Australian Telecommunications Regulation (UNSW Press, 3rd ed, 2004)
Rhodes, R A W, ‘The New Governance: Governing without Government’ (1996) 44(4) Political Studies 652
Rix, Mark, ‘Counter-Terrorism and Information: The NSI Act, Fair Trials, and Open, Accountable Government’ (2011) 25(2) Continuum: Journal of Media and Cultural Studies 285
Roach, Kent, The 9/11 Effect: Comparative Counter-Terrorism (Cambridge University Press, 2011)
Robichau, Robbie Waters, ‘The Mosaic of Governance: Creating a Picture with Definitions, Theories, and Debates’ (2011) 39(s1) Political Studies Journal 113
Robinson, Piers, Philip Seib and Romy Fröhlich, Routledge Handbook of Media, Conflict and Security (Routledge, 2016)
Rodrick, Sharon, ‘Accessing Telecommunications Data for National Security and Law Enforcement Purposes’ (2009) 37(3) Federal Law Review 375
Rolph, David, Matt Vitins, Judith Bannister and Daniel Joyce, Media Law: Cases, Material and Commentary (Oxford University Press, 2015)
Rose, Gregory and Diana Nestorovska, ‘Australian Counter-Terrorism Offences: Necessity and Clarity in Federal Criminal Law Reforms’ (2007) 31(1) Criminal Law Journal 20
Rosenau, James and Ernst-Otto Czempiel (eds), Governance without Government: Order and Change in World Politics (Cambridge University Press, 1992)
Rothstein, H, M Huber and G Gaskell, ‘A Theory of Risk Colonization: The Spiralling Regulatory Logics of Societal and Institutional Risk’ (2006) 35(1) Economy and Society 91
Saco, Diana, ‘Colonising Cyberspace: National Security and the Internet’ in Jutta Weldes, Mark Laffey, Hugh Gusterson and Raymond Duvall (eds), Cultures of Insecurity: States, Communities and the Production of Danger (University of Minnesota Press, 1999)
Sadler, Pauline, National Security and the D-Notice System (Ashgate, 2001)
Santos, J R, Y Y Haimes and C Lian, ‘A Framework for Linking Cybersecurity Metrics to the Modeling of Macroeconomic Interdependencies’ (2007) 27(5) Risk Analysis 1283
367 Santow, Edward and George Williams, ‘Terrorism Threat Assessments: Problems of Constitutional Law and Government Accountability’ (2012) 23 Public Law Review 23
Sarikakis, Katherine, ‘ “Making” Security: Citizenship, Public Sphere and the Condition of Symbolic Annihilation’ (work package 6, Challenge F6 Programme, 2006)
Saul, Ben, Defining Terrorism in International Law (Oxford University Press, 2006)
Saul, Ben, ‘Security and Fairness in Australian Public Law’ in Matthew Groves (ed), Modern Administrative Law in Australia: Concepts and Context (Cambridge University Press, 2014)
Saul, Ben, ‘Speaking of Terror: Criminalising Incitement to Violence’ (2005) 28(3) UNSW Law Journal 868
Saul, Ben and Daniel Joyce, International Approaches to the Regulation of Al-Manar Television and Terrorism-related Content: Final Report for the Australian Communications and Media Authority (June 2010)
Scanlon, Christopher, ‘A Step to the Left? Or Just a Jump to the Right? Making Sense of the Third Way on Government and Governance’ (2001) 36(3) Australian Journal of Political Science 481
Schmidt, Patrick, Lawyers and Regulation: The Politics of the Administrative Process (Cambridge University Press, 2005)
Schmitt, Peter and Lisa Van Well, Territorial Governance Across Europe: Pathways, Practices and Prospects (Routledge, 2016)
Schultz, Julianne, Reviving the Fourth Estate: Democracy, Accountability and the Media (Cambridge University Press, 1998)
Selvadurai, Niloufer, ‘Regulating for the Future—Accommodating the Effects of Convergence’ (2005) 13(1) Trade Practices Law Journal 20
Selvadurai, Niloufer and Rizwanul Islam, ‘The Expanding Ambit of Telecommunications Interception and Access Laws: The Need to Safeguard Privacy Interests’ (2010) 15(3) Media and Arts Law Review 378
Shanahan, Rodger, ‘An Idea in Good Currency: Collaborative Leadership in the National Security Community’ in National Security College Occasional Paper No 1 (Australian National University, November 2011)
Shanahan, Rodger, ‘Key Events in Lebanese Politics December 2008 – January 2010 and the Role of Hizbullah’ (Research Report, Australian Communications and Media Authority (Cth), 2010)
Shearer, Ivan, ‘Human Rights in an Age of Terrorism’ in Alice Erh-Soon Tay, Günther Doeker-Mach and Klaus Ziegert (eds), Law and Legal Cultures in Comparative Perspective (Franz Steiner, 2004)
368 Sherman, Tom, ‘Telecommunications (Interception) Act 1979—Report of the Review of Named Person Warrants and Other Matters’ (Attorney-General’s Department (Cth), June 2003)
Silke, Andrew, ‘Research on Terrorism—A Review of the Impact of 9/11 and the Global War on Terrorism’ in Hsinchin Chen, Edna Reid, Joshua Sinai, Andrew Silke and Boaz Ganor (eds), Terrorism Informatics: Knowledge Management and Data Mining for Homeland Security (Springer, 2008)
Simons, Margaret, The Content Makers: Understanding the Media in Australia (Penguin Books, 2007)
Smith, Russell G and Peter Grabosky, ‘Cyber Crime’ in Andrew Goldsmith, Mark Israel and Kathleen Daly (eds), Crime and Justice: A Guide to Criminology (Lawbook Co, 3rd ed, 2006)
Solomon, Jason, ‘Law and Governance in the 21st Century Regulatory State’ (2008) 86 Texas Law Review 819
Sperling, James, ‘Governance and Security in the Twenty-First Century’ in James Sperling (ed), Handbook of Governance and Security (Edward Elgar, 2014)
Spinello, Richard, ‘Google in China: Corporate Responsibility on a Censored Internet’ in Alfreda Dudley, James Braman and Giovanni Vincenti (eds), Investigating Cyber Law and Cyber Ethics: Issues, Impacts and Practices (Information Science Reference, 2012)
Stake, Robert E, Multiple Case Study Analysis (The Guilford Press, 2006)
Stephens, Mitchell, Beyond News: The Future of Journalism (Columbia University Press, 2014)
Steurer, Reinhard, ‘Disentangling Governance: A Synoptic View of Regulation by Government, Business and Civil Society’ (2013) 46(4) Political Science 387
Stoker, Gerry, ‘Governance as Theory: Five Propositions’ (1998) 50(155) International Journal of Social Sciences 17
Taylor, Brendan, ‘The Evolution of National Security Studies’ in National Security College Occasional Paper No 3 (Australian National University, April 2012)
Thomas, Philip, ‘Legislative Responses to Terrorism’ in Phil Scraton (ed), Beyond September 11: An Anthology of Dissent (Pluto Press, 2002)
Thornton, John, The Foundations of Computing and the Information Technology Age: An Historical, Sociological and Philosophical Enquiry (Pearson Education Australia, 2007)
Torfing, Jacob, ‘Governance Networks’ in David Levi-Faur (ed), The Oxford Handbook of Governance (Oxford University Press, 2012)
369 Torfing, Jacob, B Guy Peters, Jon Pierre and Eva Sorensen, Interactive Governance: Advancing the Paradigm (Oxford University Press, 2012)
Traxler, F, ‘Collective Bargaining and Industrial Change: A Case of Disorganization? A Comparative Analysis of Eighteen OECD Countries’ (1996) 12(3) European Sociological Review 571
Tregoning, Molly, ‘A New Panopticon: Surveillance and Privacy after September 11’ (2004) 9(3) Media and Arts Law Review 169
Ungerer, Carl, ‘The Case for an Australian National Security Strategy’ (Strategic Paper, Australian Strategic Policy Institute, 28 July 2011)
Ungerer, Carl, ‘Measuring Up: Evaluating Cohesion in the National Security Community’ (Strategic Paper, Australian Strategic Policy Institute, 25 June 2011)
Weeks, Greg, Soft Law and Public Authorities: Remedies and Reform (Hart Publishing, 2015)
Weinstein, Stuart, ‘OFCOM, Information-Convergence and the Never Ending Drizzle of Electric Rain’ (2003–2004) 8 International Journal of Communications Law and Policy 1
Westfield, Mark, The Gatekeepers: The Global Media Battle to Control Australia’s Pay TV (Pluto Press, 2000)
Whelan, Chad, ‘Managing Dynamic Public Sector Networks: Effectiveness, Performance, and a Methodological Framework in the Field of National Security’ (2015) 18(4) International Public Management Journal 536
White, Hugh, ‘The Idea of National Security: What Use is it to Policymakers?’ in National Security College Occasional Paper No 3 (Australian National University, April 2012)
Wickham, Gary and George Pavlich (eds), Rethinking Law, Society and Governance: Foucault’s Bequest (Hart Publishing, 2001)
Williams, George, ‘The Danger of our Laws’ (2016) 20 Law Society of NSW Journal 31
Williams, George, ‘A Decade of Australian Anti-Terror Laws’ (2011) 35(3) Melbourne University Law Review 1136
Williamson, Peter, Corporatism in Perspective: An Introductory Guide to Corporatist Theory (Sage, 1989)
Wilson, Nigel, ‘Australia’s National Broadband Network—A Cybersecure Critical Infrastructure?’ (2014) 30(6) Computer Law & Security Review 699
Yin, Robert, Case Study Research: Design and Methods (Sage, 2nd ed, 1989)
370 Zehavi, Amos, ‘New Governance and Policy Instruments: Are Governments Going “Soft”?’ in David Levi-Faur (ed), The Oxford Handbook of Governance (Oxford University Press, 2012)
Zwi, Adam, ‘Security Law Watchdog Recommends Relaxing Secrecy Provisions for Journalists’ (2016) 31(1) Communications Law Bulletin 9
B Cases
Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7 (Gageler J)
Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39
DPP v Artz [2013] VCC 56 (5 February 2013)
Edelsten v Investigating Committee of New South Wales (1986) 7 NSWLR 222, 224 (Lee J)
Hepting v AT&T Corp In re National Security Agency Telecommunications Records Litigation 671 F. 3d 881 (9th Cir, 2011)
In re Google Inc. Gmail Litigation, 5:13-MD-02430-LHK (N.D. Cal.)
Nationwide News Pty Ltd v Integrity Commissioner [2010] FCA 385 (22 April 2010)
Telstra Corporation Limited and Department of Broadband, Communications and the Digital Economy [2010] AATA (15 February 2010) [228]
C Legislation
Anti-People Smuggling and Other Measures Act 2010 (Cth)
The Anti-Terrorism Act (No. 2) 2005 (Cth)
Australian Constitution
Australian Crime Commission Establishment Act 2002 (Cth)
Australian Security Intelligence Organisation Act 1979 (Cth)
Broadcasting Services Act 1992 (Cth)
Charter of the United Nations Act 1945 (Cth)
Classification Act 1995 (Cth)
Classification (Publications, Films and Computer Games) Act 1995 (Cth)
Communications Legislation Amendment Act (No. 1) 2004 (Cth)
Communications Legislation Amendment Act 2004 (Cth)
371 Corporations Amendment (No. 1) Act 2010 (Cth)
Crimes Act 1914 (Cth)
Crimes Legislation Amendment Act 2011 (Cth)
Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth)
Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010 (Cth)
Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth)
Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No. 2) 2004 (Cth)
Criminal Code Act 1995 (Cth)
Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 (Cth)
Cybercrime Act 2001 (Cth)
Foreign Acquisitions and Takeovers Act 1975 (Cth)
Freedom of Information Amendment (Reform) Act 2010 (Cth)
International Criminal Court (Consequential Amendments) Act 2002 (Cth)
Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (Cth)
Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Act 2011 (Cth)
Law and Justice Legislation Amendment (Marking of Plastic Explosives) Act 2007 (Cth)
Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth)
Law Enforcement Integrity Commissioner (Consequential Amendments) Act 2006 (Cth)
National Crime Authority Legislation Amendment Act 2001 (Cth)
National Security Legislation Amendment Act (No. 1) 2014 (Cth)
News Media (Self-regulation) Bill 2013
News Media (Self-regulation) (Consequential Amendments) Bill 2013
Omnibus Repeal Day (Autumn 2014) Act 2014 (Cth)
Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002 (Cth)
Royal Commissions and Other Legislation Amendment Act 2001 (Cth)
372 Statute Law Revision Act 2005 (Cth)
Statute Law Revision Act 2010 (Cth)
Telecommunications Act 1997 (Cth)
Telecommunications and Other Legislation Amendment Bill 2016 (Cth)
Telecommunications Interception and Other Legislation Amendment Act 2003 (Cth)
Telecommunications Interception Legislation Amendment Act 2002 (Cth)
Telecommunications Legislation Amendment Act 1997 (Cth)
Telecommunications (Interception and Access) Act 1979 (Cth)
Telecommunications (Interception and Access) Legislation Amendment Bill 2007 (Cth)
Telecommunications (Interception and Access) (Requirements for Authorisations, Notifications and Revocations) Determination 2012 (Cth)
Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997 (Cth)
Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 (Cth)
Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 (Cth)
Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 (Cth)
D Legislative Instruments
Broadcasting Services (Anti-terrorism Requirements for Open Narrowcasting Television Services) Standard 2006
Broadcasting Services (Anti-terrorism Requirements for Open Narrowcasting Television Services) Standard 2008
Broadcasting Services (Anti-terrorism Requirements for Open Narrowcasting Television Services) Standard 2011
Broadcasting Services (Anti-terrorism Requirements for Subscription Television Narrowcasting Services) Standard 2006
Broadcasting Services (Anti-terrorism Requirements for Subscription Television Narrowcasting Services) Standard 2008
Broadcasting Services (Anti-terrorism Requirements for Subscription Television Narrowcasting Services) Standard 2011
Foreign Acquisitions and Takeovers Regulations 2015 (Cth)
Open Narrowcasting Code of Practice 2009
373 Subscription Broadcast Television Codes of Practice
Subscription Narrowcasting Codes of Practice
Subscription Narrowcast TV Code 2007
Telecommunications (Interception) Regulations 1987 (Cth)
E Other
ABC Radio National, ‘Interview with Robert McClelland’, Radio National Breakfast with Fran Kelly, Thursday, 6 August 2009 (Robert McClelland)
Attorney-General’s Department (Cth), Critical Infrastructure Resilience (2017)
Attorney-General’s Department (Cth), Trusted Information Sharing Network (2017)
Attorney-General’s Department (Cth), ‘Equipping Australia against Emerging and Evolving Threats’ (Discussion Paper, July 2012)
Attorney-General’s Department (Cth), Submission No 26 to Senate Legal and Constitutional Affairs References Committee, Inquiry into the Comprehensive Revision of the Telecommunications (Interception and Access) Act 1979, 12 December 2014
Audited Media Association of Australia, ABC Average Net Paid Print Sales
Australian Broadcasting Corporation, ‘For their Eyes only’, Background Briefing, 21 October 2012 (Di Martin)
Australian Broadcasting Corporation, ‘Security, Secrecy and the New Anti-terror Law’, Media Watch, 6 October 2014
Australian Broadcasting Corporation, ‘The Australian v Victoria Police’, Media Watch, 20 March 2010
Australian Bureau of Statistics (Cth), ‘8681.0 - Information Media and Telecommunications Services’ (Dataset, 2013–2014)
Australian Bureau of Statistics (Cth), ‘Internet Transforming Information Media and Telecommunications Industry’ (Media Release 75/2015, 29 June 2015)
Australian Broadcasting Authority, ‘ABA Investigation into Al Manar programming on TARBS’ (News Release 135/2004, 22 October 2004)
374 Australian Communications Authority (Cth), Telecommunications and Law Enforcement (July 1998)
Australian Communications and Media Authority (Cth), ACMA Compliance and Enforcement Policy (Commonwealth, Canberra, August 2010 [updated March 2014])
Australian Communications and Media Authority (Cth), ‘ACMA Cyber Security Function Moves to the Computer Emergency Response Team Australia’ (Media Release 25/17, 30 June 2017)
Australian Communications and Media Authority (Cth), Authority Submission—Review of the Law Enforcement Advisory Committee (21 August 2008)
Australian Communications and Media Authority (Cth), Connected Citizens: A Regulatory Strategy for the Networked Society and Information Economy (2013)
Australian Communications and Media Authority (Cth), ‘Internet of Things and the ACMA’s Area of Focus—Emerging Issues in Media and Communications’ (Occasional Paper, November 2015)
Australian Communications and Media Authority (Cth), Narrowcasting Services on Television—Guidelines and Information (May 2007)
Australian Communications and Media Authority (Cth), ‘New Standards for Narrowcast Television Services’, ACMAsphere, Issue 7, April 2006
Australian Communications and Media Authority (Cth), ‘Optimal Conditions for Effective Self- and Co-Regulatory Arrangements’ (Occasional Paper, September 2011)
Australian Communications and Media Authority (Cth), Public Interest Obligation— Provision of Reasonably Necessary Assistance (Australian Government, 20 July 2016)
Australian Communications and Media Authority (Cth), VoIP Legislation, Codes & Standards (26 September 2016)
Australian Communications Industry Forum, ‘Industry Code ACIF c537:2002: Provision of Assistance to National Security, Enforcement and Government Agencies’ (Explanatory Statement)
Australian Competition and Consumer Commission (Cth), ‘ACCC Will Not Oppose Seven’s Proposed Acquisition of Shares in Foxtel’s Presto Entertainment Service’ (Media Release 20/15, 2 March 2015)
Australian Competition and Consumer Commission (Cth), ‘Channel 7 and Foxtel Proposed Joint Venture’ (Public Registers—Mergers Register, 2 March 2015)
Australian Competition and Consumer Commission (Cth), ‘National Broadband Network Wholesale Market Indicators’ (Report, 30 June 2017)
375 Australian Federal Police, Platypus (December 1998)
Australian Government, Critical Infrastructure Resilience Strategy (Commonwealth, 2010)
Australian Government, Guide to Australia’s National Security Policy (August 2013)
Australian Interactive Media Industry Association, Digital Policy Group, Submission No 198 to Parliamentary Joint Committee on Intelligence and Security, Inquiry into Potential Reforms of National Security Legislation, 7 September 2012
Australian Mobile Telecommunications Association, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Telecommunications (Interception and Access) Bill 2007, 9 July 2007
Australian Mobile Telecommunications Association and Communications Alliance, Joint Submission No 16 to the Legal and Constitutional Affairs References Committee, Inquiry into Comprehensive Revision of the Telecommunications (Interception and Access) Act 1979, 27 February 2014
Australian Press Council, A Charter for a Free Press in Australia,
Australian Press Council, Submission No 143 to the Senate Legal and Constitutional Committee, Inquiry into the Provisions of the Anti-Terrorism Bill (No 2) 2005, 11 November 2005
Australian Security Intelligence Organisation (Cth), Business and Government Liaison Unit (2017)
Australian Security Intelligence Organisation (Cth), ASIO Corporate Plan 2016–17 (2016)
Australian Security Intelligence Organisation (Cth), Threat Environment,
Australian Subscription Television and Radio Association, Submission to the Australian Communications and Media Authority, Amendments to the Anti-Terrorism Standards for Narrowcast Television, February 2011
Bathurst, Chief Justice Tom, ‘Separation of Powers: Reality or Desirable Fiction?’ (Paper presented at the JCA Colloquim, Sydney, 11 October 2013)
Brandis, George and Michael Keenan, ‘Discussions with Industry on National Security’, (Joint Media Release, 10 March 2016)
376 Chapman, Chris, ‘CommsDay Summit’ (Speech delivered at the CommsDay Summit, Sydney, 21 April 2015)
Chapman, Chris, ‘Facilitating Convergence: Australia’s Regulatory Approach’ (Speech delivered at the NCC Broadcasting and Telecomms Regulatory Forum, Taipei, Taiwan, 4 October 2007)
Cheah, Chris, ‘Safety Agencies and the ACMA—The Australian Communications and Media Authority and the Public Safety Sector’ (Speech delivered at the Association of Public-Safety Communications Officials (APCO), Australasia 10th Annual Conference, Adelaide, 13 March 2013)
Commonwealth, Explanatory Memorandum, Telecommunications (Interception) Amendment Bill 2006 (Cth)
Commonwealth, Parliamentary Debates, House of Representatives, 13 June 2017
Commonwealth, Parliamentary Debates, House of Representatives, 4 December 2008
Commonwealth, Parliamentary Debates, House of Representatives, 12 October 1999
Commonwealth, Parliamentary Debates, House of Representatives, 27 March 1984
Commonwealth, Parliamentary Debates, House of Representatives, 4 October 1967
Commonwealth, Parliamentary Debates, Senate, 9 November 2016
Commonwealth, Parliamentary Debates, Senate, 16 July 2014
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Evidence to Environment, Communications and the Arts Legislation Committee, Supplementary Budget Estimates, Parliament of Australia, Canberra, 19 October 2009, 119 (Chris Chapman, ACMA Chairman)
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379 Evidence to Parliamentary Joint Committee on Intelligence and Security, Inquiry into Potential Reforms of National Security Legislation, Parliament of Australia, Canberra, 2 November 2012 (Roger Wilkins, George Brandis)
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383 F Newspaper Articles
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385 Grubb, Ben, ‘How ASIC’s Attempt to Block One Website Took Down 250,000’, The Sydney Morning Herald (online), 5 June 2013
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‘Huawei: The Company that Spooked the World’, The Economist (online), 4 August 2012
Keane, Bernard, ‘AGD Returns to Data Retention, wants Twitter, Facebook Interception Powers’, Crikey (online), 18 March 2014
386 Keane, Bernard, ‘A-G FOI Investigation: How Data Retention was Derailed’, Crikey (online), 4 October 2013
Keane, Bernard, ‘Busy Times in National Security as the DHS Comes to Town’, Crikey (online), 7 May 2012
Keane, Bernard, ‘Revealed: Who the Government Talked With on Data Retention Plans’, Crikey (online), 2 November 2012
Kitney, Damon and Andrew White, ‘We are an Oligopoly Economy: Robb’, The Australian (online), 19 Aug 2013
Knott, Matthew, ‘Facebook Rebuffs Malcolm Turnbull on Laws to Access Encrypted Messages for Criminal Investigations’, The Sydney Morning Herald (online), 14 July 2017
Koutsoukis, Jason, ‘Tony Abbott Dismantles Role of National Security Adviser by Stealth, Insiders Say’, The Sydney Morning Herald (online), 25 October 2013
‘Leak Cop Simon Artz Seeking Return to the Force’, The Australian (online), 25 January 2013 le Grand, Chip, ‘Victoria Detective Simon Artz Gets Suspended Four-Month Jail Sentence’, The Weekend Australian (online), 5 February 2013
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MacAskill, Ewen, ‘NSA Paid Millions to Cover Prism Compliance Costs for Tech Companies’, The Guardian (online), 24 August 2013
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McMurtrie, Craig, ‘Google to Bypass China’s “Great Firewall” ’, Australian Broadcasting Corporation (online), 23 March 2010
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Munro, Ian and John Silvester, ‘Police Chief Vows Charges If Probe Finds Leak’, The Sydney Morning Herald (online), 2 August 2009
Ockenden, Will, ‘Australia Prepared Briefing on US Global Internet Spying Program PRISM before Snowden Revelations’, Australian Broadcasting Corporation (online), 8 October 2013
Osborne, Charlie, ‘Microsoft, Apple, Google Call for NSA Muzzle’, ZDnet (online), 9 December 2013
Packham, Ben, ‘Huawei Ruled Out of NBN Involvement on Advice From ASIO’, The Australian (online), 30 October 2013
‘PM Defends Banning of Chinese Company’, The Sydney Morning Herald (online), 29 March 2012
Ramli, David, ‘Malcolm Turnbull, George Brandis to Meet Telstra on Data Retention’, The Australian Financial Review (online), 7 August 2014
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Simons, Margaret, ‘Simons: The View from Inside an Australian Hatchet Job’, Crikey (online), 18 December 2012
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Winning, Nicholas, ‘Huawei’s Security Center Faces Closer Scrutiny in UK’, The Wall Street Journal (online), 18 December 2015
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G Information Released under the Freedom of Information Act 1982 (Cth)
Attorney-General’s Department (Cth), Background Brief, Round Table, Thursday 14 April 2011, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-51
Attorney-General’s Department (Cth), Documents released in response to the Information Request FOI 16/074—Documents about the Industry Consultation on National Security consultative body (ICON) meetings in 2014 and 2016, 5 August 2016
Attorney-General’s Department (Cth), Media Arrangement to Protect Sensitive Law Enforcement and Counter-terrorism Information, Sub No 3840, File No 09/23436, 30 November 2009, 3 [17], released under the FOI Act 1982 by the Attorney-General’s Department, FOI-60
Attorney-General’s Department (Cth), Submission No 327, File No 02/23436, National Security Media Arrangement—Consultation with Media Representatives, 23 February 2011, released by the Attorney-General’s Department under the FOI Act 1982, FOI-25
390 Attorney-General’s Department (Cth), Submission No 327, File No 09/23436, National Security Media Arrangement—Consultation with Media Representatives, 29 February 2011, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-25
Attorney-General’s Department (Cth), Submission No 503, File No 09/23436, National Security Media Arrangement Round Table—Invitations to Media and Law Enforcement, 23 March 2011, released under the FOI Act 1982 by the Attorney- General’s Department, FOI-1
Attorney-General’s Department (Cth), Submission No 847, File No 09/23436, Media Protocol—Consultation with Media Representatives, 21 October 2010, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-1
Attorney-General’s Department (Cth), Submission, National Security Media Arrangement—Follow-up Letters, File No 09/23436, cleared by Geoff McDonald, First Assistant Secretary, 29 April 2011, released under the FOI Act 1982 by the Attorney- General’s Department, FOI-32
Attorney-General’s Department (Cth), Surveillance Allegations—PRISM, Background, Policy Commitments and Key Facts, 27 June 2013, released under the FOI Act 1982 by the Attorney-General’s Department, FOI Document 1, QTB13/32
Australian Communications and Media Authority (Cth), Attachment C—Summary of Comments on LEAC Discussion Paper, 7 March 2008, released under the FOI Act 1982 (Cth)
Australian Communications and Media Authority (Cth), Authority Submission—New Consultative Arrangements for Law Enforcement and National Security Issues, 21 August 2008, released under the FOI Act 1982 (Cth)
Australian Communications and Media Authority (Cth), Authority Submission—Review of Law Enforcement Advisory Committee, 21 August 2008, released under the FOI Act 1982 (Cth)
Australian Communications and Media Authority (Cth), Law Enforcement Advisory Committee, Agenda Item 9: Review of the Law Enforcement Advisory Committee (LEAC)—Draft Discussion Paper, 25 July 2007, released under the FOI Act 1982 (Cth)
Australian Communications and Media Authority (Cth), Law Enforcement Advisory Committee, Item 8: The Review of the Law Enforcement Advisory Committee— Summary of Submissions, Meeting 08-1, 7 March 2008, Tabled by the ACMA, released under the FOI Act 1982 (Cth)
Data Retention Industry Consultation Meeting, Meeting Agenda, Monday, 30 November 2009, released under the FOI Act 1982 (Cth) by the Attorney-General’s Department
Documents contained in the Attorney-General’s Department file 11/11927—National Security—Liaison with the Australian Communications and Media Authority (ACMA) (Freedom of Information release)
391 Email from Jonquil Ritter, Executive Manager, Citizen and Community Branch, Australian Communications and Media Authority to Laura Munsie, Principal Legal Officer, Security Law Branch, Attorney-General’s Department, Friday 12 November 2010, SLB – National Security – Draft document of understanding between ACMA and AGD – November 2010, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-20
Email from Laura Munsie, Principal Legal Office, Security Law Branch, Attorney- General’s Department to Jonquil Ritter, Australian Communications and Media Authority, Monday 8 November 2010, SLB – National Security – Draft document of understanding between ACMA and AGD – November 2010, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-22
Hutchison Telecoms, Submission to the Review of Law Enforcement Advisory Committee, 7 December 2007, released under the FOI Act 1982 (Cth)
Interception Consultative Committee, Briefing Item 4—Report of the National Telecommunications Conference, Meeting of 22 November 2007, released under the FOI Act 1982 (Cth) by the Attorney-General’s Department
Interception Consultative Committee, Briefing Item 6—Telecommunications (Interception and Access) Amendment Act 2007 (Cth), Meeting of 22 November 2007, released under the FOI Act 1982 (Cth) by the Attorney-General’s Department
Interception Consultative Committee, Briefing Item 8—Use of Intercepted Information, Meeting of 22 November 2007, released under the FOI Act 1982 (Cth) by the Attorney- General’s Department
Interception Consultative Committee, Meeting Minutes—Item 4, Meeting of 22 November 2007, released under the FOI Act 1982 (Cth) by the Attorney-General’s Department
Letter from Christopher Warren, Federal Secretary, Media, Entertainment and Arts Alliance to Geoff McDonald, First Assistant Secretary, National Security Law and Policy Division, Attorney-General’s Department, 16 February 2011, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-23
Letter from Creina Chapman, on behalf of Australia’s Right to Know Coalition to Geoff McDonald, First Assistant Secretary, National Security Law and Policy Division, Attorney-General’s Department, 18 February 2011, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-17
Letter from Julian Disney, Chair of the Australian Press Council to Robert McClelland, 22 December 2010, released under the FOI Act 1982 by the Attorney-General’s Department
Letter from Mark Scott, Managing Director, Australian Broadcasting Corporation, to Geoff McDonald, First Assistant Secretary, National Security Law and Policy Division, Attorney-General’s Department, 17 February 2011, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-11
392 Letter from Paul Whittaker, Editor, The Australian to Robert McClelland, 10 February 2011, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-21
Letter from Robert McClelland to Mr Julian Disney, 24 February 2011, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-30
Letter from Shaun Brown, Managing Director, Special Broadcasting Service to Geoff McDonald, First Assistant Secretary, National Security Law and Policy Division, Attorney-General’s Department, 16 February 2011, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-15
Letter from the Hon Robert McClelland to Professor Julian Disney, Chair, Australian Press Council, 4 May 2011, released under FOI Act 1982 by the Attorney-General’s Department, FOI-29
Letter from The Hon Robert McLelland to David Irvine, Director General, Australian Security Intelligence Organisation, 4 May 2011, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-75
Letter from The Hon Robert McClelland to Mark Scott, Managing Director, Australian Broadcasting Corporation, 23 November 2010, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-33
Letter from The Hon Robert McLelland to Senator the Hon Stephen Conroy, Minister for Broadband, Communications and the Digital Economy, released under the FOI Act 1982 by the Attorney-General’s Department, FOI-75
Singtel Optus Pty Limited, Submission to the Review of the Law Enforcement Advisory Committee, 10 December 2007, released under the FOI Act 1982 (Cth)
Telstra Corporation, Submission to the Review of Law Enforcement Advisory Committee, 7 November 2007, released under the FOI Act 1982 (Cth)
Willing, Annette, Public Information Sub-Committee Meeting, Media Arrangement for Publication of Sensitive National Security and Law Enforcement Matters, Attorney- General’s Department, 8 March 2011, released under the FOI Act 1982 by the Attorney- General’s Department, FOI-1
393