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. Declaration relating to disposition of project thesis/dissertation I hereby grant to the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or in part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all property rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. 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Date.......................................... i COPYRIGHT STATEMENT ‘I hereby grant the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all proprietary rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. 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). I have either used no substantial portions of copyright material in my thesis or I have obtained permission to use copyright material; where permission has not been granted I have applied/will apply for a partial restriction of the digital copy of my thesis or dissertation.’ Signed....................................... Date.......................................... AUTHENTICITY STATEMENT ‘I certify that the Library deposit digital copy is a direct equivalent of the final officially approved version of my thesis. No emendation of content has occurred and if there are any minor variations in formatting, they are the result of the conversion to digital format.’ Signed....................................... Date.......................................... 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