The pointless puppetry of national security's parliamentary processes

When is the government not the government? When is an opposition party not an opposition? Whenever Australia considers giving spooks and cops more powers, that's when. So, frequently.
Written by Stilgherrian , Contributor

The classical Japanese dance-drama format called kabuki (歌舞伎) is often used as a somewhat racist metaphor for political rituals so rigid and stylised that they're almost meaningless.

But this metaphor isn't strong enough to capture what happened in Australia's Parliamentary Joint Committee on Intelligence and Security (PJCIS) hearings this week.

A better but equally racist metaphor is bunraku (文楽). Bunraku is basically kabuki, but with puppets, and the performers promise to follow the script faithfully.

See also: Why Australia is quickly developing a technology-based human rights problem (TechRepublic)

Take, for example, this exchange between the Shadow Attorney-General, Labor's Mark Dreyfus, and Deputy Secretary of the Attorney-General's Department (AGD) Sarah Chidgey on Wednesday.

It concerns the joint submission [PDF] from the AGD and Department of Home Affairs (DHA) to the committee's current inquiry into "the impact of the exercise of law enforcement and intelligence powers on the freedom of the press".

According to Dreyfus, the submission was "grossly inadequate", and its length of just five and a half pages "borders on contemptuous".

The issue at hand was whether this submission came from "the government" or not. Here's a quote from the transcript [PDF]. It's long, but it highlights just how hard it was to get a straight answer.

Dreyfus: Three times in this submission the committee is told that the legislative settings in respect of particular matters are appropriate. That is a statement on behalf of the government, isn't it, that the government says that those legislative settings in respect of those matters are appropriate?

Chidgey: It's a statement by the department in its submission and therefore, I would expect, one that our office was comfortable with. It was the view at the time we put the submission in that there was an appropriate balance and no evidence that the frameworks were operating in a disproportionate or unnecessary way. The submission also states that there is an openness to considering suggestions for improvement.

Dreyfus: And it is a submission that this committee has to take as being approved by the Minister for Home Affairs and the Attorney-General of the Commonwealth. That's right, isn't it?

Chidgey: I can't comment on that, because we had given it to the Attorney's office.

Dreyfus: Are you saying that's a meaningless process?

Chidgey: No.

Dreyfus: The reason I am asking these questions is that we have had an attempt made by Senator Abetz to put all sorts of odd things that are designed to diminish the status of this formal submission made to this committee by two important Commonwealth departments. Now, it either is the position of the government or it's not. What is it, Ms Chidgey? Is it just your frolic or [Home Affairs Secretary] Mr Pezzullo's frolic, or is it the position of the government? If it's not the position of the government, we need to know.

There was brief interruption when Dreyfus and another committee member, Tim Wilson, were warned about the tone of their language. Dreyfus continued, saying that his question "is not directed as a personal criticism" of Chidgey, but she's "the only representative of the Attorney-General's Department appearing before us".

Dreyfus: I hope Ms Chidgey won't take it in the least bit personally, but it is a serious question about the status of the only submission that we have received. We don't have a submission from the Minister for Home Affairs and we're not likely to. We don't have a submission from the Attorney-General of the Commonwealth and we're not likely to. We do have what has been said to be a joint submission on behalf of both departments. In both cases, it has been shown to the minister's office?

Chidgey: That's right, it is a submission from the Attorney-General's Department and the Department of Home Affairs. I can say on our part that what was in that submission is something that the Attorney's office was, clearly, comfortable with. Beyond that, I can't speak.

Dreyfus: So we can take this as the position of the government?

Chidgey: I can't comment on that.

Dreyfus: Why not? You're a deputy secretary of the Attorney-General's Department. You've made a submission to this committee. Can we take this submission as the position of the government?

Chidgey: It is the department's submission, at the end of the day, so it's seen by our office.

Dreyfus: The department is part of the executive of the Commonwealth. It's part of the government of the Commonwealth. It is, of course, the position of the government, isn't it?

Chair: I think, Mr Dreyfus, your point is well made for the purposes of the hearing. I've certainly grasped what you're getting at.

Dreyfus: I'm hoping that Ms Chidgey will be permitted to answer the question.

Chair: Well, I think she's declined to comment.

Dreyfus: No -- she's nodding, but I need her to say yes for the Hansard.

Chair: Beyond what she's already said, I'm satisfied she's answered the question.

Dreyfus: I would appreciate an answer to the last question I've just put. This is the position of the government, isn't it, Ms Chidgey?

Chidgey: The submission contains a statement that the government's open to considering suggestions to ensure the appropriate balance is maintained. That was, clearly, something that had been seen by the Attorney's office and there was no objection to its inclusion.

Dreyfus: So it's the position of the government? We don't have anything else from the government -- we've only got you, Ms Chidgey, and the department's submission.

Chidgey: I don't think I have anything further to add.

Chair: We'll note that as a rhetorical question.

Whew! As in bunraku, the plot unfolds slowly.

Dreyfus had put the same question to Pezzullo earlier, with much the same answer.

Dreyfus: Are you suggesting, Mr Pezzullo, that you are not the government?

Pezzullo: I'm absolutely suggesting that. We serve the government; I haven't been elected to the Parliament.

Dreyfus: Okay, how is this committee to be informed about the government's position? ... What is this committee to make of this statement in your written submission: 'The government is open to considering suggestions to ensure the appropriate balance is maintained...' Were you just making that up? That's a frolic of yours and you don't speak for the government?

Senator Eric Abetz: That's a public statement from the government.

Well I'm glad that's clear.

Special rights for journalists, defenders of democracy

Media organisations gave their evidence [PDF] to the committee on Tuesday. It was littered with grandly-worded appeals for journalists to be given special treatment.

"The public's right to know is a key tenet of a healthy, functioning democracy," said Paul Murphy, head of the journalists' union, the Media, Entertainment & Arts Alliance (MEAA).

"It's one of the responsibilities of open and transparent government and, indeed, it's also a cornerstone principle of journalism."

Read more: Huge scope of Australia's new national security laws reveals itself  

David Anderson, managing director of the Australian Broadcasting Corporation (ABC), pitched the professionalism of established media organisations.

"The craft of journalism, through a registered and credible media organisation, is something a journalist is undertaking to inform the public of what's important to them. A fully informed public functions in a fully functioning democracy," Anderson said.

"A journalist is trained, a journalist is skilled, a journalist abides by a code and abides by the obligations of a high journalistic standard."

The crux of the matter, according to Hugh Marks, chief executive officer of Nine Entertainment, is journalistic defences under the law, versus exemptions.

"At the moment, you start off with the premise that something that we've done may be a criminal act, and then we have to defend ourselves, whereas if there's a recognition through legislation that the media has a legitimate role to perform, that should be exempted from certain provisions," he said.

Government member Tim Wilson got the point immediately.

"The overarching theme then -- and I'm not seeking to be pejorative in this statement -- is that you want to be treated as a special class under the legislation," Wilson said.

Short answer: Yes.

PJCIS is a "toothless tiger": Doug Cameron

The PJCIS inquiry was launched following the controversial searches of journalists' computers in June this year. The Australian Federal Police (AFP) had issued search warrants as part of two separate investigations of leaks of classified material to the media.

The laws being reviewed include section 3F of the Crimes Act 1914 (Cth), which defines the rules for computer access warrants; the controversial encryption legislation that was passed in December 2018; and the laws that require agencies to obtain a so-called "journalist information warrant" before gaining access to their stored telecommunications data.

Journalists usually describe the PJCIS as "powerful". Your writer is one of the guilty. But according to boisterous former Labor senator Doug Cameron, we should kill that habit.

"It has no capacity to independently commence inquiries into security agencies or investigate operational matters. It's a toothless tiger," he tweeted on Monday.

He's right. The PJCIS is a toothless tiger that stages puppet shows.

Eventually the committee will produce a report on October 17. Almost certainly it'll support the government's proposals. OK, maybe it'll note a few concerns and suggest some minor surgery, but it'll leave the core legislation unharmed.

The government will then introduce the legislation to parliament, but allow minimal discussion. The alleged opposition, the Labor Party, will bleat a few noises for theatrical effect, but wave through the dodgy legislation anyway.

This is traditional Aussie Bunraku. The performers follow the script faithfully.

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