Recently on the Australian “Sunrise” TV program co-presenter David Koch said: “There have only been 3000 deaths from COVID, far less than that from influenza in the same period, so we should oppose the lockdowns”. This statement ignored the fact that prior to and during the vaccination rollout, lockdowns are likely to have prevented many thousands more deaths.
Similarly, some people argue against counter-terrorism measures on the grounds that there have been relatively few successful terrorist attacks in Australia, ignoring the fact that counter-terrorism has deterred and disrupted many more terrorist plots than those that have been carried out.
Several years ago, I was working as a regulatory consultant helping to remake sunsetting Victorian water regulations. Amongst other things, these regulations require the installation of backflow prevention devices on the customer’s water service pipe, just after the water meter. Backflow can result in contaminants being drawn into the drinking water system if the mains pressure suddenly drops as the result of a burst water main. If a customer leaves a hose running in a chlorinated swimming pool or attached to a container of “hose-on” fertiliser, weedicide or insecticide, or worse still in an industrial chemical bath, risks to public health can occur. A Treasury official asked me how many Victorians have died as a result of such backflow incidents. When I answered “none yet” he said “so what is the problem?”. This ignored the fact that backflow prevention devices have been installed for many decades, thus preventing backflow from occurring.
These examples all make the logical error of confusing cause and effect, which is also known as the reverse causation fallacy. The low numbers of cases are caused, at least in part, by the preventative measures in place – they do not demonstrate that such measures are unnecessary. Without such measures, the numbers of cases would be likely to be many times higher.
It is difficult not to give in to cynical impulses over Tuesday’s announcement that the government will create a Department of Home Affairs.
Described as a “federation of border and security agencies”, the home affairs minister – set to be the current immigration minister, Peter Dutton – will be responsible for ASIO, the AFP, Border Force, the Australian Criminal Intelligence Commission, the Australian Transaction Reports and Analysis Centre, and the Office of Transport Authority.
The Home Affairs department was announced at the same time the government released an eagerly awaited review of Australia’s intelligence agencies. But the rationale for the creation of a “super ministry” seems to conflate the well-intentioned and important intelligence review with an inadequately justified yet major rearrangement of federal government executive agencies.
Fraught with danger
The Home Affairs model appears to stand on contestable grounds.
There may be an argument to be made about potentially improving internal bureaucratic efficiencies by having power centralised under one minister. However, this is debatable. And the move upends long-standing conventions on how security intelligence and executive police powers are managed separately.
Bringing ASIO and the AFP together in one department and away from the attorney-general is a fraught move.
Multiple royal commissions and a protective security review following the Hilton Hotel bombing in February 1978 saw the police, security and intelligence functions tried and tested by fire. They were found wanting, but were then subject to significant review and reform.
That reform led to an understanding about how best to delineate and maintain the separation of powers while upholding robust accountability. That understanding has come to be broadly accepted as the best way of managing intelligence and security affairs.
This model includes a high degree of healthy contestability concerning intelligence judgements and operational options. This is thanks in large part to the diffusion of power between ministries, and authority between agencies, departments and ministers. These arrangements mean there are clear lines of accountability and responsibility.
Mechanisms for prioritisation and avoiding overlap exist with the Heads of Intelligence Agencies Meetings, the Secretaries Committee on National Security, cabinet’s National Security Committee, and the National Intelligence Collection Requirement Priorities mechanisms. It’s unclear how the new arrangements will alter the dynamics in these contexts.
Under the previous arrangements, in authorising a warrant the attorney-general had to be satisfied it was justified, recognised as consistent with agreed-upon national intelligence collection priorities, resourced appropriately, executed within the legal guidelines, and then suitably reported on in a timely manner.
Under the new arrangements, the attorney-general – having relinquished management responsibility for ASIO – will retain responsibility for issuing warrants and ministerial authorisations. Yet the attorney-general will not, seemingly, be responsible for seeing the process through to its completion.
This change risks diminishing the prospects of a clear connection between ministerial authority and ministerial responsibility. The two functions look set to be performed separately, by the attorney-general and the home affairs minister.
The inspector-general, for instance, has the enduring powers of a royal commissioner. They are able to walk into any sensitive intelligence facility and ask to see any files virtually at any time.
Like the monitor, the inspector-general can report directly to the prime minster. This is a powerful tool to ensure accountability. It is hard to think of a compelling reason for their lines of reporting responsibility to be altered.
What role did the intelligence review play?
Announcing the changes on Tuesday, Prime Minister Malcolm Turnbull did not speak about the intelligence review – undertaken by former senior public servants Michael L’Estrange and Stephen Merchant – in great detail.
However, Turnbull did mention the headline items. These include:
the creation of an office of national intelligence (a sensible and graduated move);
the better resourcing and management of intelligence capabilities (also a reasonable step);
the establishment of the Australian Signals Directorate as a statutory body within the Department of Defence (something talked about for years by insiders); and
a bolstering of the profile and placement of the Australian Cyber Security Centre (an unsurprising step given the high profile of cyber affairs this year).
The review also proposed:
an expansion of the Inspector-General of Intelligence and Security’s remit to cover agencies with intelligence collection and reporting functions not previously counted as part of the six agencies in the Australian Intelligence Community over which he exercised oversight; and
a slightly expanded, operationally-oriented role for the Parliamentary Joint Committee on Intelligence and Security to request briefings and initiate inquiries.
These recommendations are sound. But they were made in isolation of the Home Affairs proposal.
By announcing the review and the new arrangements together, the issues appear conflated. The Intelligence review is well considered and reasonable. The new governance arrangements lack the same level of intellectual rigour for the public to consider and accept.
Put together, it suggests this is more about politics than substantive fact-based organisational reform.
Earlier this month, the Council of Australian Governments (COAG) agreed that the states and territories should enact new anti-terrorism laws. This came in the wake of a siege in the Melbourne suburb of Brighton, during which Yacqub Khayre killed a man and took a woman hostage.
At the time of the siege, Khayre was on parole for violent – but not terrorist – crimes. Shortly before Khayre was killed by police at the scene of the siege, he is alleged to have called the Seven Network and said:
Khayre’s background is important in understanding why this attack produced a counter-terrorism response. In 2009, he was arrested and charged with terrorism offences in relation to the Holsworthy Barracks plot. Even though he was acquitted at trial, Khayre was tainted by the perceived association with terrorism.
… strengthen their laws to ensure that there will be a presumption that neither bail nor parole will be granted to those who have demonstrated support for or have links to terrorist activity.
Decisions on parole for those with a terrorism link will be taken out of the hands of the parole authorities. Instead, they will be the responsibility of state attorneys-general.
There are no clear details yet on how the legislation will define “links to” terrorist activity, or what behaviours will be captured by “demonstrating support for terrorist activity”. However, it seems likely that having associated with known or convicted terrorists in the past, or having been investigated for terrorism offences, will be covered.
So, had these measures been in existence when Khayre came up for parole, he would not have been released early from his sentence for violent crimes, and could not have carried out his attack.
Restricting bail and parole
Restrictions on bail and parole are not unusual in the terrorism context.
The blanket ban on bail is relatively uncontroversial. But both the twoformer independent reviewers of terrorism legislation, and the UK’s Joint Committee on Human Rights, have called for changes to allow terrorist suspects to apply for bail. The government has consistently rejected these calls on the grounds that denying bail to terrorist suspects is operationally useful, and has not been found to breach the right to liberty and security guaranteed in the European Convention on Human Rights.
Under a new law enacted in the UK in 2015, terrorist prisoners are no longer automatically entitled to receive parole once they have served 50% of their prison sentence.
Those convicted of terrorism offences are now required to undergo a risk assessment prior to parole being granted. They will only be released early on parole if the Parole Board decides they no longer represent a risk to the public.
However, the new laws COAG has proposed for Australia go far beyond those in the UK. They will restrict parole and bail to those merely associated in some way with terrorism, even when they have not be arrested for – or convicted of – a specific terrorism offence.
This is a significant expansion of Australia’s already extensive anti-terrorism regime.
Existing post-sentence restrictions
Two regimes already exist to prevent convicted terrorists from being released unsupervised back into the Australian community.
The control order regime, which was introduced in 2005, was amended in 2014 to enable a control order to be issued on the ground that a person has been convicted of a terrorism offence.
Once a control order has been issued, controlees are subject to a range of obligations, prohibitions and restrictions. This includes restrictions on movement and communications. Controlees can also be required to wear a tracking device and report to the police at regular intervals.
Second, under a newly commenced regime, a terrorist offender can be detained in prison under a continuing detention order at the end of their sentence if the court is “satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious [terrorism] offence if the offender is released into the community”, and:
… there is no other less restrictive measure that would be effective in preventing the unacceptable risk.
A continuing detention order can last for up to three years, and may be renewed at the end of its duration. It is a possibility that a convicted terrorist may never be released from prison.
Delaying the inevitable?
Neither of these regimes would have been applicable to Khayre, as he was not on parole for a terrorism offence. However, the police also had no specific intelligence that he posed a terrorist threat.
It is possible that his attack was spontaneous, rather than planned. It is also possible therefore, that Khayre would always have carried out this tragic act.
So, even if COAG’s proposed new laws had been in effect and Khayre had been refused parole, he would eventually have been released from prison after having served his full sentence.
… a vital element in keeping these people who are a threat to our safety, and the safety of our families, off the streets.
But they will only do this during the relatively short period of time after someone would have been released, either on bail or parole. Once they have served their full sentence, they will be released into the community without any supervision.
It is important, therefore, that the government pays as much attention to the provision of rehabilitation and deradicalisation programs for those with potential terrorist links inside prison as it does on measures that appear tough on terrorism.
Restricting bail and parole to people like Khayre who have links to terrorist activity, but who have not been convicted of terrorist offences, only delays their inevitable release. If they pose a threat during the parole period, then without rehabilitation and deradicalisation, they will still pose a threat when released at the end of their sentence.
A common argument against counter-terrorism measures is that more people are killed each year by road accidents than by terrorists. Whilst this statistic may be true, it is a false analogy and a red herring argument against counter-terrorism. It also ignores the fact that counter-terrorism deters and prevents more terrorist attacks than those that are eventually carried out.
This fallacious argument can be generalised as follows: ‘More people are killed by (fill-in-the-blank) than by terrorists, so why should we worry about terrorism?’ In recent media debates, the ‘blank’ has included not only road accidents, but also deaths from falling fridges and bathtub drownings. However, for current purposes let us assume that more people do die from road accidents than would have died from either prevented or successful terrorist attacks.
Whenever we travel in a car, almost everybody is aware that there is a small but finite risk of being injured or killed. Yet this risk does not keep us away from cars. We intuitively make an informal risk assessment that the level of this risk is acceptable in the circumstances. In other words, we consent to take the risk of travelling in cars, because we decide that the low level of risk of an accident does not outweigh the benefits of car transport.
On the other hand, in western countries we do not consent to take the risk of being murdered by terrorists, unless we deliberately decide to visit a terrorist-prone area like Syria, northern Iraq or the southern Philippines. A terrorist attack could occur anywhere in the West, so unlike the road accident analogy, there is no real choice a citizen can make to consent or not consent to the risk of a terrorist attack.
The Consent to risk fallacy omits this critical factor of choice from the equation, so the analogy between terrorism and road accidents is false.
Put together, it suggests this is more about politics than substantive fact-based organisational reform.
Restricting bail and parole to people like Khayre who have links to terrorist activity, but who have not been convicted of terrorist offences, only delays their inevitable release. If they pose a threat during the parole period, then without rehabilitation and deradicalisation, they will still pose a threat when released at the end of their sentence.
The Logical Place 