When Prime Minister Malcolm Turnbull announced the establishment of a Home Affairs portfolio this week, he described it as “similar to the Home Office of the United Kingdom”. Drawing inspiration from this British model is worrisome for the immigration portfolio.
Planning immigration has never been a core task of Britain’s Home Office. As political scientist Randall Hansen has described, the UK in the 20th century has long managed immigration using its nationality legislation.
In practice, the Home Office did not anticipate the large inflow of citizens from new members of the European Union in the 2000s. This fuelled public concerns that eventually played a crucial role in Brexit.
Immigration-related Home Office activities have been mired in enforcement issues. From the 1980s to the 2000s, asylum applications took years to process.
More recently, European citizens aiming to apply for residency in the post-Brexit UK have faced a bureaucratic nightmare. This has been criticised by the EU.
What’s in a name?
The Home Office was originally established to protect British citizens, with a focus on Britain’s infrastructure and customs, and on the prevention of entry by “undesirable aliens”. It has historically been inward-looking.
This has also been the case of Australia’s Department of Home Affairs, established at Federation in 1901. After the second world war, a distinct Department of Immigration was established to plan and oversee the expansion of the country’s population. This was a major strategic and economic goal at the time.
In Australia, both the Department of Home Affairs and the Department of Immigration have co-existed over the years, with two exceptions. From the late 1980s to 2007, the former disappeared as its portfolio was handed to the Department of Justice and Customs. Then, in the early 1970s, the Whitlam government abolished the Department of Immigration, because its administrative culture was considered to still reflect the White Australia policy, which had been effectively scrapped in 1966.
The Fraser government reinstated the Department of Immigration in 1976, this time with a strong multicultural rationale. Home Affairs disappeared again in 2013, while Immigration expanded to become the Department of Immigration and Border Protection.
The 2013 name change already meant the department’s focus on immigration became narrower than before. It was now mainly concerned with the admission (or refusal) of immigrants. Settlement and multicultural affairs were transferred to the Department of Human Services.
The newest name change, and its close association with the British model by Turnbull, appears as a symbolic marginalisation of the immigration portfolio. It is not clear yet whether an agency under a Home Affairs “super-ministry” will carry “immigration” in its name.
In Britain, the corresponding agency under the purview of the Home Office is called “UK Visas and Immigration”. Yet it existed for several years as the UK Border Agency (UKBA), with no reference to immigration. The then home secretary, Theresa May, eventually split UKBA in two following the revelation that hundreds of thousands of people had entered the UK without the appropriate checks.
The creeping invisibility of the immigration portfolio comes as the government is overseeing major changes to immigration policy, and is increasingly using the rhetoric of putting Australians first.
In April, the admission of skilled migrants was overhauled with the abolition of the 457 visa. The government shortened the list of professions for which skilled foreign workers would be eligible for a four-year visa to Australia, and subsequently for permanent residence.
A citizenship reform is before parliament. It significantly extends the time permanent residents must live in Australia before they can apply for citizenship. It also introduces more stringent English-language proficiency requirements.
The legislation would require citizenship applicants to demonstrate their allegiance to Australia more strongly, with a pledge to Australian values and proof of integration.
It has been written that, rather than encouraging integration, these changes could result in newcomers feeling more distanced from Australia. The disappearance of “immigration” from the department name may contribute to this uneasiness.
And prospective immigrants to Australia may justifiably fear the changes will cause confusion about division of responsibilities, or a further delay in processing times.
Turnbull has promised the reform will involve strong oversight mechanisms. He noted that such mechanisms were essential to respect the rights and liberties of “all Australians”.
As Amy Maguire noted, Turnbull did not make any specific reference to the rights and liberties of non-citizens living in Australia. One can thus worry to what extent Australia’s “Home Office” will better protect them.
On Tuesday, the Greens’ Larissa Waters became the second senator in under a week to resign from parliament, after discovering she held dual citizenship and was therefore ineligible to hold her seat. Her Canadian citizenship revelation followed Greens co-deputy leader Scott Ludlam’s resignation, after he was found to hold New Zealand citizenship.
It is expected that the Senate will refer both matters to the High Court, sitting in its capacity as the Court of Disputed Returns. The court will almost certainly find both senators ineligible based on their dual citizenship. It will declare the resulting vacancies should be filled by a recount of the ballot papers from the 2016 federal election.
… is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power.
Section 44(i) effectively means that dual citizens are not ordinarily eligible to be elected to parliament.
The High Court has previously held that becoming naturalised as an Australian citizen is not enough on its own to escape this disqualification. A person must also take “all reasonable steps” to renounce their foreign citizenship. Exactly what this requires will depend on the circumstances of each particular case and will, in particular, depend on the law of the relevant foreign country.
In the case of both New Zealand and Canada the process is straightforward. Specific government websites provide clear advice on how to apply to renounce your citizenship.
So, by failing to make a request for release from their foreign citizenship, neither Waters nor Ludlam took reasonable steps to satisfy the requirements of Section 44(i).
Not only does Section 44(i) mean the two Greens senators are unable to remain in the parliament, but they were never actually eligible to be elected in the first place.
Section 44(i) was originally designed to ensure MPs had a clear and undivided loyalty to Australia, and would not be subject to any improper influence from foreign governments.
This reflected the position in the UK. Those born outside “the Realm” were disqualified from holding office in the Privy Council or parliament.
The history and context of this section is important. At the time of the first Australian parliament, nearly half of all members had been born overseas – and any person born in Australia was a British subject. The legal concept of Australian citizenship did not exist until 1949.
Before 2002, any Australian citizen who became a citizen of another country automatically lost their Australian citizenship. Much has changed since Section 44(i) was first drafted.
Should Section 44(i) be reformed?
Several expert bodies and parliamentary committees have considered Section 44(i) over the years and recommended reform. The section has been criticised on several grounds, including its archaic language, unclear scope, and the sheer number of Australian citizens who are potentially disqualified under its terms.
Of particular note, given the events of the past week, has been the criticism that many Australian citizens are likely to be unaware that they are actually dual citizens.
This is not simply an academic concern. Several potential MPs have been ruled ineligible in the past on the basis of holding dual citizenship, including the two major party candidates in the 1992 Wills by-election and a One Nation Senator elected for Queensland at the 1998 federal election. And earlier this year the Court of Disputed Returns rejected a challenge to the eligibility of independent senator Lucy Gichuhi that was based around her previous Kenyan citizenship.
Figures from the 2001 Census show approximately 3 million Australian citizens were born overseas. Among the 224 MPs who currently remain in parliament, 23 were born overseas.
While not every Australian who is born overseas remains a dual citizen, these figures do highlight the significant number of people who are potentially impacted by Section 44(i).
There are arguments weighing against any change. The principles that underpin Section 44(i) are still of continued importance. There is no doubt that the integrity of parliament and the loyalty of MPs are vitally important. This issue has been highlighted only recently with claims about the influence of foreign donations in Australian politics.
When considering changes to Section 44(i), the key is to strike the right balance between maximising participation by Australian citizens while also safeguarding the national interest. Given the events of the past week, now is an opportune time to engage in that conversation.
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 Security.
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.
The mettle of the man who aspires to be a future Liberal leader is about to be severely tested, now that Malcolm Turnbull has handed Peter Dutton his dream home affairs ministry, overseeing a vast national security empire.
Dutton comes to the job with, at best, a middling ministerial record. His time in the health portfolio was a nightmare. In immigration he has been relentlessly political.
The former Queensland policeman is a natural political head kicker rather than a nuanced policy man.
It was Turnbull who, among other ministers, tore shreds off a 2015 Dutton submission on removing citizenship from people involved with terrorism.
A recent initiative, revamping foreign worker visas, has brought problems for and complaints from business. The announced toughening of the citizenship requirements that makes the English test excessively difficult has been sharply criticised.
Dutton has not so far managed to secure the departure of any of the refugees from Manus Island and Nauru that the US agreed to take.
When he became leader Turnbull wouldn’t have Dutton on cabinet’s National Security Committee. He fought his way back into that key group. He and Turnbull drew close. With Liberal conservatives coalescing around him as their factional heavyweight, Dutton made himself a guardsman for Turnbull.
Turnbull is understandably sensitive to suggestions that the planned home affairs ministry is all about Dutton, whose continued support is so vital to him.
Those around Turnbull insist he has long been committed to a shake-up of national security arrangements, exploring the issues on overseas trips.
But you have to ask: if there were no Dutton, would Turnbull be putting the government through what he is presenting as the biggest reorganisation in four decades, which is going to take many months and a vast amount of effort to implement? Wouldn’t it be a matter of fine tuning rather than root-and-branch change?
After all, the evidence – and the mantra from the government – is that things are working well.
Whatever the motives, and regardless of their personal thoughts, ministers have to defend the new arrangements. This led Attorney-General George Brandis – a long-time opponent of the shift that will cost him responsibility for ASIO – into an unexpected and unconvincing argument at Tuesday’s press conference, which brought together with Turnbull the winner and losers (Dutton, Brandis and Justice Minister Michael Keenan, who cedes the AFP).
Not only did Brandis speak enthusiastically about the new arrangements, but he pointed out that because of his multiple responsibilities he hadn’t been able to focus exclusively on his national security duties.
It sounded like the barrister making a case. If one had put to Brandis six months ago that the present arrangement was unsatisfactory, it’s a fair bet he’d have been dismissive.
But Brandis has retained his responsibility for issuing warrants under the ASIO Act, a power the attorney-general will share with Dutton. They will both have to approve warrants, except in cases where time is of the essence.
One-time ASIO head Dennis Richardson said on Tuesday: “It’s a good thing the attorney-general remains the approval authority for ASIO warrants”. But “it does mean ASIO is effectively responsible to two ministers not one”.
Richardson, in contrast to the government and many commentators, plays down the significance of the broad reorganisation, seeing much of it as presentational.
If Brandis had trouble with many duties, Dutton is likely to have the problem in spades, given the breadth of his responsibilities, that will range from border security to oversight of ASIO, the AFP, the Australian Criminal Intelligence Commission, and much else. The bundle labelled “national security” has varied components.
Most security experts have either challenged the need for change, or said that what is planned is undesirable. Neither Turnbull nor Dutton will be drawn on whether the heads of ASIO or the AFP advocated that they move ministers – because, on all we know, they didn’t.
Turnbull is aware of the dangers of excessively concentrated power – hence his effort to beef up the attorney-general’s scrutiny remit. The first law officer was “the minister for oversight and integrity and that role is being reinforced”, he said. How vigorously this responsibility will be exercised will depend on who occupies the portfolio – Brandis is expected to leave parliament in a few months.
While co-ordination is vital, one risk that has been raised is that too much centralisation can push out counter opinions. It will be up to Turnbull to stop that from happening.
The planned new Office of National Intelligence (ONI), which will subsume the present Office of National Assessments, will report directly to the prime minister.
The office was proposed by the L’Estrange/Merchant intelligence review, in a report released on Tuesday. That review, incidentally, did not recommend a Home Affairs portfolio – although those in the prime ministerial circle stress that it did not recommend against one.
The review says the ONI “would be headed by a director-general who would be the prime minister’s principal adviser on matters relating to the national intelligence community”.
Who gets this job and how much Turnbull listens to them will be absolutely critical in how the new centralised system under a highly assertive minister operates. Turnbull and the director of the ONI potentially could be the counterweight to Dutton and the home affairs department.
The Greens have lost a second senator in less than a week for having dual citizenship, with Larissa Waters forced to resign on Tuesday after she discovered she was still a citizen of Canada.
Like Scott Ludlam, who quit last week when he found out he had dual New Zealand citizenship, the Queensland senator had been co-deputy leader of the Greens.
She said she had left Canada as an 11-month old baby; she’d been born to Australian parents studying and working briefly in Canada.
She had all her life thought that “as a baby I was naturalised to be Australian and only Australian, and my parents told me that I had until age 21 to actively seek Canadian citizenship. At 21, I chose not to seek dual citizenship, and I have never even visited Canada since leaving.”
After Ludlam’s discovery, she sought legal advice, and was “devastated to learn that because of 70-year-old Canadian laws I had been a dual citizen from birth, and that Canadian law changed a week after I was born and required me to have actively renounced Canadian citizenship”, she said.
“I had not renounced since I was unaware that I was a dual citizen. Obviously this is something that I should have sought advice on when I first nominated for the Senate in 2007, and I take full responsibility for this grave mistake and oversight. I am deeply sorry for the impact that it will have,” she said.
Greens leader Richard Di Natale, heaping praise on Waters, said he was “gutted” by her announcement, coming just a few days after Ludlam’s.
He was initiating an overhaul of the party’s processes.
“I have immediately spoken to our two national co-conveners and we are committed to a thorough root-and-branch review so that we strengthen our governance, improve our internal processes and we make sure that this never happens again,” he said.
“I won’t sugarcoat it, we need to make sure that our internal party processes are up to the challenge,” he said. He did not believe there were any other Greens senators in breach of Section 44 of the Constitution, which prohibits a person with dual citizenship being eligible for election to parliament.
The resignation of Waters opens the way for the possible return to the Senate of Andrew Bartlett, who represented the Australian Democrats from 1997 and 2008. He led the Democrats from 2002 to 2004, and was deputy from 2004 and 2008.
On earlier precedents, the High Court would order a countback which would see Bartlett elected.
It is not clear whether he would then remain in the seat or resign so the Greens could fill it again with Waters.
Bartlett said on Facebook that the party’s membership “will be having many conversations over the next few days as we process what has happened and determine what is the best way forward to ensure we remain a strong voice for the essential values the Greens promote”.
Other foreign-born Greens senators hit Twitter to declare their citizenship credentials were in order. Tasmanian senator Nick McKim said he renounced his UK citizenship in 2015, before being nominated by the Tasmanian parliament to the Senate. Fellow Tasmanian Peter Whish-Wilson, born in Singapore, said he did not have dual citizenship.
For good measure, One Nation’s Malcolm Roberts, born in India, and Labor’s Sam Dastyari, born an Iranian citizen, also tweeted they were in compliance with constitutional requirements. Finance Minister Mathias Cormann, who migrated from Belgium, said in a statement that he automatically lost his Belgian citizenship when he became an Australian citizen in 2000.
The proposed changes may help to clarify some of the confusion surrounding the role of state police and the ADF in responding to terror attacks. However, to prove effective in practice, the changes will depend heavily on the willingness of state police to accept military advice and assistance.
Changes to call-out powers
The major change proposed is to relax the call-out powers for ADF assistance during a terrorist attack. Prime Minister Malcolm Turnbull described the existing law as “cumbersome” – and it certainly sets a high bar for requesting military involvement.
Currently, the Commonwealth Defence Act provides that the ADF can be called out to respond to violence within state boundaries, but only where:
a state government requests such assistance; and
the state “is not, or is unlikely to be, able to protect itself”.
This is consistent with the Constitution, which allows the Commonwealth to protect states against internal violence “on the application of the executive government of the state”.
A formal request for ADF assistance was not made during the Sydney siege. Despite the many recognised problems with its response, the NSW police force did not believe its capacity to respond to a single armed offender was inadequate.
Details of the proposed changes have not yet been released. But it appears that state governments will be able to request “specialist” or “niche” assistance from the ADF. For example, they may request assistance with specific weaponry such as sniper rifles or other high-powered weapons.
This will provide more flexible arrangements for state governments to request ADF involvement. Rather than admitting that its overall capacity to respond to a terrorist incident is inadequate, a state government could request assistance on more specific grounds.
However, it appears the process will still require state governments to request assistance from the Commonwealth. Whether state police forces will concede that their ability to respond to terrorism is inadequate – even on more specific grounds – remains to be seen.
It also appears that requests for ADF involvement will depend on whether state police classify an incident as an act of terrorism. This in itself is open to interpretation, and may prove difficult to determine in practice.
Changes to military liaisons
Another proposed change is to embed military liaison officers within state counter-terrorism police units. This will help build a closer relationship between the ADF and state police forces – if they can work together well.
During the Sydney siege, ADF liaison officers attended the police forward command post. In his report, the NSW coroner noted that the role of these officers was poorly understood, and that NSW police could have drawn on their expertise to a greater extent.
Controversy remains over whether police failed to heed military advice that their bullets would fragment on hard-tiled surfaces.
Formalising military liaison positions will help clarify the ADF’s role in circumstances that fall short of a formal call-out. However, it seems the key problem to date has not been an absence of military advice, but a lack of willingness to accept it.
Changes to training
A third major change is for special forces soldiers to provide enhanced training to state counter-terrorism police. This is likely to be the most effective strategy for improving operational responses to terrorism.
The ADF has two tactical assault groups – East and West – based in Sydney and Perth respectively. Realistically, these specialist units could only respond to a terrorist attack in one of those cities, or in the event of an extended siege. Having specially trained state police is crucial if first responders are to deal adequately with the threat of terrorism.
Improved training procedures will enable state police to draw on the expertise of Australia’s special forces, while avoiding territorial issues as to who should have jurisdiction in the event of an attack. They also avoid difficult constitutional and democratic issues regarding the expanding role of the military in domestic crime control.
Peter Dutton will take charge of a new mega Home Affairs portfolio in a sweeping overhaul of national security agencies and responsibilities announced by Malcolm Turnbull on Tuesday.
The reorganisation is a major win for Dutton, a key conservative supporter of Turnbull, and comes despite scepticism from many experts and several ministers about the need for – or desirability of – the change.
Turnbull said the new Home Affairs portfolio would be similar to the United Kingdom’s Home Office, which he discussed while in London last week. It will include the Australian Security Intelligence Organisation (ASIO), the Australian Federal Police (AFP), the Australian Border Force, and the Australian Criminal Intelligence Commission.
Turnbull stressed the restructuring was his call, after extensive consultation with colleagues. The changes were the most significant security and oversight reforms in four decades, he said.
Following a just-completed review of the Australian Intelligence Community by two former federal officials, Michael L’Estrange and Stephen Merchant, the government will set up an Office of National Intelligence, headed by a Director of National Intelligence. The Australian Signals Directorate will become a statutory authority within the defence portfolio.
The report did not recommend a mega portfolio.
The broad reorganisation will take months to implement, and Dutton will be home affairs minister-designate until it is completed and he is sworn in as the new minister. This points the way to a summer reshuffle, with Attorney-General George Brandis widely tipped to exit parliament then.
In an apparent concession to Brandis and to head off criticism about civil liberties, the attorney-general will continue to be the issuer of warrants under the ASIO Act. The home affairs minister will also issue these warrants. Exceptions will be made to the need for double approval when the circumstances are time-sensitive.
The attorney-general’s portfolio will also include the Inspector-General of Intelligence and Security and the Independent National Security Legislation Monitor. Both are now in the prime minister’s portfolio.
“I always have believed strongly in the role of the government’s first law officer. It will only become more critical as threats continue to evolve,” Turnbull told a news conference, flanked by Brandis, Dutton and Justice Minister Michael Keenan.
“So, I am determined to ensure effective oversight,” he said, insisting it would be stronger under the changes.
The first law officer was the minister for oversight and integrity, he said.
Turnbull said that, given the challenges, “we need more enduring and better integrated arrangements for our domestic and border security – arrangements that will preserve the operational strengths and independence of our front line agencies but improve the strategic policy planning behind them”.
“We are taking the best elements of our intelligence and national security community and making them better. As terrorists evolve their methods, we have to evolve our responses.”
But recently retired secretary of the defence department Dennis Richardson, speaking at the Lowy Institute, played down the significance of the changes, saying they were not some great advance. There was a reasonable argument for immigration merging with other areas but beyond that it was presentational.
Turnbull said that Dutton would have two ministers working to him one on the security side and the other on the immigration side. Justice Minister Michael Keenan would be on the security side but Turnbull did not say who would be the junior on immigration.
The changes, expected to become operational early next year, will require some legislative amendment, especially in relation to ASIO. A taskforce will work on the complicated reorganisation; in the meantime the agencies will continue to report to their current ministers.
While critics have suggested a reorganisation would risk diverting the agencies’ attention while it was happening, Turnbull said: “There will be no reduction in frontline capacity, focus or operational tempo”.
Brandis, previously a known opponent of moving ASIO from the attorney-general’s portfolio, told the news conference: “These are historic reforms and they have my strong support”.
Dutton said: “Having made the promise to stop the boats and to make sure that we can keep our borders secure, we make this announcement today with this promise: the home affairs portfolio is dedicated to keeping Australians safe, to doing everything that we can to defeat the surge of terrorism, but beyond that, to work with our agencies in relation to transnational crime, in relation to organised crime, in relation to many other aspects of criminal activity within our country”.
Opposition Leader Bill Shorten said: “I don’t think this is a captain’s call, I think it’s Peter Dutton’s call”.
He said he was “very concerned that these proposals aren’t being pushed by our security agencies, they’re being pushed by Peter Dutton as the price of him continuing to support Malcolm Turnbull in his job”.
Prime Minister Malcolm Turnbull has just announced the creation of a new “super-ministry”, modelled on the UK Home Office. By the end of 2018, Australia will have a new Department of Home Affairs.
This change consolidates responsibility for all security agencies within a single portfolio. Peter Dutton, currently immigration minister, will head the proposed department.
Dutton gains responsibility for the Australian Federal Police from Justice Minister Michael Keenan. He also adds responsibility for ASIO, previously under the portfolio of Attorney-General George Brandis. As home affairs minister, Dutton will retain responsibility for immigration and border protection.
Announcing the change, Turnbull and Brandis went to considerable effort to note the attorney-general’s continued significance, despite his loss of responsibility for intelligence. Both emphasised that the attorney-general would gain responsibility for some oversight bodies previously within the prime minister’s portfolio.
According to Turnbull, the new arrangements will ensure stronger oversight of security matters to balance protection for civil liberties and freedoms.
What does this reform mean for people subject to Australia’s immigration system?
The comments of the four ministers at today’s press conference were revealing in many ways.
One group of people – refugees and asylum seekers – were completely absent from the ministers’ remarks. This raises questions regarding the meaning of the changes for these particularly vulnerable people, who remain subject to the powers of the home affairs minister.
Brandis said the reforms are significant because, for the first time, a senior cabinet minister will have as his exclusive focus the national security of Australia. That is, the home affairs minister’s sole focus will be national security and border security.
Dutton, preparing to assume wide-ranging new powers, reflected on his ministry’s success in stopping and turning back boats. According to Dutton, without integrity in the immigration and border protection system, “we can’t keep our country safe”.
And Keenan celebrated the government’s novel use of the immigration system to further its national security priorities.
The sum of these propositions is a continued linking of people seeking asylum with the notion of a threat to Australia’s integrity and security. Today’s announcement failed to show care or responsibility for the dehumanising impact of this strategy.
Instead, Dutton takes on a considerably expanded portfolio, despite extensive critique regarding his efforts to expand already very broad powers.
Australia’s bid for the UN Human Rights Council
Foreign Minister Julie Bishop was absent from today’s announcement. She is currently visiting India and Sri Lanka.
Her opposition to the creation of the new super-ministry has been widely reported.
Until today’s press conference, Brandis was also on record as opposing the creation of a super-ministry. This may explain the emphasis Turnbull placed on the oversight role of the attorney-general for “ensuring governments act lawfully and justly”.
Others will consider whether this change is called for in the sense of enhancing Australia’s security capacity or performance. But today’s announcement must also be assessed in the context of Australia’s human rights standing.
Bishop and Brandis have taken primary responsibility for promoting Australia’s current bid for election to the UN Human Rights Council. According to the Department of Foreign Affairs and Trade, Australia is the ideal candidate for a two-year term on the council, as it has been – and continues to be – an “international human rights leader”.
The government has taken steps to demonstrate Australia’s commitment to human rights, in support of its campaign.
And, fortunately for Australia, France recently withdrew as a candidate. Although an election will still be held in October this year, Bishop is now confident that Australia and Spain will be elected unopposed to the two available seats for their regional grouping.
Regardless of the likelihood of its election, however, does today’s shift in the national security context support the legitimacy of Australia’s bid for election to the Human Rights Council?
In launching Australia’s bid, Bishop described human rights as “national values deeply embedded in Australian society”. Brandis described Australia’s candidacy as:
… the most natural thing in the world for a country which – at its core – is a nation built on a belief in, and a commitment to, the human rights of all – the human rights of all Australians and the human rights of all the peoples of the world.
Notably, the people ignored in today’s announcement – those seeking asylum from persecution in their home countries – have suffered human rights abuses in Australia’s immigration system.
It is difficult to see how the consolidation of far-reaching security powers in a single ministry will promote human rights. Outgoing Human Rights Commission president Gillian Triggs has already identified expanding executive power as a threat to democracy and human rights.
While the protection of the Australian community from terror threats is an undeniable and legitimate priority for any government, lawyers must oversee the coming reforms to determine whether they further threaten the delicate balance between safety and security on one hand, and freedom and rights on the other.
The Australian Defence Force (ADF) is to be given a bigger role and greater powers in combating terrorism, under changes announced by the government on Monday.
The measures – including specialised training by special forces for law enforcement teams – will provide more Commonwealth support to state police forces, which are still acknowledged as the appropriate “first responders”.
The changes are designed to assist in preparing for incidents, enabling a more comprehensive ADF response if needed, and improving the flow of information between the ADF and police during an incident.
In their announcement, Prime Minister Malcolm Turnbull and Defence Minister Marise Payne said state and territory police forces remained the best first response immediately after an attack commenced. “But Defence can offer more support to states and territories to enhance their capabilities and increase their understanding of Defence’s unique capabilities to ensure a comprehensive response to potential terrorist attacks.”
Defence will offer to place officers within state law enforcement agencies to help with liaison and engagement. This will assist with “pre-positioning” defence personnel in response to a possible incident.
The Defence Act will be strengthened to remove some constraints governing the “call-out” of the ADF in terrorist situations. This includes removing the current limit on states and territories asking for defence force support and specialist military skills until their capability or capacity has been exceeded.
The government will also strengthen the act to make it easier for Defence personnel to support the police response, such as clarifying their power to “stop and seize” suspects to prevent them leaving the scene of an incident.
“These measures will improve the nation’s ability to respond to terrorism as well as improve the effectiveness of Defence’s contribution to domestic counter-terrorism arrangements,” Turnbull and Payne said. The changes would be made in partnership with state and territory governments, they said.
The government initiated the review of Defence’s support to the national counter-terrorism effort last year in response to the changing nature of the terrorist threat, as shown by attacks overseas. It is the first time the ADF’s domestic contribution has been reviewed since 2005.
The package addresses some of the coroner’s recommendations in the report on the 2014 Lindt cafe siege, in which two victims and the attacker, Man Haron Monis, died. That incident produced calls for a bigger role for the military.
Turnbull and Payne stressed that responses to the terrorism threat must be constantly updated.
The government is currently considering whether there should be a consolidation of the security agencies under a home-office-type ministry that would be headed by Immigration Minister Peter Dutton. There are sharply divided views within government about going down such a route.
Later this week, a version of the review of the Australian intelligence community done by former officials Michael L’Estrange and Stephen Merchant will be released.
Citing Jan-Werner Müller’s What is Populism?, the journalist, Amit Varma, was struck by “how closely our own prime minister, Narendra Modi, matched Müller’s definition”. After enumerating Müller’s seven “characteristics” and the three “things” populists did when in power, Varma found these all applicable to India.
But can such schematic “characteristics” of populism describe the ghastly daytime murder of 15-year-old Hafiz Junaid on a moving, packed train? And what about the complicit silence maintained during and afterwards by populists, non-populists and anti-populists alike?
Located barely 20 kilometres from the scene of the crime, neither social-media-savvy Modi nor his ministers posted any tweets, let alone visited the victim’s family.
It was the “crowd” that knifed Junaid. Two of his brothers were severely beaten and injured because they were Muslim. They wore beards and skullcaps for which they were humiliated.
They were called “Mulleys [Muslims]”, “beefeaters”, “terrorists”, “traitors” and “Pakistanis”. As Junaid’s bloodied body lay in the lap of his brother, who begged for help, the crowd simply and silently watched on.
Junaid’s murder was not the first since Modi came to power in 2014. Similar instances of brutality have occurred throughout India: from Jhajjar, Jharkhand and Dadri to Latehar, Una and Alwar.
And since the government backs the lynchings through silence and inaction, and since Hindutva has created a war-like mindset among many Hindus, they will likely continue.
“Populism”, as Müller defines it, fails to articulate the experience and vocabulary of those at the receiving end of such persistent violence.
Religion and the real targets of populism
Preoccupied with the statements of populist leaders nearly the world over, Müller seldom draws on the views of those who are objectified and victimised by populism. His treatment of religion as constitutive of populism is thin at best.
Müller implies that populism is inimical to democracy. But if populists claim to represent “we the people” and therefore democracy, who do they view as their enemy? It can’t just be “the elite” – populists too are elite. The real targets of populists, then, are those non-elites who supposedly threaten the culture of the “real” people.
And who threatens the “Judo-Christian culture”, “homelands” or “ways of life” that populists uphold? In Western countries, the threat is attributed to Muslims, who are depicted as only religious – indeed the most religious of all peoples. Muslims alone are seen as a problem to “integration” and “cohesion”, as if Buddhists, Confucians, Hindus and people of other faiths lived on a different planet.
Müller reads the populist demand for Barack Obama’s birth certificate as a signification of the former US president’s status as the “bicoastal elite and the African-American other”. He leaves religion out of it. So why did one-third of Americans believe Obama was a Muslim well into his second term, after many proclamations of his own Christianity?
Anders Breivik, the terrorist who killed 77 people in Norway, also stands expelled from Müller’s text. Breivik surely was opposed to elites; but elites themselves were not his target.
The real targets were Muslims whose culture, Breivik held, elites had spread by allowing immigration, which in turn threatened Christian Europe. The title of Breivik’s manifesto is revealingly religious.
And while Müller wrote only one sentence on India in his book, Breivik promised military support “to the [Hindu] nationalists in the Indian civil war and in the deportation of all Muslims from India”. He also viewed John Howard and Cardinal George Pell as heroes defending “Christian civilisation”.
So what connects populists in the US, Australia, Europe, India and elsewhere? And what prompted the International Democratic Union in 2016 to grant membership “unanimously” to Modi’s party, Bharatiya Janata Party (BJP), despite its reputation for ethnic and violent politics?
Populism and anti-pluralism in India
Accounts of populism like Varma’s mechanically assume a “secular” conception of India separate from the religious one to which populism is assigned. This separation is central to the Indian liberal story parroted by Nobel laureate Amartya Sen and Ramchandra Guha.
Mukulika Banerjee traces neo-nationalism (which anthropologists use in association with populism) to religious nationalism in the early 20th century and V.D. Savarkar’s Hindutva.
Hindutva defined Indianness exclusively in religious terms: an Indian is someone who considers India as their holy land. Because India was not sacred geography for Christians and Muslims, they were non/anti-Indian. Indeed they were non-people.
In contrast, Banerjee presents Mohandas Gandhi’s and Jawaharlal Nehru’s vision as secular and pluralist:
It was the great achievement of Gandhi and Nehru that it took four post-independence decades for such enmity [against Muslims] to flourish.
However, anthropologist N.K. Bose, who served as Gandhi’s secretary, had this to say:
Gandhi tacitly formed an alliance with those who believed in a restoration of Hindu domination.
Gandhi’s tactical commitment to non-violence is evidenced by statements in his speeches that authorise violence:
If later they [Muslims] betray you, you can shoot them. You may shoot one or two or a certain number… We must be brave and trust the Muslims. If later they violate the trust you can cut off their heads.
It follows that Savarkar’s ethnic, anti-pluralist vision was not radically at odds with Gandhi’s.
Moreover, as independent India’s first prime minister, if secularism was the hallmark of Nehru’s ideology, why didn’t he write it into the Indian Constitution? Why was it inserted only in the mid-1970s? Nehru admitted that Hindus, including in his own party, were prejudiced and biased against Muslims. Bureaucracy was no different, he wrote:
Nearly all our District Officers and Hindus are … biased in a certain direction. It is unfortunate that so few Muslims are represented in our services now.
If the main political parties and the bureaucracy were prejudiced, where did Nehru’s secularism, then, live? Not in Hyderabad, nor in Jammu, where, with the government playing an active role, 200,000 Muslims were massacred in 1947.
Creating inhumanity in the guise of humanity
Though anti-pluralism (which Müller sees as the core of populism) in India began much earlier than Trump and the Tea Party in America, populism has undeniably taken on a new flavour in contemporary times.
The September 11 attacks marked a new phase in the definition of “the people” around the axes of “terrorism” and “humanity”. In a televised debate soon after 9/11, Modi hailed the Indian media for speaking “the truth” in using the phrase “Islamic terrorism”.
Modi opined that terrorism was innate to Islam (and less emphatically also to Christianity), for it did not consider other religions to be true. In his view, the “whole world” had witnessed terrorism “for 1,400 years” (since Muhammad’s time). Modi saw the post-9/11 era as a battle between “humanity” and “terrorism”.
The “humanity” Modi spoke of did not exist as a prior idea. Instead, it was manufactured through the disingenuous discourse on terrorism that his party enacted on the international stage. In the same debate, Modi said:
Because of India’s initiative in the UN meeting twice, we have made terrorism an issue. Due to this, we have succeeded in dividing the country into two camps: those who are against terrorism and those who are in support of terrorism.
I think that the recent incident in America [9/11] will intensify it [the division]. The world is about to be divided into two parts: those who are in favour of humanity and those who are against humanity.
While Müller does discuss polarisation as constitutive of populism, he fails to connect its articulations across countries as Modi did. Modi’s polarisation was between humanity and its enemy, which is simultaneously anti-human, non-human, sub-human and less than human.
In the 2002 anti-Muslim pogrom, which Modi presided over as chief minister of Gujarat, over 3,000 Muslims were killed with state complicity. He maintained a long silence over the killings; when he eventually spoke, he compared the killings to running over puppies with a car. In doing so, he transferred Muslims from human to sub-human.
The act of transference partly explains why hundreds of people at the railway station did not even see Junaid’s dead body. Surely populism itself is too wandering and too light a term to grasp the ferocity with which the crowd killed Junaid, and the subsequent weight of the public’s apathy.
When Junaid’s mother, Saira, was told of his murder after she had broken her Ramadan fast, she responded with words that did not include populism. Can democracy, then, understand the tears and moaning through which Saira spoke?
It’s worth remembering that in addition to Modi’s claim that he is chosen by God, his followers regard him as God. At Madison Square Garden in 2014, Modi described his electoral victory as divine. He pronounced: “janata jan janārdan”, or “the will of the people prevails over the world”, where the people themselves are God because janārdan denotes the Hindu god Lord Krishna.
Thus, unlike “secularism”, which Modi denounces as “pseudo-secularism”, the idea that there can likewise be “pseudo-democracy” remains unthinkable for Modi and his followers.
I tend to agree with Müller’s observation that “one implication of the analysis presented in this book is that National Socialism and Italian Fascism need to be understood as populist movements…” The question, then, is: are populism and fascism substitutes?