Protecting the nation's security is widely acknowledged as the 'first duty of government'. The sovereign state's responsibility to ensure collective security (safety and law and order) is at the heart of the social contract and the individual's reciprocal obligation to eschew resort to force.
In a liberal democracy where the government derives its authority by and is held accountable for representing the will of the people, the balance between state powers and individual rights is defined in law. Because many national security activities are undertaken in secret it has been necessary to establish special oversight arrangements to ensure proper public accountability. Government representatives routinely refuse to publicly comment on security and intelligence matters because of their sensitivity.
Australia's unique national security architecture has its foundations in the foresight of Justice Robert Marsden Hope and various law reform bodies established by the Whitlam Government in the 1970s. Under a Westminster system of checks and balances the equilibrium between national security and citizens' rights has been maintained through structures and processes that deliberately separate advisory and executive functions; information collection and analysis tasks; domestic and foreign intelligence activities; and military/policing/intelligence roles.
Key principles underpinning these arrangements include extensive legal protections for Australian citizens, and a clear distinction between defending against specific threats to national security within Australia and aggressively pursuing our broader national interests overseas. In stark contrast to explicit legal and ethical constraints on defensive security intelligence activities within Australia there are limited controls on offensive foreign intelligence operations overseas. Legislation recognising and regulating Australia's foreign intelligence organisations was only passed in 2001 (the Intelligence Services Act).
The author of the 2011 Independent Review of the Australia Intelligence Community recently highlighted the potential for zealous and expedient action to displace rules-based protocols in critical operational situations. In reality utilitarianism (ends justify the means) is widely assumed to be a defining feature of the foreign intelligence operations of virtually all nations who assert an unqualified right to advance their national interests through any and all clandestine means, irrespective of international law and issues of national sovereignty.
This clearly represents a gap between the principled, civilised and diplomatic public posture of nations and the reality of expedient and aggressive covert action.
Recent revelations by an NSA contractor have exposed the extent to which this gap has widened, with new technologies apparently providing some advanced countries with virtually unlimited opportunities to monitor and collect electronic communications across the world. While