The unfinished canvas: national security and the Australian communications sector

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 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.