While Australians are often hawkish about community safety and border security, they’re far less accepting of their security agencies being given new domestic surveillance powers without government making a strong case for their use. You need only look to the public reaction to Annika Smethurst’s 2018 report in the Daily Telegraph that Home Affairs and the Australian Signals Directorate were ‘discussing radical new espionage powers that would see Australia’s cyber spy agency monitor Australian citizens for the first time’ for evidence of this.

As public trust in politicians and democracy continues to decline, the government is well aware that the old ‘trust us’ plea for more powers doesn’t work.

Perhaps this is why last week Home Affairs Minister Peter Dutton argued that because of the threat of child exploitation it’s now time for a public debate on our law enforcement agencies’ use of ASD’s electronic surveillance powers.

ASD maintains a range of cutting-edge capabilities focused on the collection, decryption and exploitation of foreign signals intelligence, including in the cyber domain. However, these powers cannot, for the most part, be used domestically.

The day that Dutton called for this new debate, the heads of three of the Commonwealth’s most powerful law enforcement agencies—the Australian Federal Police, AUSTRAC and the Australian Criminal Intelligence Commission—delivered a joint speech on the issue at the National Press Club.

Collectively, our top law enforcement officers discussed the challenges of dealing with an increasing number of investigations involving child exploitation material and the abuse of children. They made a case for using ASD’s cyber capabilities domestically by revealing the challenges associated with the global nature of child exploitation networks, increasingly younger victims, the growing technical complexity of these groups’ activities and the legislative difference in access to ASD assistance for foreign and domestic offenders.

Dutton wants the AFP to be able to access and search bulk datasets in the same manner that AUSTRAC can examine financial transaction data. Yet law enforcement doesn’t have many of the necessary technical capabilities, especially given the widespread use of encrypted apps.

To solve this problem, he’s suggesting that the AFP should be able to access ASD capabilities to support the identification, investigation, arrest and prosecution of child exploitation networks in, or with connections to, Australia.

However, legislation prevents ASD from using its powers to collect information and intelligence on systems based in or linked with Australia. So, the government is proposing a public debate on legislative change to allow law enforcement access to ASD capabilities to save children from exploitation.

Dutton makes the point that ‘at the moment, if there is a server in Sydney that has images of a five- or six-month-old child being sexually exploited and tortured, then that may not be discoverable, particularly if it’s encrypted and protected to a point where the AFP or the ACIC can’t gain access to that server’.

Dutton is driven by an admirable philosophy that police should be given every power possible to relentlessly pursue paedophiles. And he challenges the electorate to consider ‘whether we think it’s acceptable for our society to tolerate the presence of these criminal networks right next door to us’.

No one can disagree with the power of this argument, or the implications of any failure to act. However, changes to Australia’s national security arrangements need to be underpinned by a nuanced policy discourse that seeks to reinforce open government and good governance, not impassioned arguments.

Although the government is only talking about using ASD capabilities to deal with paedophiles, there are already murmurs of their need in organised crime, terrorism and bikie gang investigations.

Everyone wants to save children from exploitation, but there must still be space in the public discourse to consider the unintended consequences of such a proposal, including the possibility of scope creep.

Unfortunately, Dutton’s use of such disturbing and personalised examples limits the opportunities for the kind of public debate that’s needed to make sound fundamental changes to our intelligence legislation.

Any public debate on the issue needs to give greater recognition to the fact that Australia’s intelligence arrangements are the result of both open government and good governance. They’re the outcome of two royal commissions, and two further independent reviews in 2004 and 2011.

Australia’s increasingly contested and uncertain strategic environment is without doubt creating an unquenchable thirst for intelligence. Similarly, the threats to Australia from terrorism, espionage and foreign interference continue to grow to historic highs—which again draw heavily on finite intelligence resources.

The Australian intelligence community’s services are in high demand, and perhaps already oversubscribed. ASD, like all our intelligence agencies, faces an almost unprecedented demand for its services. Any unfunded role changes will result in very real impacts somewhere along the line.

This is not to say that the full powers available to the Australian government shouldn’t be brought to bear to save children from exploitation. Rather, the debate requires its participants to step above the emotive nature of the issues at hand. And, in doing so, it’s important to acknowledge that rapid legislative change to Australia’s intelligence arrangements should be avoided.

If a debate is to occur, government needs to provide specific details on exactly what it’s proposing, and how it will ensure accountability for these new powers.

And, at the very least, this debate should be informed by former Defence secretary Dennis Richardson’s unclassified report on his comprehensive review of the legal framework governing the national intelligence community, which is due for public release this year.

In ASPI’s Agenda for change 2019, I argued the case for reforming the Department of Home Affairs. Despite its many successes, the department’s establishment hasn’t been smooth and a significant number of budgetary, legislative and machinery of government challenges need to be resolved. However, these challenges pale in comparison to some of the broader ideological debates underway on issues like the securitisation of citizenship and migration or the centralisation of security policy.  It seems clear that whoever wins the next federal election will need to consider what to do next with the Home Affairs construct.

Whatever comes next shouldn’t be driven by overly simplistic binary choices between keeping or dismantling the department, or between security or freedom. Cooler heads may be tempted to call for a more deliberate policy approach, perhaps even a white paper. I suspect that even if a white paper were to be produced it would be viewed by many as a rigged game. The incoming government can do better than making binary choices or attempting negotiated compromises. Before making any decisions, it ought to be mindful of two overarching factors when resolving this policy challenge, the cost of change and public support.

As highlighted in December by the secretary of the Department of the Prime Minister and Cabinet, Martin Parkinson, the public service isn’t a Lego set that can be painlessly rebuilt by each incoming government. For all of the questions that have been raised about the performance of Home Affairs, any further departmental and legislative changes are likely to be costly in terms of resources.

Perhaps of equal concern will be the impacts that further changes will have on those responsible for migration, border security, national security and community safety. While change is a familiar companion for any modern bureaucracy, our public servants, police and intelligence staff within the Home Affairs portfolio are likely to be feeling more than a little fatigued by the breadth, depth and speed of the altered work circumstances they’ve had to deal with in recent years. Another swathe of changes will bring with it further uncertainty that could well create new security vulnerabilities for Australia.

Polling indicates that over the past decade there’s been a steady decline in Australians’ trust in government. Between 2012 and 2017, that trust declined from 47% to 37%, placing us 10 points lower than our US counterparts. Future policy initiatives will need to make a compelling public case when changing the balance between security and freedom.

While policy and strategy are important in the home affairs space, success in law enforcement, security, intelligence and community safety is predicated on community support. But the Turnbull government failed to make a strong enough case for the establishment of the department at the start, and this has haunted the portfolio ever since.

If Home Affairs, or whatever follows it, is to be successful, then a strong, evidence-based case must be presented to the Australian people. This case will need to be even stronger if any future policy initiatives seek to further change the balance between security and freedom.

Whoever forms the next government needs to engage in further public policy dialogue and consultation on migration, domestic and border security, and community safety. The most obvious option here is for the government to commission a green paper. In recent years the green paper has fallen out of use by governments and the public service in Australia. But with falling public confidence and ideological battle lines drawn, a more consultative approach is needed.

A green paper could outline and explore all of these issues and its authors could engage with old and new thinking to generate a series of policy options. The success of a Home Affairs green paper will be predicated on its authors being able to develop an unclassified and understandable case for any changes.

The added bonus for a government that adopted such an approach would be that it would not need to commit to follow up on a green paper’s findings, as is the case with a white paper.

The green paper could then be used to stimulate a much healthier and more informed public discussion. With the green paper, and its subsequent policy discussions, the government could then commission a more prescriptive white paper to help determine its final policy decisions.

Under normal circumstances, the government would direct the portfolio or department responsible for an issue in flux to prepare a green paper. Unfortunately, the issues surrounding Home Affairs have become so politicised and toxic that anything produced by the department or its portfolio agencies is likely to be viewed as tainted. Because of this, the government should consider engaging an independent party, or parties, to prepare this document.

Recent reports in the Sydney Morning Herald and the Age of shortfalls in the manning and funding of the Australian Border Force’s Cape-class patrol boats and earlier exchanges in Senate estimates suggest that the seaborne element of our civil maritime security effort is facing serious problems.

This may be evidence that the concept of the ABF needs another look. When the ABF was formed in 2015, it included all the old operational elements of the customs service, including its seagoing forces, as well as enforcement personnel from other government agencies. The intent to create consistency in the enforcement of border laws through a single workforce was and is laudable. But it may not sufficiently recognise that ships involve more demanding specialist operator and maintainer skills, as well as much greater resources, than do many other activities of the ABF.

Whatever its benefits on shore, the ABF may also have been addressing a problem that never existed in the maritime domain. For many years, the ‘cloak’ of the wide-ranging Customs Act provided authority for both civil and military elements to enforce Australian law at sea. In 2013, this arrangement was succeeded by the equally powerful Maritime Powers Act, which allows ABF, Australian Defence Force and Australian Federal Police personnel to enforce the law in our maritime domains. In particularly complex situations, deep specialists, such as officers from the Australian Fisheries Management Authority, can also be used, and their advice is still available at the departmental level. That advice is vital because maritime security involves many agencies—a good number of which are not in the home affairs portfolio.

It’s also uncertain whether the agency that the ABF sits within—the Department of Home Affairs—is itself properly equipped to manage the sea and air capabilities that the ABF operates. The current controversy suggests that Home Affairs may have underestimated the cost of maritime security and been too ready to balance its budget by seeking economies in the sea and air programs.

The assets which Home Affairs currently manages represent a quantum jump from anything in the past, but they come at a price and the capability-management elements of the department are likely to be under considerable strain. This is not just a question of providing fuel, spare parts and crew wages; it also includes matters such as certification, training, configuration control and ongoing maintenance, all of which require sustained effort from technically expert staff working under knowledgeable senior executives—as well as a lot of money.

The Defence Department has experienced enough difficulty over many years in understanding and meeting the full requirements of ownership of its own increasingly sophisticated systems. With a much smaller workforce, Home Affairs must be challenged when so much is required of it.

Furthermore, the approaching end of the Coastwatch aerial surveillance program, centred on 10 Dash 8 surveillance aircraft, has required initiation of the ‘future maritime surveillance capability’ project. Given the evolution of remote sensors and unmanned vehicles since the start of the previous contract in 2006, the proposed solutions for the new project are likely to provide tremendous new capabilities, but they will also make it harder to select the right new options.  And  when that task is complete, there will be the challenge of bringing the chosen capability to fruition. One important issue will be whether the air crew and operators continue to be employees of the successful surveillance contractor or are fully incorporated into the ABF.

There are other matters to be resolved. In peacetime, civil maritime forces are vital components of the national security task that need to be readily identifiable as distinct from the ADF. In wartime, however, there need to be mechanisms for mobilising and incorporating these units into the military effort.

There’s also the question of whether the search and rescue (SAR) aircraft operated for the Australian Maritime Safety Authority (AMSA) should be managed under different arrangements from Coastwatch. The control of SAR must always occur in an open environment, separate from classified maritime security operations. However, given that both the ABF and the ADF immediately make assets available to AMSA whenever SAR requirements emerge, it’s questionable whether AMSA should operate its own aircraft when they could instead be fully incorporated into the national airborne surveillance and response effort.

The key problem for government is that any deficiencies in the availability of our civil maritime security forces must inevitably be made up by the ADF. This is not only uneconomic past a certain level of commitment, but also a misemployment of people and platforms that have many other things to do in the contemporary environment—increasing our presence in the South Pacific being only one.

The time has come to re-examine the structure for managing and operating our civil maritime security capability from first principles. We have got operational command and control largely right through the interagency mechanism of Maritime Border Command. Raising, training and sustaining the civil maritime surveillance and response capability must be put onto similarly firm foundations.

By the end of last week parliamentarians and sections of the media (see here and here) had all offered opinions on whether independent MP Kerryn Phelps’ medical evacuation bill would restart the people-smuggling trade to Australia.

Prime Minister Scott Morrison went as far as to say that ‘the beast was stirring’. In my own analysis, I argued that the bill would spark hope of a future life in Australia in those ‘desperate souls lost across the region and the globe’.

Putting aside this binary and occasionally emotive discourse, it’s rather disturbing that for six years Australia’s public policy dialogue on asylum seekers and refugees has consistently coalesced around irregular maritime arrivals and offshore processing. These issues are important, but boat arrivals have slowed markedly, and those that are embarking on a journey to Australia are being turned around or towed back as part of Operation Sovereign Borders.

Unfortunately, the debate on offshore processing has drowned a much-needed broader discussion on the challenges facing our humanitarian migration program.

Australia’s humanitarian migration policies are delivered by two programs: onshore and offshore. The larger of the two is the offshore humanitarian program, which is divided into two categories. The first is the ‘refugee’ category, which is focused on ‘people who are subject to persecution in their home country and are in need of resettlement’.

Applications for these places are submitted to Australia’s overseas missions. The following graph provides a visual analysis of the visas granted in this category over the last five years. It seems odd that we haven’t debated why the number of grants for visa subclass 204, ‘women at risk’, is at a five-year low (from 1,043 in 2013–14 to 940 in 2017–18).

The second category is the special humanitarian program. This program is for those who are ‘subject to substantial discrimination amounting to gross violation of human rights in their home country and have a link to Australia’. The graph below provides a visual analysis of the overall composition of the offshore humanitarian program. Over the last five years, an increasing percentage of Australia’s offshore humanitarian visas have been granted to those with existing connections to or links with Australia. There’s been little in the way of public discussion on why these changes have occurred, or whether the government is looking to civil society to do more to assist the resettlement of special humanitarian category refugees.

Australia’s onshore humanitarian program is composed of irregular maritime and air arrivals. While the boats have been stopped, the number of people travelling to Australia by air on student or tourist visas, for example, and claiming asylum on arrival has changed significantly over the last two years.

In 2016–17, 18,290 applications for protection visas were lodged; in 2017–18 this jumped to 27,931. In 2017–18 only 18% of these claims were granted. As the number of claims rises, the Australian Border Force (ABF) and Department of Home Affairs are expending increasing resources on processing applications lodged onshore, more than 80% of which are rejected.

Most of the applications in both 2016–17 (59%) and 2017–18 (66%) were lodged by Malaysian and Chinese citizens. Surprisingly, there’s been little public debate as to why the number of Chinese citizens applying for protection jumped from 2,269 in 2016–17 to 9,315 in 2017–18.

In 2016–17, Australia granted 1,711 protection visas and 1,435 the following financial year. When it comes to successful applications, there’s been remarkably little discussion about why only 2% of Malaysian citizen protection visa applications and 10% of Chinese citizen applications are granted.

In his foreword to ASPI’s 2017 report People smugglers globally, former immigration minister Phillip Ruddock argued that ‘a cohesive, resilient, multicultural Australia can be generous within our capacity to help those in greatest need. That is reliant upon strong border security.’ I would argue that the integrity of Australia’s border security is now being challenged by the increasing number of rejected onshore applications originating from air arrivals. This, and not the prospect of more boat arrivals, should be seen as Australia’s most pressing migration and border issue.

It’s easy to see why Home Affairs has used extraterritorial methods to assist Australia’s migration controls, including the implementation of strict visa requirements, the use of sanctions for carriers that bring incorrectly documented arrivals, the deployment of ABF airline liaison officers, the use of biometric technologies and the occasional excising of territory for the purposes of the Migration Act. These measures are critical to reducing the number of onshore applications—whether they be maritime or air arrivals. They are important to maintaining the integrity of Australia’s border, but also serve to reduce the workload involved in processing and managing the growing number of onshore protection visa rejections.

The fact remains that the demand for humanitarian resettlement already far exceeds the places made available through resettlement countries’ humanitarian programs. Globally, the number of people needing humanitarian resettlement is growing by the day, and climate change is likely to accelerate this trend. While debate on whether the maritime people smuggler beast is stirring rages for a second week, discussion on the broader trends in Australia’s on- and offshore humanitarian program remains muted.

While we need to resolve what to do with those asylum seekers on Manus Island and Nauru, we also need to work out how to address the growing number of onshore protection applications. A bigger strategic challenge is how to work more effectively with the international community on ways to mitigate the factors that are undermining human safety and security across the globe.

The human cost of illicit drug use in Australia—whether from heroin overdoses in the 1990s or, more recently, from methamphetamine (ice) and MDMA (the main ingredient in ecstasy)—makes the headlines because it personalises the issue. The latest deaths of young people at music festivals have sparked an overdue public debate on drug harm reduction, zero tolerance of drug use, and pill testing (see here, here, here and here).

Unfortunately, these deaths haven’t sparked a broader discussion on the strategic challenges of reducing the supply of drugs.

When the Australian law enforcement community continues to regularly break drug seizure records, it’s easy to assume that the supply of illicit drugs is being constricted. Alarmingly, that’s not happening, and serious strategic drug supply issues need to be addressed by governments in 2019.

Last year, the United Nations Office on Drugs and Crime (UNODC) world drug report and wastewater analysis in Europe and Australia appeared to support a conclusion that levels of drug use globally were at best stable. It seems that despite record seizures, global wholesale prices of illicit drugs are decreasing.

The data also suggest that the markets for drugs like cocaine, heroin and synthetics are being oversupplied. The UNODC reported that opium poppy and coca bush cultivation is increasing and it appears that the global oversupply of illicit drugs may worsen in 2019. The implication here is that in 2019, law enforcement’s large seizures will have less impact on the availability of these drugs in our communities.

In 1969, while serving as a consultant to the US President’s Commission on Law Enforcement and Administration of Justice, Donald Cressey formulated the hierarchical model of organised crime that has dominated law enforcement strategy for 50 years. Cressey’s work, based on his analysis of the Italian Costa Nostra criminal syndicate in the US, resulted in strategies that focused on the arrest of senior crime figures. Law enforcement leaders believed organisational decapitation could disrupt whole syndicates.

Australia’s serious and organised crime threats continue to globalise through syndicate structures and supply chains. This evolution is giving criminals access to fee-for-service criminal facilitators who add new levels of operational complexity, especially through money laundering and technology. For today’s world, Cressey’s model of organised crime is far too simplistic to take account of the increasingly networked structure of criminal groups.

Today’s oversupplied and increasingly fragmented illicit drug supply chains appear increasingly immune from the impacts of large seizures and decapitation methodologies. In 2019, it’s likely that law enforcement’s conventional strategies will have even less success in disrupting supplies. Arrests and seizures won’t achieve the type of deterrence or disruption effects that reduce the flow of drugs—and that will necessitate a complete rethink of how law enforcement approaches the problem.

With user demand for heroin stabilising globally, and Afghan poppy cultivation increasing, many criminal groups in the Golden Triangle are shifting their focus to producing and distributing synthetic drugs. The UNODC’s World drug report 2017 noted that East and Southeast Asia had become the leading subregions for methamphetamine seizures worldwide.

The report noted that criminal groups in Laos and Myanmar had become significant players in the global production of synthetic drugs (primarily methamphetamines). The numerous ungoverned spaces in both countries provide criminal groups with safe havens for producing large quantities of both low- and high-purity methamphetamine.

Collectively, the ASEAN Economic Community reforms and the Chinese Belt and Road Initiative are increasing mobility through large parts of the world, but that is unintentionally strengthening transnational illicit drug supply chains.

Southeast Asia appears to be on the brink of an ice epidemic, with cheap and high-purity drugs being produced at an industrial level. Harm-minimisation safety nets are few and far between in the region, so the impact of this epidemic in 2019 is likely to be dire.

The region’s contribution to Australia’s illicit drug problems has been frequently highlighted in the Australian Criminal Intelligence Commission’s illicit drug data reports.

Given the drug supply situation, and its potentially catastrophic impacts in Australia and across the region, the office of the Commonwealth Transnational, Serious and Organised Crime Coordinator should be preparing a new national strategy for Australia’s whole-of-government efforts to help disrupt the manufacture, shipment and abuse of synthetic illicit drugs in the Mekong Subregion.

Over the past several years, Canada and the US have been devastated by a synthetic opioid epidemic. The crisis had its origins in a medical system, overseen by the Drug Enforcement Agency (DEA), which between 1993 and 2015 allowed production of opioid and synthetic opioid-based painkillers such as oxycodone to increase 39-fold, hydrocodone to increase 12-fold, hydromorphone to increase 23-fold, and fentanyl to increase 25-fold. That, in turn, paved the way for easier access to prescription synthetic opioids and created a large population of people addicted to prescription painkillers.

In 2015, in response to a growing overdose problem, the DEA drastically reduced the annual quotas for production of synthetic opioids. Many of those addicted to the synthetics quickly switched to heroin, now a burgeoning illicit market in North America.

At the same time, organised crime groups from China to Mexico started manufacturing fentanyl to meet the demands of the new illicit market.

I must admit that, until late 2018, I had assumed that our domestic drug controls were sufficient to keep Australia from experiencing a similar crisis, and that the strength of drugs like fentanyl—which is 50 times stronger, and hence much more dangerous, than heroin—would discourage recreational drug users from experimenting with them.

The data presented in the report of the National Wastewater Drug Monitoring Program, released in September 2018, indicated that I may have been wrong. Instead of going down, fentanyl consumption was at the highest levels ever recorded in Australia.

Sampling indicates that consumption is consistent throughout the week, which may mean that much of this fentanyl could be prescribed for medical purposes. Given the strength of fentanyl, this usage pattern is a health concern.

In light of the American experience, Australian governments would do well to approach the problem with caution. Any sudden changes in policy or legislative measures that restrict access to fentanyl could displace users to other, illicit, drugs.

It’s critical that the public discourse on drug harm minimisation continues, and hopefully it will have a tangible effect on policymaking. Governments and law enforcement must rapidly engage with the emerging challenges of illicit drug supply in 2019. Without new thinking, the effectiveness of current law enforcement strategies will continue to decline.