Justice Within Injustice, Fifteen Years On

The erosion continues. Only the pretext has changed.

Fifteen years ago, in this space, I borrowed Michael Stolleis’s title for an essay on the erosion of Australian civil liberties under Howard and his heirs. Stolleis’s insight, drawn from his study of law under the Third Reich, was that catastrophe rarely announces itself as rupture. It arrives instead as accretion – a string of small, defensible exceptions, each justified by the last, until the exception has quietly become the rule. I asked then whether Australia had reached, or was approaching, that point of no return. Fifteen years on, the honest answer is that the question itself has become almost quaint. The infrastructure of exception is no longer emerging. It is installed.

Let me deal first with the specific case that occasioned the original essay. Julian Moti’s ordeal did not end well for the Australian Federal Police. In December 2011, months after I wrote of the AFP’s professed concern for justice, the High Court of Australia permanently stayed his prosecution, finding that Australian officials had facilitated his unlawful deportation from the Solomon Islands and that the AFP’s own payments to the family of his accuser had brought the administration of justice into disrepute. The Court did not need to rule on whether the prosecution was political to reach that conclusion; it was enough that the AFP’s own conduct, not Moti’s, was the scandal. Captain Fred Martens and Jill Courtney have never received anything resembling that vindication. Their cases simply expired, unresolved, the way most AFP misconduct expires – not overturned, just abandoned once the political utility of the accusation had passed.

The pattern of the AFP acting first and the courts correcting later runs through the intervening years in ways that have nothing to do with the Pacific or the ACT. In June 2019, AFP officers spent seven hours searching News Corp journalist Annika Smethurst’s Canberra home over a 2018 story revealing a proposal to let the Australian Signals Directorate spy on Australians domestically, copying the contents of her phone onto a police USB drive. The following day, AFP officers spent close to eight hours inside the ABC’s Sydney headquarters, executing a warrant over the 2017 “Afghan Files” reporting that had exposed alleged war crimes by Australian special forces. A third raid, on News Corp’s own offices, was reportedly cancelled only because of the scale of the public backlash to the first two. The Acting Commissioner insisted the raids had proceeded “at complete arm’s length” from government and that no one was above the law; the Prime Minister said much the same. Ten months later the High Court agreed the Smethurst warrant was invalid – so carelessly drafted that it misstated the very offence being investigated – but declined to order the seized material returned or destroyed, leaving the AFP in possession of what it had taken under a warrant the country’s highest court had just thrown out. No charges were ever laid against Smethurst. The raids did at least produce two parliamentary inquiries into press freedom and a standing coalition of Australia’s biggest media rivals, united for once in arguing that too much ground had already been ceded to national security.

What the AFP did to the messengers who set those stories running is the more instructive story. The ABC’s Afghan Files reporting existed because David McBride, an army lawyer, had given the broadcaster the documents behind it; those allegations were later substantiated in full by the Inspector-General of the Australian Defence Force’s own inquiry into war crimes in Afghanistan, led by the judge and army reservist Paul Brereton. McBride was prosecuted anyway, pleaded guilty in November 2023 after his public-interest defences were stripped away one by one, and in May 2024 became the first Australian whistleblower jailed in living memory – five years and eight months, with the trial judge making clear the sentence was meant to deter others. He was released on parole in August this year, thirteen years after this essay’s original argument and almost nine years after the reporting that put him in a cell. Witness K, the former intelligence officer who exposed Australia’s bugging of Timor-Leste’s cabinet room during oil and gas negotiations, received a suspended sentence for the same category of disclosure; his lawyer, Bernard Collaery, spent four years under prosecution for advising him before Attorney-General Mark Dreyfus finally ordered the charges dropped in July 2022, by which point the Commonwealth had reportedly spent some six million dollars pursuing him and his three co-accused. Richard Boyle, who told the ABC about the Tax Office’s use of standover garnishee tactics against small businesses, was originally charged with sixty-six offences; after seven years he pleaded guilty to four of them in a plea deal and was given a twelve-month good-behaviour bond with no conviction recorded, the sentencing judge describing his offending as occurring in “extenuating circumstances.” None of these four cases involved any real dispute about whether what was disclosed was true. In every one of them it was. The prosecutions were never really about the facts; they were about who gets to control which facts become public – Stolleis’s argument restated in a different key. Not a single dramatic seizure of power, but an accumulation of individually defensible prosecutions that, taken together, teach everyone watching exactly what happens to people who tell the truth about the state to people outside it.

Since 2011 the machinery I described has not shrunk. It has metastasised. Between 2001 and 2011, Australia passed fifty-four pieces of federal anti-terrorism legislation – already, by any comparative measure, an extraordinary output for a country that has experienced remarkably few domestic terrorist attacks. By the mid-2020s researchers were counting closer to ninety-six, a rate and scale of what counter-terrorism scholar Kent Roach has called “hyper-legislation,” outstripping even Australia’s historical wartime powers. The mandatory two-year retention of every Australian’s phone and internet metadata became law in 2015, passed by a Coalition government with full Labor support – the same bipartisan pattern of complicity I described in 2011. The 2018 encryption laws followed, compelling technology companies to weaken security on demand. The 2021 Identify and Disrupt Act gave the AFP the power to modify, add, copy or delete a target’s data outright. Each measure passed, as the earlier ones did, on the promise that it would be used only against the gravest threats; each has since been used far more broadly than that promise implied.

The same rotation is visible in state and federal parliaments, quite apart from anything to do with policing agencies directly. The Human Rights Law Centre counted forty-nine separate laws restricting the right to protest passed across Australian jurisdictions in the two decades to 2024, with New South Wales, on its own analysis, the worst offender in the country. Since then the pace has, if anything, accelerated. The federal parliament banned the public Nazi salute and the display of terrorist symbols in 2023, added new doxxing offences to the Privacy Act in 2024, and strengthened Commonwealth hate-crime provisions again in February 2025. New South Wales moved in the same month to let police issue move-on directions against anyone protesting in or near a place of worship – a power its own Law Reform Commission, in a review led by former Chief Justice Tom Bathurst, had recommended against only months earlier. After the Bondi attack, both New South Wales and Victoria gave their police forces sweeping new powers to shut down or move on protests in the aftermath of a terrorist incident, while Queensland rushed through its own hate-speech package, which the Queensland Council for Civil Liberties warned had the potential to move well beyond banning Nazi symbols and into criminalising ordinary slogans used in pro-Palestinian advocacy. None of these laws is, on its face, an unreasonable response to real antisemitic violence. All of them have also been used, in the months since, against pro-Palestinian protesters and climate activists, including two Greenpeace campaigners arrested in March this year under provisions never designed with them in mind.

The same choreography that played out in the Moti case – a court restrains the executive, and the political response is not restraint but re-engineering around the ruling – repeated itself almost exactly with immigration detention. In November 2023 the High Court, in NZYQ, overturned two decades of settled law and found that indefinitely detaining a person with no real prospect of removal was unconstitutional, releasing well over a hundred people, some of whom had been held for years. The government’s response was to introduce, within days, a “tough” preventative detention regime built around curfews and ankle monitors – legislation later held by the High Court itself to be unconstitutional, because punishing people who had committed no further offence was exactly what the Constitution forbade. Undeterred, Parliament passed a third set of laws in November 2024 allowing the government to deport members of the same cohort to countries that are not their own. Three attempts at the same object inside twelve months is not an aberration. It is what erosion by accretion looks like when the courts keep saying no and the answer, every time, is to ask the question differently.

Then there is the event that has done more than any other to shape this argument’s current form. On 14 December 2025, a father and son, radicalised by Islamic State propaganda, opened fire on a Hanukkah gathering at Bondi Beach, killing fifteen people, including a ten-year-old child, and wounding dozens more. It was, by any measure, an atrocity, and it deserves to be named as exactly that, without qualification. What is worth noting, in the spirit of the evidentiary precision I try to hold myself to, is what followed: a Royal Commission on Antisemitism and Social Cohesion, an interim report in April this year making fourteen recommendations, and a finding, stated by the Commission itself and accepted by government, that existing legal and operational frameworks did not fail on the day and that no urgent new legislative powers were required. That finding has not stopped a group of thirty former senior security and defence officials from publicly calling, last month, for the Commission’s mandate to be extended to also examine “protest organisations.” The pattern from 2011 repeats with uncanny fidelity: real harm, an official inquiry, an official conclusion that existing powers were adequate – and a chorus, regardless, for more.

Nowhere is the gap between the promise of accountability and its delivery clearer than in the National Anti-Corruption Commission’s short and turbulent life – and nowhere is the coincidence more pointed than in the fact that its inaugural Commissioner was the same Paul Brereton whose Afghanistan inquiry had, years earlier, confirmed that McBride had been telling the truth. Within a week of the NACC opening for business in July 2023, it received six referrals arising from the Robodebt Royal Commission – the scheme that Commission had already found to be unlawful, and which pursued debts against more than half a million people, several of whom took their own lives. Eleven months later, in June 2024, the NACC announced, in a two-page statement, that it would not investigate any of the six. More than a thousand complaints followed. The NACC’s own Inspector, Gail Furness SC, found that Brereton had declared a conflict of interest over one referred person – widely reported, though never officially confirmed, to be the former department secretary Kathryn Campbell, whom he had known for years as a fellow senior officer in the Army Reserve – then remained, in her word, “comprehensively” involved in the decision anyway, conduct her report characterised as officer misconduct. An independent reconsideration by the retired High Court judge Geoffrey Nettle overturned the original decision in February 2025, finding that all six referrals in fact raised a corruption issue requiring investigation. Even then the rehabilitation was only partial: the NACC kept the re-investigation in-house, assigning it to a deputy commissioner whom integrity experts described as already tainted by involvement in the original decision, prompting renewed calls from the Centre for Public Integrity for a genuinely independent investigator. Brereton’s difficulties did not end there. In May 2026 it emerged that he had spent his entire tenure as Commissioner privately advising the Inspector-General of the Australian Defence Force on the same Afghanistan war crimes matters that had made his name – work done without his own commission’s or the government’s knowledge, and which required him to remain a serving member of the very Defence Force his commission was simultaneously supposed to be capable of investigating for corruption. Facing a second officer-misconduct inquiry and the departure of his own deputy, Brereton resigned on 25 May 2026, two years short of completing his term, describing the focus on him as a “distraction.” Geoffrey Watson of the Centre for Public Integrity was blunter: the NACC, he said, “has been nothing less than a disappointment.” A body built specifically to restore public trust in institutions spent its first three years being independently corrected, twice, for the same failures of self-disclosure and self-management it exists to police in everyone else – under the leadership, for all three of those years, of the one man in the country arguably best placed to know exactly what genuine accountability is supposed to look like when it works.

Closer to ACT Policing’s own conduct, the pattern holds. The AFP itself changed hands last October, when Krissy Barrett succeeded Reece Kershaw as Commissioner; the office is different, the institutional culture whose product this essay is chronicling not obviously more accountable for it. The ACT Ombudsman’s June 2025 report into use of force found unprofessional conduct, offensive language or unnecessary aggression in roughly a third of the fifty-four incidents it examined in detail – a sample the AFP Association dismissed as too small and too selectively chosen to be representative, a defence that will sound familiar to anyone who has watched the AFP respond to scrutiny before. A separate Commonwealth Ombudsman review of AFP complaint-handling found investigators closing serious matters, including some involving injury to children, without adequately assessing whether the force used had been reasonable or proportionate, and using their discretion to drop complaints at more than double the previous rate. I wrote about that review in these pages last year; I did not expect, this year, to be writing its sequel.

And the case that anchored the original essay – the former Commissioner for ACT Revenue, transferred out of his post in October 2003 for “political reasons” in the middle of an investigation into missing public assets, racially vilified and sacked – remains, astonishingly, unresolved. It is not resolved by the NACC, which did not exist when the relevant conduct occurred and has shown no inclination to reach back for it. It is not resolved by the Ombudsman, state or federal. It is, as of this year, the subject of a pending submission to the United Nations Human Rights Committee, because after more than two decades every domestic avenue – the very avenues I have just described – has been tried, and none of them worked. That a matter can outlast three changes of federal government, a change of AFP Commissioner, and the creation of an entire national anti-corruption architecture, and still require an appeal to Geneva to be heard at all, is not an indictment of one case. It is the clearest evidence available that the erosion Stolleis described, and that I wrote about in 2011, was never really about any single law. It is about what happens to institutions once they learn that accountability is optional and delay is free.

Fifteen years ago I promised a petition calling for a Royal Commission into the AFP. It never went up – other fights intervened, as they always do – and I make no claim that one would have changed much; Royal Commissions have their own long, undistinguished record of recommendations quietly filed away, and Australia now runs several at once. What I would ask of readers now instead is smaller and more durable: watch which emergencies get you a new law, which get you a report saying the old ones were already enough, and which get you a watchdog investigating itself and calling the outcome accountability delivered. The gap between those three responses is where the injustice within justice actually lives.

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Bakchos is the founder of Blak and Black, an Australian media and advocacy platform established in 2010. Bakchos writes from the intersecting perspectives of Wiradjuri heritage, Jewish identity, and humanism.

© Bakchos, September 2026

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