In 1922, German political theorist Carl Schmitt wrote a seminal essay ^[1] arguing that sovereignty is defined by the power to suspend state law during times of extraordinary threat to national security. The government can then neutralise that threat unencumbered by the laws that normally balance state power with civil liberties.

After 9/11, Schmitt’s thesis, not in name but in concept, became the foundation for the Bush administration’s ‘war on terror’ and US foreign policy for the next 20 years. It provided the juridical reasoning ^[2] for the US government–sanctioned use of torture, or ‘enhanced interrogation techniques’, by military and intelligence agencies on the basis of national security, which contravened domestic legislation and international human rights conventions to which the US was signatory.

In Australia, as in the US, there have been concerns about civil liberties being eroded by the passage of new surveillance and detention laws in order to help law enforcement and intelligence agencies prevent terror attacks. But public and political discourse suggested this was largely perceived as a justified rebalancing of national security risks and democratic freedoms, to protect citizens from the extraordinary threat at hand.

Today, reeling from successive Covid-19 lockdowns, closed borders and a delayed vaccine rollout, this trade-off is being interpreted very differently by many Australians. Current legislative efforts to neutralise the exceptional threats we face are subject to greater scrutiny as to their impacts on civil liberties—for example, the Telecommunications and Other Legislation Amendment (Assistance and Access) Act ^[3], used in the recent organised crime bust led by the Australian Federal Police with a host of international partner agencies, including the FBI.

Managing the balance between security and liberty is an ongoing and necessary part of a democracy. But current concerns are fuelled by growing mistrust in government among parts of Australian communities. The protests that coincided with the ‘state of emergency ^[4]’ passed by the Victorian parliament in 2020 are an example of this mistrust bubbling over, with citizens objecting to increased policing powers to enforce public health orders. It’s also where mainstream distrust of ‘oppressive ^[5]’ and ‘unlawful ^[5]’ government policy was seeded in the Australian far right.

Right-wing and Islamist violent extremists, along with organised criminals, are increasingly exploiting the relatively unpoliced nature of the internet to recruit new followers and conduct business. Operation Ironside ^[6] demonstrated the vast and resilient organised crime networks operating domestically but embedded in broader, globalised business models. It also highlighted how significant the role of police access to encrypted messaging apps can be in leading to arrests and seizures. Yet the recent passage of legislation ^[7] that increases the online powers of police and intelligence agencies to disrupt and prevent these threats has left Australians divided, concerned by potential unintended consequences and privacy ramifications.

According to the AFP, instrumental to Operation Ironside’s success was TOLA, which was used ^[8] ‘for the first time in combination with the legal authority from the FBI’. TOLA has withstood significant public, industry and political criticism, fuelled by ^[9] potential privacy considerations and ramifications for the tech industry, which is now legally required to decrypt and supply data to police and intelligence agencies in exceptional circumstances. A parliamentary review ^[10] into the act is pending.

The great irony is that the global rise of right-wing extremism and neo-Nazism—which has also been seen in Australia ^[11]—has accelerated during Covid-19 due to grievances about restrictions on personal freedoms by mandatory public health orders. In Australia, these groups have achieved some level of coordination and coherence by coalescing around the idea ^[12] of oppressive governments using police to enforce Covid-19 lockdowns. This concern has a legitimate basis, found in the democratic argument that seeks to ensure government and law enforcement are not excessively empowered. But it is weakened by the proliferation of conspiracy theories rife with extremist ideology and narratives that the groups propagate and weaponise in online forums. Examples include disinformation campaigns against public health orders and the vaccine rollout, such as the well-worn lie that Covid-19 is a conspiracy and a hoax.

Recent polling ^[13] suggests that trust in Australian federal and state governments has increased across the mainstream population during the pandemic, while a smaller cohort remains distrustful. But there has been a consistent downward trend in this metric since the 2007 poll, indicative of a general, long-term decrease in trust in government. These trends dovetail with the surge in right-wing extremist ideology, given that anti-government sentiment is often a foundational element.

The vibrant debate about the federal government’s efforts to increase the powers of policing and intelligence agencies is symptomatic of a healthy democratic political system, built on robust public discourse. But the growing number of people radicalising through right-wing extremism, which in 2021 has grown to 40% ^[14] of the Australian Security Intelligence Organisation’s counterterrorism caseload, indicates that something is amiss for at-risk individuals and groups with whom anti-government and other right-wing extremist ideologies resonate.

What’s at stake here is trust that the sovereign power of the federal government is exerted to protect the freedom as much as the security of Australians.

The implication for government and law enforcement efforts to stem growing radicalisation enabled by anti-government sentiment is that counterterrorism policing efforts, while necessary, are fundamentally not addressing the factors driving radicalisation. They need to be reframed to account for right-wing extremists’ grievances. Efforts aimed at fostering community resilience to right-wing extremist ideologies and the Covid-era mis- and disinformation campaigns enabling them are critical.