There is a common idea that is contained in many of the written constitutions that derive from British constitutional theory and practice. That is, laws and their administration are concerned with the ‘peace, order, and good government’ of the nation.

This constitutional tradition stemming from Britain was less concerned with ‘life, liberty, and the pursuit of happiness’—the guiding star of the American revolutionaries—or ‘liberty, equality, and fraternity’, that of the French revolutionaries. Rather, the British tradition emphasised civil peace and the orderly conduct of government.

The threat of internal disunion was well known to the Australian constitutional framers of the 1890s, who were acutely aware of the bloodbaths of the English Civil War of the 17th century, the American and French revolutions, the revolutionary uprisings of 1848, and the American Civil War, as well as many other, lesser civil wars and violent uprisings. It made sense, therefore, that in the Australian Constitution, sections 51 and 52 deal with the Parliament’s power to make laws for the ‘peace, order, and good government of the Commonwealth’—with the phrase intended to express that the foremost function of power was to create and sustain an orderly ‘body politic’, free of internal disunion and civil conflict.

It was appropriate for the time. But modern democratic societies today are relatively peaceful and cohesive, even as they are being riven by identity-based factionalism and, on occasion, by ideological or religious extremism, and even violence. Class conflict has largely disappeared. Wealth is more evenly spread. Social divisions, whether of race, religion, identity or gender, have not generated violent mass movements, and are unlikely to do so, at least on the scale of those earlier violent or revolutionary periods.

We therefore need to modernise the concept of ‘peace, order and good government’ to reflect the principal need to safeguard Australia’s sovereignty so that it maintains internal peace while also protecting our economic prosperity, our territory and borders, our resources and our democratic and electoral integrity—all of which face new threats from the impact of external forces.

As societies and economies have become more complex and interconnected, new vulnerabilities have emerged. For instance, take ‘grey zone’ conflict, which is conducted by external adversaries that operate in the ambiguous space between peace and war. Under the term grey zone conflict is to be found subversion, foreign interference, espionage, propaganda, disinformation, sabotage, and even assassinations. Increasingly, grey zone techniques are also being used to undermine confidence in the integrity of electoral processes, as well as trust in democratic institutions and the very functioning of government.

These are old techniques. However, the openness of democratic societies, globalisation, and new technologies are creating a previously unimaginable global platform of opportunities for grey zone adversaries, who increasingly have the means to engender and exacerbate social and political differences. They are adept at amplifying the destabilising effects of social media and misinformation, and exploiting modern identity-based factionalism.

The aim of grey zone conflict is to undermine sovereignty and national self-confidence, as a prelude to the attainment of larger strategic goals such as territorial conquest, forcible resource acquisition, diplomatic subordination, or the neutralisation of the targeted nation as a potential military adversary—for instance, by having it renounce a long-standing military alliance.

Modern democracies face other externally-based threats. Cyber attacks can be mounted with the intention of disrupting or even destroying critical economic and social functions. Globally available content can be manipulated for the purposes of promoting state-sponsored disinformation, viral misinformation, or both. Globally stored and poorly secured data can be accessed and exfiltrated for criminal or hostile state ends.

Territorial integrity can be challenged at scale by global people-smuggling networks, or through the exploitation of vulnerabilities in visa and customs processes, such that public confidence in immigration is undermined. Maritime resources can be exploited illegally by way of clandestine incursions into the maritime zones of those societies that have coastlines. Long and complex supply chains, and global shipping, can be disrupted, or criminally penetrated, or both. Ubiquitous and accessible air travel can be exploited by criminal smugglers, or can spread global pandemics before health authorities can contain their outbreak. Terrorist groups can mount significant attacks from ungoverned safe havens, or can radicalise citizens or residents within a nation through online means. Transnational serious and organised criminal networks can penetrate borders, wreak social and economic havoc, and endanger public safety and the revenue base.

At the extreme end of the spectrum, nothing would be more detrimental to the ‘peace, order, and good government’ of a nation than the storm of war, especially nuclear war, or the impact of a cataclysmic event that had a society-damaging, existential character—such as a massive cyber-attack, a natural event of unparalleled destructiveness, or a severe biological incident, especially in the case of a deliberate bio-attack for which there was no readily available response.

In these circumstances, ‘peace and order’ would become problematic, and the continuity of government, and of critical social and economic functions, might even be at risk. Hence the need to modernise the old concept of ‘peace, order, and good government’, in response to these developments. Today, the concept should be thought of as the capacity of the nation to secure itself against the complex and disruptive forces that bear on its sovereignty, and its social and economic functioning. Before it does anything else, a modern nation has to be able to protect and exercise its sovereignty, secure its social and economic functioning, control its territory, protect its resources, maintain its internal peace, and ensure that ‘good government’ can occur—through unfettered elections, and ministers and parliamentarians being able to effectively carry out their duties.

There is a concept in the Migration Act 1958 that speaks to this new sense of an old idea. In the Act, section 116(1)(e) refers to the ‘good order of the Australian community’. In Australian case law, especially in the Tien case (1998), ‘good order’ is associated with the maintenance of the ‘values, balance, and equilibrium of Australian society’. This case law specifically relates to the power of the immigration minister to deny entry to, or to remove, someone who might disrupt the ‘equilibrium of Australian society’.

If it is accepted that Australia as a nation has a right to control its territory, by restricting or otherwise controlling entry to its territory, in the interest of maintaining the nation’s equilibrium, then it follows that the idea of good order extends more generally to encompass other facets of maintaining the nation’s equilibrium. Why would such an idea be limited to immigration entry and removal, and not be applicable to other facets of sovereignty?

Given the profound significance of these issues, it makes sense to have a department of state that is focused on ‘peace, order, and good government’, in the same way that other departments are focused on the economy; external affairs; military defence; or the rule of law, the administration of justice, and the integrity of government and public administration.

Of course, since 2017, with the re-establishment of the Department of Home Affairs by the Turnbull Government, there has been in place the nucleus of such a department—although it is, in its current form, devoid of some critical functions. Having such a department would ensure that there was clear ministerial accountability for the ‘peace, order, and good government’ function. The department would be charged with scanning relevant threats, assessing risks, developing strategies and plans, and generally ensuring unity of effort, while its associated statutory agencies would act independently to the same ends, within their lawful remits.

Such a department would still have to work in close cooperation with other departments, such as the Treasury on foreign investment screening, Health on pandemic response, and Defence on civil defence, which would need to be closely integrated with military planning.

Careful judgement would need to be exercised in relation to where to draw the boundaries of the department’s responsibilities under the Administrative Arrangements Order—the document signed by the Governor General setting out the responsibilities of portfolios and ministers. The guiding principle would be to aggregate effort where this made sense. A useful template would be the aggregation of functions under the single legal construct of the ‘security of critical infrastructure’, whereby ‘sectoral’ departments are closely engaged—for instance, the Treasury for banking and financial services, and Communications for telecommunications—but it is Home Affairs that ensures there is unity of effort and an aggregated focus on securing the nation’s critical infrastructure.

It would make sense to bring the enforcement—though not the development or drafting—of the Commonwealth’s criminal laws into the purview of the Home Affairs ministry, consistent with the idea of having focused ministerial oversight of the ‘peace, order, and good government’ function. The Attorney-General should always retain ministerial responsibility for law enforcement integrity and oversight, as well as for Commonwealth criminal provisions and related powers, and the integrity of the security intelligence function. This would ensure that balanced attention is paid at the ministerial level to the disruptive forces and threat actors that were mentioned above, on the one hand, and to considerations of the rule of law, the administration of justice, and the integrity of government and public administration, on the other.

In terms of the immigration function, it would make sense for Home Affairs to manage the ‘good order’ functions which are suggested in the Migration Act, namely visa processing and immigration entry, detention, and removal, while supporting a cabinet-level immigration minister who would be charged with working with colleagues across government in relation to the social and economic aspects of immigration.

While the original scope of responsibilities and functions that were put in place by the Turnbull Government in 2017 would largely address this strategic imperative, a gap would nonetheless remain—namely, democratic resilience. This gap could be addressed by combining the 2017 model with an element of the earlier Beazley 2001 model of a proposed Home Affairs ministry. The Beazley proposal included electoral matters—with the Minister for Home Affairs having responsibility for the Australian Electoral Commission, ministerial and parliamentary services, including protective security for high office holders; and government public communications.

With the significant increase since 2001 of foreign interference, grey zone operations, and online mis- and disinformation—all combining with chronic factors such as the destabilising effects of social media, and modern identity-based factionalism—electoral integrity and public confidence in democratic processes are coming under ever greater strain. Labor’s 2001 proposal to bring these additional functions under the ambit of Home Affairs would significantly assist in addressing these risks, for instance through effective government public communications that could counter propaganda, disinformation, and misinformation.

By combining the Turnbull model of 2017 with these other features of the Beazley model of 2001, the following functions would be brought together into a single ministry focused on the strategic and operational aspects of ‘peace, order, and good government’:

• Countering terrorism;
• Countering foreign interference;
• Countering espionage;
• Countering politically-motivated, communal, ideological, and religious violence;
• Security intelligence;
• Countering transnational serious and organised crime;
• Enforcement of criminal laws;
• Protective security of Commonwealth personnel, places, assets, and systems;
• Visa processing, and immigration entry, detention, and removal;
• Customs and border protection;
• Offshore maritime security and offshore territories;
• Seaport and shipping security;
• Aviation and airport security;
• Critical infrastructure protection;
• Cybersecurity;
• Anti-money laundering and countering terrorist financing;
• Emergency management and disaster recovery;
• Civil defence (as a wartime function);
• Social cohesion (including multiculturalism);
• Citizenship;
• Electoral matters (including electoral integrity);
• Ministerial and parliamentary services; and
• Government communications and public information.

The strategic logic of Home Affairs is clear: the idea of ‘peace, order, and good government’ needs to be transformed from a 19th century constitutional principle to a strategic and operational risk to be managed by a minister, a department, and independent agencies whose focus would be on ensuring that that older idea is able to be realised in a dramatically different world.

Doing so purposefully, and by design, will become ever more important.