As the Government increasingly embraces the use of technology, there are a range of laws that have been passed in recent years, along with rhetoric that they improve public safety, and ensure Australia is safe from the threat of terrorism.
And at the time these laws were enacted, most of us believed this was official Government PR. But what’s becoming increasingly clear is that many of these laws don’t actually strike a healthy balance between protecting our everyday personal freedoms and protecting the country.
Australia consistently ranks on a global scale as a country where the threat of terrorism is not considered exceptionally high, and yet since 9/11 Australia has passed or amended more than 60 laws related to secrecy, spying and terrorism — more than any other liberal democracy.
Laws which impact our lives
Many of these laws impact the lives of everyday Australians – their freedom of movement, freedom of association, and freedom of speech.
And here are some examples: laws which broaden police powers of arrest, to those which allow officers to control peoples’ movements and associations, to laws which permit them to detain suspects for longer periods of time without charge. There are laws which allow police to ‘shoot first and ask questions later’ and give them immunity from both civil and criminal prosecution during ‘special intelligence operations’, even if they commit heinous assaults against innocent people in the process.
Personal privacy too, has been vastly eroded in the passing of these laws. Federal laws now enable the enable the creation of a national biometric database using driver licence photos supplied by states and territories, which could be used for any number of intrusive purposes.
Perhaps the most controversial has been the introduction of metadata retention laws, which were introduced in 2015, state that internet service providers are required to keep data including call records and IP addresses of all users for at least two years, and hand it over to law enforcement agencies when requested, without the need for them to obtain a warrant.
Lack of Government transparency
In July 2019, Australian Federal Police (AFP) have admitted accessing the metadata of Australians around 20,000 times in just 12 months. This admission came during the AFP’s submission to the parliamentary joint committee on intelligence and security’s review of the mandatory data retention laws.
Australia is the only Western democracy to have such pervasive surveillance laws, and their lack of transparency and accountability has raised serious concerns that the information being accessed is not limited to metadata, but encompasses a range of other data including the content of communications.
Information on the number of times metadata is accessed by government agencies is supposed to be released in an annual report on the operation of the Telecommunications (Interception and Access) Act, but a report hasn’t been released for nearly two years.
Raids on media
The release of these latest figures showing AFP accessing metadata came just after it was also revealed that the AFP also accessed ABC reporter Dan Oakes’ private travel records from Qantas as part of their AFP investigation into the leak of classified documents into alleged misconduct among Australian troops in Afghanistan.
Dan Oakes was one of the ABC journalists involved in the Afghan Files story, which resulted in a raid by AFP officers on the head offices of the ABC in Sydney, the day after AFP officers searched the home of NewsCorp journalist Annika Smethurst who published a story about proposed new powers which would allow some intelligence agencies within the Australian Government to spy on the general public.
It’s still not clear whether journalists will be prosecuted over these raids, but there are laws which enable to Government to prosecute not just the journalists, but their sources of information. Former Military Lawyer David McBride is already facing the Supreme Court in Canberra charged over leaking classified Government information. Mr McBride maintains the stance that the information he provided to the ABC for the ‘Afghan Files’ was in the public interest.
Another ruling by the Supreme Court recently upheld a decision by the Australian Federal Government to sack Michaela Banerji over Twitter posts she wrote under the handle ‘LeLegale’ while working for the Department of Foreign Affairs (now known as the Department of Home Affairs) that were critical of the Australian Government, its immigration policies, and its treatment of immigration detainees. This judgment sets a precedent to the effect that the right of public sector employees to freely communicate on political matter is constrained by rules set down by their employer, including any codes of conduct. Since Ms Banerji’s sacking, the Australian Public Service (APS) has revised its code of conduct in relation to social media making it clear that even liking or sharing posts could amount to a breach of the rules.
All of these examples paint a fairly bleak picture of a democracy being slowly eroded. And while we rely on the Governments we elect to consider the best interests of the general public when making laws – most of whom it must be said, go about their daily lives in a law-abiding way, many of these display a severity we should all be concerned about.
There is currently a Parliamentary inquiry underway examining some of these laws, and it may well recommend some reshaping some of them when its investigations are finalised, but at the moment, the outcome is unclear.
What is crystal clear though, is that many Australians are now coming to realise is that a significant proportion of these laws have far-reaching powers, serious implications, and exceptionally harsh penalties. And they were passed under our watch.
While indeed, technology is the new frontier, with incredible potential, we do need to take an active interest in exactly how it is being used – by governments, business and individuals, as well as how it is being legislated, and what our rights within the legislation are. Because, after all, each and all of the these recently passed laws just as easily be used on any Australians, as they can on the terrorists we’ve been told by the Government, that they were designed to protect us from.
Sonia Hickey is a freelance writer, magazine journalist and owner of ‘Woman with Words’. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.