Tuesday, 18 September 2012
Matters of Public Importance
A letter has been received from Senator Siewert:
Pursuant to standing order 75, I propose that the following matter of public importance be submitted to the Senate for discussion:
The threat posed by existing and proposed government incursions into Australian’s right to privacy and the freedom of the individual.
Is the proposal supported?
More than the number of senators required by the standing orders having risen in their places—
I thank the chamber. This debate has been triggered by matters that are presently before the Parliamentary Joint Committee on Intelligence and Security. I would not normally propose to bring matters like this before the chamber while they are in the capable hands of that committee because that process has a way to go—and I look forward to its report—but I have proposed this debate here this afternoon for a number of reasons: firstly, because of the extraordinary scope of the proposals put before the committee, which have sparked a consensus of opposition among some very unusual allies and, secondly, because of the almost total absence of detail or justification in the government's discussion paper when it comes to the most extraordinary examples of overreach proposed in the terms of reference. What I am hoping will come from this debate is some clarity from government senators as to what is being proposed and the rationale for it, because it is something I have not been able to ascertain. Judging by the behaviour even of some government senators in recent hearings, late last week, it appears even government MPs are not sure exactly what the government is proposing because some of these proposals are unjustified. From coalition senators, particularly from the Liberal Party, as Senator Mason beats a retreat from the chamber—
I am glad to hear that, Senator. I am very interested to know whether the party of liberalism proposes to stick up for the rights of individuals, whether their privacy is threatened offline or online, and why exactly it is that the coalition appear to be going along with this proposal. I would also acknowledge, however, that there have been some very strong statements by coalition senators. I am very keen to know whether this is the view of the party room or whether some individuals have been let out on a leash to test opposition to the proposals. These things are deadly serious. That is why I have made something of an exception this afternoon and brought these matters to the chamber while they are still under discussion by the joint committee.
The parliament and the joint committee have been brought into a conversation that the Attorney-General's Department has been pursuing with an unwilling technology sector for at least two years. What would it take, the government wants to know, for phone and internet companies to record all of our activity online—every move made by every Australian across all platforms? That is web traffic; it is who you emailed; it is your phone records, and probably also all of your social media activity; every financial transaction; every conversation; and, depending on how your mobile phone is configured, your location every minute of the day. This material can be accessed without a warrant by a very large number of government agencies—police and intelligence agencies but also the tax office, the health department, welfare services and so on. That is the prevailing situation at the moment; that is not the proposal that has been put to the joint committee.
Data of this kind is already kept by your phone company or your internet provider but a lot of it is simply jettisoned because of its enormous volume and the speed at which it accumulates. Such data as already exists is already being vacuumed up at an extraordinary rate by the agencies I have just mentioned: 243,631 in the 2010-11 financial year, none of it requiring a warrant, and none of it requiring judicial oversight or any accusation of criminal intent. I am sure that a fair number of these requests are used for tracking serious crimes; you just have to look at the number of anticorruption agencies that are involved in making these requests to understand that many of these requests will be in pursuit of serious criminal matters.
Compare that number, of just under a quarter of a million requests for traffic data, to the applications for intercepts, traditional phone taps and stored communications warrants, over the same time period. For phone taps: just under 3,500, with seven knocked back. Compare it to stored communications warrants over the same time period—300 requests, with two knocked back. To get access to that material, what you would consider traditional wire taps, based on decades of accumulated legal protection supported by all sides of parliament and the general community, you require a magistrate to sign a warrant, you are required to identify who you are targeting and you need to be pursuing a serious crime, one with a minimum custodial sentence ranging from between three and seven years. But, for all the metadata or traffic data that describes your life in intimate detail, whole categories of material that did not even exist five or 10 years ago, there have been a quarter of a million of these requests, with no warrants, and no requirement to be pursuing any form of criminal activity; applied indiscriminately—a quarter of a million, across the Australian population.
So for those who will come in here shortly and say that surveillance powers need to be updated to keep track of technology, I will say right now, on the record: I agree with you. But of course I thought that was what we were doing with the 45 amendments to the Telecommunications (Interception and Access) Act since 2001 and the 25 times we have amended the ASIO Act since 2001. What about updates to privacy protections, in a country with no constitutional protections for privacy, no bill of rights? Where are the 45 amendments to privacy protections to also keep track of the way technology is changing? Think about how much of our lives is now transacted and conducted online and think about where this is going.
Let us face one question head-on, the one I am asked most often: 'I have nothing to hide, so why should I worry about my privacy being basically annihilated?' My question back is: 'Do you have curtains? Why? If you have nothing to hide, why hang curtains on your windows?' Well, because you deserve privacy, because privacy is part of the dignity of your person. Would you be fine to post online your credit card bills, or all your transaction records for the past two years? Are you okay to do that? Of course, you would not be. If you wished to, you are free to do so, but I would not advise it. It is not a question of you having something to hide; it is because your transaction records for the last two years are none of anybody's business. It is perfectly legitimate to say, 'I may have nothing to hide but I don't necessarily feel like showing you either.' That is your right to privacy.
The First UN Special Rapporteur on the Impact of Counter-terrorism Laws and Human Rights, Martin Scheinin, was in Australia about two weeks ago. His response to the question, 'I have nothing to hide, so why bother worrying?' was, 'What I'm buying my daughter for her birthday is a secret. It's my secret. I don't want to share it with her or with law enforcement agencies. It's perfectly innocent, but it's my secret.' I have some sympathy for that position, whether they are political views and 'feelpinions', whether they are popular or unpopular, you should not be forced to disclose these things to a huge unannounced array of intelligence, security, police, welfare and tax agencies, to be mined indiscriminately and data-matched in case you turn out to be a criminal some time down the track.
The telecommunications industry has noted the serious cost impacts. They start at half a billion dollars a year and they only go up from there. The Pirate Party, in their submission to the joint committee, noted that one in two Germans had refrained from seeking help from professionals such as marriage and drug abuse counsellors and psychotherapists by phone, mobile phone or email because of privacy concerns. These sorts of powers have the effect of freezing up these kinds of things. One in 13 people have refrained from using telecommunications because of data retentions in Germany, which put the number at about 6½ million people. In Germany, where studies showed that using data-mining techniques for predictive purposes was a failure, it was found to be unconstitutional, as it was in Romania and Slovakia, so these things are being repealed there. This is not a path that we should go down.
I think many Australians are concerned generally about where the line has been drawn under the terrorism laws brought in under the Howard government and never repealed. This is a part of something larger. The surveillance powers that are gradually creeping in, year on year, amendment by amendment, are part of something much larger. The Victorian Acting Privacy Commissioner spoke in no uncertain terms at a recent hearing when he said:
Since 2001 terrorism laws have stripped away many of the civil rights built up in the history of the common law, which are essential to maintaining a democracy …
The prohibition against torture, for example, was previously considered absolute. I want to know whether it is any longer. No, we can no longer say that that prohibition is considered absolute in free and democratic countries such as Australia, because it has been used, excused and instrumentalised, and as such it has taken a human rights framework in the international community back decades or longer. Senator Wright proposed an inquiry into the treatment of Australian citizen David Hicks in Guantanamo Bay where he was allegedly chemically tortured. This is one such example of the erosion under these terrorism powers.
I congratulate Australia's Attorney-General for at least referring these matters to the joint committee. Senator Brandis, who has joined us in the chamber, is on that committee. But we know that this proposal has been two years in the making, under secret talks with the industry—talks that, evidently, the Australian people were not trusted to be brought in on. Why should we then trust that this collected material will not be used and abused? Why should we trust that it will stay secure when, as recently as last week on the front page of the Sydney MorningHerald, we read about corrupt police using telecommunications intercepts to spy on honest police? This is unbelievable. I do not trust this government with these powers. I would not trust an Abbott government with these powers. And I would not trust a Greens government with powers such as these. These powers should be unconditionally condemned.
I welcome today's matter of public importance debate on the right to privacy, because this is an important debate and I am extremely proud of this government's record on privacy reform. This is a topic I have had some experience with as chair of the Joint Select Committee on Cyber-Safety, as the committee explored extensively issues about privacy during our inquiry into the Cybercrime Legislation Amendment Bill.
What has always been apparent to me and, I am sure, to others in this place, is that digital technology is dramatically changing the landscape in regards to personal security, national security, crime and privacy. We need laws that keep up with this changing landscape, and having a decade-old Privacy Act just does not cut it. What the Australian Greens need to acknowledge, if they are going to talk about the Gillard Labor government's record on privacy, is that it was this government that established the Office of the Australian Information Commissioner. It is also this Labor government which has initiated a process to consider whether Australia should introduce a statutory cause of action for serious invasions of privacy.
The point I am making here is that as a government we take privacy and the individual right to privacy very seriously. In fact, only yesterday the House of Representatives passed important government reforms to the Privacy Act to strengthen protection for consumers. The Privacy Amendment (Enhancing Privacy Protection) Bill provides stronger protections for the way organisations use our information. These reforms achieve a number of important things for consumers, including: clearer and tighter regulation of the use of personal information for direct marketing; an up-to-date and modern credit reporting system, making it easier for consumers to access and correct information held about them, including on their credit reports; a tightening of the rules on sending personal information outside Australia; and a higher standard of protection to be afforded to 'sensitive information'—which includes health related information, DNA and biometric data. Undertaking these important reforms to protect consumers can only be the action of a government that takes the privacy of its citizens very seriously.
While privacy is important and we are serious about protecting it, the individual right to privacy needs to be balanced against the government having the tools to protect its citizens from crime and threats to national security. The Attorney-General has commissioned a review of national security legislation, because she recognises that our security laws, as with our privacy laws, need to keep pace with current and emerging digital technology. The review has been referred to the Parliamentary Joint Committee on Intelligence and Security for inquiry and the committee has made some recommendations. I think it is important to recognise that as yet the government has made no decisions on the matters referred to the committee.
Despite this, groups like GetUp! have been running a very misleading campaign about the national security proposals. Before I respond to the misleading information that GetUp! has put into the public domain, I just want to point out that this government should be commended for proposing changes to national security legislation in an open, consultative process, not behind closed doors. To address the claims made by GetUp!: GetUp! claims that telecommunications companies and internet service providers will be required by law to store every message you send, every website you visit and every conversation you have for two years. The truth is that the police and ASIO can get access to metadata which includes information like the time an email is sent and who it is sent to. Their access to this metadata is subject to strict legal safeguards. Storing and obtaining access to metadata is not the same as getting access to the content of communications, yet this is what GetUp! is asserting. Contrary to the claims of GetUp!, the AFP and ASIO will not be able to find out what you said to your friend or colleague in an email, or what you just bought at an online store.
The review will consider whether or not metadata should have to be held for a certain period and for how long, in case it needs to be accessed by the law enforcement authorities. This information is very useful in fighting crime. At the moment, telecommunications companies have their own policies about how long they store this data. Some store it for two years, others delete it. GetUp! has also claimed that ASIO will be able to demand your passwords to access your computer or Facebook account, and if you refuse you could go to jail. There is, in fact, no proposal for people to give up passwords. There are currently powers that allow law enforcement agencies to compel suspects to decrypt data. It is a fact that many serious criminals encrypt their data to evade law enforcement authorities, and that includes pedophiles.
As chair of the cybersafety committee, I know that one of the big criminal threats to children is that of child predators preying on children through online forums such as chat rooms. It is an unpleasant reality, but one we must confront and respond to. I know there would not be anyone in this place who would seriously suggest that we should not have the powers to try to stop these people hurting children, or to at least gather the evidence to arrest and convict them before they cause further harm.
The question the Attorney-General has asked the committee is whether the power to compel decryption of data should extend to live communications like chat rooms. These are sensible, balanced proposals, to which the government, as yet, has not conclusively responded, so I find it unfortunate that the Australian Greens have bought into GetUp!'s fear campaign. This campaign is based on a complete misrepresentation of what these proposals are about. As an example of the misrepresentation, this is what Senator Ludlum had to say in his media release in July this year:
This extreme proposal is based on the notion that all our personal data should be stored by service providers so that every move we make can be surveilled or recalled for later data mining.
I think my explanation has made it clear that all our personal data will not be stored by internet service providers or telecommunications companies under these proposals. As I explained, it is only metadata and it is subject to strict safeguards.
But this is the kind of extreme characterisation of these proposals that the Greens are buying into. A more moderate voice would be that of Australia's Privacy Commissioner, Timothy Pilgrim, in the Office of the Australian Information Commissioner. The commissioner's submission included the following statement:
The OAIC welcomes the focus of the Inquiry on ensuring that the proposals it canvasses contain appropriate safeguards for protecting the human rights and privacy of individuals.
I refer Senator Ludlum to the terms of reference of the committee's inquiry, particularly term 3(a) which reads:
The Committee should have regard to whether the proposed responses:
(a) contain appropriate safeguards for protecting the human rights and privacy of individuals and are proportionate to any threat to national security and the security of the Australian private sector
Of course, Senator Ludlum has all sorts of campaigns going on about privacy rights in the digital environment. While I do not doubt Senator Ludlum is serious about his commitment to privacy, I believe that many of his concerns are misplaced. The internet has many dangerous areas, and contains material which is illegal to manufacture or possess. It is material that should not be trafficked, and this includes child sexual abuse imagery, bestiality, sexual violence, detailed instruction in crime, violence or drug use and/or material that advocates the doing of a terrorist act.
In his additional comments in the cyber-safety committee's inquiry into the Cybercrime Legislation Amendment Bill, Senator Ludlum raised a number of concerns, and I will not address all of them. As an example, Senator Ludlam complained that the bill did not specify protections for political offences or offences where the death penalty may apply, but the committee recognised that these matters are covered by the Mutual Assistance in Criminal Matters Act.
When it comes to the latest issue—the proposals to change national security legislation—Senator Ludlam's comments have been completely represented, bearing in mind that the government has not made any decisions at this stage. The data that the government is seeking to have retained would only be used when needed, and only by law enforcement agencies to fight crime. Let us remember the example, which I think most of us know about, of the murder of John Newman in 1994. It was the call charge and mobile phone tower records which were crucial to solving that murder. But if we are going to have a debate about privacy and the rights of individuals then let us have a debate based on the actual facts, not the wild claims that the likes of the Greens and GetUp! wish to make.
Senator Ludlam, I reiterate: the data the government is seeking to have retained would only be used when needed and only by law enforcement agencies to fight crime. So if we are going to have the debate let us make it a debate based on fact and not wild claims and assertions that have been put together by the likes of GetUp! and the Greens.
I am delighted to join this discussion into government incursions into Australia's right to privacy and the freedom of the individual, though I find it a little surprising that the issue has been raised by the Greens. Nevertheless, I stand as a representative in this place of the only political party in the Senate which was established for the very purpose of defending and expanding the rights of the individual. As Mr Tony Abbott, the Leader of the Opposition, said in a very fine speech he gave to the Institute of Public Affairs in Sydney on 6 August, when speaking of the Liberal Party:
… we are the freedom party. We stand for the freedoms which Australians have a right to expect and which governments have a duty to uphold. We stand for freedom and will be freedom’s bulwark …
That was the purpose for which the Liberal Party was created in 1944. It is the purpose that animates us today. It is the purpose that will animate us always.
I caution against the use of privacy as a Trojan Horse argument to conceal further invasions of the freedom of the individual rather than to protect it. We have seen that in this country within the last year or more when privacy has been used as a Trojan Horse argument to conceal attempts by this government to restrict freedom of speech and, in particular, freedom of the press. That began in the middle of last year when the Prime Minister, Ms Gillard, misleadingly referred to the Australian Law Reform Commission's 2008 report on privacy and made the false claim that that report contained grounds for restricting freedom of the press. In fact, when one examines the 2,694 pages of the Australian Law Reform Commission's report into privacy—this is an exercise on which no politicians or journalists cared to embark, apparently—one finds that only one of the 74 chapters of that very long report dealt with the question of journalistic abuses of privacy and found not that there were grounds to restrict freedom of the press but, in fact, recommended that the freedom of the press be extended by broadening the definition of 'media organisation' in Australian law. That is an example of the misleading use of concern about privacy as an excuse to restrict freedom of speech and freedom of the press.
I referred a moment ago to Mr Tony Abbott's very inspiring speech to the Institute of Public Affairs on 6 August 2012 entitled 'Freedom Wars'. In the course of that speech, he said:
History's lesson is still that countries are stronger, as well as better, with democratic freedoms than without them.
Freedom of speech is not just an academic nicety but the essential pre-condition for any kind of progress.
That was Mr Abbott's view and in expressing that view he drew upon the deep commitment of the Liberal Party to the philosophy of freedom—freedom of speech, freedom of the individual and freedom of the press. What was the government's reaction? The government's reaction could be seen two days later when the Attorney-General, Ms Nicola Roxon, was interviewed on ABC 774 by Rafael Epstein. She was asked about Mr Abbott's speech two days earlier in which he mounted a trenchant defence of freedom of speech and freedom of the press, and the Attorney-General said:
… we don't have the sort of obsession with free speech at any price or the right to carry arms, the sort of American view that these are rights that never have to be balanced with any other public good.
When I read that, I thought how extraordinary in this day and age that the Attorney-General of the Commonwealth of Australia should attack a political opponent for being obsessed with freedom of speech and with freedom of the press, and should compare his concern about freedom of speech with the American view of the right to bear arms. What an extraordinary proposition! It just goes to show how limited, how hopeless and how unenthusiastic is this government's commitment to a fundamental democratic right.
This is the government that in September last year commissioned Mr Ray Finkelstein QC to prepare a report, a copy of which I have with me, into independent media regulation in Australia. Mr Finkelstein's report recommended the creation of an Orwellian new structure, somewhat reminiscent of George Orwell's Ministry of Truth, called the News Media Council, to impose limitations on freedom of speech and freedom of the press. Mr Finkelstein said:
It could not be denied that whatever mechanism is chosen to ensure accountability speech will be restricted. In a sense, that is the purpose of the mechanism.
Do not let anybody be surprised that, when the government's response to the Finkelstein report is received, then there are new and additional burdens and impositions on freedom of speech embraced by this government.
What I find very alarming is the reasoning behind the Finkelstein report, for this is what its author writes in chapter 2, talking about the philosophical justification for freedom of the press:
Libertarian theory was developed in the period of the Enlightenment … The theory was informed by a liberal belief that truth would emerge from the clash of competing opinions, and by a belief in the 'self-righting' capacities of public debate—
Mr Acting Deputy President, I rise on a point of order on relevance. Respectfully, through you, to Senator Brandis: I am genuinely interested in his views on the national security inquiry and call his attention to the subject of the motion that is before the chamber.
The quote continues:
… to ensure that in rational and reasoned discourse, error would be vanquished. It was analogous to the free market theories of Adam Smith … However, Libertarian theory was to prove inadequate in the face of the new forces created by the industrialisation of the press and by the realities of 19th and 20th century media economics … On top of these economic and technological challenges to Libertarian theory, the intellectual climate of the 20th century was radically different from that of the 17th and 18th centuries, when Libertarian ideals flourished. The new intellectual climate placed higher store in collectivist, societal values and less on individualistic values.
There you have it, Mr Acting Deputy President, the rationale—the argument of the Finkelstein report is an anti-libertarian philosophy, a view that consigns the commitment to freedom of the press to the days of the Enlightenment. Mr Acting Deputy President, may I tell you I am something of a fan of the Enlightenment. I think that, after the experience of the 20th century, which saw the sacrifice of more human lives to the power of the state and on the pyre of ideology than in the entire course of history beforehand, the Enlightenment has a lot more useful things to teach us than the so-called new intellectual climate of which Mr Ray Finkelstein is so enamoured. I unashamedly assert that Adam Smith has more useful things to teach us than Marx, Mao or Marcuse, or any of the other avatars of the new intellectual climate.
Let me conclude with the words of John Stuart Mill. Writing in 1859, he said:
The time, it is to be hoped, is gone by when any defence would be necessary of the 'liberty of the press' as one of the securities against corrupt or tyrannical government. No argument, we may suppose, can now be needed against permitting a legislature or an executive … to prescribe opinions to [the people] and determine what doctrines or what arguments they shall be allowed to hear.
Astonishingly, four decades after Milton's Areopagitica, two decades after the newly born American republic adopted the First Amendment, we have to fight a fight in Australia today for a freedom which was so taken for granted in mid-Victorian England that Mill thought no argument was necessary to defend it.
I rise today to speak about the threat posed by existing and proposed government incursions into Australians' right to privacy and the freedom of the individual. Since 2001, with the 9/11 terrorist attacks, we have increasingly seen the erosion of the right to privacy in the fight against terrorism. Martin Scheinin, the first UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, recently described this erosion as 'the most drastic backlash in human rights protections since their emergence after World War II'.
Governments, including the Australian government, clearly have a duty to protect citizens from national security threats, and relevant law enforcement agencies should be provided with adequate powers to investigate, prevent and prosecute terrorist acts. There is no doubt that in this time the landscape within which international crime and terrorism occurs has changed considerably. Over the last 20 years we have seen massive advances in technology, communications and travel, and criminal networks have adapted accordingly. Our law enforcement agencies must be adequately equipped to effectively combat crime and terrorism in this new era.
The Greens do not deny that Australia faces a range of complex, dynamic and evolving security challenges and that we need to be adequately equipped to respond to these challenges. But protecting citizens from terrorism does not necessitate denying them their human rights. Protecting the community from terrorism and protecting people's human rights are not mutually exclusive concepts. They are mutually compatible. Indeed, they must reside together. Otherwise we must question what it is that we are safeguarding and protecting.
As the Human Rights Law Centre has said:
… the objective of protecting human rights—such as the rights to life, liberty and security of person enshrined in the International Covenant on Civil and Political Rights (ICCPR)—is consistent with the objective of protecting Australian communities. Both objectives are fundamentally concerned with protecting the community and individuals from harm.
Since 2001, Australia has enacted over 50 new anti-terror laws that have substantially expanded the powers and functions of our security, intelligence and law enforcement agencies. Many advocates and human rights lawyers have criticised the reach of these laws, saying that they have gone too far in protecting against terrorism at the cost of human rights. Stakeholders have pointed to the lack of any comprehensive human rights framework in Australia, which has resulted in insufficient scrutiny of the impacts of these laws on the human rights of Australians over this time, including the right to privacy.
In the absence of comprehensive legal safeguards of privacy in Australia, and given the growing concern about the privacy implications of the development and use of new technologies, the Australian government should take action to ensure that its stated intention to 'respond to terrorism while upholding the rights and freedoms of all Australians' is a real commitment to achieve positive human rights outcomes for everyone and not just political rhetoric. In July 2012, the Commonwealth Attorney-General's Department released a new package of national security ideas, including proposals which would substantially increase both online and offline surveillance and monitoring. The Parliamentary Joint Committee on Intelligence and Security is currently considering these reforms to our national security legislation.
Many of the proposed changes to national security legislation raise concerns about their impact on Australia's international law obligations to respect, protect and fulfil human rights—in particular, the rights set out in the ICCPR, including the right to privacy. The right to privacy is protected under article 17 of the ICCPR, which provides that:
1. No one shall be subjected to arbitrary or unlawful interference with his—
and I should say 'his or her'—
privacy, family, home or correspondence, nor to unlawful attacks on his—
honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
In signing up to the ICCPR, Australia has agreed to take all necessary steps to respect, protect and fulfil human rights. This includes an obligation to ensure that laws and policies do not interfere with or breach the right to privacy.
Greg Barns, the former national president of the Australian Lawyers Alliance, has labelled these proposed reforms:
… the most significant grab for legislative power by security agencies in Australia since they took advantage of the hysterical political climate created by September 11 and the Bali bombings.
He said further:
If these proposals become law, the capacity of security agencies to spy on citizens, to bully telecommunications providers and to inflict violence on persons subjected to raids, will be significantly enhanced.
It seems that the government is neither fulfilling its promise to uphold human rights while protecting against terrorism nor fulfilling its obligations under international human rights law.
It is possible to protect the community against terrorism while also protecting individuals' human rights. As I said before, the two are not mutually exclusive. Many people talk about this as a balancing exercise. However, for too long the balance has been struck to the detriment of the individual. We must consider the inherent dignity and rights of the individual in Australia when we are making decisions and taking action to protect individuals and communities against terrorism. Human rights law asks us to consider human rights and, when we take action that is inconsistent with those rights, it requires us to double-check that what we are doing is fair and reasonable.
In doing so, we must ensure that action taken in the name of national security and national interest is both legitimate and necessary to achieve the purported aim. The action must also be proportionate. It must be appropriate, it must be the least intrusive means available to achieve the aim and it must be proportionate to the interests of the individual and community. This is what we need to be considering when we are looking at the proposed national security legislation reforms. We need to consider whether the right balance has been struck.
Senator Bilyk referred to the views of the Australian Privacy Commissioner, but I note that the Acting Victorian Privacy Commissioner, Anthony Bendall, has strongly criticised a number of the government's proposed changes as being wholly inappropriate. In relation to the proposal to allow law enforcement authorities access to an unrelated third party's computer on the way to obtaining evidence, he has said:
To access a third party's computer which has no connection with the target is extraordinarily broad and intrusive. These are powers usually characteristic of a police state.
It is interesting to note that, at the very moment that someone is extolling the virtue of striking the right balance between national security and personal liberty, they are almost always proposing a reduction in the latter.
The special rapporteur has highlighted that the right to privacy throughout the world has been eroded over recent times as a result of the global fight against terrorism and a renewed focus on strengthening national security protections. He has noted that:
This erosion takes place through the use of surveillance powers and new technologies, which are used without adequate legal safeguards. States have endangered the protection of the right to privacy by not extending pre-existing safeguards in their cooperation with third countries and private actors. These measures have not only led to violations of the right to privacy, but also have an impact on due process rights and the freedom of movement … and can have a chilling effect on the freedom of association and the freedom of expression.
Without a rigorous set of legal safeguards and a means to measure the necessity, proportionality and reasonableness of the interference, States have no guidance on minimizing the risks to privacy generated by their new policies.
As we consider the new national security legislative changes in this parliament, we need to look at them within the frame of the concerns outlined by the special rapporteur.
We also need to consider our privacy laws more broadly and the weak protections that they currently provide with respect to human rights. If the government is insistent on implementing further national security changes, it should also consider strengthening privacy laws so that, if there are breaches of privacy which are not reasonable, or proportionate or justified, by ASIO, for example, an individual has an enforceable right to compensation.
This is a very interesting and timely debate, and in my contribution I would like to focus on where personal responsibilities lie in terms of the Australian Greens proposition that existing and proposed government efforts threaten Australia's rights to privacy and freedom of the individual. As I say, it is a very timely debate. This week the Melbourne Age is featuring the privacy issue, canvassing some of the issues raised in the submissions to the Parliamentary Joint Committee on Intelligence and Security's inquiry. As a member of the inquiry I want to make a few comments—although I note that Senator Bilyk did respond to much of the misinformation that is around about the considerations before the committee at the moment. It is a healthy debate and one that I really welcome. The events of this week and last, triggered by that miserable, low-budget, moronic video, The innocence of Muslims, frames the debate today in a very interesting way. I think we would be talking about a different issue if this had not occurred.
What we have here is a series of events that go to the heart of the concerns being expressed in some of the submissions. To provide a bit of context, let me backtrack. In May 2008, the Australian Law Reform Commission concluded its inquiry of more than two years into the effectiveness of the Privacy Act 1988 and made significant recommendations—295 recommendations—for reform in a range of areas, including telecommunications, credit reporting information, health records, and privacy protections generally. As Senator Bilyk outlined, the government has responded significantly this week with the bill that has just passed through the House and will be here soon.
One of the ALRC's recommendations was that the most serious invasions of privacy could best be addressed through the introduction of a statutory cause of action for privacy. The Victorian and New South Wales law reform commissions have also recommended a statutory cause of action for privacy. The considerations that have occurred since that time have been around that fundamental question. I would suggest that we cannot simply consider whether action is desirable without also working out how best to do it.
As Senator Ludlam posed the question in his opening comments in this debate and Senator Bilyk also responded in terms of some of the issues raised in the security inquiry, I do not want to go into too much depth about the range of suggestions being tested in the Attorney General's Department's consultation paper, except to say that the overwhelming concerns expressed by submitters to date have been around the protections of privacy. Those submissions are on the committee's website and are there for most to see. There are some protected submissions which contain details of national security, but most of the submissions are there and are a very honest attempt to actually deal with the complexity of balancing national security and national interests, and issues of encryption and storing data.
On the issue of the data retention myth that is being perpetuated, it is true that the existing Telecommunications (Interception and Access) Act allows the police and ASIO to access what is called metadata. Metadata includes things like the time an email is sent and who it is sent to. They do not have the power to actually access the content.
And location. That is already the law. It is important for fighting crime and it is subject to strong legal safeguards.
I do not want to pre-empt where the committee's recommendations might fall—and I noted that Senator Ludlam was monitoring the proceedings last Friday and I hope he will continue to do so because it is important that people think very carefully about what is going on. But for me the issue is how developments in technology mean that it is so much harder for individuals to take steps to protect their own privacy—and I come back to the issue of personal responsibility.
Technology features everywhere in our lives now. There is satnav in our cars, pay TV, BPAY, eBay, e-tags—it is everywhere. We do our best to protect our privacy and that of our families, almost without thinking about it. We change our passwords regularly—don't we? We cover our pin at the ATM. We store our personal information safely. We have passwords on our phones, computers and blogs. Thankfully, simple actions are usually enough and serious invasions of privacy are infrequent.
Technology has fundamentally changed the way we work, how we bank, how we shop, how we engage with government and the way we relate to friends, family and of course people we have never even met—or never will meet. New technology provides new opportunities, but it also provides us with many, many new challenges—one of which is whether the laws relating to privacy have kept pace with these changes.
Senator Ludlam just showed me his phone. Smartphones allow us to take and instantly share photographs—without the knowledge or consent of the subject, by the way. We have seen examples of how a private email or a thoughtless tweet has been forwarded to thousands of people around the world—and this week, of course, unfortunately, we saw that YouTube video going viral. Facebook sites can be hacked and personal details can be mined. Cloud computing offers great potential but its security must be assured. The high-profile privacy breaches reported in the media are often a result of new and emerging technological capabilities.
Every day, technology is becoming more affordable and more accessible. Australia has one of the highest rates of mobile phone ownership in the world. Around a third of children between the ages of five and 14 have access to their own mobile phone, which is an incredible statistic. We are enamoured of the new and improved features on our mobile phones, and their unobtrusiveness and prevalence mean that it is possible for people to be photographed or recorded, without their knowledge, almost anywhere. We are connected to the internet at home and at work. At the end of 2010 there were more than 10 million internet connections and unknown numbers of people at the end of those connections. We are demanding faster internet connections for increased delivery of health, education, and government services online, so the take-up speeds are extraordinary.
Last week in the hearing of the intelligence and security committee we heard evidence of exponential growth in data downloads predicted in the new few years. I note that the Australian Privacy Foundation has suggested that the government has failed to tell people how much of their personal information is being collected and therefore has created a honeypot of data that is open to potential abuse. I have to say that the government is very alert to these concerns, and I would argue that the government is the most attentive player in meeting its obligations to protect the privacy of its citizens.
Senator Bilyk has talked about the reforms to the Privacy Commission, but I just want to remind people that the pervasiveness of digital technologies has made the landscape for the preservation of individuals' privacy more complicated. If any of you were to open your wallet, I know what you would have. You would probably have a flybuys card, frequent flyers card, store loyalty cards and stored value cards. You need to know that you are sharing information that you might not be aware of in terms of valuable information about your shopping habits. Woolworths has 6.5 million reward card members swiping their cards regularly. Coles has about five million. Consumer cards are a way of linking personal information with shopping behaviour, and the datasets are incredibly rich.
I want to conclude where I began, with the abhorrent behaviour we witnessed in Sydney on the weekend. The main perpetrators have been identified and arrested for inciting violence and damaging vehicles, and they were identified through widely available technologies: the face recognition capabilities of Facebook; the interception and tracing of text messages, Twitter and instant messaging; and footage from closed-circuit cameras in Sydney's CBD. Frankly, I am glad they were. I would rather it be that way—that people are made accountable for their actions. But governments of all persuasions—and potentially, one day, as Senator Ludlam suggested, perhaps even a Greens government—have an obligation to protect the rights of citizens and to ensure that any legislation balances personal rights and responsibilities. 'Proportionality' is the word that Senator Wright used. This debate does not allow me time to talk about the Parliamentary Joint Committee on Human Rights, but privacy is critical to that committee too. (Time expired)
A troublemaker said to me earlier, 'Brett, you'll enjoy the discussion this afternoon because it is a bit esoteric.' It may seem esoteric but, in fact, as Senator Ludlam said, it is actually fundamental. It goes to fundamental issues about the relationship between the individual and the state and about the quest for individual autonomy versus the impulse for community. One might ask: how important is that? It is absolutely critical. The great British philosopher Sir Isaiah Berlin said this: 'These'—that is, the quest for individual autonomy versus the impulse for community—'are the two cardinal ideas that have faced one another and dominated the world since the Renaissance.' So we are not talking about a minor issue. We are talking about the role and the relationship of the individual with the state over the last 500 or 600 years.
If you think that is a bit esoteric, can I just draw on popular culture for a second. I watch TheWest Wing. I hate to say that I am somewhat of a West Wing tragic. Not so long ago, towards the end of The West Wing, Sam told Toby and the President that privacy was going to be the big issue of the next decade. He said: 'In the 1920s and the 1930s it was the role of government. In the 1950s and the 1960s it was civil rights. In the next 20 years it will be about privacy: the internet, cell phones, health records, and who is gay and who is not. Besides, in a country born on the will to be free, what could be more fundamental than this?' Of course, he is right. That was said before the rise of Google and Facebook, so that has made the argument even more so. The power of the internet, the use of social media, the technological revolution and the promiscuous exchange of information have all given rise to a fear of a surveillance society.
Senators may have read 1984I did many years ago—and they may have been disturbed by Orwell's dystopian technological vision. I was. In this debate, that is the nightmare—something like that. I am glad that the Greens recognise that the greatest threat to liberty is the government, ultimately. Ultimately it is the state. A long time ago, when I gave my first speech in this place, I quoted the great British historian Paul Johnson, who wrote—and we should never, ever forget this:
The destructive capacity of the individual, however vicious, is small; of the state, however well-intentioned, almost limitless.
Let us never, ever forget that. We hope on this side that Labor and the Greens, particularly the Left in Australian politics, appreciate that fact. Ultimately—and I agree with Senator Ludlam and certainly Senator Stephens' eloquent contribution—the tension between an individual's privacy and the security of the state and its citizens is a matter of balance. I think most senators would agree that it is always a matter of balance. Sure, no-one wants a surveillance society. No-one wants a surveillance state. But neither do we want terrorists to act with impunity. None of us wants that. An examination of an individual based on reasonable suspicion is generally fine. If there is reasonable suspicion about an individual then I think even Senator Ludlam would say : 'That's okay. Police can then act.' I think that is fair enough. But, in effect, driftnet fishing for information through the internet and elsewhere is far, far more problematic, because then of course there is the potential for governments to use that to look at people whom they might see as being, let us say, a dissident or undesirable or someone who cannot be trusted or who may be a deviant. So it becomes highly problematic when there is driftnet fishing. If there is reasonable suspicion—sure. But I am not quite convinced of driftnet fishing at all.
We talk about emails. They can be stored. They can be opened. I recognise that. Technology has made that much easier. Yet we would have been outraged 30 or 40 years ago if all our mail—what we now call our 'snail mail'—was opened by the state; stored and then opened. No-one would countenance that. In fact, it is an offence to open Royal mail or Australian mail without a warrant. We would all be outraged if that happened. Yet now some make the suggestion that it is okay because they are just emails, you can store, hold and analyse emails, and that might be okay. Well, I am not so sure. Again, if there is a reasonable suspicion and a warrant then that is different. I understand that. But when it comes to harvesting millions, perhaps even billions, of communications across the globe, storing them, opening them when appropriate, the balance lies with the state to show that that is strictly necessary. It must prove why it needs that information. The individual does not need to prove it. The state must.
On balance, I think it is fair to say that in this nation we have got the laws against terrorism more or less right. I am not saying they are perfect; I am not suggesting that. But I do remember during the Howard government years that Senator Payne was often the chair of the legal and constitutional committee. She did a terrific job, often sparring with ministers and, who knows, potentially the Prime Minister, to come to some balance between the rights of the individual and the state. Let us face it: it is a very, very difficult balance. But I think generally she served our nation proud. I know that Senator Brandis had something to do with that as well. It is a terribly difficult balance. No-one would ever say that it was perfect, but in fact I think she found a better balance than the original legislation had prescribed—so a bouquet to Senator Payne.
The coalition is the principle legatee in this place of liberal democracy. I have always been suspicious—even though I am always generous, as you know, Acting Deputy President Fawcett—of Labor and the Greens on anything to do with the rights of individuals against the state. My friend Senator McLucas has left the chamber but from the time of my first speech, 12 years ago, to now I have often spoken about the failure of the Left in Australian democratic politics in the 20th century to really bring to heel the far Left and communism. The greatest failing of the Left in the 20th century was their romanticism of communism.
So I am not suggesting for a second that what Senator Ludlam said was wrong. I am a sceptic, and I always need to be convinced. That is where I am coming from. In the end, it is the Liberal Party that is the legatee of liberal democracy. Ultimately, it is liberalism that protects individual rights in this country, as it has in the Western world since the Renaissance. Ultimately, the Liberal Party, with its liberalism and with its scepticism of the state, its scepticism of state power and its understanding of state power—the fact that it appreciates what the state can do to the individual—makes the Liberal Party a far better agency to determine balance than the Left in Australian politics.
When we finally arrive at a balance in this parliament, I can at least assure Senator Ludlam—and he is quite right to put this to the coalition—that it is an issue about the relationship of the state and its citizens, and the Liberal Party in particular cannot escape that debate and, in fact, it would have to be central to its resolution.