Dr Tamsin Clarke, of Australian Lawyers for Human Rights, argues that freedoms which Australians enjoy such as privacy, political expression and communication with non-citizens, will be seriously eroded by the Federal Government’s raft of proposed new surveillance measures and criminal offences – relating not just to “foreign interference” but much more – which will not necessary make us safer.
Protected or repressed?
Respect for privacy – essentially freedom from inappropriate interference – is what differentiates liberal democratic states from totalitarian states and terrorist groups.
Bruce Baer Arnold, The Conversation
In a world of terrorist violence, before criticising proposed legislation that increases police and surveillance powers we should stop to consider what is acceptable. A couple of years ago I passed through Frankfurt airport and my handbag tested positive for explosives. I turned to my husband – to find him standing in a large perspex cylinder with his hands raised as they X-rayed him. He had forgotten to remove the iPad from his hand luggage before it went through the scanner.
By the time he came over to join me, I was accompanied by two Bundeswehr gentlemen carrying large assault rifles. Checks were run on us, our baggage inspected, and we were politely sent on our way, thanking the soldiers and the security officers for their concern, politeness, and caution.
I never understood exactly how it was that my handbag registered a false positive for explosives (possibly liquid soap), and no such finding occurred at any other airport. Surveillance and security checks are not always unacceptable. They keep us safe and make the job of spotting terrorists less dangerous for the forces we expect to protect us.
The ‘Security’ net widens
Opposing ‘security’ legislation is not about opposing the principle of security and the surveillance necessary for that security. But as definitions of ‘security’ become wider and wider, we need to consider if legislation is unnecessary, disproportionate, does not address genuine threats, or is repressive rather than protective of our freedoms.
So we need to consider if the Federal Government’s recent proposal for federal police to be able to stop anybody at an Australian airport and ask them to identify themselves – or order them to leave the airport – goes too far? Where does this power end? At the door of the airport? In the carpark? Or on the train to the airport?
Under Australia’s common law legal system police are not meant to stop people and ask for identification or search them unless the police believe there to be some wrongdoing. This is a hard-won protection, developed over hundreds of years in the interplay between judicial decisions and parliamentary drafting.
Police powers: Australia v Europe
Friends from Europe scoffed at my fears about this extension of police powers: protection at airports is a good thing. To show your identity papers at any time for any reason or no reason is normal in Europe. But there is a difference between Australia and Europe as to how police powers are carried out, because European countries have constitutionally-entrenched human rights protections.
A policeman stopping you to check your identity will be required to deal with you in a way which maximises the protection of all of your human rights. That is not the case here; we have no such underlying protection. And the checks and balances inherent in our government system are much reduced since the Dutton Home Affairs ‘mega Ministry’ has swallowed up not only 3 other Ministries but also bodies and powers from a number of others, centralising power over criminal law enforcement, national security, critical infrastructure protection and coordination, immigration and border control and cybersecurity.
A safety boost?
It is not at all clear that the raft of new surveillance measures and criminal offences being proposed by this government will make us safer. What is clear is that the measures will greatly diminish everyone’s rights particularly our privacy – including that of all politicians, whose ‘parliamentary privilege’ will not help them in this context – and our freedom of speech: a freedom which is essential to any free and open democracy.
Under the guise of addressing ‘foreign interference’ the federal government is proposing several new laws which will criminalise harmless and otherwise perfectly legal behaviour if there is even a hint of communication with foreign persons or entities, and which will severely restrict the political speech of civil society organisations even if they have no foreign connections at all.
At the same time, our government is racing to infringe our privacy rights by collecting and accessing not just our electronic metadata, but our images, while leaving the door open for all this information to be sold off to commercial entities (and encouraging them to create their own databases, for comparison with the information in the government ‘hub’). Australian privacy principles may apply, but we have discovered that the government does not respect these principles when it comes to whistleblowers.
Jailed for calling your mother?
Under the Foreign Interference Transparency Scheme Bill 2017 (FITS), it is a crime punishable by up to 7 years imprisonment if one acts ‘on behalf of’ a foreign principal in relation to any political activity or political communication intended to influence the government, the public, or a section of the public, and intentionally fails to self-register with the regulator (fees apply). Reckless failure to self-register can incur 5 years’ jail time.
The problem is that the definition of ‘foreign principal’ includes your friends and relatives (if not Australian citizens or permanent residents, wherever they may live) and the definition of ‘on behalf of’ includes collaboration and includes the situation where the foreign person knows or ‘might know’ that you are going to carry out some political activity or communication, even if they have nothing to do with your activity. All of these concepts are defined very widely.
The problem is that 49% of Australians were born overseas or have at least one parent born overseas. So all of these people are likely to have friends and relatives who are not Australian citizens or permanent residents. What happens if you ring your mother in New Zealand and tell her you are going to sign a petition to the Federal Government to save the Barrier Reef? On the strict wording of the FITS legislation, you need to register to avoid a possible jail term.
There are no exemptions for contacting your Member of Parliament, signing a petition or going on a demonstration. Or for talking to your father in Ireland about doing any of those things. The concept of foreign influence has been redefined to cover sharing information about completely legal political activity with any ‘foreign’ person. Academics, sporting, arts, community and cultural associations, lawyers and journalists have all submitted that their ordinary activities and communications are likely to be caught by this legislation.
Restrictions on political advocacy by Civil Society Organisations
Similarly under proposed changes to the Electoral Act, foreign donations are presumed to amount to foreign influence. Given that all major parties have agree not to accept foreign donations themselves, it is not clear why there is any need for legislation at all, and certainly not for limitations on foreign donations to civil society organisations. But it has been suggested that if political parties are restricted from receiving foreign donations, they might accept donations from friendly civil society organisations which could themselves be a conduit for foreign donations.
Again, it would seem simple to ban any entity from passing on foreign donations to Australian political parties, without applying the host of restrictions on political speech which the legislation places upon civil society organisations, irrespective of whether or not they receive any foreign donations. The legislation is disproportionate and excessive in its reach.
Similar legislation has been rejected in the Kyrgyz Republic and Kazakhstan but has been adopted in third world repressive regimes, Russia, China and first world common law countries. First world civil law countries, based on human rights regimes, protect rather than repress the speech of their civil organisations, as essential to democracy. And Costa Rica, Lebanon and Morocco protect their civil society organisations better than will Australia.
Lastly, the proposed changes to the Crimes Act in the National Security (Espionage and Foreign Interference) Bill 2017 create a host of new crimes, again mostly involving foreign communication rather than foreign influence. Strangely, ‘foreign principal’ is defined to include UN bodies, and ‘national security’ is defined as including economic and political interests not just of Australia but of other countries.
Under these broadly drafted provisions, it is possible that contacting a UN Special Rapporteur about Australian breaches of human rights could be held as amounting to espionage (if thought to harm Australia’s political interests), as could protests against the Trans-Pacific Partnership (which Trump has said concerns US economic interests). And public demonstrations could fall within the definition of ‘sabotage’.
When serious penalties (of up to life imprisonment in the case of espionage) are being proposed for behaviour which is currently regarded as an acceptable part of normal free speech, political discussion, and the free exchange of ideas across borders, is there no-one who is prepared to tell this government that it has gone too far? Ideas are not limited by boundaries. Attempts to block the discussion of political ideas with criminal legislation are a feature of totalitarian insularity.
We are told time and again that Australia needs no Human Rights Act because our federal politicians will always look after our interests. This proposed legislation proves that not to be the case.
Dr Tamsin Clarke was admitted as a solicitor in 1980. She worked for 25 years in major law firms, specialising in funds management, privacy, corporate and anti-money laundering compliance, before establishing her own legal practice. Her degrees are from University of Tasmania (LLB Hons), University of Toronto (LLM) and University of NSW (PhD) and her doctorate thesis concerned racial vilification and free speech issues under Australian legislation.
It was her interest in the ’18C’ debate which led to her first work with ALHR and she became a committee member in June 2014. The “Freedoms” subcommittee, having a wide remit, has been involved in a range of ALHR submissions. Tamsin provides pro bono advice to a number of non-profit organisations. Contact Dr Clarke at [email protected]