Security Legislation Review 

into the operation, effectiveness and implications of amendments made by the Security legislation Amendment (Terrorism) Act 2002, Suppression of Financing of Terrorism Act 2002, Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002, Border Security Legislation Amendment Act 2002, Telecommunications interception Legislation Amendment Act 2002 and Criminal Code Amendment (Terrorism) Act 2003.

See http://www.ag.gov.au/agd/WWW/agdhome.nsf/AllDocs/C2CE3EBE73794EF8CA2570A5001FAB3C?OpenDocument 
Submission by the Australian Privacy Foundation, January 2006

1. The Australian Privacy Foundation is the main non-governmental organisation dedicated to protecting the privacy rights of Australians. Relying entirely on volunteer effort, the Foundation aims to focus public attention on emerging issues which pose a threat to the freedom and privacy of Australians. The Foundation has led the fight to defend the right of individuals to control their personal information and to be free of excessive intrusions. The Foundation uses the Australian Privacy Charter as a benchmark against which laws, regulations and privacy invasive initiatives can be assessed.  For information about the Foundation and the Charter, see www.privacy.org.au 
2. The provisions under review have serious implications for several aspects of privacy:

•	Bodily & Territorial privacy 
•	Communications privacy 
•	Information privacy

Terms of reference

3. It is now unsatisfactory that the Committee’s review is limited to the six enumerated laws, given the passage of even more controversial anti-terrorism laws in 2004 and 2005.  In some cases the more recent changes affect the operation of the laws under review, and it makes little sense to artificially restrict the review.  We urge the Committee to acknowledge the implications of the more recent changes, and to go as far as possible in taking them into account.  
General points

4. The APF is not opposed to all aspects of the changes enacted in recent years.  We have no in-principle objection to review and updating of security laws to cope with developing threats, where the need for this can be justified on the basis of empirical evidence or well argued intelligence hypotheses.

5. Many of the new powers appear uncontroversial – in some cases merely incidental or technical amendments which do not extend agency powers in any significant way.  However, even some of these apparently unobjectionable powers need to be reviewed in light of their effect when applied in the context of new definitions, such as of ‘terrorism’ and terrorist’ – see further discussion below.

6. Regrettably, Australia has no constitutional or statutory bill of rights against which proposals for increased state powers can be measured and tested.  In the absence of such a benchmark, it is all the more important that laws providing such powers are reviewed and assessed at intervals.  The statutory requirement for this review is unusual but provides a valuable opportunity.  We urge the committee to ask, and demand answers to, a series of key questions.  Some of these have previously been set out in the Privacy Commissioner’s Framework for assessing and implementing new law enforcement and national security powers.   We pose our own version of these questions, with supplementary comments, below.

What is the evidence of need?

7. We suggest that some threats may well have been exaggerated to provide a convenient justification for greater powers which make life easier for police and intelligence agencies, but at the expense of important civil liberties.

8. Politicians are understandably driven by a risk-avoidance strategy – fearing the judgement of electors in the event of an arguably preventable terrorist incident.  Yet it is fundamentally dishonest and a failure of leadership not to admit that risk cannot be eliminated entirely, and that preventative measures must be balanced against other important public interests and societal values.

9. Governments have largely succeeded in changing public perceptions, and engendering a widespread acceptance that the security environment has somehow changed dramatically as a result of terrorist incidents since the September 2001 attacks in the United States.  The media have participated willingly in this changed perception, possibly because a climate of threat and fear makes good ‘news’.

10. However, little empirical evidence has been brought forward to support the perception of a changed environment.  We suggest that the Review Committee’s first duty is to challenge the authorities to produce relevant evidence and quantify the allegedly increased risk that has been used to justify the amendments to legislation.

11. We suggest that in recent historical terms, there is no basis for the position taken by most Australian governments – both Federal and State.  Independent analyses of the actual incidence of terrorism, defined as politically motivated violence targeting civilians, suggest that there is no greater real risk currently and in the last few years than throughout the nineteen seventies, eighties and nineties when groups such as the IRA, Red Brigades, ETA, Black September etc planned and carried out violent acts throughout the world in pursuit of political objectives.

12. Governments’ own actions are in any case ambiguous and contradictory – as evidenced by the unchanged official risk or threat assessment levels since 2001.  Intelligence agencies appear to have backed away from suggestions, made when convenient by Ministers, that there are hundreds of dangerous extremists in Australia.

13. The Committee could also usefully insist on a clearer discussion about the use of terms such as ‘terrorism’ and ‘terrorist’.  Australian politicians, following the lead of the US administration, have taken to using these terms in an extremely loose and flexible way in support of a range of positions, many of which have little to do with ‘politically motivated violence targeting civilians’.   It is not, for instance, appropriate to use terrorism in the context of armed resistance against occupying forces, as in the insurgency in Iraq.  

14. Any sensible debate about terrorism has to acknowledge the reality that one person’s terrorist is another person’s freedom fighter, and that perceptions about the acceptability of ‘politically motivated violence’ can and do change over time and in difference contexts.  

15. There is also a morally indefensible hypocrisy about our politicians’ blanket condemnation of civilian casualties from so-called terrorism and the apparent acceptance of ‘collateral’ civilian casualties from the actions of the armed forces of our allies and ourselves. 

16. The Committee would perform a valuable service by recommending against loose and self-serving use of language and terminology in relation to terrorism.

17. The government has consistently failed to provide any reasoned justification as to the respects in which existing laws are not adequate to deal with particular threats.  Mere assertions that new powers are necessary are an unacceptable basis for changes.  The Committee should insist on case studies of investigations and prosecutions where the new powers have actually made a significant difference.

What is the evidence of urgency?

18. On almost every occasion, the government has argued that there is an urgent need for the amendments.  However, on the many occasions prior to July 2005 when Senate insisted on proper enquiries, there is no evidence that sometimes lengthy delays caused any difficulty, and the resulting laws were undoubtedly improved by the Committee Inquiries. 

What is the evidence of effectiveness?

19. The Committee should insist on examples of where and how the new powers have been used.  The convenient excuses of ‘operational confidentiality’ and ‘privacy’ should not be accepted – there is no good reason why appropriately ‘anonymised’ case studies cannot be provided for public debate, and in exceptional circumstances where a relatively independent authority (such as the Inspector-General of Intelligence and Security or the Ombudsman) certifies a need for secrecy, the Committee may need to take evidence ‘in camera’.  Again, agencies and government ministers simply cannot be trusted to be the sole arbiters of whether operational details need to be kept secret.  The Committee should also review and question the need for any ‘binding certificate’ powers that can apply to the exercise of the powers under review.

20. The Committee should also take evidence as to whether the exercise of the powers under review may actually be counter-productive – and even dangerous – contributing to rather than combating the threat of terrorism. Many experts believe that taking such powers acts as a recruiting tool for extremists – and that we are simply playing into their hands by making these changes.  The Committee should seek out research findings which could throw light on the actual net effect of the new powers on community confidence – and in particular on attitudes within potentially alienated minority communities.

What is the evidence of proportionality?  

21. Many of the new powers involve a reversal of the burden of proof – they provide for routine surveillance of all transactions within certain categories (e.g. airline bookings, bank transactions), without any requirement for prior suspicion or ‘probably cause’. 

22. This reversal of the traditional basis of police powers has been happening largely unnoticed, but is wholly alien to our legal and cultural traditions.  We need a debate about whether the loss of everyone’s civil liberties is worth any marginal benefit to law enforcement and intelligence.

23. It is not acceptable to say that any value to the police or intelligence agencies is worth the loss of rights and freedoms – governments are always saying no to the agency ‘wish lists’, even on grounds of cost, let alone loss of fundamental rights.  What is it about the ‘terrorism’ context that justifies a less rigorous approach to ‘rationing’ new powers?

24. We suggest that a primary task for the Committee should be to review the proportionality of the powers in question.

Why should we trust the government not to abuse the greater powers, in the face of so much evidence to the contrary?

25. The government’s attempts at re-assurance in relation to successive increases in police and intelligence powers have rested largely on appeals to ‘trust us’.    Surely history (even recent history) tells us that governments and bureaucracies even here in Australia cannot be trusted – particularly with powers as draconian as these - without greater transparency, accountability and safeguards.

26. We urge the committee to expressly reject a presumption that laws will always be administered carefully and benignly, and to recognise as an important starting point the inevitability that powers will on occasion be abused.

Why should we accept assurances that these measures are only required to address exceptional circumstances?

27. It is dishonest of the government to pretend that these are only ‘temporary’ measures needed for exceptional circumstances.  The wide definitions of terrorism being used (see above) mean that the threat will remain indefinitely (as it has for at least the last forty years, without the need for these measures).
   
28. Analogies with the precedent of emergency powers during previous predictably finite wars are therefore false – governments have defined a ‘war on terror’ in a way that ensures it will be a war without end.  We must therefore debate these powers on the assumption that governments will be able to justify them also being permanent.

29. The Committee should recommend a much greater use of sunset clauses, preferably of short duration, although these should be seen as an additional and essential safeguard and not as a substitute for proper initial justification up.  It is always more difficult to repeal laws once established, even if the powers are not used.

General concerns about severely limited judicial oversight

30. Judicial oversight of the operation of many of the new provisions appears to be limited to judicial review of process – there is at best limited provision for merits review of the basis of the decisions. Judicial involvement only applies to some of the key provisions and not others.  Furthermore some decisions may be expressly excluded from review under the ADJR Act.  

31. The role of judicial oversight is not only to protect the innocent victim – it is an anti-corruption measure.

32. The role of judges and magistrates in some of the provisions amounts to an executive role in fundamental conflict with their judicial functions.  The community was told by this government in the 1990s that this conflict prevented federal court judges from issuing warrants for telecommunications interception – to justify moving that function to AAT members without the same independence (even though issuing warrants does not amount to punishment).  Now it suits the government to co-opt the judiciary into an even more clearly executive role.  We note that this issue has now been raised as a more general criticism of the more recent Ant-Terrorism legislation.

33. It is misleading to describe the involvement of judges as ‘judicial’ since it is in many cases to be performed in their ‘personal’ capacity.  Also, to the extent that individual judges may decline to take on this role, this further erodes the purported assurance of independence – by definition those involved will be ‘volunteers’ who presumably agree with the legislation, while the sceptics who might bring a more rigorous standard to bear on applications will have excluded themselves.

33a. While we are not resourced to do so, we believe that the Committee should analyse in detail the extent and adequacy of judicial oversight of the provisions under review.

Inter-jurisdictional issues

34. We urge the Committee to also focus on the way in which some of the provisions under review authorise disclosure of personal information to authorities in other jurisdictions.  In the context of recent international debates about ‘rendition’ and alleged use of torture, Australians deserve re-assurance that our governments do not carelessly agree to disclosure of information that can lead to adverse consequences for Australians in other countries without guarantees of minimum standards of human rights and respect for the rule of law. Australia has a moral obligation not to disclose information that is likely to result in other states committing human rights violations against any person, regardless of that person’s nationality or permanent residency

35. We draw the Committee’s attention in particular to the important ‘Trans-border data flow’ principles in more recent Australian privacy laws (Privacy Act 1988 private sector NPP 9; NSW PPIPA 1998 s.19(2) and Victorian IPA 2000 IPP 9).  These principles, which require agencies to take reasonable steps to ensure personal information disclosed is protected by ‘equivalent’ standards.  We note however that no such specific requirement applies to Commonwealth agencies under the Privacy Act IPPs.  At the very least, the Committee should recommend an amendment to the Privacy Act to apply this principle to Commonwealth agencies.

36. More specifically the Committee should either conduct or recommend a comprehensive audit of the agreements or understandings in place between Australian authorities and their counterparts overseas, to ensure that they contain appropriate and effective safeguards against unacceptable practices.
Conclusion

37. We call on the Committee to look beyond the detail of the laws under review to establish some fundamental principles that should underpin security legislation that actually or potentially infringes human rights and civil and political liberties.

38. The Committee should only indicate support for retention of any of provisions under review if it is convinced, on the basis of much better evidence and argument than has been offered to date, that the particular provisions:
•	are necessary, 
•	have had or will have the net effect of reducing the likelihood of terrorism in Australia, and
•	are a proportionate response to that threat
 
39. We specifically call on the Committee to recommend repeal of those provisions that are not directly related to terrorism and which represent a surreptitious and opportunistic bid for greater general powers.  These provisions should be debated separately and at greater length in a more appropriate context, free from the ‘overheated’ debate surrounding terrorism.

Contact for this submission:

Nigel Waters, 
Board Member and Policy Coordinator
Australian Privacy Foundation
GPO Box 1196, SYDNEY NSW 2001
E-mail: mail@privacy.org.au
APF Web site: http://www.privacy.org.au