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Privacy MPI Speech

Penny Wright 18 Sep 2012

Senator WRIGHT (South Australia) (16:37):

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-
or her-
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.

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