Government's creeping hand

Bookmark and Share Ideas & Liberty, Deregulation Unit, Media, Telecommunications and IT Unit and Legal Rights Project | Simon Breheny
Canberra Times 6th October, 2012

The federal government's proposed data-retention regime deserves every bit of the immense amount of public criticism that has been heaped upon it. But focus on the Orwellian citizen spying program could allow the government to push through its other troubling proposals unchallenged.

There are more than 40 proposals in Attorney-General Nicola Roxon's discussion paper Equipping Australia against emerging and evolving threats. The government has desperately tried to assert that it is attempting to strike a delicate balance between national security and individual rights. But just one of the 40-odd proposals would move us in the direction of freedom: the sensible suggestion that there should be a reduction in the number of government bodies that have access to otherwise private communications information.

Of course, not all proposals are created equal. The reduction in the number of security agencies with communication access powers would have a positive, but relatively small, impact on liberty. On the other hand, the gargantuan data retention regime would have a significant and thoroughly negative impact on online privacy. It seems the government needs to spend much more time striking that balance: currently it's less ''delicate'' and more ''horribly disproportionate''. Another dangerous proposal is to make it an offence to withhold passwords from law enforcement. The Attorney-General's Department has asked the committee to consider ''establishing an offence for failing to assist in the decryption of communications''. Making crimes of a refusal to hand over passwords is outrageous. It strikes at the heart of our legal system by removing our right to silence.

The proposal is deserving of heavy criticism. But Roxon thinks we're all overreacting. She thinks those of us who are concerned about losing our right to silence need to take a ''cold shower''. Last week, she even uploaded a YouTube video in which she defended the contents of the discussion paper and said there was no proposal ''to force people to give up passwords''. Yet decryption of communications necessarily involves the use of encryption keys or, in common parlance, passwords.

But there were also some striking omissions from Roxon's video. For instance, the proposal to give the attorney-general the power to unilaterally vary ASIO warrants was left out. The suggestion is that a variation should be allowed where it can be justified on grounds of ''operational flexibility''. Such a test is absurdly broad and could be used to legitimise variations in almost any circumstance. That these decisions would be made without any oversight from the courts is extraordinary. The proposals relating to warrants don't stop there. Currently, ASIO has 90 days to carry out their search after having obtained legal authorisation to do so. But the discussion paper proposes increasing that period to six months. This change requires significant justification. Why can't Australia's top security agency get it together in the already generous three-month period?

This isn't the only generosity extended to the security agency under the legislation. If ASIO makes a request of the attorney-general and they don't receive a response, they get to simply issue themselves with a warrant. It must be one of the only cases in law where silence operates as sufficient acceptance. Good luck using the same approach in contractual negotiations.

Apart from the dangerous and the extreme, there are also proposals that border on the bizarre. The proposal to allow ASIO to add, delete or alter data clearly falls into this category. This goes far beyond ordinary espionage - it would allow ASIO to plant files on your computer and modify existing ones in total secrecy. One of the first chapters in the collection of evidence manual is on the importance of avoiding tampering. Data obtained in this manner are likely to be inadmissible in legal proceedings. And quite apart from the issue of evidence, it's shocking that we would give law-enforcement agencies that kind of power.

Government asking for more authority and more influence is not a new thing. We have now had over 10 years of a continuously expanding system of security powers. This most recent wave of proposals should be rejected. Proposals that undermine the rule of law, trash civil liberties and erode privacy have no place in a free and democratic society. There will never come a time when government agencies thank us for giving up our liberties and contentedly say ''now we have enough''. The erosion of freedom will only stop when it is resisted by us all. Benito Mussolini famously said: ''The truth is that men are tired of liberty.'' Perhaps the federal government is tired of liberty; Australians are not.