Dictator Dutton’s Disdain for Democracy: Part 1, Building the Surveillance State

by Ugur Nedim
Dictator Dutton’s Disdain for Democracy: Part 1, Building the Surveillance State

Peter Dutton confirmed his candidacy for the leadership of the Liberal Party this week, and the public relations campaign to ‘soften’ his image has gone into overdrive.

The so-called ‘hardman of politics’ says he is keen to show the public “the rest of my character, the side my family, friends and colleagues see”.

With traditional Liberal voters turning away from the party in droves, Dutton wants Australians to know where the party stands on the political spectrum, and what it believes in.

“We aren’t the Moderate party. We aren’t the Conservative party. We are Liberals. We are the Liberal party. We believe in families – whatever their composition”, he stated.

“Small and micro businesses. For aspirational, hard-working ‘forgotten people’ across cities, suburbs, regions and in the bush.”

But the announcement that Dutton will stand for the party’s leadership unopposed has raised concerns about the potential future of Australia, given his demonstrated commitment to eroding fundamental democratic principles such as the separation of powers, basic civil rights such as privacy, personal freedom and free speech, as well as transparency and accountability of government in order to further its purposes by, for example, suppressing dissent and prosecuting those expose state crime and corruption.

And while it would require a thesis to adequately detail the the dozens of pieces of rights-eroding laws and hundreds of amendments to existing laws championed by Mr Dutton as Immigration Minister, Home Affairs Minister and Defence Minister during the Coalition’s reign over the past nine years, we will attempt in this article series to give a thumbnail sketch of the slippery slope into authoritarian for which he has played an instrumental part.

Building the surveillance state

When discussing the proliferation of state surveillance in modern societies around the globe, those who believe in civil liberties – such as Edward Snowden – will sometimes use the phrase ‘without privacy, there is no freedom’.

Indeed, without the ability to freely communicate thought in the absence of arbitrary monitoring and the fear of prosecution is essential to a healthy democracy.

On the other side of the coin, those who support the enactment of privacy-eroding laws under the guise of protecting against perceived and often exaggerated threats will often use phrases like ‘you have nothing to fear if you have nothing to hide’.

Indeed, the threat of protecting against terrorists has been used to justify many laws which have turned our nation into one which has the most pervasive surveillance laws of any ‘Western democracy’ – far more more intrusive than countries such as the United States and Canada, and the nations that comprise the United Kingdom.

During the same period that Edward Snowden exposed the United States National Security Agency’s illegal surveillance of its own citizens, our Coalition government passed many laws which make such conduct by the state and its agents perfectly permissible – with Peter Dutton playing an integral role in their formulation, advocacy and passage into legislation.

And without a national Bill or Charter of Rights, and minimal public scrutiny, there has been little to stand in the way of the enactment of such laws.

In the context of building the surveillance state, these laws include:

  1. Compelling internet service providers to store user data and hand-over on request

Passed in 2015, meta-data retention laws were marketed to the public as necessary to protect against the threat of terrorism.

They require internet and phone service providers (ISPs) to store your personal data for 2 years and make it available to a range of law enforcement agencies without them even having to obtain a warrant.

Similar laws were proposed but rejected in the United Kingdom due to their arbitrary and pervasive nature, and have not been enacted in any other Western democracy.

They essentially mean the government has access to at least two years of a range of your personal data without having to justify why they require it; in other words, you don’t have to be suspected of an offence for authorities to access and monitor the information.

Meta-data includes:

  • Telephone records,
  • The time and length of phone calls,
  • The internet protocol addresses (IP addresses) of computers from which messages are received or sent,
  • Location of parties making phone calls,
  • To and from email addresses on emails,
  • Logs of visitors to chat rooms online,
  • Status of chat sites – whether they are active and how many people are participating,
  • Chat aliases or identifiers (the name a person uses in a chat room online),
  • Start and finish times of internet sessions,
  • The location of an individual involved in communications, and
  • The name of the application someone uses online and when, where and for how long used.

And while meta-data does not encompass the actual content of communications, ISP’s made it clear at the time that filtering content such as text in SMS transmissions and emails for such a large number of users would be a mammoth and potentially impossible task.

The concern is, of course, that all of a user’s requested data would be provided to authorities, and there is currently no information regarding whether or not this is occurring.

What can be said is there is no evidence to date that the laws have proven to be an effective mechanism against terrorists.

There is, however, evidence the laws are being used by a range of agencies not involved in the detection or prosecution of terrorism; agencies that can apply under the laws to access the personal data.

In fact, it was revealed that in 2018 over 60 Government agencies applied to the Attorney-General for metadata access. The list included the Australian Taxation Office, Department of Human Services, and even local councils.

In fact, Bankstown Council applied for metadata access in an attempt to catch illegal rubbish dumpers and those who breach by-laws. That access was granted.

And the Queensland Police Service used the scheme to access the metadata of cadets in an attempt to determine whether they were sleeping with one another, or faking sick days.

In addition to this, the Australian Federal Police has used meta-data laws to access the information of journalists and even doctors in order to identify their sources – whistleblowers who expose crime and misconduct within government agencies.

Indeed, the AFP admitted in 2019 to accessing the meta-data of 20,000 Australians over the previous 12 months – without having to inform its targets let alone justify its conduct.

So, there is no evidence the intrusive laws have achieved their stated objectives; rather, they have enabled state actors to obtain personal information for entirely unrelated purposes, including to silence dissent.

  1. Compelling technology companies to provide encryption keys to access user data

In another move that is unprecedented in a Western democracy, Mr Dutton championed laws enacted in 2017 which compel technology companies such as Facebook, Google and Apple to surrender their encryption keys to the accounts of Australian individuals and organisations upon service of a warrant, and to even alter or delete the information contained therein.

The laws were passed with little public scrutiny, and have since been used to access the accounts of not only individuals, but news organisations as well.

The laws received condemnation in Australia as well as overseas, with ABC News executive editor John Lyons tweeting during the 2019 raids of its Sydney office:“

“I’m still staggered by the power of this warrant. It allows the AFP to “copy, delete or alter” material in the ABC’s computers. All Australians, please think about that: as of this moment, the AFP has the power to delete material in the ABC’s computers. Australia 2019.”

For its part, a group of UN special rapporteurs expressed concern the legislation would:

“disproportionately chill the work of media outlets and journalists” by exposing human rights campaigners, activists and academics to criminal charges and, in doing do, contravene the International Covenant on Civil and Political Rights (the ICCPR).”

And in a New York Times article titled ‘Australia May Well Be the World’s Most Secretive Democracy’, writer Damien Cave expressed astonishment regarding the laws, describing them as “just the latest example of how far the country’s conservative government will go to scare officials and reporters into submission”.

  1. Increased search, seizure, detention and compelled disclosure powers at the border

Mr Dutton played a pivotal role in the enactment of the Australian Border Force Act in 2015, which gave officers of the Australian Border Force (ABF) frighteningly broad and indeterminate powers “to do all things necessary or convenient to be done for or in connection with the performance of his or her duties”, including broadened powers to powers to search and detain travellers, and to seize their personal items.

But this was not enough for Mr Dutton. In 2018, he oversaw amendments which made it a crime punishable by up to five years in prison for such persons to decline to provide passwords to their smartphones, computers or other electronic devices – enabling access to all of the private information stored therein.

In the same year, Australia made headlines when dual British and Australian citizen, 46-year software developer Nathan Hague, was detained for 90 minutes and had his devices seized at Sydney airport, without being given a reason for that occurring.

The devices were returned weeks later without further action being taken against him, and authorities refused to provide information about whether the digital data contained in them was copied and stored, as the legislation permits.

An incensed Mr Hague told the media, “I have nothing to hide, but I value my privacy” – a salient remark given the seemingly arbitrary nature of the detention, search and seizure.

  1. Accessing overseas data

In 2020 under the Home Affairs umbrella, Mr Dutton saw to the enactment of laws which empower the Australian Security Intelligence Organisation (ASIO) to access the data of Australians stored overseas, while at the same time allowing other members of the Five Eyes Alliance to access that data.

The laws established a regime of international production orders, which allow agents to directly require foreign designated communication providers to hand over stored communications and data, and even enable direct wiretapping.

Commenting on the laws, Civil Liberties Australia CEO, Bill Rowlings, remarked:

“We’ve had nearly 20 years of draconian laws – many totally over the top – and most absolutely slashing personal privacy… Dutton and the henchmen have all the laws they need already. This is overkill”.

 “Without a federal charter of rights, there has been nothing protecting the basic rights of individual Australians.”

And that’s the overriding problem: Australia is the only Western democracy without a national Bill or Charter of Rights, one which would stand as an obstacle to the enactment of such intrusive invasions of privacy.

  1. Identify and disrupt – power to hack accounts and delete, add or alter data

Described as ‘the nail in the coffin of democracy’, so-called ‘identify and disrupt’ laws enacted on 3 December 2021 are perhaps Mr Dutton’s pièce de résistance in terms of surveillance legislation to date.

The laws give the Australian Federal Police and Australian Criminal Intelligence Commission the power to collect intelligence online, including over the dark web, disrupt online activity by manipulating data and even to take over a person’s online account – locking them out of it – in order to “gather evidence”.

Again unprecedented in a Western democracy, authorities can now legally hack and enter accounts and essentially do whatever they please with the data contained therein – including delete, add or alter content.

The potential implications are nothing short of frightening. In the words of Bill Rowlings: 

“The new laws allow faceless federal agents to ‘target and destroy’ people, under what is officially called the Identify and Disrupt Bill”.

 “This awful law multiplies tenfold the powers and reach of government intrusion.”

 “Police have such an appalling record throughout Australia of planting evidence and wrongly locking up people for years and decades. Why wouldn’t they plant more ‘evidence’ to suit themselves now they are permitted to do that officially?”

Slippery slide into authoritarianism

These are just five of many surveillance laws overseen by the man with ambitions to be the next leader of our nation.

The rapid degeneration into such a pervasive regime of surveillance – often under the threat of criminal sanctions – would have been the envy of past dictators, and could not have been foreseen by dystopian authors such as George Orwell.

Indeed, the Thought Police in Orwell’s iconic novel ‘1984’, published in 1949, would have relished the ability to arbitrarily monitor and intercept information transmitted through and recorded on devices as integral to our daily lives as mobile phones and computers have become, rather than just rely on informants and pop up from time to time on Telescreens.

In the words of Mr Rowlings:

“The police and spooks of Australia now have more powers and can reach further inside people’s lives and minds than the notorious Stasi of East Germany ever could”.

A complacent, despondent and at times fearful public has enabled the frog to boil under the Coalition’s reign, fooled into believing that giving up our privacy is necessary to protect against an inflated threat of terrorism.

But this is just one of many aspects of the nation’s slide into authoritarianism – a slide hastened by the man with his eyes on not only Australian citizens, but on the nation’s top job.

 

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Author

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 24 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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