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Australians were shocked last week as reports circulated about federal police agents raiding the Sydney offices of the Australian national broadcaster over the July 2017 publication of classified document details.
The Sovietesque fear many felt when they realised the law enforcement arm of the just re-elected Morrison government was firmly placing its hands all over our ABC, was made more chilling as the AFP had similarly raided News Corp journalist Annika Smethurst’s home the day prior.
Indeed, the press raids were a sharp jolt even for those who’d been following associated developments, such as the passing of multiple national security laws at the federal level over the last two decades that have been slowly stripping Australians of their unprotected rights.
Writing in the New York Times, Damien Cave noted that Scott Morrison defended the “aggressive approach” of the raids. And he stated that the operations were “just the latest example of how far the country’s conservative government will go to scare officials and reporters into submission”.
ABC News executive editor John Lyons tweeted during the raid that he was “staggered by the power” of the warrant that allowed AFP officers to “add, copy, delete or alter” material on the broadcaster’s computers.
These unprecedented powers were bestowed upon Australian law enforcement and security agencies via the recent amendments Peter Dutton’s Assistance and Access Bill made to the warrant framework contained in the Crimes Act 1914 (Cth).
Aimed at getting around encryption, the assistance and access legislation has given government agencies the power to require “designated communications providers” allow access to their systems via a three-tiered system.
The Guardian recently published the details of a Home Affairs Department briefing paper that outlined it’s now possible to compel companies like Facebook, Google and Apple to open up their systems to enable authorities to have a bit of a poke around.
Digital rights organisation Electronic Frontiers Australia condemned last week’s AFP press raids. It asserted that whistleblowers and journalists that have the courage to expose the illegal activities of government should actually be protected from retaliation.
Established back in 1994, EFA put forth that the raids reveal the long-overdue need for the enactment of legislation that protects citizens’ rights in this country, as Australians are the only people living in a western democracy that aren’t afforded such protections.
Sydney Criminal Lawyers spoke to Electronic Frontiers Australia policy committee chair Angus Murray about why the raids are a real concern, the broad reach gifted to law enforcement via the Assistance and Access Bill, and why a federal Human Rights Act is desperately needed.
The recent raids on both Annika Smethurst’s home and the ABC are extremely concerning for a variety of reasons.
Predominantly, it’s a clear display of the power imbalance that exists between the Australian government and Australian citizens. This includes subsets of the population, such as journalists, lawyers, doctors, etc. And I make this answer that broad.
We must be cautious about the rapid erosion of free society. And while the raids occurred with a warrant, the public nature of the raids, the basis provided for them and the downstream chilling effect that this has on press freedoms ought to send shivers down Australian spines.
I made the following point to the Parliamentary Joint Committee on Intelligence and Security in the October hearings in relation to the Assistance and Access legislation.
And I’ve previously made this point in relation to a plethora of other surveillance legislation introduced in this country, such as the Identity-Services Matching Bill, the mandatory metadata retention bill and a raft of other counterterrorism-national security focused legislation provisions that have been introduced fairly rapidly over the last decade or so.
This is the concept of necessity, adequacy and proportionality. It’s necessary to keep Australians safe. I don’t quarrel with that. And I don’t think anyone could. However, it has to be done in an adequate manner that’s proportionate to the reasonable expectations of the community.
From my reading and opinion, it’s difficult to justify that the subject matter of these raids ought to have been kept secret from Australians.
A fundamental hallmark of our society is a transparent and open democracy that’s governed with representative members of parliament in a responsible manner. And those two concepts of representative and responsible are quite important.
The global backlash over these raids clearly demonstrates that the secrets should not be secret. And in my view, Australians need to know what government is doing.
In fact, in these circumstances, the roles have reversed: government should be transparent, and citizens should be entitled to their privacy.
The purpose, most likely, is to give a wide enough net for law enforcement to catch whatever it is that they might find. I have a problem with that, because it sounds to me very much like a fishing exercise.
In any event, the scope of “add, copy, delete and alter” is an extremely dangerous path to take. It leads us to the potential rewriting of history, misinformation and degradation of education.
The integrity of data sets and information contained within those data sets is a critical resource to the Australian community. And the alteration or deletion of information jeopardises the ability for us to make informed decisions and has the real potential to manipulate the population or the way in which it’s governed.
Although, I’m heartened that a warrant was obtained, warrants have to be dealt with with careful scrutiny. And the process that surrounds the acquisition of the warrant, and the execution of it, ought to be something that the community is privy to and able to discuss in a meaningful manner.
My biggest concern is the introduction of the seemingly scopeless definition of “designated communications provider”. That is pretty much anyone under the sun that touches anything to do with an electronic service. And it expressly includes websites.
So, it’s a very broad expansion of what used to be carriage service providers. It is now what is essentially anyone who has an end user on any system in any form. It then increases the obligation on those designated communications providers to assist law enforcement agencies.
And it increases the power of those law enforcement agencies to use currently available search and seizure warrants, as well as introducing covert computer access warrants, which enable law enforcement to search computer and electronic devices without due consideration, or at least, proper consideration of the ancillary risks to cyber security and human rights.
Another aspect of this, is the scope of the term “acts or things” within the Act as it now is. It’s prescribed by regulation, so it’s open to easy change without much scrutiny. And what currently exists is itself quite broad and encompasses a number of activities that can undermine encrypted systems in Australia.
On top of that, it also enables foreign governments or law enforcement bodies to request surveillance through the operator within Australia.
Although that has a very high up approval requirement, it still essentially gives our Five Eyes colleagues and counterparts – in Canada, the UK, New Zealand and the United States – the ability to use Australia as the starting point or weak link in a global surveillance network.
It also enables the introduction of technical capabilities into designated communications providers’ platforms, as long as there isn’t a systemic weakness created in that capability.
The problem with that is “systemic weakness” in a legal context, in a technological context, and probably, in a textbook definition context, is extremely difficult to understand without a proper definition. And it doesn’t have a proper definition, which is a big failing of the bill that found its way into the Act.
Furthermore, there are computer access warrants, which allow secret warrants to be issued in a similar way to which the US has its FISA Court, but without a constitutional check and balance over the top of it.
What a covert computer access warrant allows law enforcement to do is access prospectively, or retrospectively, a warrant to access computers.
The definition of computer, which is now in the Surveillance Devices Act describes something which is broader than the entire internet: it’s a computer, many computers, a connection to a computer or anything that falls into the above.
So, what we’ve done is essentially given law enforcement the ability to surveil the entire internet on a covert basis. Whether that’s being used at the moment is a question. But, it’s an enormous amount of power that’s given without a clear check and balance.
And what we’ve seen recently with the ABC and News Corp raids is that it’s something that can be used – and is being used – without that much public insight or public scrutiny about that process.
While we may not have the most malicious government at the moment. These are powers that now exist within Australian law and this is something that future generations should be quite concerned with.
It doesn’t just affect us today. It affects future generations from now and well into the future.
As you mentioned, Australia is part of the Five Eyes intelligence sharing alliance, which includes the US and the UK. In the US, Trump has been leading a campaign against journalism. While both the UK and the US are now punishing Julian Assange.
I have no doubt that this is an aspect of an international phenomenon sweeping across the world. This is a global exercise that’s unravelling.
It’s greatly concerning that this has been introduced into Australia as the weakest link in the Five Eyes Alliance. And the reason why I say this is, we don’t have enforceable human rights legislation at the federal level.
That allows the mission creep available to law enforcement and government to operate in a way that could be seen as punishment for journalists. It could also be seen as the stifling of informed democracy. And it lends itself readily available for potentially much darker campaigns in the future.
I’ve said this in the past, we’re at an extremely important junction in human history with the rapid development of technology and surveillance tools. We’re on a path that seemingly only ends with a dystopic nightmare. And this isn’t a path that we should keep running down blindly.
Hopefully, the raids that have occurred recently have given the Australian community a reason to pause for thought.
And again, the reason why Australians should care about this is not necessarily because it affects anyone now. But, this has the real potential of deeply affecting the choices that may be made, or freedoms that may be exercised, by future generations.
That’s the centre point around any conversation of these kind of powers: that it’s not affecting me now, so I don’t need to worry about it, or is this the best thing that we can do for Australia.
The New York Times has said since the raids that this country might be “the world’s most secretive democracy”, while the Washington Post ran an article stating the raids reflect “a creeping surveillance state”.
We don’t have a human rights framework at the federal level that’s enforceable in this country. We don’t have a checking balance. And we don’t have a way of measuring creep towards dystopic forms of surveillance.
The sensationalism that’s being talked about here is based on a fundamental flaw. It presupposes that Australians need to give up freedom to have freedom. It’s illogical and only capable of being carried out, because we have fearmongering entering through mainstream media and through politicians.
Australians honestly deserve better than that. Australians deserve a government and a media that’s willing to take the hard stance on freedom and properly recognise the importance of the diverse and multicultural community that Australia has.
That should be done by reinforcing the value of the connection to country that has existed here, and the people that have existed here, for tens of thousands of years. And an appreciation that there’s a lot to be learnt from the past, and we ought to start learning those lessons fairly quickly.
The most productive step that we can do towards this is the introduction of an enforceable federal Human Rights Act. That’s been on the tip of many people’s tongues recently.
And now, there’s no better time to be talking about this. There probably was a better time 20 or 50 years ago – 1967 would have been a good time to be talking about this.
If this is sensationalist, and if this is something that people are dismissing as sensational or conspiracy theory, that all goes away the moment there’s some form of enforced human rights put in place and a check and balance put against what government is doing.
While government’s reach is occurring in secret and affecting directly, and indirectly, the lives of millions of Australians, sensationalism shouldn’t be something that’s dismissed so easily.
The most important aspect of an enforceable human rights framework – and whether that’s by a constitutional bill of rights, or an act: my preference is a hybrid version of both – is that it creates a baseline of protection for Australians.
It would give minimum acceptable standards for Australians and create a mechanism for government, and other operators, to account for actions that may affect adversely the human rights of the Australian community, individually or collectively.
As I mentioned before, this could have been done in 1967. There was a very positive referendum that occurred then.
It is well and truly overdue. And with the rapid progression of intrusive and invasive surveillance legislation, and the technology advancements behind that, there is a genuine need for that to be checked and balanced against an individual’s rights as a human being.
To add some force behind that, literally millions of people have died fighting for human rights. And the existence of those rights. And it’s a deep shame that that loss of life is not being recognised and the discussion about whether we need a human rights legislation framework is occurring.
We shouldn’t be at that point. This conversation should be about what model of human rights framework we’re adopting and how quickly that can occur.
As an example of how quickly legislation can be pushed through parliament, there was a very short period of time between the Home Affairs Department’s introduction of the Assistance and Access Bill in September last year and its enforcement on the 9 December.
The idea that it’s not possible to put complicated legislation through parliament quickly is dismissed immediately by looking back and seeing what we managed to do with that legislation.
The conversation squarely has to do with, what do we do in Australia to set a minimum of acceptable standards for Australians as human beings in this country. And how do we do that in a way that’s meaningful and do it quickly.
Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.