Nothing to Hide but Everything to Fear – Part 2 of our Special Series on the New Metadata Laws

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Metadata screen

Yesterday, we published part 1 of our two-part blog series about the Federal Government’s proposed meta-data retention laws which are now very close to being passed.

The laws have been championed by Federal Attorney-General George Brandis as a key tool in the fight against terrorism, white-collar crime and child pornography.

But are they really necessary, or is the community’s fear of terrorism being used to justify a dramatic increase in the State’s power to access and gather information about individuals at the expense of our civil liberties?

Joseph Goebbels, the Nazi Minister of Propaganda for Germany from 1933 to 1945, famously used the phrase “You have nothing to fear if you have nothing to hide” to justify widespread incursions into civil liberties of German residents, resulting in thousands of innocent people being persecuted as “traitors to the Reich”. Those laws were passed amid fears of a Jewish threat to German society, just as the threat of terrorism has been used to justify a whole host of recent laws that impinge upon our civil liberties, including the proposed meta-data retention laws.

Have we learnt anything from the lessons on WWII?

If you’ve got nothing to hide, you’ve got nothing to fear…

It’s a phrase increasingly being spouted by many who are probably not even aware how it was used to facilitate the persecution of thousands in the past.

Amongst its users is Australian Federal Police Assistant Commissioner Tim Morris who, echoing Goebbels, has stated that “Your chances that your data will be viewed by law enforcement is low. Those with nothing to hide have nothing to fear.”

Put simply, historical fact exposes that argument’s flaws; and not just distant history. In several of our previous blogs, we discussed the impact of last year’s anti-terrorism raids, which saw over 800 specially trained officers raid 25 homes across Sydney and Brisbane. Only one person was charged as a result of those raids.

Presumably, the others targeted in the raids but released uncharged had “nothing to hide” – even after extensive investigations by the Federal Police who would have leaped at the opportunity to charge many more in order to justify the enormous resources invested into the operation.

Each of the dozens of innocent people with “nothing to hide” were subjected to terrifying early morning raids by large numbers of heavily armed police who broke down doors and pulled people from their beds. Most of the victims were too afraid to say anything, especially given that there are laws making it a criminal offence to publish information about ‘special intelligence operations’ such as anti-terrorism raids.

But one family did speak out, reporting that the mother was pulled out of bed while trying to protect her modesty and her teenage boy was struck in the head.

Now imagine that happening to your family when you had “nothing to hide”. Imagine the lasting trauma; trying to sleep in the days, weeks and even months thereafter and the nightmares of heavily-armed police raiding your home while your family slept.

Such instances of unjustified and degrading treatment at the hands of law enforcement officers are certainly not uncommon, and it is feared that the new laws could be used to further target minority groups amidst media-fuelled ‘moral panics’.

Building a case from nothing

As outlined in our first blog, the laws could potentially give police and other agencies an easy way to fabricate cases against people through the selective use of information; for example, by using the fact that you called or emailed a particular person a number of times (eg called a suspected criminal a year ago), or that you accessed particular websites (eg those related to terrorism, or drugs, or criminals etc even if you were just curious or did so for research purposes) to ground a “reasonable suspicion” to charge you with criminal offences.

It is easy to see how, for instance, police who conducted the “unsuccessful” raids upon the 25 homes could go back and manufacture cases against the supposed suspects by reviewing two years of data and picking out “suspicious” information.

The bigger picture

Looking at the larger picture, meta-data laws are just one piece of the pie when it comes to eroding our protections against the misuse of State power, albeit an important one. It is when all the pieces are viewed together that the real practical dangers emerge to their fullest.

ASIO’s immunity from prosecution

In late 2014, the Federal Government unveiled a series of new counter-terrorism
measures which invested government agencies with broad new powers.

The first set of laws to be introduced was the National Security Legislation Amendment Bill (No. 1) 2014, which gave ASIO officers criminal and civil immunity from prosecution for acts carried out in the course of ‘special intelligence operations’.

Given the government’s recent failure to provide an explicit definition of meta-data under the proposed new laws, you might not be surprised to hear that the term ‘special intelligence operation’ is also undefined under the Act. This essentially means that ASIO itself has the power to decide which operations attract immunity from prosecution.

Immunity from prosecution means that if ASIO officers break the law in carrying out operations – for example, by assaulting people during a raid – you won’t be able to sue them, nor can you take comfort in the prospect of them facing criminal penalties.

Pretty scary, right?

Shut-up about raids or face criminal prosecution

As touched upon earlier, anyone who discloses information about ‘special intelligence operations’ – including anti-terrorism raids – to media organisations could be criminally prosecuted for the disclosure. In fact, the law imposes a maximum penalty of 5 years imprisonment for anyone who discloses information relating to such operations.

Heavier maximum penalties of up to 10 years imprisonment apply where the information disclosed endangers another person’s health or safety or prejudices a special intelligence operation.

Whistleblower protection eroded

Although amendments to the proposed meta-data laws were passed in the lower house just days ago requiring agencies to obtain a warrant when accessing journalists’ metadata for the purpose of identifying a source, media organisations have vocalised their dissatisfaction with the laws, labelling them a ‘threat to press freedom and democracy.’

The new protections simply do not change the fact that agencies can access a journalist’s metadata for the purpose of pursuing whistleblowers. Furthermore, media organisations will not be informed of any applications made by agencies to access metadata, nor will they be told when metadata has been accessed.

And while the government has agreed to appoint a Public Interest Advocate who will have to satisfy a magistrate or judge that the need to access metadata outweighs the public interest of protecting the confidentiality of a source, the move has done little to quell journalists’ concerns.

Media outlets have pointed to the fact that these proceedings are conducted behind closed doors, which is seemingly at odds with the proposition that they seek to protect the public interest.

Further, organisations have highlighted the existence of a potential conflict of interest as Public Interest Advocates would essentially be paid by the government to help make decisions about the government accessing metadata.

This puts the privacy of both journalists and their sources at risk – as well as potentially exposing them to criminal sanctions.

And, most worryingly, the need to obtain a warrant to access a journalist’s sources will not apply to ASIO officers, who will be able to obtain a warrant from the Attorney-General directly – who is ironically the same person who introduced the new metadata laws!

Media outlets have said that the new laws represent an unprecedented limitation on press freedom – a principle enshrined in Article 19 of the Universal Declaration of Human Rights.

Travellers guilty until proven innocent

Following the passage of the National Security Legislation Amendment Bill, a second tranche of anti-terrorism legislation was passed in October last year.

Dubbed the “Foreign Fighters” Bill, the laws impose stringent new measures on those wishing to travel to ‘declared areas’ without a valid reason, and also enable the government to suspend a person’s passport for up to two weeks.

Control Orders and Preventative Detention Orders

Furthermore, the laws now make it easier for the authorities to issue control orders and preventative detention orders against individuals.

Control orders are court orders that impose broad restrictions on an individual’s liberties – for example, they may be used to prevent a person from associating with certain people, taking part in certain activities, and travelling to certain places.

Preventative detention orders (PDOs) are also court orders which enable police to detain people for a certain period of time where there is a threat of an imminent terrorist attack and it is believed that the order may help prevent it, or immediately after a terrorist attack if it is likely that vital evidence will be lost.

A person may be held for up to 48 hours when charged under Commonwealth legislation (which contains most of our terrorism offences), or 14 days under NSW law.

Though they have been around for some time now, PDOs were first used following last year’s terrorist raids. Three men were made the subject of PDOs and held in police custody for days before being released without charge.

PDOs are highly secretive and allow police to investigate you without informing you of the reasons for your detention. The three men who were the subject of last year’s PDOs still do not know why they were held in police custody – other than that it was ‘terrorism related.’

Their lawyers are none the wiser either – and it has since emerged that police had been monitoring conversations between the men and their lawyers in what was apparently a gross incursion into client-legal privilege.

If passed, the meta-data retention laws could be used together with the new anti-terror laws to justify the issuance of further PDOs, and to further impinge upon client-legal privilege by allowing government agencies to examine communications between a lawyer and their client.

No bail – stay in gaol

And that’s not the end of it – a spate of other new laws also severely limits the rights of defendants, making it more difficult for them to get bail and legal funding to fight any allegations in court.

For instance, a series of recent amendments to the new Bail Act 2013 make it difficult for a person to be granted bail where they have been charged with a terrorism-related offence.

The latest raft of amendments require a bail authority (eg police or court) to consider whether there is an unacceptable risk that the applicant will:

  • Fail to attend court when required;
  • Commit a serious offence whilst on release;
  • Endanger the safety of the victim, individuals or the community, or;
  • Interfere with witnesses or evidence.

If a bail applicant is deemed to be an ‘unacceptable risk,’ they will automatically be refused bail.

Even if they are not deemed to be an unacceptable risk, the bail applicant must then ‘show cause’ why their detention is not justified where they have been charged with an offence that carries a maximum penalty of life imprisonment.

This includes:

  • Engaging in terrorist acts under s 101.1 of the Commonwealth Criminal Code
  • Acts done in preparation for or planning terrorist acts under s 101.6 of the Commonwealth Criminal Code
  • Financing terrorism under s 103.1 of the Commonwealth Criminal Code
  • Financing a terrorist under s 103.2 of the Commonwealth Criminal Code

No legal representation

These concerning new measures have been complemented by heavy funding cuts to Legal Aid, including over $8 million slashed from the Expensive Commonwealth Cases Fund, which finances serious and lengthy Commonwealth criminal trials, including terrorism trials.

In response to the measures, Legal Aid has announced that it will cease funding Commonwealth trials lasting 10 days or more from April this year; which could mean that those charged with terrorism will be left to represent themselves unless they can afford a private criminal defence lawyer.

This is very different to the situation in the United States where defendants are guaranteed legal representation.

So what does it all mean?

Collectively, the government’s staggered package of new laws poses a serious danger to personal freedoms and liberty, and the new metadata laws are the pedestal upon which that threat is mounted.

As outlined, law enforcement agencies could selectively use meta-data to press serious criminal charges based on limited information.

ASIO can then carry out raids and other ‘special intelligence operations’ without fear of civil or criminal penalties, giving you little recourse against officers where you believe that there has been some mistake or some unauthorised use of power.

Plus, if you’re suspected of being linked to a terrorist act or organisation, police can hold you without charge for days or even weeks – without even informing you of the reasons why you are being held.

The changes to bail laws will mean you could remain in prison for two or three years awaiting your trial.

And if you lack the financial means to fight the charges in court, you won’t get Legal Aid due to the funding cuts. Nor will you be able to ‘blow the whistle’ by talking to the media – unless you want to run the risk of further serious criminal charges being pressed against you.

So the chain of events goes something like this:

  1. Law enforcement agencies selectively use meta-data to form a ‘reasonable suspicion’ that a person has committed an offence,
  2. The person is raided and arrested on the basis of that ‘reasonable suspicion’,
  3. The person is issued with a preventative detention order and kept in custody without charge for days or even weeks, during which police can monitor all of their conversations and calls including communications with their lawyers,
  4. The person is eventually charged with a terrorism-related offence based upon shaky meta-data evidence,
  5. The person can’t complain about mistreatment because it is a criminal offence to disclose information relating to a ‘special intelligence operation’,
  6. The person is taken before a magistrate but refused bail due to the new ‘show cause’ provisions of the Bail Act 2013,
  7. The person applies for Legal Aid but, due to the funding cuts, is unable to get legal representation,
  8. After a couple of years behind bars, the ‘terrorism suspect’ ultimately comes before a jury of Australian citizens who are heavily prejudiced by media-fuelled hysteria about the terrorism-threat.

Sound fair?

Financial cost vs benefit

No financial price is too high to pay to protect us against terrorism, right?

But given the fact that since 2003, terrorist attacks have killed less people than accidental gun discharges, ladder falls and electrocution, one might be forgiven for questioning the need to spend between $188.8 and $319.1 million implementing the new meta-data retention laws – with most of that cost coming out of your hip pocket.

And just to top things off, telco giant Telstra this week slammed the new measures as an attractive target for tech-savvy masterminds, describing it as a ‘pot of gold’ for hackers who could sell or use the stored information to facilitate identity theft and other types of fraud.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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