Before 9/11, Australia had no counter-terrorism laws, now we have 92 — but are we safer?

David Mariuz/AAP

Rebecca Ananian-Welsh, The University of Queensland and Keiran Hardy, Griffith UniversityAustralia is a long way from New York and Washington DC, but the September 11 terror attacks had a profound impact on our country.

In Afghanistan and Iraq, we became embroiled in decades-long insurgencies. At home, the attacks had enduring impacts on our legal system. Before 9/11 Australia had zero national counter-terrorism laws. Now, we have 92 of them, amounting to more than 5,000 pages of rules, powers and offences.

These laws have reshaped ideas about criminal responsibility, set us apart from our closest allies, and strengthened a troubling culture of secrecy.

But have they made us safer?

Unprecedented powers

No other nation can match the volume of Australia’s counter-terrorism laws. Their sheer scope is staggering. They include:

• control orders, which allow courts to impose a wide range of restrictions and obligations on people to prevent future wrongdoing. They can mandate curfews, limits on phone or internet usage and electronic monitoring
• preventative detention orders, which allow police to detain people secretly for up to two weeks, either to prevent an attack or protect evidence relating to a recent one
• mandatory retention of all Australians’ metadata for two years and access by enforcement agencies without a warrant
• a power for the home affairs minister to strip dual citizens involved in terrorism of their Australian citizenship.

Many of these schemes are unprecedented in Australian law, outstripping even our historical wartime powers.

‘Hyper-legislation’

Toronto University law professor Kent Roach, one of the world’s leading experts on counter-terrorism laws, has labelled Australia’s approach “hyper-legislation”. This refers not only to the vast scope and number of laws, but also the speed with which they were passed.

The data retention bill, forcing telecommunications providers to keep records of phone and internet use for two years, passed parliament in 2015.
Mick Tsikas/AAP

On average, it took around two and half days in the House of Representatives and two days in the Senate for each law to be approved. Those are very generous figures — they count the days bills were introduced into parliament, even if they weren’t debated. The speed was fastest under the Howard government, when a new counter-terrorism law was passed on average every 6.7 weeks. But the trend has continued.

At the end of last month, two laws containing extensive and highly controversial surveillance powers sailed through federal parliament with minimal scrutiny.

A ‘pre-crime’ approach

Counter-terrorism laws in Australia and elsewhere have reoriented the criminal justice system. Under wide-ranging offences, people can be imprisoned for harms they may cause in the future, rather than harms they have caused in the past.

This has been called a “pre-crime” approach to criminal justice. As Justice Anthony Whealy said when sentencing five terrorist offenders in 2010:

The legislation is designed to bite early, long before the preparatory acts mature into circumstances of deadly or dangerous consequence for the community.

The offence of preparing or planning a terrorist act is the clearest example. An equivalent of this offence will now be introduced in New Zealand following the recent terror attack in Auckland.

This offence and many others trigger criminal responsibility much earlier than the ordinary criminal law (for example, it has never been a crime to prepare a murder or robbery).

A person convicted of a terrorism offence can even be kept in prison beyond their original sentence, possibly indefinitely, based on the risk they still pose to the community.

Even tougher than our allies

Australia looked closely to the United Kingdom when designing our first counter-terrorism laws. On top of our close legal and political ties, this was because the UK had already enacted counter-terrorism laws—based on previous emergency powers for Northern Ireland — before 9/11.

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In the years since, our laws have become more extreme, setting us apart from the UK and the rest of our “Five Eyes” partners, the United States, Canada, and New Zealand. Not only have “tough on terror” policies played well with voters here, Australia does not have a bill of rights. This means the government has been able to enact counter-terrorism laws that would not be possible elsewhere.

One example of this is the mandatory retention of all Australians’ telecommunications metadata for two years. The European Court of Human Rights held that blanket retention for that time period infringed the basic right to privacy.

Other powers, such as preventative detention orders, would simply not be possible in countries with constitutional protection for human rights. The Council of Australian Governments’ (COAG) 2013 review of counter-terrorism legislation reported preventative detention orders were more likely to be seen in “discredited totalitarian regimes”.

‘The world’s most secretive democracy’

Following the 2019 federal police raid on ABC headquarters, The New York Times suggested: “Australia may well be the world’s most secretive democracy”.

Australia’s counter-terrorism laws enable and entrench these high levels of secrecy. It is a crime to mention basic details about the use of many counter-terrorism powers — or even the mere fact they were used.

Human rights advocates have raised concerns about law enforcement’s surveillance powers in Australia, including the ability to takeover accounts.
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Sweeping espionage laws, overhauled in 2018, make it a crime to possess or receive national security information where the information would be made available to a foreign government or company (including through publication in the media). The definition of “national security” is exceptionally broad, extending to anything about Australia’s political and economic relations with other countries.

These offences pose a serious risk to journalists and whistleblowers who act in the public interest. Criminal trials for these offences can be also held in secret, undermining open justice and the right to a fair trial.

Are we any safer?

Undoubtedly, some counter-terrorism laws have enhanced Australia’s national security. But others have little, or no, proven effectiveness, despite their impact on fundamental rights.

For example, in 2012, former Independent National Security Legislation Monitor, Bret Walker SC, found control orders were

not effective, not appropriate and not necessary.

This finding was based on classified submissions by police and security agencies. Despite this, in response to Islamic State, the federal government expanded the grounds for issuing control orders, and allowed them to be imposed on children as young as 14.

Both the independent monitor and the 2013 COAG review recommended the repeal of preventative detention orders. Police had not used them and said normal arrest powers would be more useful.

Undermining cohesion

These controversial powers might even harm our security over the long-term.

Australia’s Muslim communities have felt targeted by “aggressive” counter-terrorism powers. This leads to lower levels of trust and makes communities less likely to cooperate with police. It also undermines the community cohesion that countering violent extremism programs are trying to build.

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Undermining human rights to prevent terrorism can also fuel the grievances that lead to radicalisation and recruitment. Back in 2004, a United Nations panel reported terrorist recruitment thrives when human rights and democracy are lacking.

Ultimately, to reduce terrorism over the long-term, governments need to support greater investments and research into countering violent extremism and deradicalisation programs. This is equally true for Islamist and right-wing terrorism.

Security, but at what cost?

Over the past two decades, evolving terror threats have exposed gaps in our laws that needed to be filled. But many of the laws we ended up with go beyond what is needed to prevent terrorism effectively. They also undermine core values and principles such as the rights to liberty, freedom of speech and freedom of the press.

These values must not be lost in the pursuit of national security. Indeed, upholding them is an essential part of any counter-terrorism strategy.

These lessons have been known for a long time. As then UN secretary-general Kofi Annan said in 2005, when remembering victims of terrorism since 9/11:

compromising human rights cannot serve the struggle against terrorism. On the contrary, it facilitates achievement of the terrorist’s objective.

Rebecca Ananian-Welsh, Senior Lecturer, TC Beirne School of Law, The University of Queensland and Keiran Hardy, Senior Lecturer, School of Criminology and Criminal Justice, Griffith University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Laws making social media firms expose major COVID myths could help Australia’s vaccine rollout

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Tauel Harper, University of Western Australia

With a vaccine rollout impending, key groups have backed calls for the Australian government to force social media platforms to share details about popular coronavirus misinformation.

An open letter was put forth by independent group Reset Australia. It was endorsed by the Doherty Institute, Immunisation Coalition and Immunisation Foundation of Australia, along with the research group I’m working with, Coronavax — which reports community concerns about the COVID-19 vaccination program to government and health workers.

The issue of coronavirus and vaccine-related misinformation should not be understated. That said, big tech companies need to be engaged the right way to help the Australian public avoid what could potentially be a lifetime of health problems.

A leaderboard for COVID myths

We’re living in a dangerous time for both journalism and public education. We don’t have the legal infrastructure or public forums required to address the spread of coronavirus misinformation. Reset’s proposal intends to address these shortcomings, to better regulate this content in Australia.

It states there should be a mandate given to internet service providers to provide more details on the highest trending online posts spreading misinformation about COVID.

These “live lists” would be updated in real time and would let politicians, researchers, medical experts, journalists and the public keep track of which communities are being exposed to coronavirus and vaccine-related lies and what the major stories are.

The proposal suggests the eSafety commissioner should determine how the information is shared publicly to help prevent the potential victimisation of particular individuals.

Conspiracies can slip through the cracks

Many people rely on news (or what they think is news) presented on social media. Unlike traditional journalism, this isn’t fact-checked and has no editorial oversight to ensure accuracy. Moreover, the vast scale of this misinformation extends beyond platforms’ best efforts to curb it.

Since last year, a host of fake coronavirus cures have circulated and been sold illegally on the dark web. Among these was one hoax ‘cure’ in the form of ‘blood’ from supposedly recovered coronavirus patients.
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While social media analytic sites such as CrowdTangle provide some insight for researchers, it’s not enough.

For example, the data CrowdTangle shares from Facebook is limited to public posts in large public pages and groups. We can see engagement for these posts (numbers of likes and comments) but not reach (how many people have seen a particular post).

Reset’s open letter recommends extending access provision to data across the entire social networking site, including (in Facebook’s case) posts on people’s personal profiles (not to be confused with private conversations via Facebook Messenger).

While this does raise privacy concerns, the system would be set up so personal identifiers are removed. Instead of paying social media platforms in exchange for data, we would be putting pressure on them via the law and, at base, their “social license to operate”.

Taking down extremists isn’t the goal

Far-right conspiracy group QAnon has managed to entrench itself in certain pockets in Australia. Its believers claim there is a “deep state” plot against former US President Donald Trump.

This group’s conspiracies have extended to include the bogus claim that COVID is an invention of political elites to ensure compliance from the people and usher in oppressive rules. As the theory goes, the vaccine itself is also a tool for indoctrination and/or population control.

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Public figures have further amplified the conspiracies, with celebrity chef Pete Evans seemingly spearheading the celebrity faction of the QAnon “cause” in Australia.

The real value of Reset’s policy recommendation, however, is not in trying to change these peoples’ views. Rather, what researchers require are more details on trends and levels of engagement with certain types of content.

One focus would be to identify groups of people exposed to misinformation who could potentially be swayed in the direction of conspiracies.

If we can figure out which particular demographics are be more involved in the spreading of misinformation, or perhaps more vulnerable to it, this would help with efforts to engage with these communities.

We already know young people are generally less confident about receiving a COVID vaccine than people over 65, but we’ve less insight on what their concerns are, or whether there are particular rumours circulating online that are making them wary of vaccinations.

Once these are identified, they can be prioritised in the minds of health workers and policy makers, such as by creating educational content in a group’s specific language to help dispel any myths.

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Pressure on platforms is mounting

There is the argument that sharing links to online misinformation could help spread it further. We’ve already seen unscrupulous journalists repeat popular terms from online conspiracists (such as “Dictator Dan”, in reference to Victoria Premier Daniel Andrews) in their own coverage to engage a particular audience.

But ultimately, the information being highlighted is already out there, so it’s better for us to take it on openly and honestly. It’s also not just a matter of monitoring misinformation, but also monitoring legitimate public concern about any vaccine side effects.

The increased visibility of the public’s concerns will force government, researchers, journalists and health professionals to engage more directly with those concerns.

The Therapeutic Goods Administration has granted provisional approval for Pfizer’s coronavirus vaccine to be rolled out in Australia. It’s the first receive regulatory approval.
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The goal now is to invite Facebook, Twitter and Google to help us develop a tool that highlights public issues while also protecting users’ privacy.

Compelled by Australian law, the platforms will likely be concerned about their legal liabilities for any data passed into the public domain. This is understandable, considering the Cambridge Analytica debacle happened because Facebook was too open with users’ data.

Then again, Facebook already has CrowdTangle and Twitter has also been relatively amendable in the fight against COVID misinformation. There are good reasons to suggest these platforms will continue to invest in fighting misinformation, even if just to protect their reputation and profits.

Like it or not, social media have changed the way we discuss issues of public importance — and have certainly changed the game for public communication. What Reset Australia is proposing is an important step in addressing the spread and influence of COVID misinformation in our communities.

Tauel Harper, Lecturer, Media and Communication, UWA, University of Western Australia

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Expect delays and power plays: Google and Facebook brace as news media bargaining code is set to become law

Tim Dwyer, University of Sydney

The long-awaited mandatory code that will force Google and Facebook to pay Australian media companies for news content was finally unveiled yesterday.

The Treasury Laws Amendment Bill 2020 (news media and digital platforms mandatory bargaining code) will be introduced to parliament today, before being referred to a Senate committee.

Many of Australia’s news businesses have been on a hiding to nothing for more than a decade, as their revenue is undercut by the targeted advertising business model used by major digital platforms.

The most visible casualty has been public interest journalism — with the prospect of a well-informed citizenry on a slower, less obvious burn.

Against a backdrop of reports suggesting intense lobbying efforts by Facebook and Google against the new legislation, it appears some key concessions have been achieved by the platforms that weren’t present in the draft code.

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What’s changed in the revised code?

First, the revised code will now abide by an added “two-way value exchange” principle. This allows the monetary worth of traffic sent to news providers to be taken into account when determining the financial value of a particular news business’s content to the platforms.

How this will be calculated, however, will likely be an ongoing bone of contention for both parties.

A second major concession will see Facebook’s Instagram and Google’s YouTube exempted from the application of the new law. But the Treasurer will be able to add these (and other platforms) at a later date, should he deem it justified at the time.

A third concession is the halving of the 28-day notice period for the platforms to warn news websites of major changes to their ranking algorithms. These directly impact how news articles are displayed on Facebook’s Newsfeed and Google Search.

It seems the basic idea to “level the playing field” between platforms and news providers remains baked into the revised code, but only time will tell whether it works in practice.

Following a year of discussion, Google last month struck a deal with French media in which the tech giant is expected to pay about €150 million (roughly A$245,003,250) over the next three years.
JAE C. HONG/AP

A related objective — to implement a process that sustains public interest journalism — remains equally tricky and may hinge on the revised code’s success.

But many will be pleased the public broadcasters ABC and SBS now fall within the code’s scope, too. Both will be financially compensated for news content along with their commercial rivals.

This may seem like a win, and it may be eventually, but for now it’s unclear how this will actually play out in terms of the government’s ongoing funding of these broadcasters.

Although conjecture at this stage, it may emerge in a forum such as Senate estimates that any compensation payments should be factored into overall funding calculations for the public broadcasters.

The arbitration model

One pivotal feature of the new legislation is it will address the entrenched power of the platforms by introducing a “final offer arbitration” model for price negotiations.

This process, overseen by the Australian Communications and Media Authority, will be mandatory when parties are unable to independently reach an agreement. It will likely be central to the new code’s success, or lack thereof.

Curiously, the revised code’s framework encourages deals to be struck outside of it. In these situations, key elements of commercial negotiations between the parties can be “turned off” with mutual agreement.

This appears to be a pragmatic recognition by the ACCC the code will never be able to control the realities of commercial media deal-making, which continue to be struck despite the code’s new bargaining marketplace.

However, where negotiations break down, news media businesses will be able to trigger the code’s provisions for meeting minimum standards.

This will cover advance notice of algorithmic changes and the requirement to engage in good faith bargaining for up to three months, before participating in the mandatory arbitration process.

Smaller news publishers will be able to bargain collectively, or accept “standard” offers from the platforms.

When one party fails to engage

The code has reasonably strong enforcement provisions in cases where there is a failure to negotiate in good faith, comply with an arbitration decision, avoid participation or engage in “retaliatory action against news media companies”.

The maximum penalty for a breach by Google or Facebook is the greater of either 10% of the platform’s annual Australian turnover, A$10 million, or three times the benefit obtained as a result of hosting the specific news business’s content.

Facebook and Google have put their previous threats to switch off local news content on hold until they see the final version of the code. For now, they appear to be engaging with the ACCC.

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We still need to tackle media concentration

As we await the final version of the code, the irony is not lost on those of us also waiting eagerly for events to unfold before another Senate committee on media pluralism.

The committee was set up in response to a petition started by former Prime Minister Kevin Rudd. Amassing more than 500,000 signatures, Rudd’s petition has called for a royal commission into the negative influence of News Corp’s power in Australia’s highly concentrated media landscape.

A rich history of Australia’s parliamentary inquiries into the media indicates we can expect delays, power plays and ongoing lobbying in both these committees. And clearly there will be winners and losers in both.

Tim Dwyer, Associate Professor, Department of Media and Communications, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

National security review recommends complete overhaul of electronic surveillance – but will it work?

Rebecca Ananian-Welsh, The University of Queensland

The most extensive review of Australia’s intelligence sector since the 1970s has released its public report.

The Comprehensive Review of the Legal Framework of the National Intelligence Community – the “Richardson Review” – culminated in a four-volume declassified report containing 203 recommendations (13 of them classified).

It has been embraced by the government, which took almost a year to consider the classified report (described by Attorney-General Christian Porter as needing “to be carried around in a wheelbarrow”).

The undertaking was enormous. In the 19 years since the terror attacks of September 11, 2001, federal parliament has introduced 124 separate acts concerning the national intelligence community. On the whole, these acts have enhanced government power, increased secrecy, and scrambled to keep up with a constantly evolving threat environment. The result is one of the most complex legislative landscapes in the world.

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Shining light into the shadows

The intelligence community operates in the shadows. So it is significant that this extensive (and expensive, to the tune of A$18 million) inquiry has resulted in a public report and recommendations. The report provides a valuable insight into the intelligence sector: its powers, functions and room for improvement.

But it must be acknowledged this was essentially – and perhaps necessarily – an internal inquiry.

The review was chaired by retired senior public servant Dennis Richardson. His former roles include head of ASIO and secretary of both the Department of Foreign Affairs and Trade and the Department of Defence. Consultation focused on Commonwealth, State and Territory agencies and departments. Only 16 submissions were received from non-government sources.

Since the September 11 terror attacks, Australia has enacted 124 separate acts concerning the intelligence community.
AAP/AP/Richard Drew

This means the inquiry had the high-level access and expertise necessary for a truly comprehensive review.

It also makes it less surprising the government has agreed (in whole or part) to all but four of the review’s recommendations. Indeed, many of the recommendations affirm the current state of the law and the sector as a whole. The review’s engagement with civil liberties, democratic freedoms, whistleblower protections and such, is restrained. Instead, it focuses on other aspects of the rule of law, particularly legal clarity and (internal) oversight.

An electronic surveillance act is a good idea – in principle

The sheer scope of the Richardson review means its far-reaching recommendations will be mulled over for years.

However, the report contains one clear centrepiece: the introduction of a new electronic surveillance act. This, Porter says:

…would be perhaps the biggest national security legislative project in recent history.

While Richardson estimates the introduction of the act could take five years and a budget of A$10 million, the government has agreed to pursue the idea.

The simplification of Australia’s surveillance legislation will be welcomed by anyone who has grappled with the monstrously complex Telecommunications (Interception and Access) Act 1979 (TIA act).

An electronic surveillance act would retain the same basic processes that exist now; the changes would focus on clarity and modernisation.

The attorney-general would also keep a key role in issuing a range of warrants – the report advises against a greater role for the judiciary in this respect. The primary focus remains on intelligence and investigatory aims.

The centrepiece of the Richardson review is a new Electronic Surveillance Act, which could take five years to implement.
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New powers and access to telecommunications data would be granted to the Australian Transaction Reports and Analysis Centre (AUSTRAC), Australian Border Force and corrective services agencies.

But the report warns against giving other agencies new powers. The Australian Signals Directorate, for example, (which a leaked 2018 memorandum suggesting it could be given domestic surveillance powers) should not be given “an onshore crime-fighting role” as this would “dilute its mission” and “constitute a profound break with the principles which have stood us in good stead”.

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Centralising oversight

Oversight is crucial for the powerful security sector, but also presents tricky problems of security and secrecy (as demonstrated by the Witness K affair). Richardson decries the existing oversight framework in the TIA act as “a dog’s breakfast”, and recommends centralising national oversight in the Commonwealth Ombudsman.

A similar emphasis is given to the Inspector General of Intelligence and Security (IGIS). Numerous enhancements to the oversight powers of the IGIS are recommended, including allowing the Parliamentary Joint Committee of Intelligence and Security to request the IGIS undertake an investigation. However, this latter recommendation has been wholly rejected by the government.

While this marks the culmination of an immense investigation, the Richardson report is the beginning, rather than the end, of a journey.

It needs to be read alongside the countless other reports and inquiries that have recommended important changes to Australia’s counterterrorism, data surveillance, whistleblower protection and other frameworks.

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A starting point for reform

The government has committed to a complete overhaul of its electronic surveillance powers and processes. The Richardson report lays the groundwork for this. It synthesises the views and experiences of Australia’s vast intelligence community and presents a crucial starting point for reform.

However, the process of rewriting the rules on electronic surveillance should include myriad voices beyond the intelligence community. Ideally, this would involve not only experts in law, rights and privacy, but also technology, AI, telecommunications, criminology and more.

The review gives a nod to a few of the complicating factors in the future of electronic surveillance – including the rise of artificial intelligence, the capacity to use the 5G network as a tracking device, and the pervasiveness of cyber crime.

Data surveillance laws are rarely subject to effective oversight or public accountability. This was borne out, for example, in the Commonwealth Ombudsman’s 2019 report on warrantless access to retained telecommunication data. It revealed widespread misconduct and an average of 1000 accesses to Australians’ data each day.

An electronic surveillance act is a good idea, in theory. It will take a lively and considered public debate to ensure it becomes a good idea in practice – capable of not only protecting our safety and security, but democratic accountability and basic freedoms as well.

Rebecca Ananian-Welsh, Senior Lecturer, TC Beirne School of Law, The University of Queensland

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Major reform of surveillance laws proposed by review

AAP/Mick Tsikas

Michelle Grattan, University of Canberra

A new single legislative framework governing electronic surveillance activities in Australia has been recommended by a sweeping review of the nation’s intelligence laws.

The review found the existing laws governing this area are complex and outdated by changing technology.

The new act – not designed to alter powers – would cover telecommunication interception, covert access to stored communications, computers and telecommunications data, and the use of optical, listening and tracking devices.

The comprehensive review, led by Dennis Richardson, who previously headed the departments of defence and foreign affairs, as well as ASIO, and served as ambassador to the United States.

The Richardson report runs to 1600 pages and 203 recommendations, 13 of them classified. A declassified version was released by Attorney-General Christian Porter on Friday.

In general, the review – the most extensive since the inquiries of the 1970s and 1980s – gave a tick to the principles underpinning current security and intelligence legislation. But it found it in need of rationalisation and modernisation. Porter characterised the reforms as evolutionary rather than revolutionary.

The review did have sharp observations about some agencies, including noting “an immature understanding of the foundational principles governing the intelligence agencies”.

“This lack of understanding led some agencies to suggest that legitimate safeguards should be removed to, for example, facilitate better information sharing or relieve administrative burdens,” the report said.

“The term ‘administrative burden’ tends to be thrown around too loosely by the [national intelligence community] agencies. Government should be wary of, and properly test, such claims.”

The government has accepted almost all the recommendations, including for the new surveillance legislation. Some are accepted in principle or in part. Only four recommendations – none of them classified – have been rejected.

Richardson’s report warns that reforming the surveillance legislation will take years. “This is due to the issues at play, the multitude of interested stakeholders at the Commonwealth, state and territory level and the controversy which attaches to what are, arguably, the most intrusive powers of the state”.

Porter said other changes the government would pursue included

• strengthening ministerial control over ASIO’s offshore activities

• streamlining the provisions for issuing emergency warrants

• ensuring oversight was better embedded when intelligence legislation is created

• establishing an independent panel to provide technical expertise and assistance to the Inspector General of Intelligence and Security (IGIS).

One of the rejected recommendations would have enabled the parliamentary committee on security and intelligence to be able to request the IGIS to inquire into “the legality and propriety of particular operational activities”.

In its rejection, the government said: “It remains appropriate for ministers to primarily oversee operations and be accountable to parliament”.

The review recommends widening ASIO’s power to collect foreign intelligence. Foreign intelligence means intelligence about the capabilities, intentions or activities of people or organisations outside Australia.

An example would be a dual citizen working in Australia on behalf of a foreign government. The amendment would allow the attorney-general to issue a warrant in relation to the person for the purpose of obtaining foreign intelligence, while the person is in Australia.

At present “ASIO may obtain warrants authorising it to collect foreign intelligence inside Australia. However a warrant cannot be issued for the purpose of collecting information concerning an Australian citizen or permanent resident. This applies while they are in Australia.

“This prohibition should not apply where an Australian citizen or permanent resident is acting for, or on behalf of, a foreign power.”

The review recommended changes to prevent the delegation of the attorney-general’s powers in relation to ASIO warrants and authorisations.

It also found “room to improve” how agencies manage risks to foreign relations.

“There is a simple need for agencies to consult and inform [the foreign affairs department] more readily than what they are doing at present when they are engaging in risky offshore activity.”

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

83% of Australians want tougher privacy laws. Now’s your chance to tell the government what you want

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Normann Witzleb, Monash University

Federal Attorney-General Christian Porter has called for submissions to the long-awaited review of the federal Privacy Act 1988.

This is the first wide-ranging review of privacy laws since the Australian Law Reform Commission produced a landmark report in 2008.

Australia has in the past often hesitated to adopt a strong privacy framework. The new review, however, provides an opportunity to improve data protection rules to an internationally competitive standard.

Here are some of the ideas proposed — and what’s at stake if we get this wrong.

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Australians care deeply about data privacy

Personal information has never had a more central role in our society and economy, and the government has a strong mandate to update Australia’s framework for the protection of personal information.

In the Australian Privacy Commissioner’s 2020 survey, 83% of Australians said they’d like the government to do more to protect the privacy of their data.

The intense debate about the COVIDSafe app earlier this year also shows Australians care deeply about their private information, even in a time of crisis.

Privacy laws and enforcement can hardly keep up with the ever-increasing digitalisation of our lives. Data-driven innovation provides valuable services that many of us use and enjoy. However, the government’s issues paper notes:

As Australians spend more of their time online, and new technologies emerge, such as artificial intelligence, more personal information about individuals is being captured and processed, raising questions as to whether Australian privacy law is fit for purpose.

The pandemic has accelerated the existing trend towards digitalisation and created a range of new privacy issues including working or studying at home, and the use of personal data in contact tracing.

Australians are rightly concerned they are losing control over their personal data.

So there’s no question the government’s review is sorely needed.

Issues of concern for the new privacy review

The government’s review follows the Australian Competition and Consumer Commission’s Digital Platforms Inquiry, which found that some data practices of digital platforms are unfair and undermine consumer trust. We rely heavily on digital platforms such as Google and Facebook for information, entertainment and engagement with the world around us.

Our interactions with these platforms leave countless digital traces that allow us to be profiled and tracked for profit. The Australian Competition and Consumer Commission (ACCC) found that the digital platforms make it hard for consumers to resist these practices and to make free and informed decisions regarding the collection, use and disclosure of their personal data.

The government has committed to implement most of the ACCC’s recommendations for stronger privacy laws to give us greater consumer control.

However, the reforms must go further. The review also provides an opportunity to address some long-standing weaknesses of Australia’s privacy regime.

The government’s issues paper, released to inform the review, identified several areas of particular concern. These include:

• the scope of application of the Privacy Act, in particular the definition of “personal information” and current private sector exemptions

• whether the Privacy Act provides an effective framework for promoting good privacy practices

• whether individuals should have a direct right to sue for a breach of privacy obligations under the Privacy Act

• whether a statutory tort for serious invasions of privacy should be introduced into Australian law, allowing Australians to go to court if their privacy is invaded

• whether the enforcement powers of the Privacy Commissioner should be strengthened.

While most recent attention relates to improving consumer choice and control over their personal data, the review also brings back onto the agenda some never-implemented recommendations from the Australian Law Reform Commission’s 2008 review.

These include introducing a statutory tort for serious invasions of privacy, and extending the coverage of the Privacy Act.

Exemptions for small business and political parties should be reviewed

The Privacy Act currently contains several exemptions that limit its scope. The two most contentious exemptions have the effect that political parties and most business organisations need not comply with the general data protection standards under the Act.

The small business exemption is intended to reduce red tape for small operators. However, largely unknown to the Australian public, it means the vast majority of Australian businesses are not legally obliged to comply with standards for fair and safe handling of personal information.

Procedures for compulsory venue check-ins under COVID health regulations are just one recent illustration of why this is a problem. Some people have raised concerns that customers’ contact-tracing data, in particular collected via QR codes, may be exploited by marketing companies for targeted advertising.

Under current privacy laws, cafe and restaurant operators are exempt from complying with certain privacy obligations.
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Under current privacy laws, cafe and restaurant operators are generally exempt from complying with privacy obligations to undertake due diligence checks on third-party providers used to collect customers’ data.

The political exemption is another area of need of reform. As the Facebook/Cambridge Analytica scandal showed, political campaigning is becoming increasingly tech-driven.

However, Australian political parties are exempt from complying with the Privacy Act and anti-spam legislation. This means voters cannot effectively protect themselves against data harvesting for political purposes and micro-targeting in election campaigns through unsolicited text messages.

There is a good case for arguing political parties and candidates should be subject to the same rules as other organisations. It’s what most Australians would like and, in fact, wrongly believe is already in place.

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Read more:
How political parties legally harvest your data and use it to bombard you with election spam

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Trust drives innovation

Trust in digital technologies is undermined when data practices come across as opaque, creepy or unsafe.

There is increasing recognition that data protection drives innovation and adoption of modern applications, rather than impedes it.

Trust in digital technologies is undermined when data practices come across as opaque, creepy, or unsafe.
Shutterstock

The COVIDSafe app is a good example.
When that app was debated, the government accepted that robust privacy protections were necessary to achieve a strong uptake by the community.

We would all benefit if the government saw that this same principle applies to other areas of society where our precious data is collected.

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Information on how to make a submission to the federal government review of the Privacy Act 1988 can be found here.

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Read more:
People want data privacy but don’t always know what they’re getting

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Normann Witzleb, Associate Professor in Law, Monash University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Federal parliament just weakened political donations laws while you weren’t watching

Lukas Coch/AAP

Luke Beck, Monash University

While Australians were distracted last week by Melbourne’s lockdown ending and the final days of the Queensland and United States elections, both major parties joined forces in federal parliament to weaken political donations laws.

This will make it easier for federal politicians to accept secret donations from property developers.

What’s the backstory?

In 2019, the High Court upheld Queensland laws banning property developers from making donations to political parties. The ban was introduced by the Palaszczuk government after a recommendation by the state’s Crime and Corruption Commission.

The Queensland ban applies to donations made to state and local political campaigns as well as general donations to political parties. A general donation might be used for federal, state or local political purposes or for the costs of running a party.

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Fundraising questions have interrupted the Queensland LNP’s election campaign. What does the law say?

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At the same time, the High Court also struck down a 2018 federal law that said property developers could ignore state laws banning them from making general donations to political parties. (Yes — federal parliament really did pass a law overriding state anti-corruptionpowers!). The High Court said federal parliament has no power to regulate political donations that merely “might be” used for federal campaigns.

Property developers are also banned from making political donations in New South Wales and the ACT.

Allowing secret donations from dodgy donors

The legislation passed last week overrides state bans on property developer donations in two ways.

First, the legislation introduces a new provision to replace the 2018 federal law struck down by the High Court. This new provision allows property developers (and others banned from making donations under state laws) to ignore state laws banning them from making political donation where the donation is “for federal purposes”.

The High Court struck down a federal law on donations in 2019.
Lukas Coch/AAP

Second, the legislation allows property developers and political parties to ignore state laws requiring that donations be disclosed. In NSW and Queensland, donations of $1,000 or more need to be disclosed. Under the new federal law, only donations of $14,300 or more made by property developers “for federal purposes” need to be disclosed.

The explanation given for the new laws is that state laws shouldn’t apply to federal donations.

According to Finance Minister Mathias Cormann, the new laws “better clarify” the interaction between federal and state electoral laws.

The revised provisions ensure that federal law only applies exclusively to donations that are expressly for federal purposes, while fully respecting the application of state laws to amounts used for state purposes.

Labor’s Don Farrell, who is shadow Special Minister of State, told the Senate,

it’s not Labor’s intention in any way to weaken any of those provisions already in place in the states, but the Commonwealth parliament should be able to make laws with respect to Commonwealth elections, and those laws should not be overridden by the states.

Why this is bad for integrity

If you are a property developer wanting to curry favour with the NSW Labor Party or the Queensland Liberal National Party, you are now allowed to make a donation of $14,299 and no one will ever know. All you need to do is tell the party the money is “for federal purposes”.

While the law requires parties to keep money donated “for federal purposes” in separate bank accounts, a donation “for federal purposes” frees up money from other, general donations to be used for state purposes.

The Greens and independent MPs lined up to criticise the new law.
As member for Indi, Helen Haines told parliament

this bill locks in the status quo when it comes to the current political donations culture at the federal level.

Meanwhile, Tasmanian lower house MP Andrew Wilkie described the law as allowing “brazen money laundering”. Senator Jacqui Lambie said the law was “a doozy” of a way “to hide big donor money from the voters” and “the latest in a long line of betrayals of the public’s trust”.

Federal integrity laws are too weak

Federal parliament had an opportunity to introduce better federal political transparency measures. They could have lowered the federal donations disclosure threshold so the public knows where federal politicians get their money. They could have introduced real-time reporting of donations so the public doesn’t have to wait until after each election to find out the identities of the biggest donors.

Labor has introduced bills on both these measures. Instead of dealing with those, both major parties took the time and effort to override state anti-corruption laws.

To add icing on top, the Morrison government has now released a draft bill for a federal integrity commission with proposed powers so much weaker than existing state anti-corruption commissions that a former judge called it a “feather duster”.

Australians deserve much better than this.

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Read more:
Explainer: what is the proposed Commonwealth Integrity Commission and how would it work?

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Luke Beck, Associate Professor of Constitutional Law, Monash University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Chinese reveal their journalists in Australia were questioned in foreign interference investigation

Michelle Grattan, University of Canberra

Australian Federal Police and ASIO raided two Chinese journalists in June as part of an investigation into foreign interference in Australia.

The previously unpublicised action has come to light via Chinese media reports, in the same week that two Australian reporters fled China amid fears for their security and in a blaze of publicity.

The Global Times, a mouthpiece of the Chinese authorities, said ASIO had questioned the Chinese journalists, seized computers and smartphones, and asked them not to report the incident.

The raids, undertaken under a warrant, were connected to the investigation into allegations of attempted Chinese infiltration of the NSW parliament through the office of NSW Labor state MP Shaoquett Moselmane, and in particular his part-time staffer John Zhang. Both Moselmane and Zhang have denied any wrong doing.

Moselmane is on leave from the parliament and suspended from the ALP.

Part of the investigation was into a group Zhang had on WeChat, a Chinese social media platform, that included the journalists as well as Chinese scholars. The ABC reported on Wednesday that two Chinese scholars on the chat group subsequently had their Australian visas cancelled.

The timing of the raids on the journalists coincided with raids on Moselmane and Zhang.

Asked about the Global Times claim, the Chinese embassy in Canberra said in a statement: “We have provided consular support to Chinese journalists in Australia and made representations with relevant Australian authorities to safeguard legitimate rights and interests of Chinese citizens.”

Citing a “source” the Global Times said: “Australia flagrantly infringed on the legitimate rights and interests of journalists from Chinese media and institutions in Australia in the name of a possible violation of Australia’s anti-foreign interference law”.

The Chinese have sat on the information about their journalists for more than two months.

This week the ABC’s Bill Birtles and the Australian Financial Review’s Michael Smith were rushed out of China after Australian government concern for their security.

Last week multiple Chinese security officials arrived after midnight at the homes of Birtles and Smith, in Beijing and Shanghai respectively. They were told they couldn’t leave the country without answering questions.

The men had been making arrangements to depart, on advice from the Australian foreign affairs department, after Australian journalist Cheng Lei, who worked for China’s English-language state broadcaster CGTN, was recently taken into custody.

The Chinese government says Cheng is suspected of activities endangering China’s national security.

Birtles and Smith contacted Australian officials following the late night visits, and were placed under diplomatic protection, with negotiations undertaken to enable them to return to Australia.

The Chinese made the journalists’ exit conditional on their being interviewed. Smith said the interview included some questions about Cheng whom he had only met once, in passing.

In a full-on attack, the Global Times wrote: “Freedom of the press has become political correctness for Australian authorities. When they spread fake information, smear and attack other countries, they call it ‘freedom of the press’, but when they see information they don’t want to see, they choose to crack down for political purposes, experts said.

“Chinese journalists in Australia strictly comply with Australian laws and have good professional conduct.”

The article said that in the past 20 years, “Australia has passed more than 60 rules restricting ‘press freedom’.

“Australia’s major media outlets launched a joint campaign on October 21, 2019 to protest government restrictions on press freedom, by blacking out copy on front pages.

“Australian authorities have not been satisfied with only extending their black hands to domestic media, and have blatantly raided the residences of Chinese journalists in Australia, regardless of the basic norms of international relations and China-Australia relations, analysts said.

“Analysts said what Australia did was not just driven by Australia’s traditional ideological bias, but also showed that it’s a follower of ‘Uncle Sam’”, the Global Times said.

It also accused Australia of having “hyped” the Cheng case.

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Australia doesn’t need more anti-terror laws that aren’t necessary – or even used

Mick Tsikas/AAP

Keiran Hardy, Griffith University

Home Affairs Minister Peter Dutton has introduced a new bill that will amend the controversial questioning and detention powers held by the Australian Security Intelligence Organisation (ASIO).

While some changes are welcome, others are a cause for concern. One major change is that the legislation will allow ASIO officers to coercively question children as young as 14.

For this bill to be passed, Home Affairs must offer a stronger justification as to why the expanded powers are needed in the current security climate.

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Read more:
Australia has enacted 82 anti-terror laws since 2001. But tough laws alone can’t eliminate terrorism

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Calls for new counter-terrorism powers have become commonplace in Australia, to the point where we now have more than 80 laws directed at the threat of terrorism.

Any call for additional powers should be met with careful scrutiny, particularly when the rights of children are at stake.

Repealing controversial detention powers

One of the biggest changes in the bill is that it would repeal ASIO’s power to detain people for questioning. Currently, ASIO has the power to seek a questioning and detention warrant (QDW) that allows people to be detained for up to one week. Detention can be approved if a person is likely to fail to appear for questioning, alert someone involved in terrorism, or tamper with evidence.

During that period, a person can be questioned in eight-hour blocks up to a maximum of 24 hours. This is purely an intelligence-gathering exercise, and is not related to any investigation for a criminal offence. The questioning can be approved if it would

substantially assist the collection of intelligence that is important in relation to a terrorism offence

The questioning is coercive, in that a person faces five years in prison for failing to answer any of ASIO’s questions. The powers are also highly secretive: it’s five years in prison for anyone who reveals anything about a warrant.

These powers are some of Australia’s most controversial anti-terror laws, as no democratic country has granted its domestic intelligence agency the same power to detain people for questioning.

Reviews by the Independent National Security Legislation Monitor, the Parliamentary Joint Committee on Intelligence and Security and the COAG review of counter-terrorism legislation have all recommended this power be repealed. Such a move would be welcome.

Expanded powers to question minors

At the same time, the bill will expand ASIO’s power to seek questioning warrants (QWs). These trigger all the same questioning processes and criminal offences as QDWs, they just don’t allow ASIO to detain the person outside the questioning period.

If the bill passes, QWs will be split into “adult questioning warrants” and “minor questioning warrants”. Minor questioning warrants will be available for children as young as 14 who are “likely to engage in” politically motivated violence.

This significantly widens the current thresholds. QWs are currently available for 16-year-olds only when the attorney-general is satisfied the person “will commit, is committing or has committed a terrorism offence”.

Some additional safeguards will protect minors under the new measures. Before issuing a questioning warrant, for instance, the attorney-general will need to consider the “best interests” of the child.

This is consistent with international law requirements and Australia’s expanded control order regime, which can include electronic tagging and curfews.

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Read more:
Control orders for kids won’t make us any safer

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Under the proposed laws, a young person can only be questioned in blocks of two hours or less, and a lawyer must be present during all questioning.

However, restrictions currently placed on lawyers will be retained. Lawyers, whether acting for young people or adults, are not allowed to intervene in questioning, except to clarify an ambiguous question. They can even be kicked out of the room, and a new lawyer appointed, if they “unduly” disrupt the questioning.

These restrictions will significantly undermine the ability of lawyers to protect children from any forceful or inappropriate questioning by ASIO officers.

Are the changes even needed?

Dutton has justified the proposed changes by claiming Australia faces a significant threat of terrorism from young people. While we cannot know the intelligence on which this assessment is based, the urgent need for these changes is doubtful.

The statistics show that questioning warrants are used very rarely. The last QW was issued in 2010, and the last one before that in 2006.

Only 16 QWs have ever been issued since their introduction in 2003, and none since the threat from Islamic State emerged.

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Australia’s quest for national security is undermining the courts and could lead to secretive trials

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Given this record, it is difficult to see how QWs for 14-year-olds are suddenly needed to prevent acts of terrorism.

Indeed, in a recent PJCIS inquiry, ASIO explained their lack of use by saying the powers were difficult to approve on a short timeframe. This made them not very useful for the kinds of low-tech attacks seen in recent years, such as stabbings and shootings, which require little advance planning.

If the new powers are passed in the bill, they should at least be sunsetted to expire after three years, rather than the proposed ten. Without this amendment, more extraordinary counter-terrorism powers will be on Australia’s statute books for the foreseeable future.

Keiran Hardy, Postdoctoral Research Fellow, Griffith Criminology Institute, Griffith University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Explainer: what are the laws mandating self-isolation and how will they be enforced?

isolate.

Caroline Henckels, Monash University and Maria O’Sullivan, Monash University

Prime Minister Scott Morrison has announced that anyone entering Australia must enter a 14-day self-quarantine period.

Some questions have been raised as to how this new mandate would be administered and enforced. The answer to these questions relies on a somewhat complex patchwork of state and federal laws and whether relevant federal and state government emergency powers have been activated.

At this time, the enforceability of the 14-day self-isolation rule is a matter for state and territory governments – although this might change.

What Commonwealth law says

The main federal law in this area is the Biosecurity Act 2015. As others have written, this law aims to manage biosecurity threats to human, animal and plant health, which include viruses such as COVID-19.

There are two types of powers under the act that could apply here:

The first is the “human biosecurity control orders” under chapter 2, part 3 of the act. Individuals who have symptoms of, or who have been exposed to, a disease or who have failed to follow any mandatory procedures on arrival into Australia could be placed on a control order.

A control order could, among other things, direct a person to stay home, or remain at a particular place. It is decided on an individual-by-individual basis following an assessment of whether the preconditions were met. As such, it cannot be placed on all arrivals.

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Read more:
Can I take the dog for a walk? Can I put the kids to bed? What you should and shouldn’t do if you’re in coronavirus self-isolation

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The second option under the law is the declaration of a “human biosecurity emergency”.

If such an emergency was declared, Health Minister Greg Hunt would have a range of options at his disposal to control the spread of disease. These include sweeping powers to direct people’s movements and require the closure of premises. People could be imprisoned for up to five years and/or fined up to approximately A$60,000 for failure to comply.

However, until such an emergency is declared, it will be up to the states and territories to implement the 14-day self-isolation rule under their own laws.

What state and territory laws say

There are many similarities in the ways in which state and territory authorities can order and enforce isolation measures. These come from public health laws and often depend on the declaration of a state of emergency.

Several states and territories have already declared a state of emergency in the current crisis. Victoria’s state of emergency declaration gives the state certain powers under its Public Health and Wellbeing Act 2008.

Victorian authorities may now detain or restrict the movement of people (for example, by requiring them to stay in their home), with a penalty of up to 120 penalty units (approximately $20,000).

Premier Daniel Andrews said authorities were hopeful fines would not needed as people understand compliance is in their best interest.

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In NSW, the government already has broad powers under the Public Health Act 2010 to take actions and give directions to deal with risks to health.

These powers would extend to enforcing self-isolation, provided the relevant areas of NSW were declared to be “public health risk areas”. A person who did not comply with such a direction would be liable for up to 100 penalty units (approximately $11,000), or imprisonment for up to six months.

The NSW government could, if necessary, declare an emergency under the State Emergency and Rescue Management Act, which would more clearly set out the powers that can be used, such as using force to enter premises.

While Premier Gladys Berejiklian also said it would be difficult to monitor every person to ensure compliance, the law will permit the 14-day self-isolation mandate to be enforced. She urged people to do the

right thing by the community, by their own family and by their circle.

The other states and territories have similar powers under states of emergency. All require a declaration of an emergency to activate these powers. The laws permit governments to order people to isolate themselves and detain or fine those who don’t comply.

Punishments vary from 50 penalty units in Tasmania and the ACT (approximately $8,000) to 400 units (approximately $60,000) in the Northern Territory.

States and territories have also issued bans on mass gatherings of more then 500 people, with hefty fines for corporations that don’t comply. There are exceptions for a number of institutions, such as schools and universities, workplaces, public transport, markets and courts.

Limits on powers to isolate and detain

As this is the first time these laws have been used in this context in Australia, how they will implemented and enforced is not yet clear.

Importantly, there are safeguards in these laws to ensure that coercive powers, such as the power to detain people, are used only when necessary.

Governments must regularly review the need for emergency powers. For example, in the ACT, a state of emergency lasts for up to five days, then must be reviewed every two days after that. Queensland recently amended its law to permit a state of emergency to be extended for up to 90 days.

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Read more:
Explainer: what are the Australian government’s powers to quarantine people in a coronavirus outbreak?

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There are also a variety of controls on issuing orders and declarations in relation to individuals.

For instance, under Tasmanian law, the state director of health must review whether it is necessary for a person to be subject to an isolation or quarantine order every seven days. Under the Victorian act, authorities must review a decision to detain a person every 24 hours.

In some instances, state laws also give people the right to seek review in court.

When it comes to enforcement, the states have said they would use regular police checks to make sure people are complying with isolation orders.

Queensland police have reportedly already begun spot checks on people entering the country, while Victoria police is preparing for similar measures.

Some leaders, like Berejiklian, have urged people to “dob each other in” if isolation orders are being broken.

Like most leaders, she’s hoping people understand the importance of compliance, saying it is a matter of “life and death”.

Caroline Henckels, Senior Lecturer, Monash University and Maria O’Sullivan, Senior Lecturer, Faculty of Law, and Deputy Director, Castan Centre for Human Rights Law, Monash University

This article is republished from The Conversation under a Creative Commons license. Read the original article.