Heavily armed policeman

On the chaotic final sitting day of parliament a fortnight ago, the Morrison government got its wish. It pushed through a broad, sweeping law that would give state security agencies power to read people’s encrypted messages, despite serious reservations from the tech industry, and some occasional, muted noises of discomfort from Labor.

The encryption laws represent the latest piece of Australia’s post-9/11 legislative puzzle. In the aftermath of the September 11 attacks, western nations scrambled to deal with the spectre of terrorism, drawing up new laws on the fly and expanding the powers of state security agencies. But since then, such expansive national security laws have become the new normal in Australia, leading to a steady erosion of civil liberties.

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“There’s been a massive amount of legislation passed that prior to then would have been unthinkable”, Pauline Wright, President of the NSW Council for Civil Liberties says. “There have been incursions into freedom of speech, freedom of press, freedom of movement, right to protest, all basic legal rights that underpin our democracy”.

Wright believes Australia has gone further than other western nations, not only enacting more national security laws, but also enacting far more stringent ones.

According to George Williams, dean of law at the University of New South Wales, Australia has enacted over 50 anti-terror laws since 2001. In a 2016 survey of the legislative landscape, Williams found there were 350 Commonwealth, state and territory laws which arguably infringed democratic rights and freedoms.

2018 has been something of a bumper year for restricting civil liberties. In the same week that the encryption bill passed, the government also legislated to make it easier for state governments to summon the defence force on the streets. In June, the government passed a major overhaul of the laws around espionage and foreign interference, in response to fears about Beijing’s growing influence in Australian politics, which could criminalise journalists and charities for doing their job.

Civil liberties are also being increasingly overlooked at a state level. In July, NSW passed regulations giving the government broad power to disperse protests, which one academic described as akin to Bjelke-Petersen era Queensland. Meanwhile, police strip searches doubled in the state between 2016 and 2017, triggering a law reform commission inquiry.

Other restrictive laws have been tabled but are yet to pass. The government plans to give police powers to request identification and issue move-on directions in airports. Also on the cards is a push to make it easier to strip convicted terrorists of their citizenship. Under the government’s proposed amendments, introduced last month, the minister need only be “reasonably satisfied” that a person is a dual citizen. The proposal will also remove the requirement that a person be convicted for a sentence of six years or more.

Leaving the public in the dark

As the national security state steadily expands, Australia’s lack of safeguards to protect civil liberties becomes increasingly apparent.

Australia is the only democratic country without some kind of national human rights law, such as a bill or charter of rights. According to Wright, the lack of a charter means governments have much freer rein to pass laws encroaching on civil liberties, while robustness of the public debate around such laws is limited

“Because we don’t have the context to discuss the impacts of our legislation, there is no public debate around it, and parliamentarians can pass laws that would previously be unthinkable without public opprobrium,” she says.

According to Williams, a key characteristic of Australia’s post-9/11 national security legislation is the way its rushed through parliament with limited oversight, leaving the public blindsided.

“Too often, parliamentary inquiries have been given inadequate time to call for submissions, hold hearings and deliver considered reports,” Williams wrote in 2011.

Recent legislation is a case in point: the government was so desperate to get the encryption bill passed before Christmas that it ignored repeated warnings from the tech industry and legal bodies.

The foreign interference laws were initially tabled in December last ear, with the country distracted by the marriage equality bill which passed days earlier. They were rammed through parliament in June despite numerous concerns hanging over them, because Attorney-General Christian Porter wanted them in place before the Super Saturday by-election.

Unintended consequences

When these laws are shoved through parliament with only half-baked consultation and review, they leave security agencies with vast unchecked powers well beyond the initial intention of the legislation, which Wright says would leave the general public “horrified”.

The encryption laws, designed to target terrorism, could allow security agencies to trick suspects into giving up access to their private messages, effectively robbing them of the privilege against self-incrimination, and also give law enforcement the ability to circumvent the need to obtain a warrant.

Meanwhile, the foreign interference legislation meant to curb Beijing’s influence, could have a severe chilling effect on journalism. Despite amendments tampering some of the original bill’s more draconian elements, journalists could still face up to 20 years imprisonment for dealing with or publishing certain types of classified information.

Similarly, if passed, the citizenship laws may allow the government to effectively render people stateless, by lowering the threshold for the minister to invoke their power to cancel citizenship. By broadening their application to all terror offences, people who unwittingly commit a terrorist offence might be caught in its net. So, for example, a person who provided financial support by donating to a charity which passed that money onto, or was somehow embroiled in, terrorism, might potentially be stripped of their citizenship.

The biggest problem with these laws is their scope creep, their capacity to be slowly pushed beyond their original purpose steadily taking the government’s power into uncharted territories.

“When laws come in about one kind of offence which the public understands it becomes easier for them to be applied to other offences, because we’re used to it,” Wright says.

“It’s like the classic boiling frog, the temperature rises, but bit by bit we lose the ability to jump out of that water because we’re half-cooked and paralysed.”

Peter Fray

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