By Dr Brendan Gogarty*
The Australian media has launched a ‘Your right to know’ campaign in response to arrests of journalists, criminalisation of whistleblowing and a more general erosion of governmental transparency across this country.
The fact that such a campaign is necessary at all in a liberal democracy is, to say the least, unsettling, but it is only part of much broader issue with how public information is being used and by whom.
In a democracy we have historically acknowledged that knowledge is power, and thus we have required government be open, but limited its ability to oversee all aspects of our community and private lives. That trend is rapidly reversing and Tasmania is leading the charge.
In response to the ‘Your right to know’ campaign the Tasmanian Government has openly supported free press and public transparency. However, open government is measured in practice, not words.
As other experts have noted, Tasmania’s right to information regime is underfunded, unworkable and deadlocked by a culture of secrecy that extends up to the highest level of government. Tasmanian ministers so regularly use spurious grounds to refuse to provide documents to the parliament they are constitutionally (i.e legally) responsible that a special committee of the legislative council had to be constituted this year to resolve the issue.
All the while the government has been undertaken an EOI process for the commercialisation – and in many cases privatisation – of public land, in secret, without public consultation. Right to information requests about that process have been either refused or redacted to a level that makes the produced documents unusable and unreadable.
In sharp distinction the Tasmanian government has been driving an agenda of public oversight and surveillance. Over the past year government departments have worked to open up data-sharing arrangements about Tasmanian citizens, both with each other and their federal counterparts. How much data is being stored and what it is used for is unclear, not least because of its volume, but also because right to information responses to queries provide unusable or redacted information.
What is collected? How is it used?
What is clear is that many Tasmanians simply don’t know what is being collected or how it will be used.
In October 2019 it was revealed that the government has been storing biometric data from young people for a proposed national facial recognition regime. The national bill to support that regime was rejected by the national Joint Committee on Intelligence and Security in late October, due to the risks it poses to privacy and personal security.
Tasmania’s rush to implement the regime before the legal framework was enacted to limit such risks indicates how little concern or attention is paid to such things here.
In July 2019 the government proudly announced it would arm Tasmanian police with night-vision equipped aerial surveillance drones to, amongst other things, maintain ‘public order’. In Parliament this month the Government responded to questions about restrictions on drone surveillance – two months after Meg Webb MLC raised them in the Legislative Council – with many assurances about the protection of privacy and civil rights, but no actual legal guarantees
Indeed, despite earlier assurances drones would only be used with ‘official authorisation’ it became clear that the authority is the police themselves (rather than a judicial officer). This is the same police force that earlier this year undertook a spate of ‘community lockdowns’, involving the complete encirclement of Tasmanian towns and the use of helicopters and sniffer dogs against those entering or leaving them.
‘Lockdowns’, mass searches and aerial surveillance are the tools of prison management, not community policing.
Those concerned about the justification for such activities, or the information they gather, can, the Minister told the Parliament, review them under the states’ Right To Information laws. That is, the same laws that are beleaguered by delays, obfuscation and redactions that have motivated the ‘Your right to know’ campaign.
The tired response to such concerns is ‘if you have nothing to hide you have nothing to fear’. If that is the case, then the same assertion must be made about the government’s own resistance to being watched.
The reality is that governments resist scrutiny because it opens their acts to criticism by journalists, sanction by parliament or their removal by the electorate at the next election.
You never know…
Surveillance of any form is powerful, because those subject to it never know if they are being watched or not. It’s efficient because those who control it don’t have to be stand over the shoulders of those being observed every minute.
Democracy relies on this fact – ministers and departments are held to account by making their acts open to review, even if not all their acts are ultimately subject to it. Open government ensures government doesn’t misuse its powerful position to aggregate power to itself rather than use the power invested in it for the public interest.
But as much as surveillance is a powerful tool for democracy, it is an equally powerful tool of authoritarian control. Citizens who are constantly in fear of being watched are much less likely to be critical of government – a fundamental democratic right – or to protest its misuse of power.
When government conducts its acts behind closed doors the disempowerment is compounded, not least because the electorate is ignorant of what they are voting for. Thus, the old adage goes, in a democracy the people watch the government, not the government the people.
If we are to retain our status as a liberal democracy then the rapid move away from that position over the past year needs to be reversed.
- Dr Brendan Gogarty is a constitutional lawyer, a senior lecturer in law at the University of Tasmania and Tasmanian convenor of the Australian Association of Constitutional Law. This article appeared first in The Mercury, Hobart.