Nearly 15 years of political and bureaucratic extremism, ‘fighting terror’, have tilted democracy edge on, making it susceptible to toppling if a real threat develops, says Prof Roger Clarke.
Democracy under grave threat: Clarke
This is a condensed and precised version of a detailed article by Prof Roger Clarke* – for access to the full article, see below:
Democracy in Australia is gravely threatened by a flood of measures, harmful to human rights, introduced since 2001: a large proportion are unjustified and not subject to effective controls.
Passage of the measures through the Parliament has been achieved on their proponents’ assertions and without appropriate scrutiny. Parliament had available various impact assessment techniques, but failed to require that such methods be applied.
The study reported here* found that one particular form of evaluation, Privacy Impact Assessment (PIA), should have been performed, but was seldom applied: where it was applied, the process and report were in almost all cases seriously deficient.
* Privacy Impact Assessments as a Control Mechanism for Australian National Security Initiatives, By Prof Roger Clarke, August 2015: available at http://www.rogerclarke.com/DV/IANS.html
Survival of democracy is dependent on the Parliament standing up to the national security extremism that has taken hold of the Attorney-General’s Department. Ministers and Parliamentary Committees must demand prior evaluation of proposals that restrict civil freedoms, must ensure transparency in relation to the proposals and their justification, and must require effective controls over, and mitigation features within, those measures that survive the evaluation process.
The last 15 years have seen the passage through Australian Parliaments of scores of statutes containing hundreds of provisions that embody unprecedented threats to human rights and freedoms. The national security extremists who have grasped power within the public service since 2001 have successfully sustained an ongoing scare campaign, aided and abetted by a credulous media.
Parliament has become dominated by the Executive, and in particular by the Attorney-Generals’ Department (AGD). The vast majority of MPs and Senators have been, and remain, cowed by a combination of party staff, departmental briefings and opinion polls driven by the media. As and when a genuine emergency arises in Australia, the increased numbers of law enforcement agencies, with their vastly increased resources and their increasingly para-military organisational arrangements, are in a strong position to exercise wide-ranging powers and curtail democratic processes.
The human rights that are under threat are highly diverse. Rights that have been compromised by national security measures since 2001 include:
- freedom from arbitrary detention (International Covenant of Civil and Political Rights, Article 9),
- freedom of movement (Art. 12),
- right to a fair trial (Art. 14.1),
- minimum guarantees in criminal proceedings (Art.14.2-14-7),
- privacy (Art.17),
- freedom of information, opinion and expression (Art. 19),
- freedom of association (Art. 22), and possibly also
- rights to equality and non-discrimination (Arts. 2.1, 26, 27), freedom from torture (ICCPR Art. 7), retrospective criminal laws (Art.15), freedom of assembly (Art. 21) and right to nationality (Art.24).
It is conventional to define human rights within the context of the International Covenant (ICCPR 1966). However, it is arguably inappropriate to do so in Australia, because, almost alone among its reference group, it does not have human rights entrenched in its Constitution. Moreover, the federal Parliament has steadfastly refused to comply with its obligations under international law, which nominally compel it to implement human rights by means of legislative provisions.
This paper’s purpose is to document the last 15 years’ incursions into human rights using the excuse of ‘the terrorist threat’.
It is necessary that such analyses be undertaken now, before the increasing constraints on access to information and publication of information render them illegal, and unsafe for the individual conducting them. In order to keep the scale of the challenge within bounds, a narrow lens has been used. Firstly, the focus is on the cluster of human rights associated with privacy. Secondly, the analysis is framed in terms of the impacts on privacy of measures that have been identified as national security and/or counter-terrorism initiatives. Thirdly, the specific question asked is to what extent the privacy impacts have been subjected to assessment prior to being put before the Parliament and enacted.
The paper commences by providing working definitions of key terms. This is followed by a brief overview of the statutes and measures imposed during the period 2001-15. It then reports on a study undertaken of the extent to which the technique of Privacy Impact Assessment (PIA) has been applied to those proposals.
Privacy
The deepest-seated need is for privacy of the physical person, which is addressed by a large number of Articles in ICCPR.
It’s useful to distinguish four further dimensions. Surveillance, whether it is conducted in a physical manner (using the eyes and ears of humans), aided by technologies (such as directional microphones and recording apparatus), or entirely automatically, threatens the privacy of personal behaviour and thereby constrains how people act.
Covert surveillance causes many people to have a generalised fear of the ‘pan-optic’, which has an even more substantial impact on their freedom of behaviour. This ‘chilling effect’ ranges from being highly desirable (where it creates a disincentive for criminal, psychopathic and sociopathic behaviour) to highly undesirable (where it reduces artistic creativity, scientific and engineering inventiveness, economic innovation or political speech, or dehumanises individuals and thereby increases criminal, psychopathic and sociopathic behaviour).
Since at least the early days of the telegraph in the 1840s, messages have been subject to electronic interception, which is much easier to conduct covertly than most earlier forms of surveillance. Recent decades have seen invasions of the privacy of human communications reach epidemic proportions. Since the application of computing technologies to administrative data in the 1960s, the privacy of personal data has also been subject to a rapidly-rising crescendo of threats (Clarke 1988). During the 1970s, business and government moved to dissipate public concerns by creating a smokescreen rather than a shield, in the form of the ‘fair information practices’ movement (OECD 1980, Clarke 2000). The real function of ‘data protection’ laws is to authorise privacy-invasive behaviours by organisations while offering the appearance of a regulatory framework.
The early years of the current century have seen technological change that embodies serious threats to a further dimension of human concerns. What an individual reads and views, and the ideas that they gain access to through meetings and other events, have been converted from unrecorded ephemera to stored data.
That data is under the control of and exploitable by for-profit corporations, and available to government agencies. The privacy of personal thought may not yet be directly under assault, but the privacy of personal experience is a dangerously close proxy for it.
In 1986, the four higher-level dimensions of privacy were referred to by Health Minister Neal Blewett, while he was championing the Australia Card, as ‘a bourgeois right’ (Clarke 1987). It is certainly the case that a person who is in danger, wet and cold, or seriously hungry, does not have the luxury of worrying about needs higher up the Maslowian hierarchy. On the other hand, people in many societies enjoy pleasant living conditions, and place considerable value on these dimensions of their privacy, for psychological, social, economic and political reasons.
This paper is particularly concerned about the scope for a privacy-invasive surveillance society to constrain political freedoms to the extent that democracy is undermined.
National Security
A theoretical definition of national security, from a US legal dictionary, is:
“The protection of a nation from attack or other danger by holding adequate armed forces and guarding state secrets. Encompasses economic security, monetary security, energy security, environmental security, military security, political security and security of energy and natural resources”.
In practice, a great deal of the public discussion about national security falls into the following areas:
- Public Safety
- Threats include aircraft hijack, bombs and firearms in public spaces, and attacks at major events such as the Olympics
- Prominent Person Safety
- Archetypal examples include George Bush and Tony Blair, Salman Rushdie and Kurt Westergaard, and government meetings such as the G8, APEC and CHOGM
- Critical Infrastructure Security
- Threats include attacks on ports, ships, railways and energy transmission channels, electronic denial of service attacks, and the introduction of anthrax to water supplies
Since 2001, the sale to the Australian public that national security is the most important thing that they should be worried about has been almost entirely based on public safety aspects, using the term ‘counter-terrorism’, and with a very strong emphasis on the threats to it arising from Islamic fundamentalism.
Frequent reminders are given of the major strikes in New York and Washington in 2001, Bali in 2002 and 2005, Jakarta in 2003, 2004 and 2009, Madrid in 2004, London in 2005 and Mumbai in 2008. Among the 202 who were killed in the Bali attack in 2002 were 88 Australians. In addition, a handful of Australians have died in other attacks around the world.
In Australia, meanwhile, the terrorist threat has been very limited. Since 2001, despite periodic large-scale raids, law enforcement agencies have successfully prosecuted a total of only 15 individuals in relation to 6 instances of preparation to commit an act of terrorism-related violence in Australia (AGD 2013, pp. 102-111. See also Lynch et al. 2014, pp. 94-97).
During the 15 years since the World Trade Center attacks, there have been well over 20,000 deaths from vehicle accidents, whereas terrorism has given rise to zero deaths and injuries on Australian soil, and no harm to property. The rhetoric used by and on behalf of national security extremists vastly exaggerates the reality.
Prof Clarke goes on to provide a detailed analysis of the failure by governments to provide impact assessments on Australian society over privacy issues, including their own purported mandatory requirements. Similarly, he exposes the overblown national security measures implemented by comparison with other countries, whicl still undertaking no privacy impact assessments.
He provides a series of case studies to proved his points:
- The Document Verification Service 2004-15
- Automated Number Plate Recognition Mass Surveilance 2007-ongoing
- The Telecommunications Act s313 2013-15, and
- Date Retention 2003-15
Extremism become embedded in bureaucracy
There are few mechanisms whereby the ‘eternal vigilance’ necessary to protect freedoms can give rise to effective controls over the power of national security extremism that has become embedded in the Australian government bureaucracy since 2001.
…advocacy organisations’ submissions are routinely ignored by Parliamentary Committees. National security proposals are routinely passed through the Parliament with unseemly haste, and generally with a supine Opposition voting with the Government rather than joining with the cross-benches to force proper process, and amendments to or defeat of the proposals.
Australian democracy is now extremely fragile.
It will be in dire straits as soon as a genuine national emergency arises, or national security extremists contrive the appearance of one, by leveraging off minor incidents, overseas incidents, or imaginary circumstances, in order to manipulate public opinion. To date, compromises of human rights in Australia have primarily afflicted only Aboriginals and a small minority of Muslims and converts to Islam. The scope exists for much broader abuse of human rights.
ENDS
Professor Roger Clarke was awarded the 2009 Australian Privacy Medal. He is principal of Xamax Consultancy Pty Ltd, Canberra, and a Visiting Professor in the Cyberspace Law & Policy Centre at the University of NSW, a Visiting Professor in the Department of Computer Science at the Australian National University, and Board member of the Australian Privacy Foundation from its inception in 1987 for nearly 30 years.. He is a member of Civil Liberties Australia.
For the full document: http://www.rogerclarke.com/DV/IANS.html It is © Xamax Consultancy Pty Ltd, 2015
Prof Clarke comments further:
It would of course be highly beneficial to ‘maintain the rage’ about the now 66 ‘counter-terrorism’ statutes:
http://www.rogerclarke.com/DV/IANS.html#ANS
http://www.rogerclarke.com/DV/IANS.html#App2
and the couple of hundred human-rights-infringing measures they contain: