A significant review of Australia’s surveillance laws presents an opportunity to reframe these powers around upholding and protecting human rights, a number of digital and civil rights groups have urged.
The creation of a single Surveillance Act is a chance to better protection the information and data of Australians and ensure the power of authorities is necessary and proportionate, the Australian Privacy Foundation, Queensland Council of Civil Liberties and Liberty Victoria said in a joint submission to the government’s discussion paper on reforms to Australia’s electronic surveillance framework.
The Department of Home Affairs is currently consulting on the development of a new legislative framework for electronic surveillance, with plans to consolidate the existing “complex and inconsistent” legislative framework with one Act.
The federal government has committed to this reform, and released a discussion paper on the issue late last year. It plans to release draft legislation this year before finalising it in 2023.
This process needs to place human rights and privacy at its centre, the civil rights organisations urged.
“The rationale for national security law comes from the importance of ensuring that freedoms are protected,” the joint submission said.
“We are concerned to ensure that the ‘forest isn’t lost for the trees’ in this reform process and that the guiding and predominant principle in this reform is that our national security framework serves to protect the freedoms that ought to be enjoyed by all Australians.
“The reform processes underway represent an opportunity to ensure that the exercise of these powers are necessary, proportionate, consistent with the rationale supporting their introduction, transparent and subject to enhanced oversight and reporting requirements.”
The new Surveillance Act should be clear, transparent, modernised, technology-neutral and have appropriate thresholds and safeguards, the organisations said.
First and foremost, a federal human rights framework should be introduced before the new Act to complement it, they said.
“National security and surveillance powers in Australia ought to follow the introduction of a federal and enforceable human rights framework,” the submission said.
“The protection of Australians’ human rights and associated freedoms is the rationale for the existence of national security legislation and therefore must be the paramount consideration for the use of intrusive powers.
“In the context of substantive reform to national security and surveillance legislation it would be remiss to avoid due consideration of Australia’s human rights obligations as established under international law.”
The organisations said that all intelligence warrants should be issued by the Federal Court of Australia or the Supreme Court of states and territories only, and decision records should be published in a redacted form.
“There should be no circumstances where warrants are authorised by the Heads of Interception Agencies, the Attorney-General or Ministers. It is axiomatic that authorisation by a court provides necessary independence, addressing concerns about one executive hand-washing the other,” the groups said.
“Transparency, accountability and oversight of the operation of warrants is possible by publicising the legal principles of warrants issued and would enhance public confidence in the oversight of such Australia’s electronic surveillance regime,” they said.
The definition of “communication” in the new Surveillance Act should be widened to “any exchange or record of information in any form between two or more locations” to enable an enhanced focus on human rights, the submission said.
“We submit that the key to creating a simplified national security regime as regards to electronic surveillance is a very broad definition of the key term – being communication,” it said.
“We consider that it is no longer relevant to attempt to define elements of a communication other than the fact of a record or exchange of information occurring.”
The use of surveillance powers should also be restricted to very serious offences, the organisations said.
“Electronic communication surveillance powers in Australia ought to be limited to the most serious of offences – namely terrorism, human trafficking and child exploitation,” the submission said.
No extra powers should be handed to other agencies except for a potential federal anti-corruption commission, they said.
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