10 May 2014
Australian government agencies are attempting to apply surveillance to our every action. The information that’s become available in recent years makes clear that:
1. Surveillance of Australians is being undertaken by many Australian government agencies, including agencies within the Defence portfolio, and by foreign agencies.
2. Australian and foreign agencies are exchanging data about one another’s citizens, resulting in the circumvention of national laws that are intended to protect against spying on the populace.
3. Current legal protections for information rights are seriously inadequate.
4. Laws that are supposed to protect privacy and private data are being weakened, evaded or breached.
5. The UN Resolution on Privacy in the Digital Age has reinforced the importance of privacy as a human right.
This document expresses APF’s Policy on this matter.
1. All agencies of all Australian governments must fully respect the rights expressed in the ICCPR relating to privacy and to the freedom of thought and expression, and precluding unreasonable search and seizure.
These are not options or goals, but fundamental rights and freedoms.
The erosion of these rights and freedoms must stop. Australian governments have obligations to sustain these rights and freedoms for everyone in Australia and for all Australians while they are overseas. Particular concerns arise in respect of vulnerable, disadvantaged and marginal groups, who are frequently the subject of discrimination.
2. All surveillance activities by all agencies of Australian governments must be subject to explicit legislative authority. There must be no secret laws hidden from parliaments or from the public.
3. All empowering legislation must be developed through processes that respect the APF’s Meta-Principles for Privacy Protection.
4. The Australian government must not enter into international treaties or agreements without prior public discussion, parliamentary debate and parliamentary authority, where those treaties or agreements:
- compromise human rights as expressed in ICCPR
- preclude or compromise appropriate legislative processes or public transparency
Existing treaties that have such effects must be reviewed, with a view to recovering lost and compromised rights.
5. All powers must be exercised transparently, and must be subject to effective controls, audit, oversight, complaints-handling, investigation, sanctions and enforcement.
6. All agencies that are granted surveillance powers must be accountable for their use of them. Regulatory agencies must be empowered and resourced to ensure that the accountability arrangements are effective.
7. All proposals for change to information rights and freedoms must be presented, justified and debated in a transparent manner. They must never be embedded in omnibus bills or otherwise hidden in legislation relating to other issues.
8. The requirement of transparent law-making is violated if the package proposing the measures fails to include a copy of relevant Acts as they would appear if the amendments were passed.
9. A loose interpretation of ‘lawful authority’, which has been used in some jurisdictions to allow agencies to evade accountability on the grounds of national security, is inconsistent with democratic principles. All powers must be transparent and subject to parliamentary and public debate.
10. Laws must be reviewed and updated in order to ensure that protections are sustained, and where necessary created.
Acknowledgement
This document benefited from discussions that resulted in the Ottawa Statement on Mass Surveillance in Canada, issued following a Workshop on the Politics of Surveillance, at the University of Ottawa 8-10 May 2014. It also reflects the International Principles on the Application of Human Rights to Communications Surveillance (aka ‘Necessary and Proportionate’) of 2013-14.