In a speech in 1898, British statesman Joseph Chamberlain, father to Neville, told his audience:
I think that you will all agree that we are living in most interesting times. I never remember myself a time in which our history was so full, in which day by day brought us new objects of interest, and, let me say also, new objects for anxiety.
In hindsight, his words may be applied more accurately today than then, for the internet age makes the ‘fullness’ of history at the outset of the twentieth century look positively hollow.
We are bombarded, not day-by-day, but minute-by-minute, with notifications, announcements, pop-ups, phone calls and messages from WhatsApp, Facebook, Instagram as well as countless other apps and digital mediums.
In 2015, Edward Snowden’s whistle blow blew open secret surveillance operations being undertaken by governments globally, that utilised these new technologies to spy on the digital lives of their citizens.
But rather than reduce its electronic surveillance activities following these revelations, Australia has massively increased its capacity for law enforcement agencies to carry out electronic surveillance of its citizens.
The current state of legislation in Australia
The Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015, known colloquially as the Metadata Retention Scheme, mandated Australian service providers keep metadata relating to online activities for a period of 24 months.
The justification, according to lawmakers, was the need to target “[s]erious and organised criminals” and “persons seeking to harm Australia’s national security”, who “plan and to carry out activities […] including child pornography.”
According to a 2017 article co-authored by Deakin University’s Dr Monique Mann and digital rights advocate, Angus Murray, this legislation, in essence, “allows authorised law enforcement agencies warrantless access to information about digital communications such as the recipient or time sent, but not their content.”
In 2018 the Telecommunications and Other Legislation Amendment (Assistance and Access) Act was passed. According to the Act’s Explanatory Memorandum, these powers were required to respond to the “increasing use of encryption” to facilitate “organised crime, terrorism, smuggling, sexual exploitation of children.”
The Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 was enacted in September of this year, granting widespread powers to Australia’s law enforcement and intelligence agencies to, in the words of Angus Murray and Dr Monique Mann, “hack into accounts, take them over, and continue to operate them without the knowledge of users.”
Once again, according to the Bill’s Explanatory Memorandum, the justification was to target “child abuse and exploitation, terrorism, the sale of illicit drugs, human trafficking, identity theft and fraud, assassinations, and the distribution of weapons.”
And looming on the near horizon is the Telecommunications Legislation Amendment (International Production Orders) Bill 2020, currently before Parliament, which would open up the sharing of such data between Australia and the United States.
Casting a wide net
“We’ve gone from collecting data about data to ‘we can covertly monitor you, alter your accounts, take over your accounts, communicate with people as if we’re you, and alter content,” says Angus Murray, a partner at Irish Bentley Lawyers and an Adjunct Lecturer at the University of Southern Queensland.
“The justifications for this, being child exploitation, human trafficking and counter-terrorism, don’t align with this legislation.”
But Robert Musatto, Dr Roberto Musotto, Research Fellow at the Cyber Security Cooperative Research Centre, believes the new powers are necessary.
“If I am threatening to use a gun to inflict violence towards another person, criminal law allows a police officer to forcefully stop me from doing that.”
Until today, he says, “the scope of action in the cyber field was relatively limited and restricted.”
While acknowledging that “it is not possible to predict how far reaching these powers will be employed or how pervasively they will be exercised,” Dr Musatto says “these warrants will be issued when there is a serious threat and necessity to be addressed.”
Lecturer in Computing and Security at Edith Cowan University’s School of Science, Dr James Jin Kang, has a similar view.
“This act comes from the public safety [need] to identify terror or criminal acts,” he said.
But Mr Murray sees things differently.
“It’s not really fully used when this legislation is introduced, and the metadata retention and the assistance and access legislation is a good example of that.
“The reporting around how many requests are made in those two regimes is nowhere near the level you’d expect to see, given the necessity and urgency that’s pushed when they’re put through parliament,” he says.
And this view is supported, funnily enough, by government data showing that the application of many of these laws has belied their stated intention.
According to the Telecommunications (Interception and Access) Act 1979 Annual Report 2015–16, for example, a total of 325,807 authorisations by law enforcement agencies were made, mostly for drugs or homicide investigations.
In 2019-2020, this number dropped to 306,995, but once again, the vast majority of applications targeted illicit drug offences and homicide.
Authorisations for offences related to terrorism comprised only 2,348 instances, totalling less than one percent of all applications.
A framework for digital rights in Australia
“When the GST was introduced and debated in the late 1990s, it became an election point, and that was because there was a bipartisan recognition that that significantly changed the way that Australian’s interacted on a revenue basis.
“I don’t see why surveillance legislation doesn’t fall within the same category of importance,” says Mr Murray.
In a scathing criticism of Australia lack of human rights protections, UNSW’s Genna Churches and Dr. Monika Zalnieriute wrote:
“Australia is a signatory to the ICCPR and has obligations to protect human rights. However, unlike many Western democracies, Australia does not have a federal human rights Bill or Charter. Apart from the Parliamentary Joint Committee on Human Rights, there is little scope for scrutiny or room for initiating legal challenges to legislation that unnecessarily interferes with fundamental rights such as the right to privacy.”
Angus Murray agrees.
“We don’t have a safeguard of a human rights framework, which has been incredibly valuable both in the US and the EU; we don’t have a parliament that’s willing to put these things openly to the public to debate and inform the public about the consequences that potentially arise from these legislative frameworks being introduced; and we have a track-record at a federal level – and to a large extent, the state levels – where we can’t trust government with technology.”
Interesting times
We Australians, inhabiting this Lucky Country, often echo that time-worn mantra: “She’ll be right”.
Living in an age of unprecedented access to information – the likes of which would have, no doubt, cowed Joseph Chamberlain into admitting his ‘times’ were, in contrast, slightly less ‘interesting’ – it is easy to rely on such sentiments.
And no doubt the benefits of social media give us invaluable tools to manage these interesting times.
But the current balance sees our enjoyment of such technologies precariously tipped towards a surveillance state which has the ability to monitor every movement we make online.
Without a solid framework for human rights in Australia, the national slogan of “she’ll be right” no longer suffices.
