This is a guest post from Angela Daly & Angus Murray, Members of the EFA Policy and research Standing Committee. Angela is also a member of Australian Privacy Foundation's board of directors.
Between 15th-19th of September, in the week leading up the first year anniversary of the 13 Necessary and Proportionate Principles, EFA and the coalition behind the Principles will be conducting a Week of Action explaining some of the key guiding principles for surveillance law reform. Every day, we'll take on a different part of the principles, exploring what’s at stake and what we need to do to bring intelligence agencies and the police back under the rule of law. You can read the complete set of posts at: https://necessaryandproportionate.org/anniversary. The Principles were first launched at the 24th Session of the United Nations Human Rights Council in Geneva on 20 September 2013. Let's send a message to Member States at the United Nations and wherever else folks are tackling surveillance law reform: surveillance law can no longer ignore our human rights. Follow our discussion on twitter with the hashtag: #privacyisaright
“While Australia shirks its international obligations, Australians wait on the rest of the world to act”
One of the most important treaties of international human rights law is the International Covenant on Civil and Political Rights (ICCPR) which has been signed and ratified by most of the world’s countries. Contained within the rights and liberties set out in this treaty are the right to free expression (Art 19) and the right to privacy (Art 17). Although all of these countries have signed and ratified the ICCPR, Australia, Canada, New Zealand, the United Kingdom and the United States have exhibited blatant disregard for the rights contained therein by forming the Five Eyes (FVEY) coalition of countries which engage in mass surveillance of their populations. The ‘above the law’ existence of FVEY was only brought to the public’s attention as a result of Edward Snowden’s leaked documents, and was revealed to be fundamentally at odds with international human rights principles.
Indeed, this lack of compliance with human rights has resulted in various legal challenges to the FVEY activity. One of these challenges has been spearheaded by advocacy group Privacy International, which has been tackling the UK arm of FVEY. Initially attempts to compel the release of information relating to the scope and powers of FVEY via Freedom of Information requests to Government Communications HQ (GCHQ) were denied. Now Privacy International has brought a claim before the European Court of Human Rights. The essence of this claim is that the refusal to release this information is a violation of free expression as enshrined in Art 10 of the European Convention on Human Rights. The lack of public information about the exact nature of the FVEY partnership, given its impact on the rights to free expression and privacy of millions of people throughout the world, ought to be of grave concern to all.
We in Australia are watching these developments overseas with great interest, particularly given the lack of means at our disposal to challenge aspects of FVEY and/or Australia’s very participation in the partnership and disregard for its international obligations. Australians suffer from a lack of enforceable human rights compared to citizens of the other FVEY countries. While the ICCPR has been signed and ratified by Australia, the rights it contains are, on the whole, not actionable in national law. At the domestic level, Australia does have a written Constitution, but no comprehensive bill of rights. A weak right to political communication has been implied into the Constitution by the Australian courts, but its scope is very limited, and there remains no enforceable right to privacy.
So as Australians we are left to watch developments in other FVEY countries, and hope that these challenges to mass surveillance and aspects thereof are successful. Any striking down of the FVEY partnership by courts in other countries could possibly have spillover effects for Australians and their free expression and privacy rights. Thus they may cause the rights recognised in these other countries’ legal systems to have some positive extraterritorial reach in Australia.
However, the fact remains that despite our country being an enthusiastic participant in FVEY’s mass surveillance activities and shirking from its international human rights obligations, we are disadvantaged compared to citizens of the other FVEY countries in our scant rights protection and must await developments in other parts of the world rather than be able to hold the Australian government to account for violations of our human rights.