The following is a letter sent to Attorney-General Mark Dreyfus KC, MP from EFA Chair Justin Warren.
The Hon. Mark Dreyfus KC, MP
RE: Persistent unlawful surveillance by Australian law enforcement agencies
I note with alarm the reporting in this weekend’s edition of The Saturday Paper that, in the assessment of the Government Ombudsman, “Australia’s law enforcement agencies have persistently accessed, retained and used private email, voicemail and text messages without legal authority and failed to provide the data protections that the law requires.”
I agree with former independent national security legislation monitor Bret Walker, SC (quoted in The Saturday Paper article) that if law enforcement agencies cannot meet the standards required to exercise these extraordinary powers, then the powers should be withdrawn. I would go further: they should be withdrawn immediately.
These are issues that were not only predictable, they were predicted.
EFA has long warned of the dangers of granting too much power to those with few incentives to curtail its abuse. In your own assessment, compliance is going backwards. Agencies have already had more than enough time to learn to use their powers safely, and they have comprehensively failed. Why should they be given more time?
Why should Australians tolerate ongoing, systemic law-breaking by those with power while we are expected to submit to increasing restrictions on our own freedoms? Our right to protest is under attack while police target the young and the vulnerable.
In his comprehensive report into Australia’s surveillance regime, Dennis Richardson recommended that the TIA Act be reformed, and that he was not the first to recommend that this be done. Richardson also noted that this would be time-consuming; it would take “two-three years of very detailed work and drafting before being considered by Parliament” and then updates to various systems would be required to give effect to the legal changes. It has already been three years since Richardson’s report was delivered and yet the work has barely even begun.
Australians should not have to suffer ongoing harms to their privacy, liberty, and inherent dignity because a shanty-town of poorly-drafted laws has been created by successive Parliaments that appeared to care more for the authoritarian impulses of law enforcement than for ensuring Australia remains, or perhaps more accurately becomes, a liberal democracy. The time to act is long past.
If action is beyond the current Parliament, then your government must justify to Australians why inaction is all we can expect. If continuous law-breaking by the authorities charged with enforcement of the law is acceptable to you as Australia’s First Law Officer, then Australians deserve to know why you believe this is so. Surveillance is an extraordinary intervention into the natural state of privacy that Australians have every right to enjoy. That privacy is now routinely invaded without lawful justification.
Individually, if we drink drive, we know and accept that our licence to drive will be suspended, and perhaps revoked. Why, then, should we tolerate the continued abuse of far greater power than a licence to drive? Is it because law enforcement agencies are somehow above the laws they are charged with enforcing? Has Australia regressed so far that we must learn to love the taste of steel-capped boot?
If this latest revelation is not a bridge too far, then what is? Where is the line? Where is the line that, if crossed, will invite tangible, effective consequences?
Or is there no line?
Is there no amount of abuse of power, no magnitude of unlawfulness, no systemic inability to improve that is too much for you? If you believe there is no bottom, no depth too deep, then declare it openly.
Or if, as I hope, you still believe that we are all equal before the law, then prove it with action, not mere empty words. Demonstrate to Australians that they can be assured that there are limits on power, that bad behaviour does have consequences, and that abuse of power results in its removal. Show us the line. Declare the point at which our government will cry “Enough!” and remove some small amount of the vast empires of power that have been gifted to these agencies.
And do it, today.
Electronic Frontiers Australia