news Greens Communications Spokesperson Scott Ludlam has introduced legislation that would see Australian law enforcement agencies blocked from obtaining access to telecommunications records without a warrant; but it is not immediately clear if either of the major parties are prepared to support the bill.

In a speech to the Senate yesterday with reference to the bill, Ludlam pointed out that currently Australian law enforcement agencies were able to access vast amounts of private data without getting a warrant, including data pertaining to telephone calls, emails, Internet access and the geographical location of mobile telephones. You can download the bill and an associated explanatory memorandum in Word format.

The use of this information is currently skyrocketing in such law enforcement organisations. According to the latest Telecommunications Interceptions and Access Act (TIA) annual report, Australian law enforcement agencies were granted access to personal information about Australians 293,501 times throughout the 2011-12 year, without obtaining a warrant or having any judicial oversight.

Ludlam stipulated that the bill as introduced would not prevent law enforcement and intelligence agencies from accessing material in order to carry out their functions; it would merely require that they obtain a warrant before being able to access such information.

“A member of the judiciary, a recognised cornerstone of democracy and the rule of law, will be required to provide independent and informed oversight of the use of coercive or invasive powers,” said Ludlam. “Requests by ASIO will be required to obtain a warrant from the Attorney General.”

According to Ludlam, the use of warrants — which is still mandatory in many other areas of law enforcement — not only protected citizens from “the abuse of power” by the Government, but also provided “legitimacy and authority” to police or intelligence agencies carrying out their functions, by ensuring that their actions are both “necessary and proportional”.

“While it is the government’s role to promote collective protection against identity theft, online crime and acts of political violence, Australian citizens have a legitimate expectation that the government will defend their democratic right to privacy, freedom of expression and freedom from arbitrary acts of state surveillance or coercion,” Ludlam said.

Much of the way the current telecommunications regime functions dates back to when governments globally were more concerned regarding the threat of terrorism, in the wake of the attacks on the US on September 11, 2001. However, a number of the powers enacted throughout that period have not been rolled back.

“The Greens believe that changes made to the Telecommunications Act and the Telecommunications Interception and Access Act (TIA) in 2007 to normalise warrantless surveillance, radically and unnecessarily privileged national security concerns over the privacy and civil liberties of Australians,” said Ludlam. “This Bill reinstates the balance between national security and privacy and treats Australians as citizens first with basic rights and protections, and not merely suspects.”

“In May 2013 the Independent National Security Legislation Monitor concluded that several of the 80 hastily made changes to Australian law after the events of September 11 were not effective, appropriate or necessary. The scope and reach of the laws were unprecedented, and included extraordinary powers of surveillance, detention and restriction and censorship on speech.”

“Given that Australia’s security agencies and police forces have been deployed against targets that fall well beyond threats to national security such as climate change demonstrators, the occupy movement, anti-whaling campaigners and supporters of the WikiLeaks publishing organization, the lines between terrorism, civil disobedience and healthy dissent are being routinely blurred,” Ludlam said. “This Bill seeks to ensure that Australians are protected from indiscriminate monitoring by law enforcement agencies.”

“The Australian Greens strongly support the Australian Law Reform Commission (ALRC) recommendation that the Telecommunications Interception and Access Act (TIA) be reviewed in its entirety. Until an Australian government has the sense to implement the ALRC’s recommendation, the TIA must be amended piecemeal, such as with this Bill, in an effort to return Australian law enforcement procedures to protecting the hard-won rights fundamental to a liberal democracy.”

It is currently unclear whether either major side of politics — Labor or the Coalition — would be inclined to support the legislation. Delimiter has requested comment on the issue from the offices of Communications Minister Stephen Conroy and Shadow Communications Minister Malcolm Turnbull.

However, there are indications that there is little desire amongst either party for increased controls to be placed on law enforcement use of telecommunications data without warrants.

For example, last week Australia’s Federal Attorney-General Mark Dreyfus made the declaration that Australian law enforcement in Australia “would grind to a halt” if police officers and other law enforcement agents were forced to apply for a warrant every time they wanted to access Australians’ telecommunications data.

Speaking on the ABC’s 7:30 program at the time, Federal Attorney-General Mark Dreyfus rejected calls for warrants on telecommunications data to be re-introduced. “To require a warrant for every time, and it’s in the thousands, the mini thousands, of times that a law enforcement agency accesses this non contact telecommunications data would mean I think that law enforcement in Australia would grind to a halt,” Dreyfus said.

Although some elements of the Coalition, such as Turnbull, have expressed concerns about some planned aspects of the national telecommunications interception regime, such as Labor’s controversial data retention plan, it’s also true that in general, the Coalition has been broadly supporting of enhancing law enforcement access to telecommunications data.

However some key interest groups supporting the Coalition with close links to the Coalition have also been supportive of Ludlam’s comments in this area. A researcher for the conservative thinktank the Institute of Public Affairs, for example, highlighted Ludlam’s warrant effort on its ‘Freedom Watch’ blog last week and noted that it agreed with Ludlam that the US National Security Agency’s recently revealed powers of interception with major IT giants Apple, Google and Microsoft was an unwarranted breach of online rights.

One minor party likely to support the warrant push is the new Wikileaks Party formed by Wikileaks founder Julian Assange and supporters, which has made a very similar call for warrants as Ludlam has.

opinion/analysis

Look, I’ll say this right up-front. This bill is never going to be supported by either the Coalition or Labor, and even the independents might have problems with it. As with a lot of the legislative work that the Greens do, it’s a vanity piece — a bill which doesn’t have a snowflake’s chance in hell of getting up, but which represents the ideals of the Greens; the kind of legislation which Greens voters want their elected representatives to put up.

However, I don’t think this is a bad thing. By developing this kind of legislation and taking the time to put it forward, as well as taking the parliamentary process as seriously as it (usually) does in the face of the rampant absurdity delivered by the other parties, the Greens are demonstrating what could be possible if our political parties were less, well, political, and more passionate about actual positive outcomes for Australians. More idealistic.

After all, I think it very likely that a majority of Australians would answer “yes” if asked whether they believed law enforcement agencies should be required to get a warrant before getting access to private telecommunications data. That fact illustrates that there is a vast disconnect between what’s acceptable in the inner echelons of government departments and politics, and what’s acceptable out there amongst the general public. It’s a sad fact; but it’s true.

Image credit: David Howe, Creative Commons Attribution 3.0 Unported licence