Last Wednesday the Howard government introduced into Parliament three new bills intended to further strengthen Australia’s national security. Once passed, the new legislation will be the latest addition to the 19 federal anti-terrorism laws enacted since September 11, 2001.
The first of the new bills contains amendments to the Telecommunications (Interception) Act 1979. It provides that the general prohibition against telecommunications interception does not apply to the interception of so-called “stored communication”. “Stored communication” is defined by the bill (pdf file 19.1KB) as “communication that is stored on equipment or any other thing”. It includes communications like SMS, email and voicemail. Effectively the new provisions allow the Australian intelligence and law enforcement agencies to access and intercept certain forms of telecommunications without an interception warrant.
It is commendable that the Government has finally set out to clarify the application of the Telecommunications (Interception) Act. The need for clarification arose because the original legislation was enacted long before the development of SMS, email and voicemail. As a result, it is silent on the issue of “stored communication”. However, it is difficult to see why these modern forms of communication should be exempted from the prohibition against interception.
According to Attorney-General Philip Ruddock “stored communications” are qualitatively different from “live” or “real time” communications like telephone calls. This is absurd. SMS, email and voicemail are forms of communication which are used interchangeably in everyday practice with “live” or “real time” telecommunication. Indeed, a person who calls another person but is unable to get through, might leave a voicemail or send an SMS message, setting out the exact information they would have communicated directly to the person, had they been able to get through. The prohibition against telecommunications interception without warrant should therefore also apply to “stored communication”.
The other two bills (pdf file 102kb) address the complicated question of how to prevent the disclosure of information in criminal proceedings where such disclosure is likely to prejudice national security. National security is defined in very broad terms as encompassing “defence, security, international relations, law enforcement interests or national interests”. The problem with the sweeping nature of this definition is that special procedural rules originally designed to protect sensitive information in terrorism cases may be easily applied to “regular” criminal proceedings. Citing “national security” interests, the Government would be able to prevent, for political reasons, the disclosure of information regarding matters requiring public scrutiny. These include contracts for government tenders, analyses or forecasts of the Australian economy, or reports of mismanagement within Australia’s immigration detention centres.
It is not only the bill’s definition of national security that is fundamentally flawed. The provisions dealing with procedural amendments themselves are the subject of serious concern. Under the bill, a court is permitted to make an order that the defendant or the legal representative, or both, are not entitled to be present during particular parts of the hearing. In effect, these provisions allow the entire defence team to be ejected from the court room while the Crown gives secret evidence. When the Crown has completed its secret submissions, the defence is invited back to the room to answer the accusations it was not permitted to hear. Such arrangements seriously undermine the defendant’s fundamental right to a fair trial. It is an essential feature of our adversarial system of criminal justice that a defendant or his or her legal representative should be present at all times.
Aligned with the right to be tried in his or her presence and to defend him or herself in person or through legal representation, an accused has the right to know all the evidence so that he or she may answer the case brought against them. The new laws, however, allow the Attorney-General to issue special certificates preventing the defence from gaining access to documents or from calling and questioning witnesses. These documents and testimonies, while not challengeable by the defence, can nonetheless form the basis for subjecting the defendant to lengthy jail terms - the harshest punishment the state may inflict upon a citizen.
Equally worrisome, the new legislation imposes a restriction on the defendant’s right to choose and freely communicate with counsel of his or her choice. It requires that in some cases information shall be disclosed to defence counsel only after an appropriate security clearance. The requirement of a security clearance arises in circumstances where the Attorney-General gives written notice to the defendant’s lawyer that an issue is likely to arise in proceedings relating to a disclosure of information which may prejudice national security. In effect, such arrangements enable the Government to manipulate who can represent a defendant and who cannot. As the Law Council of Australia has pointed out, this raises serious concerns in relation to the fundamental principle that the legal profession should be independent of, and not be beholden to, the Executive.
It cannot be denied that it was (and still is) sensible and necessary to reassess existing laws in light of the threat of international terrorism. However, when responding to security threats, it is the government’s ultimate responsibility to defend the nation without excessively damaging, undermining or destroying the very standards that make the existence of our liberal democracy possible in the first place. Any legislative response must therefore strike a fair and effective balance between “security” and “liberty”.
The new bills demonstrate that the Howard government yet again has not come close to accomplishing this delicate task. It is beyond question that in order to fight terrorism and crime effectively, it is of vital importance to protect sensitive information. Also, law enforcement and intelligence agencies must in certain circumstances be able to intercept telecommunications. However, the latest trade-offs have gone too far. The drastic measures introduced by the new security bills can hardly be justified by the exigencies of the situation. Indeed, they may ultimately create a threat to “our way of life” that may turn out to be greater than the current threat of terrorism itself.
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