Civil liberties

Metadata mission creep? Who would have thought?


The latest proposal from Victoria Police to monitor mobile phone use highlights the danger of mission creep under mandatory metadata retention laws:

The so-called textalysers… are able to analyse metadata to determine whether someone was using their mobile phone at a specific time – while driving, for example.

… The model proposed by New York authorities involves the analysis of a mobile device’s metadata after a road incident to determine whether the device had been used in the lead up to the event.
… Privacy laws are slowing progress of the proposed new legislation, although Israeli company Cellebrite, which produces the technology, claims that the textalyser system doesn’t have the ability to read the content of text messages and social media updates, but rather to determine whether the device was used at a certain time to send text messages.

However, Australia’s new metadata retention laws, which allow for the time and basic surface details of every message sent to be stored and made available to law enforcement agencies, could speed the technology’s introduction here.

While the government justified the introduction of metadata laws largely to fight terrorism, the inherent danger with gathering mountains of personal data (beyond privacy and data security issues) is that once it exists other entities will inevitably demand access (see that list here).

In fact, the IPA’s Simon Breheny predicted this as early as 2012, and the IPA’s Chris Berg warned about the likelihood of the compulsorily acquired metadata being used for purposes other than national security at the time of its introduction in 2014:

A lot of opponents of data retention have pointed out that this creates a very real risk of unauthorised access. It’s hard to keep data secure.

Yet just as concerning is authorised access. Once these databases have been created they will be one subpoena away from access in any and every private lawsuit.


So much for the “Freedom Commissioner”


Less than three years after the Coalition government appointed Tim Wilson as the “Freedom Commissioner“, Attorney-General George Brandis has now appointed someone from an organisation which has repeatedly been on the wrong side of debates on freedoms, and public policy more generally.

This is just some of what the Public Interest Advocacy Centre – led by the new Human Rights Commissioner Edward Santow – has said in recent years:

Freedom of speech:

PIAC has welcomed the Federal Government’s decision not to proceed with proposed changes to section 18C of the Racial Discrimination Act…

‘Freedom of speech is a crucial human right but so too is the right not to be vilified on the basis of your race or ethnicity. Serious race-based insult, offence and humiliation can be deeply wounding and threatens important aspects of Australia’s liberal democracy,’ said Edward Santow, PIAC’s CEO.

Constitutional recognition of Aboriginal and Torres Strait Islanders:

PIAC generally supports the proposal for a statement of values or recognition, which appropriately recognises Aboriginal and Torres Strait Islander people in the Constitution… PIAC submits that constitutional protection is imperative to protect the rights of Aboriginal and Torres Strait Islander Australians against racial discrimination.

Freedom of religion:

We oppose, in particular, the granting of blanket exemptions to churches and religious organisations from anti-discrimination laws.

Suing Coles for its “discriminatory” website:

“Ms Mesnage relies on a screen-reader to use the internet. Like many people who are blind or have a vision impairment, she has had ongoing problems using the Coles website to do her shopping since 2008,” PIAC CEO, Edward Santow said.

Pro Bono Australia News reported in October 2014 that after negotiations with Coles failed to bring about a solution, Mesnage brought legal proceedings against the supermarket chain under the Disability Discrimination Act 1992.


Sanity prevails: Evangelical Union at USyd won’t be deregistered


The University of Sydney Union has abandoned their plan to deregister the Evangelical Union.

Faith-based societies at the University of Sydney were facing deprivation of monetary resources and access to campus facilities over their requirement that members be Christian.

However, in a big win for freedom of association on campus, the union announced in a media statement today that faith based clubs and societies would be able to decide the conditions of their membership:

After long and thoughtful consultation with our religious communities on campus, the University of Sydney Union Board of Directors resolved at the April Board Meeting to amend the C&S Regulations to allow faith based declarations as a condition of membership and Executives of faith based clubs registered under the USU C&S program.

The Board has listened to its members and acknowledges the importance of such declarations to some of our faith based clubs and societies.


First they came for the Evangelicals, now they’re coming for the Catholics

The University of Sydney Union is at it again, this time targeting the 88-year old Catholic Society over the requirement that executive members are Catholic.

In a repeat of the situation facing the Evangelical Union, the Catholic Society is facing deregistration because of their “discriminatory” policy.

The Australian reports on this latest attack on freedom of association on campus:

“It’s a surreal situation,” ­society president Francis Tamer said. “We have been told we are discriminating against people ­because you have to be Catholic to be on the executive. Of course you do — we are the Catholic ­Society.”

One of the university’s best known Catholic alumni, Tony Abbott, agrees, saying “it seems like a hell of a double standard” given that Sydney University has long offered both a “women’s room” and a Koori Centre for ­indigenous students…

Similarly, Liberal and Labor clubs on campus have pointed out that they would expect their members to be Labourites and Liberals.

In the other ongoing case at Sydney University, the Evangelical Union voted 71-1 to not remove their requirement that voting members identify with Jesus Christ.

In response, the Union has delayed the decision to deregister the Evangelical Union, stating that the final decision is yet to be made due to legal complexity.


News of the predictable

Bike gang members on the Gold Coast dodge laws by pretending to “disassociate” for the time being:

Cunning Gold Coast bikies have publicly declared themselves not to be bikies to skirt tough laws banning them from associating with each other.

… Detective Inspector Brendan Smith said many bikies, particularly former Bandidos, had dropped the title but not the association.

“Since the Vicious Lawless Association Disestablishment laws were introduced we have seen many power players claim to be disassociated,” he said.

“They say they are no longer bikies and continue to meet without fear of strict laws.”


Free speech and open debate under threat from anti-discrimination laws

Archbishop Julian Porteous, the subject of a complaint to the Tasmanian Anti-Discrimination Commissioner

It is deeply disturbing that a Catholic archbishop is being dragged to an anti-discrimination authority for simply expressing a traditional view on the subject that until quite recently was shared by both the major political parties as well as a large segment of the population. This exposes religious organisations to attack from outsiders and leaves their practices and beliefs unguarded.

If religious organisations can be punished for simply expressing their traditional views on marriage, family and a child’s right to a father and mother, then I wonder what else they and their followers might be punished for once same-sex marriage is legalised in Australia.

Before a plebiscite on same-sex marriage can even take place in this country, it is necessary to address the intolerable impact that anti-discrimination laws are having on free speech. As a society we really need to ask ourselves if we should undermine the rights of one group in order to protect or promote the interests of another.

A real democracy – and we must never forget this – requires that controversial issues will be resolved by the people only after a truly open and robust debate has taken place.


It should never be a crime to offend a person

Reported today in The Australian:

Sydney’s Archbishop Anthony Fisher said it was “truly alarming” that any Australian would face proceedings before a tribunal for stating traditional Christian ­beliefs.

“Catholics, like the overwhelming majority of Aus­tralians, support freedoms of religion and speech,” Archbishop Fisher said. “Just as no one should be ­ridiculed or demeaned in the ­marriage debate, so too no one should be dragged before tribunals merely for stating one side of that debate.”

He said fair-minded readers of the bishops’ booklet “Don’t Mess With Marriage” would see that it was carefully worded and compassionate, and not designed to provoke or hurt.

… The commission’s decision was also attacked by champions of freedom of speech.

“This case highlights the ­attack on free speech represented by anti-discrimination law — it should never be a crime to offend a person,” said Simon Breheny, of free market think tank the Institute of Public Affairs.


Remembering Menzies’ wise words on religious liberty


The Victorian government’s relentless push to broaden anti-discrimination laws continue, no matter what stands in the way.

In September, I noted how the Labor party’s view of “equality” was concerned more with special privileges for some, and diminished liberties for others. The most recent effort concerns ruling out a proposed exemption for religious organisations in legislation that would permit same-sex adoptions.

A faith-based adoption organisation is fundamentally concerned with where a child is placed, and the nature of the family involved. The proposed changes to anti-discrimination laws run directly counter to these organisations ability to conscientiously carry out a worthwhile service. This is problematic to say the least.

This week, Attorney-General George Brandis opened a roundtable on freedom of religion, where he quoted Robert Menzies from one of his Forgotten People broadcasts in 1942. The transcript in full is worth reading, but one quote in particular struck me as especially timely:

… religious freedom for which the Scottish Covenanters fought was freedom for all, Catholic or Protestant, Jew or Gentile, and that to deny it was to go back to the dark ages of man. Religious persecution was the denial of freedom. Freedom of worship is the victorious enemy of persecution.

And so I revert to the theme of my broadcast on the first freedom – that freedom, if it is to mean anything, must mean freedom for my neighbour as well as for myself. There is nothing defiant or sectional about a demand for genuine freedom of worship, which is freedom for all.

The Victorian government’s view of equality undermines religious freedom, and is fundamentally anti-liberty. Menzies’ wise words are worth remembering.


Union membership at lowest rate in over 100 years

Screen Shot 2015-10-27 at 12.19.43 AMAustralia’s union membership is at its lowest point in over a century, according to new data released by the Australian Bureau of Statistics (ABS).

The latest employment data, released today, shows that union membership fell by more than 2 per cent—over 200,000 people—in a single year. The Australian reports:

Trade union membership declined markedly between August 2013 and 2014, according to fresh statistics published by the Australian Bureau of Statistics.

The ABS figures show the number of people who were trade union members in their main job fell from 17 per cent in August 2013 to only 15 per cent in August 2014.

The fall in union membership occurred across the economy, with union membership in the private sector falling from 12 to 11 per cent, and public sector membership falling from 42 to 39 per cent.

This means that Australia’s rate of union membership is now less than a quarter of what it was at it’s peak in 1962 (61 per cent). Since 1992, it’s fallen by over a third, from 40 to 15 per cent.

This leaves the Australian Labor Party (ALP) as the sole place where union membership has flourished—as IPA research has found, 17 of 25 sitting ALP Senators (68 per cent), and 23 of 55 ALP MPs (42 per cent), are former union officials.

This glaring disparity between union membership and political power is a direct result of the deep interconnected relationship between the ALP and the union movement. Such disproportionate influence of a single interest group is a problem for Australian democracy.

For more on union influence in the ALP, read the IPA’s 2015 report: Unions in Labor: A handbrake on reform (by myself and James Paterson)


What’s good for a media release is not necessarily good for freedom of association


Around Australia, anti-association laws have already proven themselves to be highly arbitrary and have led to some serious unintended consequences. But anti-association laws have one advantage: they make good law and order media releases.

Hence the Victorian government introduced into parliament earlier this month its own Criminal Organisations Control Amendment (Unlawful Associations) Bill 2015, designed to prohibit “habitual consorting” and unlawful association. You can read the Attorney-General Martin Pakula’s second reading speech here.

I explained the problems with anti-association and anti-consorting laws in the Drum when, in 2012, the NSW government was offering its own reforms:

Consorting laws are good for smoothing the wheels of prosecution – if you think the goal of a legal system is to maximise prosecutions. But their ability to prevent or punish serious criminal activity are limited.

Consorting laws are clearly unjust for those accused of consorting. But they are cruel for those who have been convicted and punished for a crime. A malicious police officer could eliminate a released criminal’s freedom of association simply by issuing his friends with a warning.

When governments face law and order problems, the urge to “do something” must be overwhelming. The newspapers call for action. Talkback radio calls for crackdowns. Police call for more police power.

But police and prosecutors already have a long list of offences they can charge, and they have ample powers to do so. Nobody seriously believes motorcycle gangs are an unprecedented threat that a modern legal system is powerless against, yet for some reason everybody acts as if they are.

Benjamin Franklin famously said, “Those who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

Freedom of association – a freedom that extends even to those who have in the past been convicted of a crime – is one of those essential liberties.