Rule of law

Troll debate officially out of hand

The Twitter trolls debate has spiralled out of control. The Daily Telegraph has declared that “time is up for Twitter trolls and bullies“. Attorney-General Nicola Roxon is coordinating a response with her state counterparts. Julia Gillard has arranged a meeting with the offended Robbie Farah.

Stephen Conroy, who has made a name for himself being furious at the internet, has chimed in too. The Communications Minister believes Twitter is acting as if it is “above the law”. In the US, the social media service is appealing a court order to turn over details of one of its users.

For Conroy this constitutes “treating their own country’s laws with contempt”. What an extraordinary statement for a Minister to make. Twitter has an absolute right to appeal, lawfully, a court ruling. And it seems justified in doing so. The US case involves the a charge against an Occupy Wall Street protester for disorderly conduct, and the Manhattan District Attorney would like detailed information about the suspect. Here’s the ACLU’s take:

Under the First and Fourth Amendments, we have the right to speak freely on the Internet, safe in the knowledge that the government cannot obtain information about our communications or our private information unless law enforcement first satisfies First Amendment scrutiny and obtains a warrant showing probable cause. The [Manhattan District Attorney] didn’t do that here. Instead, it has tried to avoid these constitutional hurdles by issuing a mere subpoena for Harris’s Twitter information.

Is this what our Communications Minister objects to? Limits on government power? Challenging government decisions?

To be fair he probably hasn’t thought about it. (Twitter lost that appeal and was ordered to hand over the information yesterday.) What matters to Conroy is how loud he can shout about people being mean to celebrities: the cause of the moment. Roxon and Conroy even put out a joint press release backing the Daily Telegraph’s campaign.

Yet there are already a wealth of state and federal laws which protect people against harassment, stalking, intimidation, incitement, etc etc etc. Conroy claims that Twitter has failed to hand over information about these dastardly trolls. Well, has law enforcement asked? We have a mutual legal assistance treaty with the United States. Sure, proper procedures are time consuming but too bad: that’s what it’s like living in a liberal democracy.

As with any moral panic, the details are, for those people intent on stoking the panic, mere details.

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When the government panics, the rule of law gets trashed

The Australian Government has taken the panicked decision to introduce legislation banning the super trawler Abel Tasman from fishing in Australian waters for a period of two years.

Seafish Tasmania brought the trawler to Australia to fish for a near 18,000-tonne quote of jack mackerel and redbait.

It has described the decision as extremely disappointing and it will be forced to sack 50 people, including 45 Tasmanians, who were hired to crew the ship.

Company director Gerry Green says Seafish Tasmania has spent years working with relevant authorities to meet every rule and requirement.

At best, this is a significant regime uncertainty issue that puts this particular investment and potentially others at risk. At worst, it’s a clear breach of the rule of law.

After complying with the rules relating to the proposed trawling expedition, Abel Tasman should have been allowed to fish. But the government has rushed to change the rules to put a stop to otherwise legal activity. There has been none of the usual stakeholder consultation, and the proposed legislation is clearly directed at an individual vessel.

Political decisions like this, as distinct from decisions made in accordance with existing rules, are an affront to the rule of law.

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IPA appears before National Security Inquiry

Simon Breheny, Director of the Rule of Law Project and Chris Berg, Director of Policy, appeared before the Parliamentary Inquiry into National Security Reforms in Melbourne today. The full Hansard transcript of their appearance will be made available in the coming weeks. Here are their opening remarks:

The suite of policies proposed in the Attorney General’s Discussion Paper add up to one of the most significant attacks on civil liberties in Australian history. Many of the proposals breach the rule of law, severely curb civil liberties, and threaten freedom of speech.

Our submission focused on the data retention proposal. We were disturbed to see the Attorney General support this proposal yesterday. In our view, the data retention proposal is a much greater threat to privacy than even the proposed Australia Card was in the 1980s.

The complexity of these Discussion Paper’s proposals is significant. Many of them interact with multiple pieces of legislation. Few have been elaborated or justified. They should be dealt with separately, with separate legislation, and separate inquiries.

The burden of proof rests on the government to prove to the public that after ten years of continuous, unrelenting increases in national security power – the last major change was as recently as August this year – there is still a clear need for such extraordinary changes.

Almost every single proposal in the Discussion Paper has serious problems.

For instance, the proposal to establish an offence for failure to assist in the decryption of communications is a clear abrogation of the government’s responsibility to uphold the privilege against self-incrimination and the right to silence – vital features of our criminal justice system. We call on this committee to reject this proposal.

We also oppose the default extended period for warrants from 90 days to 6 months, the lowering of thresholds for obtaining warrants, the power of the Attorney-General to unilaterally vary warrants and the power of ASIO to move, alter or delete data.

But the most extraordinary proposal we would like talk about is that of data retention.

This draconian proposal for mandated and indiscriminate retention of the online data of all Australians is completely lacking in proportionality, undermines basic freedoms and is in fundamental conflict with a right to privacy.

Extraordinary claims require extraordinary evidence. Yet no evidence has been presented to justify one of the world’s most onerous data retention regimes. Abstract references to ‘emerging threats’ and ‘cybercrime’ are patronisingly insufficient as justification for such an extreme example of state power.

The collection and storage of data by internet service providers also creates a considerable data security problem. Rather than dispersing information, data retention creates silos of information begging to be attacked by the very criminals this proposal seeks to limit.

Many European nations have had data retention regimes in place for a number of years. A study conducted over a five-year period from 2005 to 2010 found no statistically significant increase in crime clearance rates in countries that had adopted data retention.

“Australians should not allow themselves to be bullied into accepting a proposal which has ominous implications and particularly a grave temptation for abuse by government.”

That was said by the IPA in 1986 in relation to the proposed Australia Card and the same holds true for the proposals being considered here.

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IPA submission into potential reforms of national security legislation

The IPA put in a submission to the joint parliamentary committee into potential reforms of national security legislation. The submission is available here.

The Institute of Public Affairs believes many of the national security proposals contained in the Attorney-General’s Department’s Equipping Australia against Emerging and Evolving Threats Discussion Paper are unnecessary and excessive. Many of the proposals: curb civil liberties; systematically breach Australians’ right to privacy, and breach basic rule of law principles.

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Rule of Law Institute on consorting laws

Good piece by Robin Speed from the Rule of Law Institute on NSW consorting laws:

What sort of a legal system do we have when a person can be sent to jail for going shopping with his mates?

What sort of a legal system do we have when it need not be suggested (let alone proven) that the person was planning some criminal activity?

What sort of a legal system do we have when the person need not be a bikie, need not own a bike and the persons he associated need not be bikies?

The answer is the legal system of New South Wales.

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The right to silence as an “over-reaction” to tyranny

  • This excellent piece in the Sydney Morning Herald by David Dixon on NSW’s proposed changes to the right to silence makes an important point – the change that Britain made to the right to silence in the mid-1990s also necessitated a vast program of duty solicitors in police stations. Obviously, this would be very expensive.
  • And a longer paper, published in 2000 by the Australian Federal Police, makes the case for the prosecution (so to speak). It argues that the right to silence “could perhaps be seen as an over-reaction to the tyranny of the practices of the Court of the Star Chamber, but which also now hinders properly conducted criminal investigations and provides organised criminals with a shield against justice.” (Yes, legal rights as an over-reaction to tyranny.) Yet as Dixon pointed out in the SMH, the link between the right to silence and organised crime has been significantly exaggerated.

    Notably, the paper makes reference to the coercive power enjoyed by numerous regulatory agencies which eliminate the right to silence, among other hard-won legal protections. The IPA has long argued that many powers enjoyed by regulatory agencies are excessive and disproportionate – and often greater than those held by the police. It is unsurprising – but still concerning – to see that discrepancy being used to make the case for greater police powers, rather than reduced regulatory power.

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Speech and anti-terror

My ABC Drum column this week takes up the question of speech restrictions in the name of anti-terrorism:

Between September 11, 2001 and September 11, 2011 the federal government passed 54 new pieces of anti-terror law. The legislative output was extraordinary. As George Williams notes, during the Howard years, the government was passing one new anti-terror law every 6.7 weeks. As soon as one bill was through the Parliament, it was onto the next.

Another commentator has called this “hyper-legislation”. By volume and impact, the new Australian anti-terror laws greatly exceeded those passed in the United Kingdom, Canada and even the United States.

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‘Flexible’ foreign investment laws are no laws at all

The most basic idea behind the rule of law is that there are … well, laws. These laws should be clear, stable and made by elected representatives. But this basic foundation of our legal system is often ignored in the name of “smart” regulation. Usually this involves a regulatory framework consisting of broad “principles” or general “guidance” rather than clear and binding laws.

One keen proponent of “smart” regulation is the Foreign Investment Review Board. The FIRB chairman this week opposed the idea that the national interest test should be codified, and stated, “[w]e’re not rules based.

This is a shocking admission for those of us concerned with the rule of law but it’s nothing new for investment bankers and M&A lawyers that regularly deal with FIRB. The long-standing policy justification is that “laws … too often … stop valuable investments.”

Many other regulatory agencies agree with this approach, maintaining that legal flexibility allows them to effectively tackle “changing conditions”. No doubt this is true. And allowing things to be decided on a case-by-case basis almost sounds reasonable until one realises the troubling consequences of such an approach.

First, it doesn’t allow businesses to plan their investments with certainty – a key to the promotion of economic growth. Secondly, the lack of black letter law makes appeals impossible. And thirdly, regulatory flexibility translates directly to regulatory discretion. And a high degree of discretion in the hands of bureaucrats is undemocratic and thoroughly undesirable.

Being unconstrained by rigid rules sounds great but legal flexibility is contrary to the rule of law.

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