Pirate Congress 2015/Motions/Policy and Platform/Civil Liberties Update

Preamble
Civil liberties are the core of civil society and an essential balance to the state. History records a long fight for liberty, with even basic rights such as freedom from slavery, freedom of speech and freedom from torture won with great difficulty and frequent reverses. As individuals have become more empowered in the digital age, co-operation and trust between citizens and the state has become increasingly important. Many laws enacted in the name of security threaten to breach this trust. The historical truism that security is not won through the sacrifice of liberties has never been more true than in the digital age.

Freedom of speech and related rights
The greatest reformers, scientists and philosophers in history started out as heretics. The right to speak out against dogma and consensus underpinned the enlightenment and built a world in which ideas could be attacked in place of people. Speech is a fundamental human right and the safeguard for all other liberties. It protects not just our right to speak out, but our related right to hear and judge ideas. It underpins our ability to think, create, innovate and progress.

Censorship is the wrong approach to managing offensive expression. Advocates of censorship often treat ‘hate speech’ (however defined) as so powerful that its mere expression must be prevented. Counter-speech is seen in the opposite light – so powerless and pointless that only censorship can balance the scales. Historically, though, the opposite is true: racism and other offensive ideas have lost power most swiftly in the freest societies where they could be express and then exposed. Laws which make offensive expression unlawful may be well-intentioned, but are ultimately unnecessary, prone to abuse, and a source of dangerous subjectivity in the legal system. Governments given the power to criminalise opinions rarely stop at one, and there is little reason to believe that 'oppression' can be curbed through censorship, which has been a tool of oppression throughout history. The failure of states such as the Weimar Republic – which operated under a morass of hate speech laws – show the folly of pushing speech underground.

Pirate Parties around the world oppose censorship as an ineffective, dangerous and counter-productive practice. Laws which prevent direct incitement to violence, or which offer classifications to facilitate consumer choice are valuable, but the risk of creep into censorship bears watching. Laws which restrict speech, thought, conscience and assembly must be subject to proper debate, measurement of costs and benefits, and meaningful attempts to ascertain the likelihood of security and other threats. Fundamental principles warrant evidence-based policy.

Justice
Our legal system is an important guarantor of civil rights and free speech. Pirate Party Australia seeks a reversal of recent laws which weaken the burden of proof or loosen thresholds for detention, search or seizure. We also support stronger shield laws, since the absence of sufficient protections poses a significant threat to press freedom. Protections need to cover not just sources, but the informational content which sources pass on, and which may be used to identify them. The power of inquiries to publicly expose sources should also be curbed since such compulsion threatens the very forms of journalistic investigation which have so often been essential to inquiries launching in the first place. The

We believe the legal system should embody the secular principle of one law for all, applied to all persons equally. The Pirate Party does not support parallel legal systems and other forms of law which impose differential standards on different groups.

Privacy
Privacy is an essential underpinning of human dignity and free expression. It encompasses not just physical privacy, but the freedom to control your cultural presence, and manage the information and identity that surrounds you. The fundamental balance of power between citizens and their government is altered when states or their representatives have the power to abolish privacy. Intrusive surveillance is toxic to trust, and a free society cannot function without the protection of a person's private life.

For this reason, recent laws governing compulsory metadata collection must be reversed. Metadata provides an immense amount of information on the most private and intimate details of a person's life, and access is currently unchecked by any warrant or meaningful oversight. Only those who never irritate authority have 'nothing to fear' under such conditions. Free expression and the normal conduct of society are unacceptably curtailed when people can have no expectations of privacy and separation from the state.

Pirate Party Australia believes data collection should not be mandatory, and that access to any data should require a warrant. In addition, we believe a higher threshold of privacy needs to be codified across the totality of laws in Australia. This can be done both by introducing tougher legislative requirements for organisations retaining data, and improving options available to individuals seeking to protect their personal privacy. Protections should be strengthened though a tort covering intrusions into seclusion and misuse of private information.

Control over the body
No liberty is more fundamental than the right to live free of pain and physical torment. We support the right of adults of sound mind, facing terminal illness, and with appropriate safeguards, to end their lives with dignity and peace if they so choose. Contrary to frequent claims, support for voluntary euthanasia is not a statement of any kind on the value of life. It encompasses no more than respect for the right of persons to decide on such weighty questions for themselves, in the context of their own private circumstances. We believe politicians should represent the views of citizens, not use political office to impose religious views into the private sphere. Bans on voluntary euthanasia create a painful legacy of unmanageable suffering, lost dignity, and the sacrifice of free choice.

Institute new legal protections for free speech and related rights

 * Legislate the International Covenant on Civil and Political Rights into law.
 * Restore the role of human rights commissioner with a mandate to focus on civil liberties and freedom of speech, expression and assembly.
 * Offer a referendum for a bill of rights focused on individual liberties including speech and assembly (see Bill of Rights policy).
 * Improve safeguards in counter-terrorism mechanisms.
 * Reform classification and classification review boards.
 * Implement a co-regulatory model where industry classifies their own content and Government works with industry to determine classification ratings.
 * This system will be akin to European PEGI model or American ESRB model of voluntary classification for media.
 * Unclassified content will be restricted for sale to adults only.
 * All classification guidelines must be transparent and published, in accordance with the principle that a classification scheme should be used for consumer awareness and not censorship.
 * Abolish the Refused Classification (RC) rating from the classification system.
 * Content that is illegal under the law will continue to be disallowed for sale, distribution or presentation.
 * Change the role of the Classification Board to be an advisory and review role, renaming it to the Australian Classification Ombudsman, which would review the guidelines and investigate complaints about media which is incorrectly or poorly classified.
 * Ensure the government and its representatives provide vigorous defence of free speech in international forums and negotiations.

Increase legal protections for privacy

 * Enact higher standards of privacy protection for entities holding private data.
 * Ensure entities complete Privacy Impact Assessments (PIAs) encompassing binding data security safeguards.
 * Ensure projects in receipt of Government funding and with potential negative privacy impacts are assessed prior to commencement.
 * Require government agencies and private organisations to report data breaches.
 * Subject substance testing in the workplace to mandatory PIAs with requirement for consultation with affected persons and assessment of whatever risks the testing is intended to address.
 * Provide affected persons with explicit information on purpose of the tests, procedures to be employed, disclosure and use of information, and rights of the individual.
 * Enact additional protection for individual privacy in the public sphere.
 * Institute recommendations from the Australian Privacy Foundation on providing a right to recourse following an invasion of privacy.
 * Subject publication of private data in the media to a public interest threshold, ensuring nothing is restricted where it is relevant to performance of public office, corporate or civil society, credibility of public statements, illegal, corrupt or anti-social behaviour, or a significant event.
 * Apply complaints mechanisms and legal sanctions where the public interest threshold is not met, with exceptions for cases of consent, self-published information, and public behaviour.
 * Ensure the office of the Privacy Commissioner is subject to periodic reviews by a member of the judiciary, to examine performance and functions.
 * Provide a legal right for members of the public to appeal Privacy Commissioner decisions.
 * Institute tighter controls and accountability covering use of visual surveillance.
 * Require organisations conducting surveillance to state the purpose of surveillance and identify recipients of surveillance information, with legal sanctions in cases of misuse and mandatory periodic destruction of surveillance material.
 * Exceptions may be granted subject to judicial oversight.
 * Decommission surveillance programs where abuse is identified or objectives are not met.
 * Require judicial oversight of undisclosed surveillance in public or private places.
 * Establish expert panel to review the adequacy of laws and legal protections applying to the collection, use and storage of biometric data.
 * Remove body scanners from Australian airports.
 * Implement the Australian Privacy Foundation recommendations to create a single tort covering both intrusion into seclusion and misuse of private information.
 * Ensure tort is subject to a public interest test and is actionable only by natural persons.
 * Ensure the tort is prescriptive in defining high- and low-water marks for examples or classes of acts that are or aren't covered, in order to reduce potential conflict between freedom of speech and privacy.
 * Discretion in interpreting objectives of the tort would otherwise be left to courts.
 * Allow action by aggrieved parties, their family or estate, or by relevant commissions for up to a year from the point of discovery, with remedies to include damages, apologies and injunctions.

Improve equality and transparency in the legal system

 * Strengthen shield laws for journalists in the court system.
 * Remove any compulsion for journalists to reveal sources in court, with narrow exceptions where courts determine that a public interest of greater importance than journalistic freedom is served.
 * Extend protections to cover confidentiality of communications and information received from sources.
 * Extend court-related shield laws to also cover public inquiries.
 * Narrow the scope of subpoenas public inquiries can impose to ensure a high standard of relevance applies.
 * Restrict use of suppression orders in criminal trials.
 * Limit suppression orders to protecting national security and the identity of victims, witnesses, or persons under physical threat.
 * Ban any use of suppression orders to prevent discussion of other suppression orders.
 * Ensure no legal standing is extended to alternative arbitration systems, dispute resolution mechanism and other ‘parallel’ legal practices.

Enshrine freedom over the body in law

 * Ensure all persons have full and free access to their personal medical records.
 * Ensure all persons have the right to issue binding health directives to apply in the event of subsequent mental disability.
 * Legalise abortion in all states and territories.
 * Enact a law legalising euthanasia and decriminalising assisted suicide subject to:
 * An application process and seven day cooling-off period.
 * A requirement that patients be:
 * Over 18 and mentally competent, and
 * Supported by three doctors, including:
 * A consultant/senior physician in a relevant field of expertise to confirm terminal illness, and
 * A psychiatrist to certify that the patient is not affected by treatable depression.

Remove existing laws which impose censorship or restrict privacy

 * Repeal the National Security Legislation Amendment Bill (No.1) 2014.
 * Repeal section 18C of the Racial Discrimination Act, ensuring that pre-existing common law protections are sufficient to manage all cases of intimidation and harassment.
 * Repeal anti-sedition clauses (schedule 7) from 2005 Anti-Terrorism Act.
 * Repeal the Intelligence Services Legislation Amendment Bill 2011
 * Abolish residual blasphemy laws.
 * Oppose state laws which grant governments the unilateral power to restrict freedom of assembly for specific organisations.
 * Repeal the Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Bill 2007.
 * Repeal the Classification (Publications, Films and Computer Games) Amendment Bill (No. 2) 1999/2001.