Policies/Civil Liberties

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Official Party Document
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Preamble

Civil liberties are essential to all of us, being a balance to the power of the state, a source of freedom and progress, and the core of civil society. 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. The digital age has provided stunning progress in this age-old struggle: many hierarchies including old-style media and government centralism have been recast or overthrown, creating space for citizen engagement and new voices.

As individuals have become more empowered, co-operation and trust between citizens and the state has become increasingly important. Trust and co-operation between citizens and the state ultimately underpin our collective security. Laws which nullify civil liberties in the name of security are counter-productive because they undermine 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

Freedom of speech is not only a key civil liberty in itself, but a safeguard for other liberties. It protects not just the right to speak out, but also the right to hear and be exposed to ideas. Racism and other offensive ideas have generally lost power most swiftly in the freest societies, where they have been most effectively refuted. However, refutation can happen only when offensive ideas are permitted expression. Restrictions on speech undermine this process and rob the public of its collective capacity to judge parties and persons on the basis of full and free information.

While laws which criminalise “offensive” or “insulting” speech[1][2] may be well-intentioned, mechanisms such as section 18C of the Racial Discrimination Act impose dangerous subjectivity into our legal system. The perpetual risk in criminalising offensiveness is that almost any form of difference or disagreement can be viewed as offensive to someone, and nations such as the UK and Canada have experienced significant abuse of such laws.[3][4][5][6] Even where protections technically exist, the mere threat of legal sanction may be sufficient to chill dialogue and speech, and recent events demonstrate that restrictions on one type of speech spread all too easily to include wider categories.[7]

Recent censorship bills also threaten to infringe free expression. The Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Bill 2007 bans "praise" for terrorist acts (which are defined vaguely and broadly),[8] while the Classification (Publications, Films and Computer Games) Amendment Bill (No. 2) 1999/2001 imposes arbitrary restrictions on viewing of a range of otherwise legal consensual activities.[9][10] We support a classification system which facilitates choice by providing information, but reject any creep into broader censorship under which citizens have such choices made on their behalf.

Freedom of speech underpins other freedoms including freedom of thought, conscience and assembly. It is past time that laws seeking to restrict these fundamentals were subject to proper consultation and debate, measurement of costs and benefits, and meaningful attempts to ascertain the likelihood of purported security threats. Fundamental principles warrant evidence-based policy.

Justice

The legal system should err on the side of civil rights and free speech. Journalist shield laws are a key in this regard: press freedom cannot exist without the right to protect sources, and the absence of protection can result in concealment of information essential to the public interest. Although nominal shield laws exist, journalists continue to face prosecution from powerful individuals for nothing more than protecting confidentiality.[11][12] To curb this, the right to protect a source needs to be strengthened by including a right for journalists to protect the content of information passed on in addition to the identity of the source. The power of inquiries to publicly expose sources must 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.

Balance and equality within the legal system can be improved by unwinding recent laws aimed at loosening thresholds for detention, search and seizure, and restoring proper judicial oversight.[13] Finally, we believe the system should embody the 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.

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. A trusting and free democratic society cannot function without the protection of a person's private life and sphere. Surreptitious and intrusive surveillance is toxic to trust, social harmony and the integrity of the state.

The Pirate Party will always support privacy and oppose attempts to nullify it. We want a higher threshold of privacy 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.

In addition to supporting further protections of human dignity through the curtailing of state-sponsored surveillance, Pirate Party Australia recognises that the pervasiveness and continual expansion of private and public recording equipment pose serious implications for privacy. Free expression will be significantly curtailed if all aspects of people's lives are subject to orchestrated or ad hoc surveillance. As such, we support the enactment of a statutory tort that covers both intrusions into seclusion as well as misuse of private information.

Dignity and freedom from pain

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.

Policy text

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.
    • Entities to complete privacy Impact Assessments (PIAs).
      • Data security safeguards may be recommended by the PIA, with legal sanctions in the event of failure to comply.
    • Projects in receipt of Government funding and with potential negative privacy impacts to be assessed prior to commencement.
      • These assessments may be completed on behalf of a service by the responsible Government agency.
    • Government agencies and private organisations to be obliged to report data breaches.
    • Substance Testing in the Workplace to be subject to tighter controls.
      • Mandatory Privacy Impact Assessments to be conducted prior to introduction of compulsory testing.
      • Assessments must include consultation with affected persons and assessment of whatever risks the testing is intended to address.
      • All affected persons to be granted 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.[14]
    • Publication of private data in the media to be subject to a public interest threshold.
      • Public interest threshold will be met in cases of relevance to performance of public office, relevance to corporate or civil society, credibility of public statements, illegal, corrupt or anti-social behaviour, or a significant event.
        • Complaints mechanisms and legal sanctions to apply where the public interest threshold is not met.
        • Exceptions will include 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.
      • Organisations conducting surveillance to state the purpose of surveillance and identify recipients of surveillance information, with legal sanctions in cases of misuse
      • Periodic destruction of surveillance material to be mandatory.
        • Exceptions may be granted subject to judicial oversight.
      • Surveillance programs to be subject to periodic reviews.
        • Review reports to be publicly available.
        • Surveillance programs to be decommissioned where abuse is identified or objectives are not met.
      • Undisclosed surveillance in public or private places to be undertaken only with judicial approval and oversight.
    • 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[15] to create a single tort covering both intrusion into seclusion and misuse of private information.[16]
    • The tort would be 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.[17]
      • Discretion in interpreting objectives of the tort would otherwise be left to courts.
    • A public interest test will apply.[18]
    • The tort would apply to actions of all legal people in private or public capacities, including corporations, but would only be actionable by natural persons.[19]
    • The tort would be actionable for up to a year from the point of discovery, by either an aggrieved party, their family or estate, or by the relevant commissioner.[20]
    • A variety of remedies would be available for cases where privacy has been violated.[21]
      • Examples of such remedies include damages, apologies, injunctions and other equitable remedies.

Improve equality and transparency in the legal system

  • Strengthen shield laws for journalists in the court system.
    • No compulsion for journalists to reveal sources in court.
      • Narrow exceptions to include cases where courts determine that a public interest of greater importance than journalistic freedom is served.
    • Protections for sources to also cover confidentiality of communications and information received from sources.
    • Extend court-related shield laws to also cover public inquiries.
    • Narrow scope of subpoenas public inquiries can impose, and require a high standard of relevance.
  • Restrict use of suppression orders in criminal trials.
    • Suppression orders to be limited 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 parallel arbitration, dispute resolution or other legal practices and systems.

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.
  • 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 unduly restrict privacy, speech, expression and access to information

  • Repeal section 18C of the Racial Discrimination Act.
    • Cases of intimidation and harassment to be handled through preexisting common law protections.
  • 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.

References

  1. "Racial Discrimination Act 1975", Section 18C, http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18c.html (Accessed 1/7/2013)
  2. "18C of the Racial Discrimination Act must be repealed to reinstate traditional university discourse", Sun, 18/11/2012, http://www.theindependentaustralian.com.au/node/178 (Accessed 1/7/2013)
  3. MSNBC, "British Keytarist Arrested for Singing Kung Fu Fighting", 27/4/2011, http://www.nbcnews.com/id/42779407/ns/world_news-europe/t/man-arrested-singing-kung-fu-fighting/#.UdF56flHKSo (Accessed 1/7/2013)
  4. Mediawatchwatch, "The Blasphemy law is back", 5/3/2010 http://www.mediawatchwatch.org.uk/2010/03/05/the-blasphemy-law-is-back/ (Accessed 1/7/2013)
  5. Moon, "Hate Speech Regulation in Canada", Florida State University, Vol. 36:79, Page 89, http://law.fsu.edu/journals/lawreview/downloads/361/moon.pdf (Accessed 1/7/2013)
  6. Liptak, "Unlike Others, U.S. Defends Freedom to Offend in Speech", 12/6/2008, http://www.nytimes.com/2008/06/12/us/12hate.html?pagewanted=all&_r=0 (Accessed 1/7/2013)
  7. "Human Rights and Anti-Discrimination Bill 2012", Exposure Draft, November 2012, Page 36, http://www.ag.gov.au/Consultations/Documents/ConsolidationofCommonwealthanti-discriminationlaws/Human%20Rights%20and%20Anti-Discrimination%20Bill%202012%20-%20Exposure%20Draft%20.pdf (Accessed 1/7/2013)
  8. "Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Act 2007", http://www.comlaw.gov.au/Details/C2007A00179 (Accessed 1/7/2013)
  9. Libertus.net, "The Censorship Bill 1999/2001: The X vs NVE Debacle", http://libertus.net/censor/rdocs/censor_bill_2000.html (Accessed 1/7/2013)
  10. Libertus: 2007: "June-September Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Bill 2007", http://libertus.net/censor/debate/analyses08.html#ctm2007 (Accessed 1/7/2013)
  11. Shoebridge, "Why Journalists Need Shield Laws", 9/5/2013, http://newmatilda.com/2013/05/09/why-journalists-need-shield-laws (Accessed 1/7/2013)
  12. McClymont, "Crime commission demands journalists' phones", 18/3/2011, http://www.smh.com.au/national/crime-commission-demands-journalists-phones-20110317-1bz4k.html (Accessed 1/7/2013)
  13. UNSW, "Submission to COAG Review of Counter-Terrorism Legislation", 21/09/2013, http://www.gtcentre.unsw.edu.au/sites/gtcentre.unsw.edu.au/files/coag_counter-terrorism_review.pdf (Accessed 1/7/2013)
  14. "Australian Privacy Foundation Policy Statement re Privacy and the Media", Revision of 26 March 2009, http://www.privacy.org.au/Papers/Media-0903.html#Fmwk (Accessed 1/7/2013)
  15. Australian Privacy Foundation, Submission No 39 to the Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Issues Paper No 43 (2013).
  16. Australian Privacy Foundation, Submission No 39 to the Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Issues Paper No 43 (2013) 5.
  17. Australian Privacy Foundation, Submission No 39 to the Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Issues Paper No 43 (2013) 4–5.
  18. Australian Privacy Foundation, Submission No 39 to the Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Issues Paper No 43 (2013) 6.
  19. Australian Privacy Foundation, Submission No 39 to the Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Issues Paper No 43 (2013) 9–10.
  20. Australian Privacy Foundation, Submission No 39 to the Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Issues Paper No 43 (2013) 10–11.
  21. Australian Privacy Foundation, Submission No 39 to the Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Issues Paper No 43 (2013) 9–10.