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

Draft Policy This is a draft policy which may still be under development and is not approved or endorsed by the party. Until such time as it is endorsed by the party, it does not represent the views or intentions of the party.

Preamble

Civil liberties are the core of civil society and an essential balance to state power. 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, and respect for liberty is crucial to maintenance of 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 response to 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 that only censorship can balance the scales. Historically, though, the opposite is true: racism and other offensive ideas lost the most currency in the freest societies. More speech has long proven to be the best antidote to hate speech. Censorship laws are counter-productive because they undermine the process of debate and education, are highly prone to abuse, and inject dangerous subjectivity in the legal system. Governments given the power to criminalise opinions rarely stop at one, and as views change, laws which gag speech can all too easily become a technique for repression of minority opinion. History has long shown the folly of belief in the idea that censorship - which has underpinned state oppression throughout history - can be an answer to oppression today. The failure of states such as the Weimar Republic (which operated under a morass of hate speech laws) show the terrible risks of pushing hateful speech underground instead of exposing it to debate.

Pirate Parties around the world oppose censorship as an ineffective, dangerous and counter-productive practice. Laws which restrict speech, thought, conscience and assembly must be subject to consultation, measurement of costs and benefits, and a meaningful assessment of threats. Fundamental principles warrant evidence-based policy.

Justice

It is important that our legal system err on the side of civil rights and free speech. Recent counter-terror laws which weaken the burden of proof and loosen thresholds for detention, search or seizure represent a threat on this front, and Pirate Party Australia has long called for their removal.

Australian courts should also be required to apply stronger journalist 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.

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. A free society cannot function without the protection of a person's private life, and intrusive surveillance is toxic to trust.

For this reason, recent privacy-invading laws governing compulsory metadata collection must be reversed (see digital liberties policy). In addition, we believe a higher threshold of privacy needs to be codified across the totality of laws in Australia. This can be done by introducing tougher legislative requirements for organisations retaining data, and improving options available to individuals seeking to protect their personal privacy. We will seek to support this further by introducing a new tort to cover 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. Support for voluntary euthanasia is not a statement of any kind on the value of life. It is merely respect for choice, and for the right of persons to make decisions for themselves in light of their individual circumstances. While safeguards are necessary, adults of sound mind and facing terminal illness should have the right to end their lives with dignity and peace. Political office should not be be used to force private religious views onto other people. Bans on voluntary euthanasia create a painful legacy of suffering, lost dignity, and the sacrifice of 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.
  • Ensure entities complete Privacy Impact Assessments (PIAs) encompassing binding data security safeguards.
  • 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, and use of information.
• 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 no restrictions apply where reporting is consensual or 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.
  • Ensure the office of the Privacy Commissioner is subject to periodic performance and function reviews by a member of the judiciary.
    • 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 mandatory periodic destruction of surveillance material.
      • Legal sanctions will apply for breaches, with exceptions 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.
• Extend protections within the Victorian Abortion Law Reform Act 2008 nationwide, to provide baseline legal abortion services.
• 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.