Policies/Civil and Digital Liberties

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Civil and digital liberties

Freedom of speech

The greatest reformers, scientists and philosophers in history started out as heretics. Challenges to dogma and consensus built the enlightenment and created a world in which ideas could be attacked in place of people. Speech is the cornerstone of the enlightenment and the safeguard for all other liberties, protecting not just the right to speak, but the right to hear and judge the ideas of others. Free speech underpins our ability to think, create, innovate and progress.

Pirate Party Australia does not believe that regulating opinions is a legitimate function of the state. Advocates of censorship make a fundamental error in assuming that hateful speech is a force which only censorship can defeat. History shows the reverse to be true: racism has lost power and become socially unacceptable in the freest societies, where ideas can be most easily expressed—and refuted. Racism and other forms of hate face certain defeat the battle of ideas, but only if this battle is allowed to happen.

Anything which prevents the expression of bad ideas prevents the process by which we educate ourselves out of them. Banning words or arguments that offend particular groups does not improve social harmony; rather, it encourages everyone to take offence and pursue adversarial responses. Censorship systems invariably spread once they have been introduced: in Australia, governments have sought to expand existing censorship laws to restrict criticism of religion and political opinion, and successfully extended counter-terrorism speech laws to gag whistleblowers reporting in the public interest. Once the right of governments to regulate speech is accepted, any and all minorities may be targeted merely as a result of shifts in public opinion or political whim. In this way, censorship endangers the crucial minority rights and protections on which a healthy democracy depends.

The implications of censorship also spread beyond Western countries. When bans on offensive dialogue are imposed in the West, it helps oppressive regimes elsewhere to justify much harsher crackdowns on activism and dissent. The mere existence of censorship laws thus serves the interests of abusive power all around the world. We do not believe that oppression can be reduced by the use of a blunt instrument which has played a part in every form of state oppression throughout history. The failure of states such as the Wiemar Republic—which operated under a morass of hate speech laws—illustrate the deep risks of pushing hateful speech underground instead of airing and exposing it in debate.

Pirate Party opposes digital censorship for the same reasons it opposes traditional censorship. We will seek to repeal all existing architecture for internet censorship—including the patchwork “Refused Classification” content designation, as well as Section 313 of the Telecommunications Act, which has been used by officials to block access to around 250,000 legitimate websites to date. The internet interprets censorship as damage and routes around it. A far simpler option is to avoid inflicting damage in the first place.

Pirate Party Australia supports laws against direct threats and attempts to incite physical harm. However, we seek to bring an end to state censorship of opinions.

Pirate Party Australia advocates the following reforms:

Enhance protections for freedom of speech

• Legislate the International Covenant on Civil and Political Rights into law.
• Reform classification and classification review boards.
  • Implement a co-regulatory classification model where industry classifies their own content and Government works with industry to determine classification ratings.
    • This system would be akin to European PEGI model or American ESRB model of voluntary classification for media.
    • Restrict unclassified content for sale to adults only.
    • Ensure classification guidelines are 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 would continue to be disallowed for sale, distribution or presentation.
  • Change the role of the Classification Board to be an advisory and review role.
• Ensure the government and its representatives provide vigorous defence of free speech in international forums and negotiations.
• Offer a referendum for a bill of rights focused on individual liberties including speech and assembly (see Bill of Rights policy).

Remove counter-productive restrictions on freedom of speech

• Repeal sections of the Border Force Act which allow for prosecution of whistleblowers who report abuses in detention centres.
• Repeal the anti-sedition clauses in schedule 7 of the Anti-Terrorism Act 2005 (Cth).
• Abolish residual blasphemy laws.
• Repeal state laws which grant governments the unilateral power to restrict freedom of assembly for specific organisations.
• Reform section 18C of the Racial Discrimination Act 1975 (Cth) to require intent; to require clear and convincing evidence; and to exclusively address provable harm in the forms of harassment, intimidation, or grave psychological abuse, removing all references to subjective criteria of insult, offense, and humiliation.
• Repeal the Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Act 2007 (Cth).
• Repeal the Classification (Publications, Films and Computer Games) Amendment Act (No 1) 2001 (Cth).
• Repeal censorship and web-blocking clauses from the National Security Legislation Amendment Act (No 1) 2014 (Cth).
• Repeal internet censorship clauses from the Broadcasting Services Amendment (Online Services) Act 1999 (Cth).
• Repeal content prohibition clauses from the Communications Legislation Amendment (Content Services) Act 2007 (Cth).
• Repeal the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth)
• Repeal section 313 of the Telecommunications Act 1997 (Cth).
• Ensure no criminal offence applies for linking on the Internet.

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Privacy

Privacy is an essential underpinning of human dignity. 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. We need to resist a world in which every action, everything said, and every act of creativity and exploration is recorded. A free and trusting society cannot exist without the protection of a person's private life.

Those arguing against a right to privacy because they have "nothing to hide" don't understand the fundamental nature of rights. Nobody needs to justify why they need a right; the burden of proof falls solely on those seeking to infringe it. An individual can forfeit their own rights, but they cannot forfeit the rights of others.

The snooper's honeypot

Metadata retention laws force ISPs to collect a vast database of information on their customers. This includes records of all emails sent and received, websites visited, locational information from phones, and much more. Data is stored for two years, allowing immense amounts of detail on the private lives of individuals to be perused by the state without any judicial oversight. This is a honeypot not just for officials, but for hackers and criminals. Mass surveillance does not prevent terrorism or aid in combating it. But it does create a terrible precedent for state intrusion into every corner of private life and civil society. EU courts have thrown out similar schemes due to their gross incompatibility with basic rights; that this hasn't happened here is testimony to the inadequacy of Australian privacy laws.

Threats to privacy are not merely domestic. Australians are also subject to an array of secret, warrantless monitoring conducted from overseas, and the results are routinely shared with Australian authorities. Overseas monitoring gathers data on emails, chats, photographs, documents and website addresses visited by Australian citizens. The use of overseas channels to gather data allows even the small domestic protections Australians have to be bypassed.

Nor are threats to privacy merely digital. In the last few years body scanners have been rolled out at airports, changes to the Census have allowed data to be matched to individuals, and the Government has rolled out new capability to link together CCTV cameras to track Australians wherever they go. The future direction of attacks on privacy can only be guessed at. Given the scale and variety of attacks on privacy, ad-hoc overturning of laws is not a complete answer.

Australia needs a comprehensively higher standard of legal protection for privacy. Such a standard should include tougher legislative requirements on organisations which retain data, and improved options for individuals seeking to protect their personal privacy. Pirate Party Australia also proposes a new privacy tort to curb future averse changes to the law and prevent misuse of private information.

Pirate Party Australia advocates the following reforms:

Remove immediate threats to privacy

• End warrantless monitoring of internet use among the general public.
  • Oppose and repeal legal mechanisms enacted to create records of Internet use among the general public.
    • Records obtained through such schemes to be securely deleted.
  • Repeal the Cybercrime Act 2001 (Cth).
  • Conduct an independent review of the Telecommunications Interception and Access Act 1979 (Cth) to ensure digital liberties are properly protected.
  • Ban any future collection of phone or internet metadata without a warrant.
  • Cease information sharing with overseas agencies who collect private data on Australians without meeting Australian protections and laws.
  • Re-focus anti-terrorism practice on alternative methods including informants and targeted infiltration.
• Ensure individuals have a legally protected right to control data collection on devices they own.
  • Control should cover duration data is retained for, encryption and sending of data, and when data is deleted.
• Ensure no penalties apply to individuals who refuse to provide passwords or assist in decrypting information (in line with existing legal practices regarding self-incrimination).
• Repeal the National Security Legislation Amendment Act (No 1) 2014 (Cth).
• Repeal the Intelligence Services Legislation Amendment Act 2011 (Cth).

Raise the floor for privacy protection in Australia

• Enact higher privacy standards 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.
    • 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.

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Justice

As a general rule, legal systems should always err on the side of civil liberty and the presumption of innocence. Legal systems represent an important check on state power and a means to protect the rights of citizens, but their effectiveness depends heavily on having the right underlying laws and safeguards.

Unfortunately, recent changes to a range of laws are falling short of this ideal. The latest wave of rushed and ill-written counter-terror laws (which weaken the burden of proof and loosen thresholds for detention, search or seizure) are only the latest example of an increasingly punitive trend, which the Pirate Party would seek to reverse.

Journalist shield laws are also need of an upgrade: the present lack of protections is commonly regarded as one of the leading threats to accountability and freedom of the press. In future, shield laws need to cover not just sources, but the informational content which sources pass on, which is all too easily used to identify them. Sources also need to be protected from public exposure by official inquiries—the ability for inquiries to do this threatens the very forms of journalistic investigation which have so often been essential to inquiries launching in the first place.

We support a legal system which protects freedom and which embodies the secular principle of one law for all, applied to all persons equally. The Pirate Party will always oppose punitive laws and parallel systems which impose differential standards on different groups.

Gun Control
To clarify a frequently asked question of policy, Pirate Party Australia supports the National Agreement on Firearms (1996). The agreement does not unreasonably restrict personal liberty in the use or ownership of firearms for legitimate purposes, while insisting on standards to ensure basic community safety and to limit proliferation into criminal enterprise.

Pirate Party Australia advocates the following reforms:

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.
• Pirate Party Australia supports the 1996 National Agreement on Firearms.

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Control over the body

The right of self-ownership and the right to live free from pain and physical torment are absolutely fundamental. We believe that all persons have the right to live by their own convictions, but none have the right to force their convictions on others.

Voluntary euthanasia is an important aspect of this principle. Support for voluntary euthanasia is not a statement of any kind on the value of life. It is merely respect for the right of persons to make decisions on these matters for themselves in the 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. Bans on voluntary euthanasia create a legacy of suffering and a shattering loss of dignity and autonomy.

Pirate Party Australia supports reproductive rights. A pro-choice position is also not a commentary on the value of life: rather, it is recognition that individuals are better placed than governments to weigh up complex questions in light of their own circumstances and values.

Pirate Party Australia advocates the following reforms:

Enshrine freedom over the body in law

• 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.
• 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 any future mental disability.
• Extend protections within the Victorian Abortion Law Reform Act 2008 nationwide, to provide baseline legal abortion services nationwide.
• Decriminalise sex work and limit police intervention to cases of exploitation and coercion.
• Adopt the current conventions used in New Zealand for gender identity change, under which a non-binary gender option is available for passports and can be changed with a simple application.

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Marriage

Marriage pre-dates all organisations by many thousands of years. The interests of the state, as opposed to the interests of any religion or political party, are limited to recognising permanent relationships, ensuring they are consensual and that any children have clear and capable guardianship.

The Marriage Act in its previous form, especially after 2004, denied many people a human right that is taken for granted by most. It reinforced stigmas at a time when anxiety was widespread and suicide attempts among LGBT persons far outstripped the general population. In 2017 a plebiscite effectively secured changes to the Marriage Act which resulted in expanding the definition of relationships from "a man and a woman" to "2 people", but failed to address the underlying principle.

The only effective way to secure civil rights and liberties is to return marriage to the community, to be interpreted by all in line with their own traditions and values. Establishment of a Civil Unions Act, to replace the Marriage Act, would offer equal treatments, rights, and recognition to all under the law.

Pirate Party Australia advocates the following reforms:

Replace the Marriage Act 1961 with a Civil Unions Act

• People in a union under the Civil Unions Act will be afforded the same rights and equivalent legal and monetary benefits as available under the current Marriage Act.
• Civil unions will be available to all (and only) consenting adults.
• Adults in legally recognised unions from overseas will be recognised under this Act, provided such unions meet Australian standards.
• The institution of marriage will be removed from the purview of state authority.
• The right of secular and religious organisations to offer ceremonies in adherence with their own beliefs would not be infringed.
  • No legal basis will be provided for any attempt to force any organisation to provide marriage services where such an act would be at odds with their organisational values.
• Recognise polyamorous unions.
  • Require the consent of existing partners to add a new partner.
  • Require that any prospective partner be fully informed about existing partners.
  • Require explicit declarations of guardianship of children.
• Existing recognition of de facto relationships would continue and expand to include polyamorous relationships.

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Digital access

The internet has always been grassroots, participatory, and open. For that reason alone, it has proven to be a huge thorn in the side of traditional hierarchical power structures. Unsurprisingly, this is leading to push-back: corporate and government entities have been trying for years to increase control over the Internet through a range of measures including censorship, reduction of access, treaties to reduce the rights of Internet users, and ever-broader surveillance and monitoring powers.

Net neutrality is the best defence against much of this. Established by the founders and developers of the internet, net neutrality is the rule which obliges gatekeepers—whether corporate or governmental—to treat all online traffic equally. Net neutrality prevents gatekeepers from blocking, speeding up, or slowing down content based on the source, destination or the owner. It guarantees that even the smallest entrepreneurs have the same access standards as established firms, and it keeps the internet open, innovative, uncontrolled, and free. Net neutrality is not merely a safeguard for the digital economy and culture, but a shield protecting the basic rights of internet users.

Pirate Party Australia will work against inappropriate attempts by gatekeepers to impose censorship, data blocking, and prioritisation. We support the preservation of a fast, open internet underpinned by clear net neutrality principles.

Pirate Party Australia advocates the following reforms:

Provide universal access to a fast, neutral Internet

• Institute a common carriage agreement and legal protection for Net Neutrality, and ban the practice of screening, or prioritising traffic based on packet sources or destinations, unless
  • The default package offered to the user of an ISP contains no such screening or prioritising; and
  • The user can opt-in to a package that will prioritise certain types of traffic by protocol or destination.
• Allow exceptions in the case of a court order.
• Allow generic prioritisation of traffic based on protocol types defined by the IETF.

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An Australian Bill of Rights

The Pirate Party will sponsor a referendum to introduce a Bill of Rights as a way to protect basic liberties.

Australia is one of the few remaining western democracies whose citizens and residents lack any significant, constitutionally declared rights. This lack of protection creates an imbalance of power between individuals and the state, and exposes privacy, free speech and other basic rights to perpetual whittling. A bill of rights can restore balance and provide unambiguous checks on the creeping intrusion of the state into private life.

We propose a referendum to alter the Australian Constitution and include a bill of rights, codifying a basic set of human rights and freedoms. The Pirate Party proposal incorporates the most fundamental and essential elements of the United Nations Universal Declaration of Human Rights, the United Nations International Covenant on Civil and Political Rights and the United Nations International Covenant on Economic, Social and Cultural Rights.

Protecting rights and freedoms

The following rights and freedoms should only be construed as applying to natural persons as opposed to corporations or other non-natural entities. None of the following rights and freedoms should be construed as enabling the violation of other rights or freedoms. Where conflicting rights or freedoms are found to occur, the resolution should be based on the greater overall good.

The individual is the ultimate minority, and these rights are designed to protect the private lives and rights of individuals. Broader rights (which are often assigned on the basis of belonging to an identity group) are less prominent, as these potentially impose subjectivity, conflict with other rights, and drive burdensome litigation. Rights and freedoms not mentioned here may be granted through other laws and, where not covered by law, are left to the people.

Rights and freedoms should be considered to apply collectively (thus, various combinations of rights exclude practices such as slavery).

There would be no means to sell, trade or otherwise contractually sign away these rights.

Life and Death

• The right not to have your life taken from you.
  • Any application of the death penalty would become unconstitutional.
• The right to end your own life should you explicitly, in right-mind and without coercion, choose to do so.
  • This would allow euthanasia, provided that the conditions listed above are legally confirmed.
• The right to control your body and health, including the right to terminate a pregnancy.

Thought and Belief

• Freedom of thought, conscience and belief.
  • Includes freedom from compulsion to adhere to another's beliefs, and protection against imposition of such beliefs through law.

Communication and Expression

• Freedom of speech, communication and the right to express your thoughts or beliefs.
  • This applies to all mediums of communication but does not guarantee that the medium will be provided, merely that access may not be removed by the state.
    • This specifically stops laws such as blocking of internet access for copyright infringement.
  • This right does not include a right to be heard, or impose a duty on anyone to listen.
  • This applies regardless of the purpose of communication.
  • The right to express an opinion will be protected without exception.
  • There is no right to not be offended by the free expression of the thoughts or beliefs of others.
  • Exclusions:
    • Direct attempts to bring about the use of force against another person.
    • Intentional, false statements of fact (slander, libel, false advertising).
    • Direct threats.

Fair Legal Process

• Habeas corpus - the right for a person under arrest to be brought before a judge or into court.
• Right to trial by a jury of peers for criminal proceedings.
• Right to legal representation.
  • Provision of lawyer for defence.
  • Self-defence.
• Right to not incriminate yourself.
• Freedom from retroactive legislation.
  • Protection will apply to anyone found guilty of acts that were not crimes when committed.
• Right to freely access and copy all laws and public judicial proceedings.
• No prison for breach of contract.

Privacy

• Privacy for homes, property and effects
  • No illegal search & seizure.
  • Covers any invasion of privacy not authorized by warrant issued on probable cause.
• Privacy of Communication.
  • Excludes communication in open spaces with general public access or public forums.
    • Exceptions from exclusion:
      • Targeted recording of communications without warrant issued on probable cause
      • Dragnet, state-sponsored recording of communication, which allows after-the-fact targeting of any individual
  • Public officials, in performance of official, or purportedly official, duties, may be recorded without constraint.
  • This protection will apply independently of communications medium.

Liberty, Movement, Assembly and Association

• The right to personal liberty.
• Protection against arrest or detainment without cause or due process.
  • On detention, the right to be given written evidence of detention, including officers involved and reasons for detention.
• Freedom of movement.
• Protection against forcible constraint of movement without cause or due process.
• Freedom to peacefully assemble in public or private.
• Freedom to associate with others.

Political Participation

• Right to participate in civil and political life.
  • Includes right of any adult citizen to run for any government office.
  • Includes right of any adult citizen to join political parties or activist groups.
  • Includes right of any adult citizen to vote.
  • Is not nullified by civil or criminal status.
  • This should not be construed as taking away any existing right to civil or political participation.
• The government shall not pass laws intended to limit participation.

Property

• The right to own property and not have it unlawfully taken from you.
• This right only extends to physical property where acquisition removes it from possession of another person.
• Intellectual and other property rights schemes would remain an issue for the legislature.

Non-Discrimination

• The right for all permanent residents and adult citizens to be treated equally by the state.
  • Guarantees freedom from discrimination by government, based on any arbitrary or generalised condition, including gender, age, sex, sexual orientation, race, religion (or lack thereof), social sub-cultural and political affiliation.

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