Australian Civil Liberties Union
Big Brother Controls -- Privacy Report
"The greatest dangers to liberty lie in
insidious encroachments by men of zeal, well meaning but without understanding."
Mr Justice Brandeis.
Too much surveillance and control?
The ACLU has always been concerned with the rights of victims of crime (see the chapter on rights of victims of crime) and the need to combat tax and social security fraud, and acknowledges that some of the extensions of surveillance and other powers under discussion can be justified on a case by case basis. Although Australia by world standards remains a relatively free society (see the first section of this chapter), and is not in any significant sense a quasi "police state", the extent of surveillance activity by "men of zeal, well meaning but without understanding", and the use of various mechanisms of social control including media censorship and brainwashing, is creating a quasi totalitarian society in which "progress" is perhaps overvalued, and individualism and privacy are discounted.
Australian Bureau of Statistics (ABS)
The ACLU has written to the ABS pointing out that the ABS seems to be trying to extract an unnecessarily high level of information from people by increasingly coercive means. Questions are now asked on matters that were regarded as too personal and private to be the subject of a government inquisition, and a de facto policy of relying on voluntary answers to questions has been replaced by a policy of coercion through prosecutions involving a possible fine of $100 a day for people who do not co-operate. The apparent new policy of the bureau in requiring unprecedented personal information under threat of fines, comes at a time when information such as telegrams and medical details held by the Government is not secure, exchange of information between computer banks is common, and mercantile agencies and computer hackers may have access to the information.
Drugs and Privacy
The greatest dangers to liberty lie in insidious encroachments by men of zeal, well meaning but without understanding. That zeal is reflected in Australia in the often mindless collection, computerization and exchange of information on citizens by Government agencies. Although the Health Commission (HIC) which instigated the Big Brother Australia card, has promised to consult with the Privacy Commissioner, it seems likely that information in relation to both drugs taken and medical histories will be cross matched with information available from the Tax File Number (TFN). The extension of the TFN to cover social security, Austudy, and First Home Buyer applications, despite assurances that its use would not be extended, makes it difficult to accept new Government promises in relation to cross matching of drug use data.
The Privacy Commissioner has said that the HIC scheme, introduced through regulations and not legislation, was dangerously similar to the Australia Card. The Privacy Foundation has pointed out that the Government has comprehensively violated its assurances that the TFN would be used only for taxation purposes, and that the TFN was subject to function creep through administrative changes announced in media releases. There is a real danger further "insidious encroachments" will be made by the HIC and other agencies, justified by reference to the need to reduce Government expenditure and to prevent fraud and over-servicing. The level of surveillance of citizens through the HIC, phone tapping, increased police powers and credit agencies is becoming oppressively high.
Computer Cross Matching Cross referencing of data obtained by ASIO, the Bureau of Statistics, the Health Insurance Commission, the Customs Department, the Immigration Department, the Federal Police, and various State Government agencies should be kept under greater countervailing surveillance by people and organizations who seek to protect personal privacy. The price of liberty and privacy is eternal vigilance. There is a distinct possibility that the Government has, in effect, established a defacto Australia Card system even more intrusive than its original Australia Card proposal, and that much of the acquired information is already cross matched at computer centres such as the Deakin Centre in Canberra. There is no particular reason to give the "men of zeal" the benefit of any doubt as to the extent of acquisition and exchange of information. Their track record does not justify much confidence in their assurances. The ACLU believes that the ability of computer hackers to get access to personal and often highly sensitive information held in government computers is an additional threat to privacy.
Computer hacking involves people obtaining access without authority, to confidential information in computer systems. Hackers can also plant computer viruses in computer systems destroying the computer's data base, or making computer based information unreliable. Computer hackers in Australia who are usually quite young and operate from home at night, pass secret messages between themselves and thousands of others as far afield as the U.S., Western Europe and even Communist countries. A computer hacker in the U.K. - who recently broke into more than 200 military, corporate, and university systems, was not prosecuted because of deficiencies in the relevant legislation. In Australia some State governments have enacted specific laws to combat illegal computer entry. It appears that hackers can obtain access to much supposedly confidential information held in Australian computer systems such as lists of silent phone numbers, lists of people whose phones are tapped, and peoples credit ratings. In the U.S.A. computer hackers have penetrated computers and altered the orbits of space satellites, and criminal networks have hacked into the computers of large enterprises including banks.
The ACLU has written to the Federal and State Attorneys-General stating that giving phone tapping powers to the State Police Forces and other agencies is a threat to civil liberties and should be resisted. Phone tapping is an invasion of privacy, is unlikely to have any significant effect in curbing major crime, is likely to be abused, and is likely to affect the freedom of speech and freedom of communication of law abiding citizens.
Extensive illegal phone tapping has already occurred in Australia, most notably by members of the N.S.W Police. Rather than extending "legal" phone tapping, Australia should adopt some of the protections available in the U.S.A. against illegal phone tapping. The ACLU believes that a provision in the U.S.A. (introduced in 1968) allowing actions for damages for illegal phone tapping should be introduced here. There should be a complete prohibition on the admission into evidence of unlawfully obtained material. Defendants should be permitted to have a pre-trial hearing (introduced in the U.S.A in 1970) to determine whether government agencies have used illegal electronic surveillance. And finally the Australian penalties for illegal tapping should he increased.
Australian Secret Intelligence Service
The ACLU has supported calls for a judicial investigation of A.S.I.S. following revelations in an ABC TV program in February 1994 that it may have shared economic intelligence with other countries (to Australia's detriment), kept files on law abiding Australian citizens, and adversely affected Australia's good relations with other countries such as Malaysia. ASIS which has headquarters in Canberra, a budget of $31 million, and about 300 employees, seems to be less accountable for its actions than the Australian Security Intelligence Organization (ASIO). In the post cold war period, both ASIS and ASIO seem to be over staffed and over funded.
Revelations in 1994 that the KGB has effectively penetrated ASIO for some time, and that personal files kept on law abiding Australians by ASIS were destroyed by a fire while the activities of ASIS were being investigated by a judicial inquiry, did little to enhance the reputation of either agency. With the end of the cold war and the demise of communism in Europe it is difficult to see how the continuing high level of expenditure of scarce public funds by the agencies can be justified. There is a good argument for reducing the budgets of the agencies, and making them more accountable. ASIO which costs the taxpayer $47 million a year could be amalgamated with the Australian Federal Police.
Australian Spy Agencies
The Australian Secret Intelligence Service, ASIS, Australia's international spy agency, is the least accountable of Australia's spy agencies and is probably the least accountable spy agency in the Western world. It is subject to the scrutiny of the Director General of Intelligence and is theoretically responsible to the Minister for Foreign Affairs. Unlike the domestic spy agency, the Australian Security Intelligence Organization (ASIO), it is not subject to scrutiny by any Parliamentary Committee. The Government may put ASIS on the same basis as ASIO by subjecting it to Parliamentary review by way of a Parliamentary Committee.
ASIS, which was established in the 1940s and has a staff of about 200, has been involved in some spectacular mishaps, such as a training operation at the Sheraton Hotel in Melbourne in the 1980s, which ended in a fiasco. It is difficult to regard ASIS as being accountable when it is not even subject to the Senate estimates review system, and the establishment of a Parliamentary Review system which has been mooted for 1999 is highly desirable.
The Inspector General of Intelligence and Security, Ron McLeod, who is responsible for monitoring the activities of Australian spy agencies puts some brakes on their activities. Their activities may become more widespread and invasive with the admitted need for greater surveillance in relation to the Olympic Games next year.
The Victorian Government's proposal to allow police to install video and tracking devices in private homes, businesses and cars would allow police to video people suspected of serious crime such as murder and dealing in drugs. A Surveillance Devices Bill would allow police to obtain a court order to install the devices but would also allow senior police to authorise surveillance if there was a serious imminent threat.
The police are currently forced to trespass onto private property to install devices which in many instances would make the evidence obtained inadmisssable in court.
The privacy of innocent people would be protected by a requirement that all videos and audio tapes be kept in a safe place and later destroyed unless they are relevant to further police investigations or prosecutions. The threat to privacy if there are inadequate safeguards was illustrated by the recent release of a home video, which had been in the possession of police, of a well known entertainer having sex in her home. The singer Debbie Byrne accused Victorian police of making copies of a video she made in her home, after the video was stolen from her home and recovered by the police. Copies of the videos were sold in video stores and hotels.
The ACLU has written to the Government suggesting that there should be a logging system to record who had access to the video tapes, and that there should be an annual review of the use of the new police powers by the Ombudsman. A Parliamentary Committee should he set up to monitor all invasions of privacy and recommend additional safeguards.
Under the proposed laws the police must submit an annual report to Parliament each year including the number of surveillance warrants issued. The dangers posed to privacy by the use of videos by private companies was illustrated by the action of Qantas which obtained videotapes and the photographs of off duty staff drinking alcohol at a club. About 90 Qantas staff were filmed in November 1998 by a private security firm at the St George Rowing Club to try to establish whether they were drinking alcohol between meal breaks. Although Qantas had not pursued any disciplinary action against any staff members recorded at the club, any tapes obtained in this type of dubious procedure should be destroyed. Since February 1999 the secret filming of workers in the workplace in NSW will be illegal unless there are reasonable grounds to suspect an employee is committing an unlawful act and court approval for the surveillance is obtained. The use of surveillance cameras within the workplace was criticised by the ACLU (Australian, 27/6/98). The ACLU stated that workers should insist on their right to view video footage and that workers need to be aware of their rights - or lack of rights.
Cameras: The ACLU, which protested against the proposal by the Lord Mayor of Melbourne (13/1/98) to greatly extend the use of surveillance cameras in the Central Business District, has called for greater controls over the use of surveillance cameras. Although hidden surveillance cameras have played a minor role in combating crime, they are a major threat to privacy.
The Australian Closed Circuit TV Association has claimed there are about 500,000 cameras in public places such as public transport, schools and streets, and also about 200,000 cameras in private premises such as shops and offices, and that the number of cameras installed is increasing by about 20% each year.
Technicians installing the cameras should be licensed; and employers seeking to install cameras in the workplace should be required to obtain a court order in relation to cameras already installed and also for new cameras. Cameras installed in change rooms and toilets were a particular threat to privacy.
There was little evidence that cameras in public places have detected much serious crime. There are inadequate mechanisms to ensure that film footage was destroyed, and not passed on to other public and private agencies.
The cumulative effect of the acquisition of camera surveillance footage, and printed information on individuals, the exchange of such information between agencies, and storing the information in central data banks has made Australia a Big Brother society in which the importance of personal privacy was being increasingly discounted.
No privacy protection: The ACLU was reported in the Herald Sun, (30/5197) as protesting against the practice of many companies of keeping private information about former customers health, financial and employment history, and in some cases selling the information to other companies. The ACLU said that a survey of 130 major companies by Price Waterhouse confirmed its worst fears about the spectre of Big Brother. The ACLU said that companies were abusing the trust of customers, that people should be much more aware their privacy was under threat and that the survey findings provided a powerful argument for strict laws to govern privacy as well as heavy fines and even jail sentences for breaches.
The Howard government has broken its election promise to introduce privacy legislation that would bring Australia into line with countries in the European Union. Instead the government has opted for a series of codes of practice which would involve self regulation by private industry. There is a danger that the trade of personal data for profit would become a growth industry.
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Australian Civil Liberties Union