Fisher, Michelle --- "Attempting to influence Victorian terrorism legislation" [2003] PrivLawPRpr 43; (2003) 10(5) Privacy Law and Policy Reporter 83

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Attempting to influence Victorian terrorism legislation

Michelle Fisher PRIVACY VICTORIA

The following factual history is provided by Michelle Fisher, Senior Policy Officer, Privacy Victoria, who also contributed to the Commissioner’s submission, extracts from which are re-published here. The failure of the Parliament to take account of the submission illustrates the limits of a Privacy Commissioner’s influence, and the limits of the privacy interest in the current climate. The submission is nonetheless important for the quality of its analysis, which will be relevant in all jurisdictions to future extensions of police powers excused by the threat of terrorism — Associate Editor.

The Privacy Commissioner made written and oral submissions to the Victorian Parliament’s Scrutiny of Acts and Regulations Committee (SARC) in March and April 2003 in relation to the Terrorism (Community Protection) Bill 2003, which was introduced by the Premier into Parliament on 26 February 2003.

The Bill had a potential impact on privacy in several respects. The Bill proposed, among other things, new covert search powers for police in relation to the prevention of and response to terrorist acts. Safeguards were included, among them judicial oversight and a three year sunset clause. The Bill also proposed to empower the Chief Commissioner of Police and every departmental secretary across government to issue conclusive certificates that would exempt certain documents from disclosure under the Freedom of Information Act 1982 (Vic) and restrict any right of review by a person seeking access. Under the Information Privacy Act, access to one’s personal information must first be sought under the Freedom of Information Act.

Bills are ordinarily subject to scrutiny by SARC prior to their debate in Parliament. SARC has a statutory function (under s 4D of the Parliamentary Committees Act 1968 (Vic)) to examine Bills to determine whether they unduly trespass on civil liberties, among other things. When the Information Privacy Act 2000 (Vic) was introduced, SARC’s scrutiny functions were extended to include a power to examine legislative proposals for potential adverse impact on personal privacy within the meaning of the Information Privacy Act 2000.

On 20 March 2003, the Terrorism (Community Protection) Bill 2003 was passed by the Legislative Assembly without amendment. Three sitting days were allowed for debate. The Bill passed the Legislative Assembly before a report by SARC on the Bill. SARC was not able to scrutinise the Bill earlier as SARC had not yet been reconstituted after Parliament was prorogued before the election in November 2002.

SARC was formally reconstituted on 26 March 2003, the day after the Bill was introduced into the Legislative Council. On 7 April 2003, SARC considered the Bill and made its comments in Alert Digest No 1, tabled in Parliament on 8 April 2003. SARC also wrote to the Premier on 8 April 2003, seeking clarification on a number of matters raised in the Alert.

A number of issues raised by the Privacy Commissioner in his written and oral submissions to SARC were taken up in the Alert, including:

• that covert search warrants are obtained by police ex parte and in closed court without the assistance of a public interest monitor (or equivalent independent advocate) to test the validity of police applications, make submissions on the appropriateness of granting the warrants, and monitor and report on the use and effectiveness of covert search warrants;

• the need and desirability of giving notice to individuals who are subject to covert search warrants after they are eliminated from any police enquiry;

• the need to clarify how information gained under a covert search warrant is to be used or disclosed; and

• the breadth of the proposed new exemption under the Freedom of Information Act and whether there is any nexus between the proposed new exemption and the stated aim of responding to and preventing terrorism.

Two days later, on 10 April 2003, the Bill was passed by the Legislative Council without amendments and without the benefit of the Premier’s response to SARC’s request for clarification of matters raised in the Alert. The Premier’s response was subsequently tabled in Parliament on 3 June 2003. l

Michelle Fisher, Senior Policy Officer, Privacy Victoria.

Extracts from Victorian Privacy Commissioner’s submission to the Victorian Parliament’s Scrutiny of Acts and Regulations Committee on the Terrorism (Community Protection) Bill 2003

I. Summary

1. The Terrorism (Community Protection) Bill 2003 (the Bill) was introduced into the Legislative Assembly on 26 February 2003. Only three sitting days have been allowed for its passage through the Legislative Assembly.^[1]

2. The new powers are severe. The freedoms they erode are precious. Privacy is one aspect of those freedoms.

3. While several important safeguards are included, they can and should be improved so as to better balance privacy with security.

4. In weighing the appropriate safeguards, it is important to hold in mind the seriousness of what is being proposed in this legislation. Police and others, such as techni-cians or intelligence personnel, will be authorised by a judge to enter a person’s home or their neighbour’s home, using force or impersonation if necessary, to examine their possessions, papers and computer, perhaps to seize items, and then to leave, perhaps without the occupants ever knowing. The judge will have concluded, in camera, that the activity being investigated is not legitimate advocacy, protest, dissent or industrial action. This is secret policing under law. It is difficult to imagine a more serious adverse effect on privacy being carried out under law. That law must give due weight to safeguards.

5. The basic privacy right of access to one’s own information is unnecessarily and disproportionately eroded by the proposed broad new exemption in the Freedom of Information Act [FOI Act].

6. The safeguards can be improved in ways that will not defeat the counter-terrorism purpose but will enhance the legitimacy of the erosion of freedoms that is said to be necessary on security grounds.

7. Specifically, improvements can be made to:

(a) the definition of ‘terrorist act’;

(b) who bears the onus of proving that activity is not legitimate advocacy, protest, dissent or industrial action;

(c) judicial oversight of covert warrants;

(d) reporting back to the Minister, Parliament and the public; and

(e) review of the measures at their automatic sunset in three years, the better to inform the decision whether to renew and/or amend the measures in the circumstances of 2006.

8. The new national security exemption proposed for the FOI Act is not necessary. Existing exemptions provide ample protection for information relating to securing the community against terrorism, which is the stated purpose of this Bill.

9. If the new exemption were to be deemed necessary, several important changes can be made to the Bill to reduce the clear risk that it will have an undue adverse effect on access to information, one of the most significant privacy rights and a prerequisite for the exercise of other rights in the FOI Act and the Information Privacy Act.

10. Those changes include:

(a) narrowing the scope of the national security exemption copied from the Commonwealth FOI Act so as to suit a State FOI Act;

(b) removing, or at least reducing, the retrospective operation of the new national security exemption;

(c) narrowing the range of government persons who can claim documents are conclusively exempt on national security grounds;

(d) strengthening independent judicial oversight of both the use of conclusive certificates and use of the national security exemption to deny access to information;

(e) removing proposed limitations on the open justice principle; and

(f) maintaining the power of the independent review tribunal to order disclosure of information where that would be in the public interest.

II. Introduction

11. The purpose of the Bill is stated to be to introduce new powers and obligations to assist police in preventing, or responding to, potential threats of terrorism. The purpose of the Bill is not said to be the provision of new police powers for general crime-fighting purposes. The severity of the erosion of freedoms should be proportionate to the severity of the threat, which is terrorism. A different debate would result from a proposal to erode privacy and empower police to the extent that this Bill will do so, if the purpose were general crime-fighting. To be protected from terrorism, the Victorian community may be willing to put up with adverse effects on their privacy that they may not accept for other reasons.

12. The government has simultan-eously introduced the Terrorism (Commonwealth Powers) Bill 2003 to refer State powers to the Commonwealth, to enable the Commonwealth to make laws with respect to terrorist offences.

13. It is assumed for the purposes of this Submission that the Terrorism (Community Protection) Bill is constitutionally valid. It is for others to comment on the impact (if any) of the proposed reference of State powers to the Commonwealth in relation to ‘terrorist acts’, suspicion for which founds the basis for the proposed investigative powers in the Terrorism (Community Protection) Bill ...

14. The proposed new investigative powers are extraordinary ones, empowering police to enter and search premises without the occupier’s knowledge, using subterfuge where necessary, and potentially involving innocent third parties who are not suspected of terrorism (such as neighbours whose property adjoins the premises being targeted). The Bill also introduces a new national security exemption into the Victorian Freedom of Information Act, the effect of which extends well beyond the counter-terrorism rationale underlying the Bill.

15. Where government seeks to introduce measures that restrict civil liberties, of which privacy is a slice, it must do so only to the extent that is necessary to achieve the legitimate aim underlying the proposals. A democratic nation is not secured by compromising, any more than strictly necessary, the freedoms that allow a democracy to function. Preserving freedoms under law is part of what it means to guard the national security of a democracy. To diminish freedoms unnecessarily or disproportionately makes the nation insecure.

16. Secret policing, covert searches, surveillance, information that cannot be tested for accuracy, closed decision-making, absence of independent scrutiny of government agencies: these are all hallmarks of systems of government that democratic nations tend to want to secure themselves against.

17. Where any such measures are adopted by democracies, they are adopted reluctantly because they are an aberration from the norm, which is freedom and democratic governance. The norm is accountable policing; minimal and overt search, seizure and surveillance; and a presumption of open government, with necessary, clearly defined exemptions subject to independent review.

18. The security of the Australian nation’s way of life depends on these norms being preserved. Measures in the Bill erode these norms. At a time when concern about terrorism is high, it is important to recall the reluctance with which the powers in the Bill ought to be viewed by a democratic society. Fear can make us welcome what should be only reluctantly and warily tolerated. The measures are an unwelcome necessity for a democratic society that prizes advocacy, dissent and diversity. They ought to be viewed cautiously, their necessity queried rigorously, and the safeguards against their misuse built carefully and applied scrupulously.

19. This Bill gives effect to the government’s election commitment to introduce new legislation to give police new powers to respond to terrorism and to amend the Freedom of Information Act to introduce a national security exemption.^[2] The government also made an election commitment to safeguard democratic freedoms.^[3]

20. One study of Western responses to terrorism has identified three sources of strength for democracies against terrorism:

(a) free and fair elections, allowing changes in political rulers without violence;

(b) free media, so that rulers can be criticised openly and peaceful protest can be heard, without the need for violence to achieve attention; and

(c) independent judicial authorities, so that minorities can assert their rights as against the majority without resorting to violence.^[4]

To this may be added a fourth strength of democracies, which draws on these three:

(d) transparent law-making, by elected representatives, after open debate and due process, and subject to oversight in particular cases by independent courts.

21. Functioning together, these four strengths give legitimacy to any laws that may necessarily limit democratic freedoms in order to combat terrorism.^[5]

22. This Committee’s review of the Terrorism (Community Protection) Bill 2003 is part of such a process.

III. Safeguards contained in the Bill

23. The Bill as currently drafted contains some important safeguards that reflect the need to limit the proposed extraordinary powers to the time and circumstances that have led to their introduction. These safeguards are outlined below.

A. Judicial oversight

24. The Bill limits the authority to issue covert search warrants to the highest court in Victoria, the Supreme Court (cl 5).

25. The Bill requires police to report back to the court on the execution of a covert search warrant (cl 11). As will be discussed below ... this mechanism will be a more adequate measure for police accountability if the court is also given express power to act on a report and appropriately respond to situations where a covert warrant has been improperly or unfairly executed.^[6]

26. The Bill leaves to the court’s discretion the determination of whether the secrecy of counter-terrorism information in legal proceedings should be maintained, taking into account the public interest in disclosure (cl 23), while ensuring the court is able to inspect relevant documents to assist it in determining the question (cl 24).

27. The Bill also provides for the judicial members of the Victorian Civil and Administrative Tribunal to examine whether a conclusive claim for the proposed exemption for national security documents under the Freedom of Information Act was made on reasonable grounds (cll 43 and 45). However, as will be discussed below (in s B of Pt IV), this is limited judicial review.

B. Ministerial and Parliamentary reporting

28. Public accountability over the frequency and exercise of covert search warrants is provided, to some extent, by the requirement for the Chief Commissioner of Police to report to the Minister on a number of matters (outlined in cl 13) and for this report to be tabled by the Minister in Parliament.

29. Additional measures are proposed below ... to enhance public accountability and timeliness of reporting, including a proposal for the establishment of a Public Interest Monitor to scrutinise and report to Parliament (through the Minister) on the applications for covert search warrants.

C. Review and sunset

30. The Bill includes a recognition that the sun always sets on an emergency. It provides for the automatic expiry of the legislation on 1 December 2006 (cl 41).

31. This sunset is to be preceded by a statutory review of the operation of the legislation by June 2006 (cl 38). The scope and conduct of this review should be amplified, in part to ensure that the appropriate information can be gathered from commencement so as to assist in determining the effectiveness of the Bill at the time of the review. This is discussed further at paragraphs 163-167.

D. Respect for contaminated victims’ need to communicate

32. The Bill proposes to give police the power to quarantine people who have or may have been exposed to chemical and other agents as part of a terrorist act.

33. The Bill includes two privacy-enhancing safeguards in relation to the exercise of this new power to detain people:

(a) the power must be exercised such that personal liberty and privacy are not unnecessarily interfered with (cl 14); and

(b) police have a positive duty to facilitate any reasonable request for communication by a detained person (cl 18(4)).

34. Detention, isolation and decontamination under force of law have serious implications. One function of privacy is to facilitate intimacy and consoling and sustaining contact among intimates. As the aftermath of the terrorist acts of 11 September 2001 and the Bali bombing showed, victims and families feel a deep need to communicate. These provisions of the Bill respect and reflect that fact. The presence of these safeguards in such legislation enhances the perceived legitimacy of the compromises of freedom inherent in the Bill.

IV. Adverse impact on privacy

35. The proposed introduction of powers to facilitate covert intelligence gathering necessarily has an impact on privacy. I leave to others the consideration of any impact of the Bill on other civil liberties.

36. In essence, the Victoria Police are being further empowered for the work of intelligence services. The rationale is that the threat of terrorism requires this. A judgment that such a step is necessary is for government and Parliament. It is a significant step. Along with due process and open debate at enactment, appropriate oversight during operation will be important elements in ensuring the legitimacy of that step (see Introduction, paragraphs 20-22).

37. Victoria has some experience of police undertaking intelligence work during the period of the Victoria Police Special Branch and its successor(s). Aspects of this experience can be found in five reports of the Ombudsman between 1984 and 1999. They are:

(a) Destruction of Special Branch Files, report of the Ombudsman, May 1984;

(b) Report of the Ombudsman on Police Special Branch Documents, March 1990;

(c) Allegations Raised Concerning the Activities of the Operations Intelligence Unit and Other Related Issues, interim report of the Ombudsman, May 1998;

(d) Allegations Raised Concerning the Activities of the Operations Intelligence Unit and Other Related Issues, second interim report of the Ombudsman, November 1998; and

(e) Allegations Raised Concerning the Activities of the Operations Intelligence Unit and Other Related Issues, final report of the Ombudsman, May 1999.^[7]

38. These current Bills will need to ensure that the methods and powers of police, directed at terrorism, do not spread to the traditional work of police where powers and accountability have been calibrated differently to the way a democratic society calibrates the balance of liberty and security in the extraordinary circumstances of a terrorism threat. These new covert powers need to be tailored so that they are not exercised routinely or for ordinary policing purposes unless Parliament debates and authorises that precise extension.^[8]

39. In 1998, while examining issues concerning the Victoria Police Special Branch and its successors, the Ombudsman considered the boundaries of legitimate policing:

It is my view that one of the lessons to be learned from the repeated controversies about the activities of Special Branch and its successors is that there has been a wide divergence between the views of police and those of a significant portion of the community.

The Force cannot continue to ignore this troublesome divergence, nor can it attempt to justify its continuance by arguing, as some witnesses have put to my investigators, that the community is out of step with reality, that the community does not understand the dangers involved, that the Force has no intention of misusing the information, or that only those who have something to hide will object to its activities. Acceptance of such arguments is tantamount to acceptance that police know better than the community and are beyond accountability on these issues. It is the Victoria Police — which after all is part of the community and derives its authority and powers from the community — which must reassess its position.

Of course, it would be incorrect to suggest that there is a single police view and a single community view. Nevertheless, the track record of the Force suggests that it tends toward the attitude I have outlined above — that there should be few limits on the information which may be stored on police databases. As I have said, such a proposition is clearly untenable.

Some would argue that it is untenable because police have no charter to involve themselves in political matters. Many complainants have put to me that there should be no ‘political police’ or that ‘political intelligence’ is not the concern of a civil police force. I do not accept these analyses. In my view, the presence or otherwise of a political angle is not relevant to the question of whether police have a legitimate interest in a particular matter, nor is it a useful concept in attempting to formulate general principles about what is, or is not, a permissible subject for police interest.

The most obvious starting point to determine this issue is to consider the fundamental objectives of policing. The current version of the Force’s mission statement, appearing in the 1996-1997 Annual Report, is ‘To provide a safe secure and orderly society by serving the community and the law’. The Annual Report then sets out a number of ‘values’ which are no more enlightening on the question at hand. Earlier Annual Reports contained the same mission statement, but included a description of the functions of the Force as being:

‘... to protect life and property; preserve peace; prevent and detect crime; perform duties prescribed by law and to provide help and assistance to those in need of it in accordance with community expectation and the law’.

In my opinion, this description of the Force accurately reflects the Force’s own understanding of its purpose, as well as the community’s understanding and expectations of it. It logically follows that all aspects of the Force’s activities must relate back to these fundamentals. If they do not, the presumption will be that the Force has exceeded its charter. This simple rule applies as much to the gathering and recording of intelligence as it does to any other area of the Force’s activities.^[9]

40. Another aspect of the Bill with potential to have a serious adverse impact on privacy are the proposed amendments to the Victorian Freedom of Information Act. These amendments will affect a person’s right to obtain access to their own personal information.

41. The Bill proposes to introduce a national security exemption into the State Freedom of Information Act that can be conclusively claimed by the Chief Commissioner of Police or the Secretary of any government department, with a very limited right of review.

42. The proposed new national security exemption will operate retrospectively to exempt documents created prior to the commencement of the Bill. That is, in a Bill to deal with a recently heightened terrorist threat are provisions that will potentially exempt many documents that pre-date the threat and have no connection to terrorism. That exemption will be able to be claimed conclusively by those whose accountability turns partly on the potential for Freedom of Information to require disclosure of information.

43. These proposed amendments to the Freedom of Information Act are unnecessary. Existing exemptions are adequate.^[10] The proposed amendment runs counter to open and accountable government. The information potentially sealed would be far broader than the counter-terrorism context. Judicial oversight would be curtailed. The effect could be to undermine the legitimacy of the proposed counter-terrorism measures.

44. A clause by clause analysis of relevant parts of the Bill follows, along with a statement of the relevant privacy interests at issue.

[This clause by clause analysis, under the headings ‘A. Covert Surveillance Warrants, and B. Amendment to the Freedom of Information Act’; while extremely valuable, is lengthy and specific to the particular Victorian legislation, and has been omitted from these extracts. Section C has been included below as it is of more generic significance —Associate Editor.]

C. Review of Proposed Legislation

Scope of the review

163. The inclusion in cl 38 of a statutory commitment to review the operation of the Act is strongly supported. The scope of the review should be set out, and include:

(a) the operation of the Act and the continued necessity for the provisions, whether unchanged or in an amended form;

(b) the extent to which the Act has contributed to the prevention of and response to terrorism;

(c) the effectiveness of the oversight and accountability mechanisms in relation to the provisions contained in the Act;

(d) any adverse impact on privacy and other civil liberties arising from the operation of the Act; and

(e) the effect on the Freedom of Information Act.

164. A statutory model for a review mechanism can be found in Pt 1D of the Commonwealth Crimes Act 1914 (s 23YV), which deals with review of the DNA Database that forms part of the national CrimTrac series of databases.

Review committee

165. The Bill should specify that the review chair be independent, and specify to some extent who shall comprise the review committee. Members of the committee might include representatives from the Victorian Department of Justice, Victoria Police, the Office of the Privacy Commissioner, the Ombudsman’s Office, the Director of Public Prosecutions, and the Public Interest Monitor ...

Public consultation

166. The Bill should expressly provide for public consultation by the review. Regard could be given to s 103A of the Telecommunications (Interception) Act, which requires a public notice to be given seeking submissions from the public on the operation of new warrant provisions.

167. The Bill should provide for tabling of the review committee’s report in Parliament within a fixed period.

V. Conclusion

168. The Introduction sets out the significance of the matters at stake in this Bill. They affect privacy of the body and of the home, of personal belongings, and of personal information.

169. The safeguards so far provided, while important, are inadequate. They can be improved without defeating the counter-terrorism purpose.

170. For the reasons set out above, I submit that the Bill unduly requires or authorises acts or practices that may have an adverse effect on personal privacy within the meaning of the Information Privacy Act 2000.^[11]

Paul Chadwick, Victorian Privacy Commissioner, 19 March 2003.

Endnotes

[1]. The Bill was second read by the Premier, the Hon Steve Bracks, on 27 February 2003. It was due to be debated the next sitting day, 18 March 2003. The guillotine was set on 18 March 2003 for consideration of the Bill to be completed by 4 pm, 20 March 2003.

[2]. Australian Labor Party (Victorian Branch), Counter terrorism: Part 3 of Labor’s Plan for Community Safety, 22 November 2002, available at <www.vic.alp.org.au/policy/index. html>, visited 18 March 2003.

[3]. Australian Labor Party (Victorian Branch), Democracy and Accountability, 28 November 2002, available at <www. vic.alp.org.au/ policy/index.html>, visited 18 March 2003. This policy states, ‘The democratic principles that underpin our society and system of government are vital to our quality of life and to our economic prosperity. This is especially the case in the changing and complex times in which we live. Labor understands that the democratic rights of the people must be nurtured and safeguarded by governments on behalf of the people they have been elected to represent.’

[4]. Alex P Schmid, ‘Terrorism and Democracy’ in Alex P Schmid and Ronald D Crelinsten (eds), Western Responses to Terrorism Frank Cass London 1993, p 17.

[5]. These strengths underpin the guides that have been frequently cited in jurisdictions contemplating new measures that would increase security and diminish liberty. For example, see my Office’s Annual Report 2001/2002, October 2002, available via the Publications link at our website at <www.privacy.vic.gov.au>, p 4:

As Victoria adjusts [to the heightened terrorist threat], four guides can be used to assess measures that would curtail privacy in security’s name —

• Are the measures necessary, proportionate, and likely to be effective?

• Is due legislative process being followed without undue haste?

• Is there judicial oversight of the exercise of any new powers?

• Do sunset clauses cause any new powers to expire automatically so that they can be reconsidered in the light of changed circumstances?

[6]. Covert law enforcement by Victoria Police has reportedly been the subject of attention from the Ombudsman in recent times in relation to adequacy of affidavits: ‘Police abuse home bugging’, Herald Sun, 6 February 2003.

[7]. The May 1998 and May 1999 reports are available via the Ombudsman’s website at <www.ombudsman.vic. gov.au/pubs.html>.

[8]. Since 11 September 2001, privacy and data protection commissioners around the world have been reporting a tendency for measures adopted with a counter-terrorism rationale to expand police powers more generally.

[9]. Victoria, Ombudsman, Allegations Raised Concerning the Activities of the Operations Intelligence Unit and Other Related Issues, second interim report of the Ombudsman, November 1998, pp 82-83. The Ombudsman went on to state (at p 83) that specific safeguards should be applied to assist police in ensuring that information is collected for a lawful purpose that is directly related to the Force’s functions or activities, and he recommended that the Information Privacy Principles set out in s 14 of the Commonwealth Privacy Act 1988 are a ready made set of principles that could be applied. Since then, Victoria has introduced a similar set of privacy principles in the Information Privacy Act that generally apply to police in carrying out its law enforcement functions.

[10]. See paragraphs 129-130 [not reproduced here] for an outline of relevant existing exemptions.

[11]. Parliamentary Committees Act 1968, s 4D(a)(iiia).