On 30 October 2014, Communications Minister Malcolm Turnbull introduced the federal government’s controversial legislation for a mandatory data retention scheme into Parliament. Under the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, it is proposed that telecommunications service providers must store customer telecommunications metadata (but not content data) for two years so that it can be accessed by law enforcement agencies on request without a warrant. Mr Turnbull told Parliament that “[a]ccess to metadata plays a central role in almost every counter-terrorism, counter espionage, cyber security, organised crime investigation”.
Developments around the country
DownUnderAllOver is a round-up of legal news from both State and federal jurisdictions, and contains topical articles and short pieces from Alternative Law Journal committees around the country.
In its inquiry on Serious Invasions of Privacy in the Digital Era, the Australian Law Reform Commission (‘ALRC’) considered whether Australians whose privacy is invaded should have a civil action for redress. In its Report 123, tabled before Parliament on 3 September, the ALRC recommends new legislation that would give a legal remedy for serious invasions of privacy. Unfortunately, the current Commonwealth government is already on record for opposing such legislation.
The ALRC proposal, which largely follows an earlier Discussion Paper, is for federal legislation introducing a new tort of serious invasion of privacy. The ALRC recommends that the tort would focus on ‘intrusion into seclusion’ and ‘misuse of private information’. It would be confined to intentional or reckless invasions of privacy, so that negligent invasions of privacy would not be actionable, and be subject to a requirement that the invasion must be serious. Importantly, it is proposed that an action could only succeed if the court was satisfied that the public interest in privacy outweighed any countervailing public interests. This requirement for a balancing exercise would ensure that freedom of speech, freedom of the media, public health and safety and national security would not be disproportionately curtailed.
In early September, the Joint Select Committee of Northern Australia tabled its final report of the Inquiry into the Development of Northern Australia. A White Paper is due to follow in the next 12 months defining policy for ‘realising the full economic potential of the north’. The Committee is inquiring into the ‘potential for development of the region’s mineral, energy, agricultural, tourism, defence and other industries … trade and other investment links with the Asia-Pacific; … the regulatory, taxation and economic environment; impediments to growth; and … conditions for private investment and innovation’. Additionally, it is charged with identifying ‘the critical economic and social infrastructure needed to support the long term growth of the [northern Australia] region, and ways to support planning and investment in that infrastructure.’ The forthcoming White Paper, intended to support and synthesise existing work in promoting economic opportunity in the north, will no doubt provide for a significant shift in laws relating to land tenure and use, environmental regulation, and taxation and corporate regulation. While the Committee comprises many familiar with the particular context of Australia north of the Tropic of Capricorn, those at home in metropolitan Australia will perhaps be called upon to revisit their understanding of this vast and largely misunderstood territory.
The Finance and Public Administration References Committee has investigated the ‘prevalence and impact of domestic violence in Australia as it affects all Australians and in particular, as it affects women living with a disability and women from Aboriginal and Torres Strait Islander backgrounds.’ Family violence is gaining an increasing profile in the community, notably following a number of high profile cases resulting in the tragic death of women and children. Underlining the importance of airing the issues associated with family violence, committee member Senator Cory Bernardi disputed the expertise of experienced support worker Barbara Crossing. In response to her evidence about a man who was holding his partner in a headlock, the Senator said that police considered headlocks ‘appropriate means of deferring an aggressor’. Ms Crossing, he said, was second-guessing the police who were ‘experts’. Without understanding the irony of his statement, the Senator apparently failed to appreciate that, without the expertise of long-term activists and support workers such as Ms Crossing, family violence would remain largely unacknowledged by the law. It was only as recently as 1994 that Zoe Rathus published Rougher than Usual Handling: Women and the Criminal Justice System in response to Queensland criminal law and its effect on women.
The Commonwealth government continues to demonstrate its expertise in Orwellian turns of phrase. Law reform initiatives have seen the government call for submissions on ‘traditional’ freedoms while passing a tranche of laws that challenge rights to due process and the protection of the law. The Migration Amendment (Protecting Babies Born in Australia) Bill 2014 for example, rather than protecting babies, removes protection for babies born in Australia to asylum seekers, that would otherwise be available under the Refugee Convention. The Guardian for Unaccompanied Children Bill 2014 appoints a guardian for unaccompanied non-citizen children. The Bill is a ‘measure to assist Australia to meet its obligations under the Convention on the Rights of the Child’. The Orwellian twist is that the Bill is intended to apply to all children held in immigration detention, found by the Human Rights Commission to be contrary to human rights.