Tag: Simon Breheny

Submission to Senate Legal and Constitutional Affairs Legislation Committee Exposure Draft of Human Rights and Anti-Discrimination Bill 2012

With Simon Breheny

Executive Summary: The exposure draft of the Human Rights and Anti-Discrimination Bill 2012 represents a dramatic and radical attack on Australians’ fundamental freedoms under the guise of reforming antidiscrimination law.

The draft Bill makes government the arbiter of behaviour within a substantial range of private political and personal activities. The draft Bill would politicise and regulate private interpersonal relationships in a way they never have been in Australia.

In a very real sense, these laws are not anti-discrimination laws. They are laws designed to give the government authority over our lives in completely new and unjustifiable arenas. This is an excessive and indefensible increase in state power.

The proposed laws give the government explicit power to interfere in almost all facets of human interaction including eighteen areas of public and private life, such as political opinion, religion and social origin. The government is also required to decide what falls into these categories, making the state the total and final arbiter on our most fundamental liberties.

By redefining discrimination to be anything which “offends, insults or humiliates” the proposed law will extend the infamous provisions of the Racial Discrimination Act that led to the Andrew Bolt case to almost every area of public and private life. By expanding the grounds on which people can claim to be discriminated against to include areas such as “political opinion” the law will stifle genuine discussion on almost every topic for fear of legal consequences.

This draft Bill has deservedly been criticised from across the political spectrum as a massive overreach and an unjustified curtailment of individual freedoms.

Democratic governments rely on the free exchange of opinion for their legitimacy. This draft Bill, if enacted, would dramatically limit freedom of speech in Australia.

This submission also raises other concerning elements of the draft Bill. The draft Bill substantially reverses the burden of proof onto the defendant. It introduces a large amount of uncertainty and ambiguity into anti-discrimination law.

The draft Bill introduces a subjective test for decisions about whether the law has been breached. Subjective tests are impossible to comply with and should never be used by the courts.

There is no justification for such a dramatic overhaul of anti-discrimination law, and no place for such extraordinary limits on freedom of speech.

Available in PDF here.

Opening statement to Parliamentary Joint Committee on Intelligence and Security Potential reforms of national security legislation

With Simon Breheny

The suite of policies proposed in the Attorney-General’s discussion paper add up to one of the most significant attacks on civil liberties in Australian history. Many of the proposals breach the rule of law, severely curb civil liberties and threaten freedom of speech. Our submission focused on the data retention proposal. We were disturbed to see the Attorney-General support this proposal yesterday. In our view, the data retention proposal is a much greater threat to privacy than even the proposed Australia Card was in the 1980s. The complexity of these discussion papers’ proposals is significant. Many of them interact with multiple pieces of legislation. Few have been elaborated or justified. They should be dealt with separately, with separate legislation and separate inquiries. The burden of proof rests on the government to prove to the public that after 10 years of continuous, unrelenting increases in national security power—the last major change was as recently as August this year—there is still a clear need for such extraordinary changes. Almost every single proposal in the discussion paper has serious problems. For instance, the proposal to establish an offence for failure to assist in the decryption of communications is a clear abrogation of the government’s responsibility to uphold the privilege against self-incrimination and the right to silence—vital features of our criminal justice system. We call on this committee to reject this proposal.

We also oppose the default extended period for warrants from 90 days to six months, the lowering of thresholds for obtaining warrants, the power of the Attorney-General to unilaterally vary warrants and the power of ASIO to move, alter or delete data. But the most extraordinary proposal we would like to talk about is that of data retention. This draconian proposal for mandated and indiscriminate retention of the online data of all Australians is completely lacking in proportionality, undermines basic freedoms and is in fundamental conflict with the right to privacy. Extraordinary claims require extraordinary evidence, yet no evidence has been presented to justify one of the world’s most onerous data retention regimes. Abstract references to emerging threats and cybercrime are patronisingly insufficient as justification for such an extreme example of state power.

The collection and storage of data by internet service providers also creates a considerable data security problem. Rather than dispersing information, data retention creates silos of information begging to be attacked by the very criminals this proposal seeks to limit. Many European nations have had data retention regimes in place for a number of years. A study conducted over a five-year period, from 2005 to 2010, found no statistically significant increase in crime clearance rates in countries that had adopted data retention. ‘Australians should not allow themselves to be bullied into accepting a proposal which has ominous implications and particularly a grave temptation for abuse by the government.’ That was said by the IPA in 1986 in relation to the proposed Australia card, and the same holds true for the proposals being considered here today.

Submission to Parliamentary Joint Committee on Intelligence and Security on ‘Equipping Australia against Emerging and Evolving Threats’

With Simon Breheny

Introduction: The Institute of Public Affairs believes many of the national security proposals contained in the Attorney-General’s Department’s Equipping Australia against Emerging and Evolving Threats Discussion Paper are unnecessary and excessive. Many of the proposals:

  • Curb civil liberties;
  • Systematically breach Australians’ right to privacy, and;
  • Breach basic rule of law principles.

The Discussion Paper offers at least 45 distinct proposals. This submission does not attempt to address each one. Instead, we focus on one particular proposal that the government is seeking views upon: the data retention policy that would require internet service providers to retain data on all users for up to two years.

The data retention proposal, along with a number of other proposals listed in the Discussion Paper,would be a significant increase in the power of security agencies and the Attorney-General’s Department.

Available in PDF here.