MIKE WALLER. Welcome to the Panopticon: time for an Australian bill of rights?

Jun 11, 2018

Panopticon: a circular prison with cells arranged around a central well, from which prisoners could at all times be observed (Jeremy Bentham). 

Mr Turnbull has told Neil Mitchell security and police will be given extra power to conduct random checks at airports.  Neil: “That’s a big step”.  PM: “It is”.   Neil: “Why do we need it?”   PM: “Dangerous times, Neil” (Malcolm Turnbull, 3AW)

The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well-meaning but without understanding (US Supreme Court judge Louis Brandeis). 

Post 9/11, Australia has increased spending on the Federal security and police services by an order of magnitude with no evidence of the public benefits from the spending, other than allowing politicians of either ruling party to boast they are intent on “keeping us safe”.

At the same time, there have been numerous legislative moves to restrict personal freedoms, to extend the time people can be held without charge or access to legal advice, and to implement gratuitous/unjustified extensions of protections for security personnel to invade an individual’s privacy and basic human rights. The Turnbull Government’s proposed random stop powers at airports (with attendant major threats of growing racial profiling) and “back-dooring” of electronic devices/apps heap further intrusions on personal liberty with no attempt at serious justification. Instead, we are treated to bloviation from the PM and his omnipresent Home Affairs Minister on the specious grounds of prosecuting the “war on terror”.  Why, for example, airports? Terrorist outrages across the globe have taken place wherever innocent people congregate – railway stations, cinemas, restaurants, beaches and city streets. How long before the inexorable logic of the surveillance state provides unconditional police stop and check powers anywhere in the public domain.

And we have seen nothing yet. AI-based facial recognition and communications surveillance technology in the hands of people like Dutton and the many agencies he now controls present an existential threat to basic, hard won privacy and personal freedoms. Allied to foreign and defence policy incoherence in relation to the Middle East that has been feeding Islamic terror movements, we face a toxic mix of forces serving to undermine Australian democratic rights. Sadly, we can expect little better from the current Opposition who roll over at the first suggestion that they are soft on national security.

No-one is denying that terrorism constitutes a real threat. But even if governments think there are more votes in laws tough on crime, terrorism and immigration, in a democratic society they also have a duty to tell people that liberty carries risks which we, if we are mature and autonomous individuals, must accept.

Failing such mature and informed government leadership, what to do? Surely, at the very least, the Parliament (supported, one hopes, by the civil rights groups and the quality media) should require strictly time-limited sunset clauses on all laws/regulations relating to security (e.g. that impose constraints on reporting, extend government surveillance/information gathering and detention powers). These sunset provisions should be buttressed by a requirement for independent (if not necessarily wholly public) evaluation of the need for and cost effectiveness of each measure as the end of the sunset period approaches. “Sunsetting” was adopted in many democratic countries in relation to the draconian war powers legislation introduced in the real existential crisis we faced in WWII.  In the absence of such a gross existential threat as world war, the arguments for sunset and review arrangements are overwhelming.

More fundamentally, do we now need to revisit the concept of some form of Bill of Rights to constrain governmental ambitions and behaviour that would otherwise increasingly threaten people’s legitimate, basic liberties? Or are there mechanisms within our current common law system that would place a more effective check on executive government overreach?  These are conversations that are urgently needed.

In the absence of such approaches, as with the “War on Drugs”, there is no prospect of the slide towards further intrusions into our private spaces being curtailed. Quite the contrary: the imperative to “be seen to be doing something”, to respond to the demands of the security services, distorts our leaders’ grip on principle. This is the result of what A.C. Grayling describes as “the fog of government”, leading Ministers to believe, possibly sincerely, that their duty to protect the security of citizens is not just a high duty (which it is) but their highest duty, with the protection of our civil liberties relegated to a poor second.

In the absence of a clear framework of democratic principles, the insidious logic of perpetual crisis (buttressed by emotive Dutton style arguments about the need for such measures also to combat crime) will be used to justify more and more intrusive measures and inflated and hidden expenditure on an unaccountable surveillance bureaucracy. In this emerging world, all citizens will surely become the object of suspicion and surveillance, driven by an excess of administrative zeal (as Louis Brandeis said) and political expediency.

Mike Waller has served in senior economic roles in the UK Treasury and with federal and state governments in Australia. He was Chief Economist for BHP Ltd and a founding partner in a consultancy firm providing strategic advice to global resource and energy companies.  He has also served variously as board member or chair of a number of not for profit and commercial bodies.

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