Human rights

QCCL: Australia's new terror laws take away everyone's rights

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Does anyone think this Government could be trusted to effectively administer anything technological? (Cartoon by Mark David / @mdavidcartoons)

Queensland Council of Civil Liberties boss Michael Cope says new national drivers licence database and police powers to detain terrorism suspects without charge for two weeks put all Australians at risk.

Last Thursday’s COAG meeting was another example of a now familiar process, where after each terror incident our governments hack away at our rights to privacy and due process.

The question that must be asked is how much of our precious rights will eventually be left?

The meeting agreed on a number of measures.

One is to combine all drivers licence photos into one national database.

It appears that this measure will have a particularly adverse impact on the rights of Queenslanders.

Under section 28EG of the Queensland Transport Planning and Coordination Act 1994, the drivers licence database can only be accessed in three circumstances: with the consent of the licence holder, to enforce the laws that the licence exists to enforce and a police officer with a warrant.

Division 1 of Part 5A of the Police Powers and Responsibilities Act 2000 requires a police officer, except in the case of an emergency, to obtain a warrant to access the licence photo database. In the case of an emergency, after the event, the officer must get approval for what they have done.

The Intergovernmental Agreement on Identity Matching Services signed on Thursday makes no mention of the police needing a warrant to access the database.

When these rules were introduced in 2008, the then Queensland Labor Government accepted the argument of Queensland Council of Civil Liberties (QCCL) that the drivers licence photo database contained highly sensitive private information that should be protected.

The current Queensland Labor Government has clearly walked away from these principles at the expense of the rights of Queenslanders.

The QCCL has no objection to the police having access to the photos so long as it is supervised by an independent judicial officer. Under the Queensland legislation, the warrant can be issued by a justice of the peace. We have long argued that is inadequate and it should be a magistrate. However, it is the point of the principle that is important — if police want to access this highly sensitive data that was collected for a totally different purpose they should have to get permission from an independent judicial officer.

We have two further objections to this proposal.

Firstly, it is inevitable that once this honeypot is created other bureaucrats will want access to it. It is clear from the agreement that the Government intends to use this database for offences far beyond terrorism. Will the Government allow the RSPCA access to it as they once had access to telecommunications data?

We have once again had this amalgamation justified by at best opaque claims that somehow the new powers would have prevented previous incidents or are needed to prevent future ones.

Secondly, the usefulness of this database must be called into question. In the U.S., the algorithm used to search their equivalent data base has produced false results on 15 per cent of occasions.

This measure has now led to renewed calls to ban the burqa.

There is no proper basis for banning the wearing of the burqa or any other similar item of clothing. The starting point is that the State should not be determining what people wear. It might be said that grounding the right in a matter of personal preference is somewhat weak. However, once the right to have a personal preference in these matters has been established, why should people not be able to take advantage of it absent specific compelling circumstances such as safety and security?

In addition, where is the evidence that the burqa will hamper this technology more than large hats, balaclavas, hoodies or masks of former presidents of the United States. Will we ban the Richies from the cricket?

The second measure will give police the power to hold people for questioning for up to 14 days. This is not, as has been suggested in the media, a power of preventative detention. It is a power to gather evidence.

We have always opposed powers to detain suspects for questioning only. This is a draconian extension of those powers and will be open to abuse.

The third measure will allow law enforcement agencies to intervene when a person possesses “instructional terrorist material”. The COAG Communique says the legislation will have “appropriate safeguards”. It is not clear what this means. Generally speaking people should only be criminally liable for acts he or she has done on the basis of what he or she may do at some time in the future, only if the person has declared an intent to do those further acts.

Laws passed ten years already extend criminal liability way beyond this traditional point — to the point where people are made liable simply for who they are.

What is to be the content of this new offence and what is to be the penalty? The history of anti terror law has been to impose extraordinary penalties for conduct a long way short of actually committing an offence.

It is said that some people must lose their rights to protect the rights of others. This is a nonsense. By these laws everyone loses their rights

When trying to prevent harm, the state has to respect fundamental rights. It is not a simple matter of balancing. What is often missed is that by creating laws that give police and spies wide powers the state exposes all of us to the risk of another type of harm — the arbitrary use and abuse of those powers.

The risk of abuse is not slight. History shows this time and time again — in fact very recently, remember Dr Haneef?

The point is reinforced when you consider that inevitably, once these powers are made available in one area of the law, they will almost certainly be extended to others over time

Find out more about the QCCL here. Follow Michael Cope on Twitter @michaelcope64.

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