Locke Keith: Crimes Amendment Bill (No 6) — Consideration of Report of Law and Order Committee 
Locke Keith: Crimes Amendment Bill (No 6) — Consideration of Report of Law and Order Committee 
[Volume:609;Page:6242] 
KEITH LOCKE (Green) 
: 
 This bill does contain some good updating of the criminal law but the exemptions from the interception offences—the exemptions for the police and intelligence agencies—do authorise a huge State intrusion into our privacy. Privacy is not something that is abstract. We rightly feel violated when someone intrudes into our private life whether it be by peering into our home going through our personal things or in this case reading our private emails or hacking into what we might have on our computers. Catching criminals does involve some intrusions on our privacy but any extension of police powers in this area must be governed by the proportionality principle: that any new intrusion on privacy must be proportional to the additional community benefit derived from it. We should generally favour the alternative least intrusive means of catching criminals. I sat on the Law and Order Committee when it was discussing the bill and there was simply no data statistical or anecdotal provided to the committee on how many additional criminals might be caught by giving these extra powers to the police and the intelligence services. 
This new power is much more dangerous than the interception powers previously granted to the police and the intelligence agencies to intercept mail or telephone calls because we use email and computers so much now. The volume of the communications that we send and receive has multiplied tremendously. The technology of email interception is so cost-efficient compared with opening mail for example that it can be done in a massive way particularly when less tolerant and less democratic-minded Governments are in power. It also catches many third parties other than the people who were specifically targeted. Every month there are hundreds or thousands of people who send emails to each of us and whose privacy would be compromised if we were targeted. 
That combines with another problem identified by the Privacy Commissioner of Canada George Radwanski that “The more information Government compiles on us the more of it will be wrong. That is simply a fact of life.” There are many ways that information can be mistaken or wrongly interpreted. It can simply be the result of errors loose language or the way in which we might use irony in our emails. It may be that as the Canadian privacy commissioner states: “You are passing time browsing on the Internet and you are idly curious about what kind of propaganda in favour of al-Qaeda various extremists might be putting out. But could visiting such websites get you identified as a potential terrorist yourself?” Anyone can accidentally get caught up in the surveillance net. As the Canadian privacy commissioner also states: “The bottom line is this. If we have to live our lives weighing every action every communication every human contact wondering what agents of the state might find out about it analyse it judge it possibly misconstrue it and somehow use it to our detriment we are not truly free.” 
We should also knock on the head the silly argument we often hear that if we have nothing to hide we have nothing to fear. The Canadian commissioner correctly states: “The truth is that we all do have something to hide not because it is criminal or even shameful but simply because it is private.” He goes on to state that “the right not to be known against our will indeed the right to be anonymous except when we choose to identify ourselves is at the very core of human dignity autonomy and freedom.” 
So using the proportionality principle I say there is a huge downside to granting these extra powers to the police the SIS and the Government Communications Security Bureau. What is the upside? Yes we may catch some extra criminals. There may be a few; we just do not know how many. But we do know that the really big fish will generally avoid email detection through sophisticated means such as using anonymisers cyber-cafes hotmail addresses code words impossible to break encryption or throwaway cellphones. 
 We could even say that in some respects the new concentration on electronic surveillance could weaken policing. What seems to be happening in places like the United States is that the spook agencies are increasingly relying on electronic intelligence to the detriment of real work on the ground. The United States National Security Agency has a huge budget but it does not seem to know very much about what is going on in the United States or in other countries. In places like Iraq it seemed to be pretty poor in its intelligence concerning the war. 
Also when I was on the Law and Order Committee I offered some suggestions about constraints on the powers of the intelligence agencies and the police. For instance I said they should adopt some of the best-practice constraints from overseas. But the committee threw out for example a suggestion for auditing email interception warrants based on the procedures of the Commonwealth Ombudsmen’s office in Australia. At least we could have had those constraints. The committee also turned down my amendment to inform those suspects against whom no charges were later laid that their communications had been intercepted in case those interceptions had some subsequent impact on their lives and they could track back where that impact came from. The FBI in the United States does have such a notification procedure. 
The committee also tossed out the Privacy Commissioner’s suggestion which I supported that the police do not need the power to hack into people’s computers—the remote-access power—because they already have the power to search properties under warrants and to look at computers and have done so frequently in the past. So the police do not need this new power. It is quite spooky to think that an agency could access a person’s computer remotely under this exemption for the police and intelligence agencies without the person even knowing it. Indeed Australia has a provision for its intelligence service to change people’s files so as to hide its entry. The problem is that the committee said these provisions would allow us to catch more criminals and that we should simply trust the intelligence agencies. We just need to look at the history of intelligence agencies to know they do make mistakes including some in New Zealand which had the David Small and Aziz Choudry cases. The agencies did make mistakes and both those gentlemen won awards from the courts against the police and the SIS respectively. 
What is happening here through the granting of these powers is an additional move down the road towards what many people are worried about: the move towards creating more of a surveillance State. We see that in other forms too. A lot of these measures are generated out of the United States and the track it is going down with its Department of Homeland Security. We are having imposed upon us other privacy intrusions such as those reported in the paper recently—that is when we visit the United States next year we will need to have fingerprint data on our passports to enter that country and possibly other biometric information provided on our passports. Facial recognition systems are being developed for our airports and for American airports and there is increasing use of surveillance cameras throughout society. When those things are added to the provisions of this bill they represent substantial intrusions on our privacy—intrusions that we should not grant to the State. 
Such intrusions are becoming more prevalent in society because of the advance of technology. We read that cellphones that can take pictures are creating a great privacy problem —they can be left around to take pictures and transmit them by email. People have raised concerns that those sorts of intrusions can occur in public places and in workplaces and we do not want to give those powers legally to the police and the intelligence agencies. So it is very good that the bill contains general provisions against such powers. 
The Green Party supports many things in this bill but because of the intrusive provisions we will not vote for the second reading.