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A lot of chatter about terrorism

An interview with Tim Wilson, Australia’s Human Rights Commissioner on privacy, accountability, representation, proportionality, free speech and free societies.

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This interview took place on November 20 at the World Forum for Democracy in Strasbourg. For more coverage of the conference's key theme, 'Freedom and control in the surveillance age', see here.

openDemocracy (oD): Is privacy a human right?

Tim Wilson (TW): Privacy is a human right, but there is a difference between privacy and secrecy. Private information is information that we don’t want publicly disclosed. But some of that information does need to be accessed by third parties such as the government. The issue and the challenge is, if the information is going to be disclosed, who gets to decide that and then who gets to access it, and under what circumstances.

Think about it in terms of, for example, a data retention regime. If I use my phone now, I go through with my ISP and online content providers. At every point I have voluntarily said the trade-off for accessing information is that I have put out a certain amount of material about myself to these different companies. The question is how they long they store my information for, and who can access and on what terms.

We must make sure that there are proper safeguards in place, to guarantee that my private information won’t be used for the wrong purposes, for example to abuse power or positions of authority, or to undermine my sense of safety and security in society. It is part of the ongoing contest we have in a free society, where we always will have a certain amount of centralised power. The key question is what institutions, what safeguards and what architecture you put around this power to make sure that it is used for wellbeing rather than ill.

oD: What sort of safeguards would you advocate in a free society?

TW: The key one I think is the base on which the government can access private information such as metadata. The government needs to show that the information will be used only in the case of serious crimes, if a certain threshold test has been met, and it’d need to get a certain degree of approval before going on to access that information.

The information should be stored for a limited period of time, and where possible for targeted purposes. You can have mass data collection but it has to be used for a specific purpose rather than as a broad tool. Data should also be kept outside the government, to make sure that different information - financial data, medical records, or CCTV data - can’t communicate with each other and then become a form of mass surveillance on ordinary citizens if someone wants to use it for that purpose.

oD: Wouldn’t you say that what we have now in our societies amounts to mass surveillance?

TW: What occurs now is that we have mass data collection, which is different from mass surveillance. There is absolutely a risk that one becomes the other, which is why the safeguards are so important. But this is always one of the great tensions of a liberal democratic regime. We give government a lot of power, and we create lots of safeguards. In the US they’d do it through a Bill of Rights, through the Constitution, which says that courts can oversee what the legislature is doing and knock out laws if they cross the line.

We have a similar system in Australia, but we give more power to our parliament. But there are other architectures: ombudsmen, security legislation monitors, or inspectors general, whose job is to receive complaints and to inspect the systems and the policy to make sure that mass data collection doesn’t become mass surveillance and isn’t used for ill purposes.

My great fear is that if government has a hold of financial data, metadata, CCTV, you can then make all these systems communicate, whereas you can avoid that if the telecommunication companies keep your communications data, if CCTV is retained by private companies (with a regulatory environment around it), and financial records by the banks.

oD: A lot of this comes down to the notion of accountability, which you mentioned in your panel intervention as a key condition of freedom. But what some of your co-panellists expressed was this feeling that accountability seems only to apply to citizens, not to the state?

TW: Accountability absolutely applies to the state, and that’s why we have these sorts of architectures that I’ve mentioned. You have Bills of Rights, or Courts to keep states in check.

This, broadly speaking, is working in liberal democracies. Would we sometimes want courts to do more? Yes. But they are only able to do what they are empowered to do through the systems and structures of government.

Citizens also need to be held accountable. There are different degrees of accountability: I hold you accountable by your conduct, by our interpersonal relationship; citizens hold the government to account, and when you commit crimes, you also have to be held to account. This is a necessary precondition of a free society, that citizens are held accountable for the consequences of their actions. It’s the interpretation of this accountability that varies.

oD: In the aftermath of the Paris attacks, polls showed that a very large majority of French citizens supported strong security measures – including the preventive confinement of suspects in detention camp. How do you ensure that the – in this case democratic - response to events stays compatible with human rights?

TW: First you have to consider that we don’t believe in or apply full democracy. Most of our societies follow the model of representative democracy, the aim of which is to temper popular attitudes at a certain point in time. I am a big supporter of that. It is not to say you shouldn’t do what the people want, but rather that what the people want isn’t always the best way to govern a society. This is not to be malicious, I am a democrat like everybody else. But we have structures in place to temper the populism of the day. Which doesn’t mean that politicians are not guilty of populism as well.

After a terrorist attack, people tend to believe that suspected persons should have their liberties suspended. That’s not right. What we need to have is a proportionate response based on risk and based on awareness of the possibility of people being engaged. You have to have formal processes to collect evidence and data, principles such as innocent until proven guilt, due process. If we just lent ourselves to a democratic response, we would not always be happy with where we end up.

Particularly in times of national security crisis, the majority can quickly turn against minorities. This is not how democracy survives, this is not how human rights survive. You need a society which is anchored in everybody’s common humanity, while also tolerating difference.

oD: Do you think that politicians have been up to the challenge, for example in Australia?

TW: I think across the world, democracy is under strain in these circumstances. Politicians are absolutely guilty of feeding these populist responses, which is why I think that the tone used matters so much.

Often politicians get the tone wrong, and fail to defeat perceptions of fear, because they think this will make them electorally successful. They’ll probably be right in the short term, but we need to think beyond that. In the long term, people need to look at history to realise what the consequences can be when people in positions of power target minorities out of populist reasons, and fan prejudice or fear.

And this is where the democratic response has to step up – we have to seriously stand up and say, this is not acceptable. We are not prepared to tolerate that conduct from our politicians and we want a higher standard. It is idealistic, but in practise that is how we change the discussion.

oD: There have been calls in a lot of European countries, particularly in the UK, to adopt elements of Australia’s immigration system, making it somewhat more closed?

TW: Our system is not closed! It’s about very clear processes and how we enforce them. There are huge human consequences to that. In the case of asylum seekers, there is no consequence-free policy, especially for a country like ours. The question is, how you manage these consequences. The basis of the Australian system is that people who come to Australia seeking asylum are granted refugee status on a basis of need, not on the basis of who can arrive on our mainland.

Another important part of that discussion is security. Everybody who comes to Australia needs to have had a security assessment, a health assessment and an identity assessment. I don’t want to inflame the issue, the risks of asylum seekers being a cloak for Daesh activists or terrorists coming to Australia is very small, because we know who is coming, we know their story, and we know their identity. But you can only have that in secure borders arrangements. It is a much bigger and a different challenge for Europe than it is for Australia. We are an island-continent, which gives us the ability to implement such a policy.

The challenge is to do that in a way that also injects humanity. People must be assessed in a fair way – if they are genuine refugees, they should be accepted. Again, this should be based on actual persecution and need, not on whether they can make it to the Australian shores. This is the tension we’ve had with this policy in the past, and these questions are going to be there in the future.

oD: But even if the stated goal is humane, what do you do if the actual execution is not, for example in the case of Christmas Island?

TW: We try to address this, and we try to put a spotlight on the issue. But the experience has been that when the Australian population feels that there is no proper border security, they are more interested in guaranteeing that rather than the human dimension for those going through the system.

Once you do get border security, the human dimension becomes more relevant because people can see it as a consequence. That is what’s happened now twice. That’s why when you look at what happens in detention centres the issues are real, and the human consequences can be very challenging and – let’s be straight about it – bad. But you’re also ignoring the human consequences of what happens when refugees are in camps in other parts of the world where the situation is equally bad, but the refugees are invisible to the Australian public.

And that’s where I think this big misunderstanding about our policy lies. People who are granted refugee status receive it based on their needs, not on who can make it to the Australian mainland because if you take this approach you ignore the people who are stuck in refugee camps elsewhere. These are also facing persecution, but lack the economic power or the visibility to raise their case.

oD: Is this working?

TW: It is working in terms of security of borders, and in terms of increasing the public’s confidence in asylum seekers coming to Australia. The downside, and that is why I’ve said there is no consequence-free policy solution, is that people are being held in detention centres for really long periods of time. There is nothing fundamentally wrong with some of the mainland detention centres, but when you have people in detention for periods of two years, it is a dehumanising experience, and it has enormously negative consequences on those individuals.

But the same is also true of people in refugee camps. This is why it works on some levels, but has human consequences on the other. But if we changed that and accepted people because they made it to the Australian mainland, it would have another human consequence as it would be ignoring what’s happening in refugee camps. There is no consequence free policy.

oD: One of your first fights as Human Rights Commissioner had to do with lifting restrictions on free speech, for example anti-hate legislation. Given the risk of online radicalisation on the one hand, and the backlash against certain parts of the population, especially Muslims on the other, have your revised your position?

TW: No, not at all. In fact my position has become firmer. The legitimate restrictions on free speech are about incitement to violence, and around harassment which leads to intimidation. That covers all the types of conducts that people want to restrict.

The unique thing about Australia’s law, particularly the Racial Discrimination Act, is that it makes it unlawful to offend, insult and humiliate a person based on their race, colour, descent or national or ethnic origin. That standard doesn’t apply to anybody else – you can say whatever you want about people with disabilities, or based on their sexual orientation. I think that if we are going to have a restriction on free speech, it should be a standard that’s applied consistently.

The other thing is that it should be a standard which we can all agree upon. Nobody would agree if we made it unlawful to offend someone based on their sexual orientation; religious leaders would take it to the courts. The standard has to be incitement to violence and harassment which leads to intimidation. If you get that law right, you’ll get a broad public acceptance of the law, which doesn’t exist at the moment.

There’s a lot of chatter about terrorism and so on as well, but that in the end is all about contributing towards a crime, which is a completely different conversation. It is about how people should be able to practice their liberties in a free society.

There is an acute and growing tension between the concern for safety and the protection of our freedoms. How do we handle this? Read more from the World Forum for Democracy partnership.
About the authors

Tim Wilson is Australia’s Human Rights Commissioner and was dubbed the “Freedom Commissioner” because he is focused on advancing classical liberal human rights and freedoms, including free speech, association, religious freedom, property rights and equality before the law.

David Krivanek is an Associate Editor of openDemocracy, and edits the digitaLiberties debate. He was previously editor of Can Europe Make It?, and currently works for an international organisation in Beirut.

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