Power without responsibility – the dismal surveillance laws 
Posted By Mirko Bagaric on August 12th, 2007
Proposed new police powers must be accompanied by increased police responsibility and accountability
The right to privacy is more illusory than real and, contrary to the wave of current sentiment, the federal police aren’t totally incompetent. Yet it would be a serious mistake for the federal government to press ahead with its proposed laws giving the federal police the power to conduct searches and plant surveillance devices without notifying the people involved for months.
The main opposition to the proposed laws relates to the incursion that it would constitute to our right of privacy. This is a flawed. Stripped of its emotive appeal, privacy is simply a middle class invention by people who have little else to worry about.
The right to privacy is the adult equivalent of Santa Claus and unicorns. No one has yet been able to identify where the right to privacy comes from and why we need it. How worried do you reckon people in third world countries who are struggling with the necessities of life are about their privacy? The question seems stupid. But it is important because it highlights the nonsense that is the current day obsession for more and more privacy.
The empirical evidence shows that the right to privacy is in fact often destructive of our well-being. It prevents us attaining things that really matter, such as safety and security and makes us paranoid of one another.
For communities to operate effectively individuals need to build attachments to one and another. This can only occur in circumstances where we have information about each other.
In the end a strong right to privacy is nothing more than a request for secrecy – which is the refuge of the guilty, paranoid and misguided; none of whom should be heeded in sorting through the moral priorities of the community. These priorities start and end with achieving good outcomes.
These good outcomes, however, aren’t likely to occur by giving the federal police virtually unchecked power – which lacks the control that normally comes with judicial oversight over warrants – to search our houses and listen to our conversations.
More phone taps and more searches, virtually at will, means more information. As we have seen with the Dr Mohamed Haneef debacle, much information is equivocal regarding guilt and innocence.
Suspicion is normally only well placed if there is a clever and measured joining of the dots, piecing together often thousands of items of communication and information. Some police do this poorly and interpret innocuous, harmless acts as having sinister objectives.
As a result, the proposed new laws will result in more innocent people being charged. This of itself is not irredeemable. Most innocent people are ultimately acquitted by the courts.
But they often spend tens of thousands of dollars defending themselves, and sometimes many months or even years in custody awaiting trial. Incredibly, no compensation is payable to innocent people who beat criminal charges. This is despite the fact that the criminal trial process can have a devastating impact on their lives.
This lack of compensation is legal brutality. All of the numbers are stacked against the individual and in favour of the state, and in particular the police. For the police it’s a case of all care and no responsibility. That’s why many of them stuff up and conduct very poor investigations. Their judgment would be more prudent if wrong decisions carried adverse consequences to them – or at least the government for whom they act.
Until law enforcement authorities are made accountable for their wrong decisions, the government should be wary about giving them more power to access information. This is especially where there is no demonstrable increase in the level or threat of serious crime in Australia.
In the current climate, more information to police is likely to simply mean more scope to stuff up. Individuals cannot wear this burden.
Moreover, increases in state powers must always be accompanied by a commensurate increase in state responsibility and accountability. The proposed search and surveillance laws fail this test dismally. In the end they are just dismal proposed laws.
A version of this was in the Herald Sun (Melbourne) on 3 August 2007.