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Assemblage, Counter-Law and the Legal Architecture of Australian Covert Surveillance

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National Security, Surveillance and Terror

Part of the book series: Crime Prevention and Security Management ((CPSM))

Abstract

Surveillance practices are typically divisible between the activities of private and state actors. A complex system of regulated and unregulated activity is interfaced with legal architectures deployed to authorise, prohibit, regulate and often legitimate those activities. In this chapter we explore the Australian legal architecture of surveillance. A brief history of Australian surveillance legislation, a discussion of the current regulatory framework at the State and Federal level, and consideration of issues of privacy, accessible technology and the justifications for strategic targeted surveillance operations in the context of a risk society comprise this chapter. By framing the legal architectures, we illustrate how developed legal systems organise and articulate surveillance practices, and consider several uses and effects of these articulations.

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Notes

  1. 1.

    Assemblage is a complex theory, and not without its problems. While it is not the purpose of this chapter to dwell on the contours of assemblage, it is worth noting some key elements. Assemblages are composed of physical actants, institutions, processes, technologies and knowledge formations. These components can be identifiable and discrete, but also obscure, composed of overlapping, multiple parts. The elements of assemblage interact with one another in equally complex ways. They are organic, in the sense of evolving, growing, receding, and in some cases ending and mutating. Power is endemic, but dispersed, with it rarely the case that any one component has complete power over the totality of its arrangements. The connectivity between components is also highly variable, in terms of speed, impact and resistance. At its simplest, Deleuze and Guattari (1987, 8) conceived of assemblages as ‘multiplicities.’ DeLanda (2006) subsequently extended the concept.

  2. 2.

    Counter-law emerged in the opening years of this century in Ashworth’s (2000) work, but more fully in Ericson (2007, 24–31). Ericson argued that counter-law has two limbs. The first relates to “the form of laws against law” (Ericson 2007, 24). The second relates to “the form of surveillant assemblage” (ibid.). ‘Laws against law’ are characterised by the tendency in recent decades for an increasingly punitive use of criminal law, in the form of increasing sentences, new law and alterations of due process standards to facilitate prosecution. The broad dynamic is a policy imperative based on precaution that is based on logic of exception. The second limb of counter-law is the surveillant assemblage itself: the tendency for surveillance, policing and information collection to form and proliferate.

  3. 3.

    Arising under s. 91(27) of The Constitution Act 1867 (UK) 30 & 31 Vic c.3.

  4. 4.

    Notably, the Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic).

  5. 5.

    The extent to which privacy legislation in Australia may be understood as ‘general’ is doubtful. Australian privacy legislation is primarily concerned with the availability, use and exchange of information between and by agencies collecting information. See, for example, Privacy Act 1988 (Cth); Privacy and Personal Information Protection Act 1988 (NSW).

  6. 6.

    For example, Workplace Surveillance Act 2005 (NSW).

  7. 7.

    In Australia those organisations include the Australian Security Intelligence Organisation (ASIO), the Australian Secret Intelligence Service (ASIS) and the Defence Signals Directorate (DSD).

  8. 8.

    For example, Enever v. The King (1906) 3 CLR 969.

  9. 9.

    The jurisprudence crystallised as early as 1572 in Semayne’s Case (1604) 5 Co Rep 91a. Semayne’s case has been accepted as authority in Australia and Canada. For example, Plenty v. Dillon (1991) 171 CLR 635 and Eccles v. Bourque [1975] 2 SCR 739.

  10. 10.

    For example, Kuru v. State of New South Wales (2008) 236 CLR 1.

  11. 11.

    The common law position on privacy in Australia is complex. Some intermediate courts have held there is a common law right to privacy, but there has yet to be a definitive authority from the High Court of Australia. The most recent significant decision was in Australian Broadcasting Corp v. Lenah Game Meats (2001) 208 CLR 199. There appears to be substantial resistance to proposals for the recognition of a cause of action for breach of privacy, despite recommendations from Australian Law Reform Commissions (see Australian Law Reform Commission 1983; Australian Law Reform Commission 2008; Victorian Law Reform Commission 2010). In Canada, the Ontario Court of Appeal has recently recognised a right to personal privacy, enforceable through a new tort of ‘intrusion upon seclusion.’ See Jones v. Tsige [2012] ONCA 32.

  12. 12.

    See R. v. Sang [1980] AC 402; Bunning v. Cross (1978) 141 CLR 54; see also Bronitt and Roche 2000; Presser 2001.

  13. 13.

    Australian Law Reform Commission 1975. Report No. 2: An Interim Report : Criminal Investigation. Canberra, Australian Law Reform Commission, Commonwealth of Australia, New South Wales Government, Queensland Government and Victorian Government (1983). Royal Commission of Inquiry into Drug Trafficking. Canberra, Australian Government Publishing Service, Stewart, D. 1986. Royal Commission of Inquiry into Alleged Telephone Interceptions. Canberra, Australian Government Publishing Service, Wood, J. J. 1997. Report of the Royal Commission into the NSW Police Service. Sydney, New South Wales Government.

  14. 14.

    The Royal Commission on Intelligence and Security published eight volumes between 1976 and 1977. These documents are declassified, some as recently as 2008, but there remains a substantial amount of material that is redacted. The materials are now available through the National Archives of Australia.

  15. 15.

    The Second Reading Speech and associated debate illustrates a classic dilemma governments face in balancing privacy with security, and establishing appropriate accountability measures while also ensuring operational utility. The Telephonic Communications (Interception) Bill 1960 intended to shift the authority to grant wiretaps from a delegated power in the hands of the Director General of ASIO (granted by the then Prime Minister Chifley in 1950), to a requirement for applications to be made to the Attorney General. See Australian Commonwealth, Parliamentary Debates, House of Representatives, 5, 11 and 12 May 1960. Notably, there had been existing statutory authority under the Telegraph Act 1909 (Cth) s. 3 to ‘take control’ of telegraph communication in cases of ‘emergency’ and telecommunications had been regularly intercepted by both military and civilian authorities, with an unfettered right to do so during war time—see Australian Commonwealth, Parliamentary Debates, Australian Senate, 16 August 1905 (Senator Keating) 963 concerning amendments to the Wireless Telegraphy Bill 1905.

  16. 16.

    The Second Reading Speech and associated debate illustrates a classic dilemma governments face in balancing privacy with security, and establishing appropriate accountability measures while also ensuring operational utility. The Telephonic Communications (Interception) Bill 1960 intended to shift the authority to grant wiretaps from a delegated power in the hands of the Director General of ASIO (granted by the then Prime Minister Chifley in 1950), to a requirement for applications to be made to the Attorney General. See Australian Commonwealth, Parliamentary Debates, House of Representatives, 5, 11 and 12 May 1960. Notably, there had been existing statutory authority under the Telegraph Act 1909 (Cth) s. 3 to ‘take control’ of telegraph communication in cases of ‘emergency’ and telecommunications had been regularly intercepted by both military and civilian authorities, with an unfettered right to do so during war time—see Australian Commonwealth, Parliamentary Debates, Australian Senate, 16 August 1905 (Senator Keating) 963 concerning amendments to the Wireless Telegraphy Bill 1905.

  17. 17.

    Telecommunications (Interception) Amendment Act 1987 (Cth), s. 21 inserted a new Part into the TI Act that permitted the Commonwealth to authorise state agencies to apply for warrants. Each State legislature enacts its own laws to nominate and declare specific agencies empowered to use these provisions. See, for example, Telecommunications (Interception) (New South Wales) Act 1987 (NSW); Telecommunications (Interception) (State Provisions) Act 1988 (Vic).

  18. 18.

    The treaty came into effect through the Council of Europe in Budapest on 23 November 2001, coming into general operation on 1 July 2004. Canada was an immediate signatory, but did not ratify the treaty until 8 July 2015. By contrast, Australia ratified the treaty on 30 November 2011, with the treaty coming into effect in Australia on 1 March 2013. See Australian Treaty Series [2013] ATS 9.

  19. 19.

    Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth) assented to 13 April 2015 and commencing operation on 13 October 2015.

  20. 20.

    For example, Listening Devices Act 1969 (NSW), Listening Devices Act 1984 (NSW), Listening Devices Act 1972 (SA), Listening Devices Act 1969 (Vic), Listening Devices Act 1978 (WA) and Invasion of Privacy Act 1971 (Qld).

  21. 21.

    Surveillance Devices Act 2007 (Vic); Surveillance Devices Act 2007 (NSW); Surveillance Devices Act 2008 (WA); Crimes (Surveillance Devices) Act 2010 (ACT); Surveillance Devices Act 2007 (NT); Police Powers and Responsibilities Act 2000 (Qld); Chap. 13; Police Powers (Surveillance Devices) Act 2006 (Tas).

  22. 22.

    Law Enforcement (Powers and Responsibilities) Amendment (In-car Video Systems) Act 2004 (NSW).

  23. 23.

    Surveillance Devices Amendment (Police Body-Worn Video) Act 2014 (NSW).

  24. 24.

    Crimes (Assumed Identities) Act 2009 (ACT); Crimes Act 1914 (Cth), Part IAC; Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW); Police (Special Investigative and Other Powers) Act 2015 (NT), Part 3; Police Powers and Responsibilities Act 2000 (Qld), Chap. 12; Crime and Corruption Act 2001 (Qld), Part 6B; Criminal Investigation (Covert Operations) Act 2009 (SA), Part 3; Police Powers (Assumed Identities) Act 2006 (Tas); Crimes (Assumed Identities) Act 2004 (Vic); Criminal Investigation (Covert Powers) Act 2012 (WA), Part 3.

  25. 25.

    Crimes (Controlled Operations) Act 2008 (ACT); Crimes Act 1914 (Cth), Part 1AB; Law Enforcement (Controlled Operations) Act 1997 (NSW); Police (Special Investigative and Other Powers) Act 2015 (NT), Part 2; Police Powers and Responsibilities Act 2000 (Qld), Chap. 11; Crime and Corruption Act 2001 (Qld), Part 6A; Criminal Investigation (Covert Operations) Act 2009 (SA); Police Powers (Controlled Operations) Act 2006 (Tas); Crimes (Controlled Operations) Act 2004 (Vic); Criminal Investigation (Covert Powers) Act 2012 (WA), Part 2.

  26. 26.

    Ridgeway v. The Queen (1995) 184 CLR 19.

  27. 27.

    Note, however, that the offender in this case, John Anthony Ridgeway, was subsequently charged and convicted of being in possession of a traffickable quantity of heroin under South Australian law. See R. v. Ridgeway [1998] SASC 6963.

  28. 28.

    Ridgeway v. The Queen (1995) 184 CLR 19 at [38] per Mason CJ, Deane and Dawson JJ:

    [I]n the context of the fact that deceit and infiltration are of particular importance to the effective investigation and punishment of trafficking in illegal drugs such as heroin, it is arguable that a strict requirement of observance of the criminal law by those entrusted with its enforcement undesirably hinders law enforcement. Such an argument must, however, be addressed to the Legislature and not to the courts. If it be desired that those responsible for the investigation of crime should be freed from the restraints of some provisions of the criminal law, a legislative regime should be introduced exempting them from those requirements. In the absence of such a legislative regime, the courts have no choice but to set their face firmly against grave criminality on the part of anyone, regardless of whether he or she be a government officer or an ordinary citizen. To do otherwise would be to undermine the rule of law itself.

  29. 29.

    See above n. 19.

  30. 30.

    The National Crime Authority was established pursuant to the National Crime Authority Act 1984 (Cth). Following a number of controversies about its powers and the focus of its investigations, the NCA was decommissioned in 2003, and replaced by the Australian Crime Commission.

  31. 31.

    A statutory corruption investigation authority located in New South Wales. See Independent Commission Against Corruption Act 1998 (NSW). Refer also to www.icac.nsw.gov.au.

  32. 32.

    A statutory compliance and monitoring organisation based in Victoria. See Victorian Inspectorate Act 2011 (Vic) and www.vicinspectorate.vic.gov.au.

  33. 33.

    ACELI is a Federal law enforcement integrity and compliance-monitoring agency. See Law Enforcement Integrity Commissioner Act 2006 (Cth) and www.aclei.gov.au.

  34. 34.

    For example, Telecommunications (Interception and Access) Act 1979 (Cth), s. 48; Criminal Investigation (Covert Operations) Act 2009 (SA).

  35. 35.

    See Evidence Act 1995 (Cth), particularly ss. 135–8. This Act is largely mirrored as uniform legislation in a number of Australian jurisdictions, including NSW, Victoria, Tasmania, ACT and NT.

  36. 36.

    For example, Smith v. R. (2001) 206 CLR 630 at 654.

  37. 37.

    For example, Bunning v. Cross (1978) 141 CLR 54. In those states where Uniform Evidence law applies, section 138 provides a statutory presumption against admissibility, but entrenches the discretionary power of the judicial officer to admit that evidence if it is desirable to do so.

  38. 38.

    For example, Law Enforcement (Controlled Operations) Act 1997 (NSW), s. 3A.

  39. 39.

    International Covenant on Civil and Political Rights 1966, Art 17; Universal Declaration of Human Rights 1948, Art 12; Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Art 8.

  40. 40.

    Feminist scholars have challenged the distinction between the private and the public for some time. See, for example, Pateman (1989) and Lacey (1993).

  41. 41.

    The Prime Minister of Australia, the Hon. Tony Abbott gave a speech on 22 September 2014, in which he outlined an array of legislative changes intended to maximise security and augment domestic law enforcement and intelligence gathering. He began the speech by stating “protecting our people is the first duty of government” (Hansard, House of Representative 22/9/2014, 9957).

References

  • Adkins, Lisa.2009. Sociological Futures: From Clock Time to Event Time. Sociological Research Online 14(4): 8.

    Article  Google Scholar 

  • Agamben, Giorgio.1998. Homo Sacer: Sovereign Power and Bare Life. Stanford, CA: Stanford University Press.

    Google Scholar 

  • ———.2005. State of Exception. Chicago: University of Chicago Press.

    Book  Google Scholar 

  • Alderson, Karl. 2001. Powers and Responsibilities: Reforming NSW Criminal Investigation Law. Ph.D Thesis, University of New South Wales, Sydney.

    Google Scholar 

  • Ashworth, Andrew.2000. Is the Criminal Law a Lost Cause? Law Quarterly Review 166: 225–256.

    Google Scholar 

  • ———.2006. Four Threats to the Presumption of Innocence. South African Law Journal 123(1): 63–97.

    Google Scholar 

  • Australian Law Reform Commission. 1975. Report No. 2: An Interim Report: Criminal Investigation. Canberra: Australian Law Reform Commission.

    Google Scholar 

  • ———. 1983. Privacy. Canberra: Australian Government Printing Service.

    Google Scholar 

  • ———. 2008. For Your Information: Australian Privacy Law and Practice. vol. 3. Canberra: Commonwealth of Australia.

    Google Scholar 

  • Brodeur, Jean-Paul.2010. The Policing Web. New York: Oxford University Press.

    Book  Google Scholar 

  • Bronitt, Simon.1999. Entrapment, Human Rights and Criminal Justice: A Licence to Deviate? Hong Kong Law Journal 29(2): 216–239.

    Google Scholar 

  • Bronitt, Simon, and David Kinley.1996. Undercover Policing: Detection or Deception? In Tomorrow’s Law, ed. H. Selby. Sydney: Federation Press.

    Google Scholar 

  • Bronitt, Simon, and Bernadette McSherry.2010. Principles of Criminal Law. Sydney: Lawbook Co.

    Google Scholar 

  • Bronitt, Simon, and Declan Roche.2000. Between Rhetoric and Reality: Sociolegal and Republican Perspectives on Entrapment. International Journal of Evidence and Proof 4(2): 77.

    Google Scholar 

  • Brown, David, David Farrier, Sandra Egger, Luke McNamara, Alex Steel, Michael Grewcock and Donna Spears. 2010. Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales. 5th ed. Sydney: Federation Press.

    Google Scholar 

  • Commonwealth of Australia, New South Wales Government, Queensland Government and Victorian Government.1983. Royal Commission of Inquiry into Drug Trafficking. Canberra: Australian Government Publishing Service.

    Google Scholar 

  • De Londras, Fiona, and Fergal F. Davis.2010. Controlling the Executive in Times of Terrorism: Competing Perspectives on Effective Oversight Mechanisms. Oxford Journal of Legal Studies 30(1): 19–47.

    Article  Google Scholar 

  • DeLanda, Manuel.2006. A New Philosophy of Society: Assemblage Theory and Social Complexity. London: Continuum.

    Google Scholar 

  • Deleuze, Gilles, and Félix Guattari.1987. A Thousand Plateaus. Minneapolis, MN: University of Minnesota Press.

    Google Scholar 

  • Ericson, Richard V.2007. Crime in an Insecure World. Cambridge: Polity Press.

    Google Scholar 

  • Gans, Jeremy, Terese Henning, Jill Hunter, and Kate Warner.2011. Criminal Process and Human Rights. Sydney: Federation Press.

    Google Scholar 

  • Garland, David.2001. The Culture of Control: Crime and Social Order in Contemporary Society. Chicago: University of Chicago Press.

    Google Scholar 

  • Hafner-Burton, Emilie, Laurence R. Helfer, and Christopher J. Fariss.2011. Emergency and Escape: Explaining Derogations from Human Rights Treaties. International Organization 65: 673–707.

    Article  Google Scholar 

  • Haggerty, Kevin D., and Richard V. Ericson.2000. The Surveillant Assemblage. British Journal of Sociology 51(4): 605–622.

    Article  Google Scholar 

  • Harfield, Clive, and Karen Harfield.2008a. Covert Investigation. New York: Oxford University Press.

    Google Scholar 

  • ———.2008b. Intelligence: Investigation, Community and Partnership. Oxford: Oxford University Press.

    Google Scholar 

  • ———.2010. The Governance of Covert Investigation. Melbourne University Law Review 34(3): 773–804.

    Google Scholar 

  • Lacey, Nicola.1993. Theory into Practice: Pornography and the Public/Private Dichotomy. Journal of Law and Society 20(1): 93–113.

    Article  Google Scholar 

  • Lippert, Randy K.2009. Signs of the Surveillant Assemblage: Privacy Regulation, Urban CCTV, and Governmentality. Social and Legal Studies 18(4): 505–522.

    Article  Google Scholar 

  • Lyon, David.2007. Surveillance Studies: An Overview. Cambridge: Polity Press.

    Google Scholar 

  • Marx, Gary T.1988. Undercover: Police Surveillance in America. Berkeley, CA: University of California Press.

    Google Scholar 

  • Mulgan, Richard.2003. Holding Power to Account: Accountability in Modern Democracies. Basingstoke: Palgrave Macmillan.

    Book  Google Scholar 

  • Murphy, Brendon.2014. Retrospective on Ridgeway: Governing Principles of Controlled Operations Law. Criminal Law Journal 38(1): 38–58.

    Google Scholar 

  • ———. 2015. Zone of Impeachment: A Post-Foucauldian Analysis of Controlled Operations Law and Policy. Ph.D Thesis, University of Newcastle.

    Google Scholar 

  • Office of Police Integrity.2007. Ceja Task Force: Drug Related Corruption. Melbourne: Victorian Government Printer.

    Google Scholar 

  • Packer, Herbert.1964. Two Models of the Criminal Process. University of Pennsylvania Law Review 113(1): 1–64.

    Article  Google Scholar 

  • ———.1968. The Limits of the Criminal Sanction. Palo Alto, CA: Stanford University Press.

    Google Scholar 

  • Pateman, Carole.1989. Feminist Critiques of the Private/Public Dichotomy. In Public and Private in Social Life, eds. S. Benn and G. Gaus. London: St. Martin’s Press.

    Google Scholar 

  • Prenzler, Tim.2013. Ethics and Accountability in Criminal Justice. Toowong: Australian Academic Press.

    Google Scholar 

  • Presser, Bram.2001. Public Policy, Police and Interest: A Re-Evaluation of the Judicial Discretion to Exclude Improperly or Illegally Obtained Evidence. Melbourne University Law Review 25(3): 757–785.

    Google Scholar 

  • Queensland Fitzgerald Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct. 1989. Report of a Commission of Inquiry Pursuant to Orders in Council. Brisbane: Queensland Government Printer.

    Google Scholar 

  • Secretary of State for the Home Department (UK). 1929. Report of the Royal Commission on Police Powers and Procedure. London: H. M. Stationery Office.

    Google Scholar 

  • Standing Committee of Attorneys-General and Australasian Police Ministers Council Joint Working Group on National Investigation Powers. 2003. Cross-Border Investigative Powers for Law Enforcement Report. Canberra: Leaders Summit on Terrorism and Multijurisdictional Crime.

    Google Scholar 

  • Stelfox, Peter.2009. Criminal Investigation: An Introduction to Principles and Practice. Collompton: Willan Publishing.

    Google Scholar 

  • Stewart, Donald.1986. Royal Commission of Inquiry into Alleged Telephone Interceptions. Canberra: Australian Government Publishing Service.

    Google Scholar 

  • Victorian Law Reform Commission.2010. Surveillance in Public Places. Melbourne: Victorian Law Reform Commission.

    Google Scholar 

  • Wood, James. 1997. Report of the Royal Commission into the NSW Police Service. vol. 3. Sydney: New South Wales Government.

    Google Scholar 

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Acknowledgements

The authors are grateful for the energy and vigorous review of the editors. Brendon extends sincere thanks to Dr Jay Anderson for his insights into assemblage.

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  1. Law School, University of Newcastle, Callaghan, NSW, Australia

    Brendon Murphy & John Anderson

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  1. Brendon Murphy
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Editors and Affiliations

  1. Department of Sociology and Criminology, University of Windsor, Windsor, ON, Canada

    Randy K. Lippert

  2. Department of Criminal Justice, University of Winnipeg, Centennial Hall, Winnipeg, MB, Canada

    Kevin Walby

  3. School of Humanities and Social Sciences, Deakin University, Geelong, VIC, Australia

    Ian Warren

  4. School of Humanities and Social Sciences, Deakin University, Geelong, VIC, Australia

    Darren Palmer

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Murphy, B., Anderson, J. (2016). Assemblage, Counter-Law and the Legal Architecture of Australian Covert Surveillance. In: Lippert, R., Walby, K., Warren, I., Palmer, D. (eds) National Security, Surveillance and Terror. Crime Prevention and Security Management. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-43243-4_5

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