Is an Aussie net blackout constitutional?

Is an Aussie net blackout constitutional?

Summary: Given the state of affairs in Egypt, ZDNet Australia asked several law experts whether a communications shut-down would be possible, legal and constitutional in Australia.

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analysis Given the state of affairs in Egypt, ZDNet Australia asked several law experts about whether a communications shut-down here would be legally possible, following expert opinions that it is technically possible.

The answer is that it depends.

Unlike the United States of America, where free speech is protected by the Bill of Rights, Australia's constitution does not directly stipulate the protection of freedom of speech. Rather it implies that freedom of speech is necessary for the existence of a constitutionally assured system of representative, democratically elected government.

Peter Black, a senior lecturer on internet law from the Queensland University of Technology and Andrew Lynch, a constitutional lawyer from UNSW's Law Research Centre, believe that the shutdown of social networking and internet communications could be seen as unconstitutional, because they are channels where political discussion occurs.

"Although the Constitution of Australia does not expressly protect free speech, the High Court has held there is an implied right to freedom of communication on political matters, and it could be argued, depending on the circumstances, that any legislation to shut down the internet would infringe this constitutional guarantee," said Black.

"It's not a broader right to free speech but very much towards political speech. So you could make an argument that by totally turning off the internet, you are also, in this day and age, considerably restricting political speech," he said.

Lynch agreed: "Any move by government to impose blanket prohibitions on speech is going to raise the possibility of it being unconstitutional because the high court has found that the community needs to have information about what its elected representatives are doing and that imposes a minimum threshold of freedom of information," he said.

Black qualified this by noting that there might be a case where law could conceivably be revoking freedom of political communication if it was believed to be necessary to protect national security. This possibility hinged strongly on circumstances, he said.

The executive director of UNSW's Cyberspace law and policy centre, David Vaile, agreed that any debate surrounding legality would hinge on the catalyst.

He believed that even in an extreme case, it would be difficult to persuade stakeholders that the government's actions were in line with its democratic nature. The government's success would depend on the attitudes of the internet services providers (ISPs), he said, adding that some ISPs may see their primary obligation as upholding customer interests by continuing to provide communications services rather than complying with "controversial" and "drastic" government orders.

"It's not black and white. But I think some would be happy to go along more quietly while others would use whatever legal mechanisms they have to challenge and resist such orders," he said.

Vaile said that the High Court, on application from an ISP, could potentially overrule the government's attempts to shut down communications infrastructure if it decided that the government was acting outside of its constitutional powers.

He believed, however, that the absence of any effective legal or constitutional protection for "free speech" in Australia, with the recent expansion of government powers over communications under the 'War on terror' rubric, would make such an argument be hard to establish if there really was a compelling case of civil emergency.

Monash University professor David Lindsay also believes that carriers and service providers could be obliged to act, given provisions within the Telecommunications Act in a section which deals with "National Interest Matters".

"It provides that carriers and carriage service providers (CSPs) must do their best to prevent telecommunications networks and facilities from being used to commit offences. It also provides that carriers and CSPs must give officers and authorities of the Commonwealth, states and territories such help as is reasonably necessary for (a) enforcing criminal laws; (b) protecting the public revenue; and (c) safeguarding national security," he said, adding that a senior police officer can suspend the supply of a carriage service to an individual in the case of an emergency.

However, he said that it seems confined to suspension of services to "an individual", rather than the general public.

Another part of the Act addressed emergency powers for defence forces, he said.

"This part gives defence authorities powers to give notices to CSPs requiring the provision of a carriage service for defence purposes or management of natural disasters. Potentially more importantly, a carrier or CSP may be required to enter an agreement with the Commonwealth regarding operational requirements in times of crisis."

Topics: Government, Broadband, Browser, Emerging Tech, Government AU

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7 comments
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  • What I want to know is, why don't we have a bill of rights that could potentially affect this kind of thing?

    oh right, the government doesn't want anything that could expose their wrongdoing
    Hyperion09
  • Hypothetically speaking it's possible that something may happen ...

    So it would take a very major and extreme event to occur.
    The Government would need to stamp their feet and crack a hissy fit.
    Then all carriers would need to act together to create an effective blackout.

    1. Someone please provide an example ... sorry, realistic example because how many are paranoid enough to think "Egypt could happen here".
    2. Who thinks the any federal government who have the spine to even try it. The closest events that the current Labor government might wish to apply it to is to hide another policy failure, or protect Comrade Conroy's senstive ego next time a 5 year old asks a question about the NBN.
    3. And when have the carriers ever acted instantaneously and simultaneously together. One at least would be holding out, wanting to be "the one" that provided information to the public in "troubled times".
    FrankK-01b04
  • Whilst I do believe the creaky old British system of law we adopted needs some radical changes, I wouldn't be so quick to throw everything out. However, a open and honest debate about the merits of different legal systems (including things like constitution etc) wouldn't go astray.

    Unfortunately, those in the profession have too much of a vested interest.

    Coming back on topic, our 'right to free speech' is vaguely defined, and we all know how our government will exploit this to interpret it how they feel (should they perceive it necessary).

    Sure, there's a legal process you can go through to challenge a blackout but challenging it after the fact isn't going to achieve much. The government already made the decision and will quickly change the law to cover themselves.
    Scott W-ef9ad
  • You've made some valid points but be aware that a government that doesn't have a implicit 'right to free speech' could, over time, implement systems by which they can apply a blackout without any right to challenge it.

    Sure, it's unlikely a blackout would be necessary but who's to say what constitutes 'necessary' when Joe Public has no protections or right to challenge that.
    Scott W-ef9ad
  • I think far too many people are approaching this from the angle that assumes that our constitution is still in power or anything like normal conditions exist, when circumstances arise that would lead an Australian govt wanting or needing to shut down the internet.

    If anyone is thinking that an ALP or Coalition govt would all of a sudden decide to cap the internet here, without extraordinary reasons for it, then perhaps they need to get a grip on some reality...

    What would have to happen first would mean that the capping of the internet would be a secondary problem, as our society would either already be so broken or some threat so huge that this would even occur to them to contemplate it.

    There is no reason and there will be none as long as we have the democracy that we have today, or anything near it.

    Freedom of speech is long gone before any govt sets on forcing ISPs to shut down the Net. But by then they are not looking at the Consitution, they are looking down gun barrels or pretty heavy high court orders delivered by police...

    Otherwise it is an airy flight of fancy to compare Australia with Egypt. Mubarak came to power long before the Internet as we know it was even a concept in most countries around the world, much less in 99.9% of Egypt.

    If an Australian govt has enough power or is so corrupted to move to shut down the Net for no seriously valid reason, then the legal rights of ISPs are worth less than the paper their ABNs are printed on...

    And if you believe that Australia is headed in that direction, then it is high time to skedaddle to some safe haven real soon and save yourself. >;))
    Ocker-da8d6
  • "Coming back on topic, our 'right to free speech' is vaguely defined, and we all know how our government will exploit this to interpret it how they feel (should they perceive it necessary)."

    Yes, that's what I'm scared about; that someone will actually take advantage of that vagueness and impose even more ridiculously draconian censorship laws than we already have just because "we must protect the kiddies"
    Hyperion09
  • I'm with you to an extent but my issue is the already flagrant manipulation of the media by the goverment. Do I believe it will get to the point of a internet blackout? No it is far to important tool for them to throw away like that.
    What manipulation of the media, you ask? Remember the children over board affair? When it was depicted that these people were throwing their children into the ocean? The reality of that was the boat was sinking and they were in the water because there was no choice. The truly disturbing thing about this is that the facts of this came out on election week but was quickly swallowed. I remember reading it in the paper while waiting for my fish and chips. Then the story resurfaced six months later, after the election was over and after the goverment at the time were back in power.
    Don't forget either that we alread have a media black out as well. The day before the election in this country there is a total political black out.
    Then we come to the war on terror. How many people bought into the weapons of mass destruction? When you actually watched the news there were so many conflicting stories and the information that was coming through in the background was that there were no WMD's.
    These things exist already don't think because we live in Australia that it can't happen to us because guys it already is.
    cherylvanhoorn