Is an Aussie net blackout constitutional?

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.

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."


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