Domestic Violence Vs Civil Liberties and Due Process Part 1

In recent years, Australian governments have increasingly passed legislation that they promote as ‘fighting domestic violence’ and ‘making it easier to target domestic offenders’.

Many of these new laws promise safety and convenience, yet they violate and erode basic civil liberties and due process, which are presented as barriers that enable domestic offenders.

In New South Wales, new legislation is touted as ‘giving police new tools to fight domestic violence’. In reality, it erodes due process and privacy under the guise of convenience and safety, and gives police significant and wide-ranging powers to subject someone who is merely suspected of ‘serious domestic violence’ to gross invasions of privacy and surveillance.

To be more specific, police in NSW can get a court order called a Serious Domestic Abuse Prevention Order (SDAPO). This order, which can last up to five years, allows NSW Police to access all information in your phone whenever they want, demand information on your current intimate relationships, and even require you to install software on your phone that uploads everything you do on your phone in real time.

You can be subject to one of these orders even if the charges against you are dropped, you are found not guilty, or your conviction is overturned. This means the government can retaliate against those who win their cases, and false accusers can inflict suffering on their targets simply by making a serious accusation that they don’t even have to prove.

This is simply not acceptable in a free society. The government should not be able to restrict someone’s right to privacy (or their rights in general) merely because of unproven accusations of something illegal. The government should be required to prove beyond reasonable doubt that someone has done something wrong if they want to restrict someone’s rights, and they absolutely should not be allowed to retaliate against someone who was found not guilty or has had their conviction overturned.

Domestic violence is certainly a real issue, but addressing it should not come at the expense of civil liberties and due process. Even if someone is proven to have committed an act of domestic violence, the person still has rights and protections, and the punishment should be proportionate to the crime and specifically tailored to the threat posed.

In many cases, collecting all the data on a phone including information that has nothing to do with romantic entanglements would be not only excessive but also impractical, since downloading all the data in real time would require someone to have a smartphone with a strong and consistent internet connection with the ability to process and export a lot of information at once.

If someone has a poor internet connection and can’t afford a better one, the internet drops out, they live in an area with no or poor internet connectivity, go to a place with no signal, or have a phone that isn’t a smartphone or doesn’t have the ability to process so much data, then such a court order will be impossible to comply with.

Given the significant data collection, enforcing these orders will carry a major taxpayer burden as so much data from so many people will require servers to store the data for who knows how long, most of it not even relevant to the safety of victims of domestic violence.

This isn’t even accounting for potential mission creep that could see similar provisions applying to other groups in society such as those who are prosecuted for criticising the government or political expression.

And this is not the only development in domestic violence legislation that threatens our civil liberties and right to due process. In my next article I will discuss a more widespread and upcoming threat.