The Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 seeks to amend a whole catena of Australian laws, predominantly, the Surveillance Devices Act, 2004, Telecommunications (Interception and Access) Act 1979 and Crimes Act, 1914 to accommodate invasive powers to Police and Enforcement agencies against citizens.

Other Acts amended are:

• Public Interest Disclosure Act 2013

• Australian Crime Commission Act 2002

• Privacy Act 1988

• Ombudsman Act 1976

• Law Enforcement Integrity Commissioner Act 2006

• Inspector-General of Intelligence and Security Act 1986

• Australian Information Commissioner Act 2010

• Australian Human Rights Commission Act 1986

• Australian Federal Police Act 1979

The legislation does away with any requirement of judicial scrutiny or oversight of the Police action into any investigation into a crime involving computer devices. The new law will allow the Police forces unfettered powers to hack into anyone's device, collect or delete personal data on anyone's device, take over one's social media accounts and such other supplementary actions, all without a judge's warrant.

Three new powers have been added within the arsenal of the Australian Federal Police (AFP) and Australian Criminal Intelligence Commission (ACIC) to clamp down on citizens in the name of prevention of cyber crimes and investigation, namely:

• Data Disruption warrant: It gives the Police the ability to 'disrupt data'. The Australian Police authorities are now empowered by Section 27KE to modify, copy, add or delete data (including private data) within the computer devices and networking websites of anyone. No consent of the owner of the device or website shall be required for this purpose. But the most outrageous part is that the Police is allowed to intercept and modify the communications between users and even change their account credentials. And such unethical exercises have now the approved sanction of the established law of the country. ( It must be noted that there is no safeguard or judicial oversight in place in case such blanket power be used to implant incriminating evidence against users by the Police and government authorities. India recently saw its government agencies plant incriminating evidence against its vocal critics in the case of Bhima Koregaon to falsely frame them in a conspiracy to assassinate their Prime Minister. In the absence of any safeguards, through this new legislation, Australian government can do enjoy such implantation exercises with more or less complete legal impunity.)

• Network activity warrant: The warrant on being issued allows the police to collect intelligence input from devices and networks that are used, or likely to be used, by persons against whom such a warrant is issued. These persons need not have an earlier track-record of any criminal activity.

• Account takeover warrant: The amendment adds Part IAAC to the Crimes Act, 1914 which deals with Account takeover warrants. Such warrant allows the police to confiscate and take control of one or more online accounts (including social media accounts) of anyone for the purpose of gathering information for any investigation.

All these warrants can be issued by any nominated member of the Administrative Appeals Tribunal (AAT) and does away with the mandatory requirement of a Judge's warrant. On issuance of such warrants by the Administrative Appeals Tribunal, the companies, publishers, intermediaries etc must comply with the Police authorities to collect, modify or delete such user data, be it on the network or on user's personal devices. Section 64B lays down that failure of such entities or persons to comply with the Police can lead up to 10 years of imprisonment or 600 penalty units.

There is no requirement for bare minimum grounds or concrete evidence in place before an officer of the AFP or the ACC can call for such warrants. Section 27KA added to the Surveillance Devices Act, 2004 stipulates that mere suspicion on part of the officer shall fulfill the requirement. Also, it is not necessary that the individual whose device they seek to intrude upon, must be within their circle of suspicion. If the officer suspects that any data on such individual's computer device can potentially be used for commission of a crime by anyone, that alone shall be a valid ground to proceed against such persons and their devices.

The law explicitly authorizes the enforcement agencies to conceal their footprints when they access and tamper with the private data of users. An individual may never know that he is being monitored, his data and device been tampered, modified and deleted by enforcement agencies. Such maneuvers can be (and experience has taught us, that they surely will) be used by enforcement agencies to clamp down on civil rights activists and dissenting voices. Provisions such as Section 27KE(9) empower the enforcement agencies to infiltrate the computer resource and access any incriminating evidence, articles, photographs, videos, etc which can threaten exposure of any state malpractices, corruption or sponsored atrocities. The provision reads:

"If any thing has been done in relation to a computer under:
(a) a data disruption warrant; or (b) this subsection; then, in addition to the things specified in the warrant, the warrant authorises the doing of any of the following: (c) any thing reasonably necessary to conceal the fact that any thing has been done under the warrant or under this subsection; (d) entering any premises where the computer is reasonably believed to be, for the purposes of doing the things mentioned in paragraph (c); (e) entering any other premises for the purposes of gaining entry to or exiting the premises referred to in paragraph (d); (f) removing the computer or another thing from any place where it is situated for the purposes of doing the things mentioned in paragraph (c), and returning the computer of other things to that place; (g) if, having regard to other methods (if any) of doing the things mentioned in paragraph (c) which are likely to be as effective, it is reasonable in all the circumstances to do so: (i) using any other computer or a communication in transit to do those things; and (ii) if necessary to achieve that purpose- adding, copying, deleting or altering other data in the computer or the communication in transit; (h) intercepting a communication passing over a telecommunications system, if the interception is for the purposes of doing any thing mentioned in this subsection; (i) any other thing reasonably incidental to any of the above; at the following time:
(j) at any time while the warrant is in fore or within 28 days after it ceases to be in force;
(k) if none of the things mentioned in paragraph (c) are done within the 28 day period mentioned in paragraph (j) - at the earliest time after that 28 day period at which it is reasonably practicable to do the things mentioned in paragraph (c)."

Alarmingly, the law also gives the Australian Enforcement agencies power to execute such Warrants against computer resources and users in foreign jurisdictions. The only requirement as per Section 43C and 43E is that the officer seeking such warrant must satisfy the nominated AAT member or the Judge that the appropriate official of the foreign country has consented to such a request.

With respect to the Network Activity Warrant, the definition of 'Criminal Network of Individuals' as defined under under Section 7A is also enormously problematic. The definition is too vast and vague to allow arbitrary inclusion of any group of individuals. For the purpose of issuance of Network Activity warrant, no concrete evidence or reasonable grounds need to be mentioned. A group of individuals can be designated as 'Criminal Network of Individuals' if in the opinion of the enforcement officer, they are 'likely' to engage into 'relevant offence'. What constitute these 'relevant offences' have interestingly, not been defined. As a matter of fact, as per Section 27KK (2)(b) it is 'IMMATERIAL' that 'the details of the relevant offences be ascertained'. The legal sanction with respect to addition, modification, copy, deletion of private data is also allowed in such a warrant. The enforcement agencies are allowed to cover their tracks and conceal their digital footprints.

The warrants have a life of of 90 days from the date of issuance. The enforcement officer can however, apply for its extension for another 90 days before its expiry.

Civil rights groups have contended that these provisions are in gross violation of even the bare minimum conception of individual privacy.

It must be noted that Australia does not have a constitutionally protected rights to freedom of speech or even an enumerated Human Rights Charter within its Constitution framework. Other than Victoria and the Australian Capital Territory there is no state or territory which has even a human rights legislation in place. Even if the Commonwealth is found to be in violation of human rights, the Australian courts, unfortunately, could not provide for a remedy.

Australia has suffered much criticism world-wide for its human rights records, specifically in terms of its treatment of Aboriginal population. The United Nations through its 2011 introduced scheme of Universal Periodic Reviews has constantly reviewed and reprimanded the Australian state over its human rights record. In spite, the Australian government has always conducted itself for the rejection of any national human rights framework or concrete mechanism to guarantee them within its territory. It is one of the few jurisdictions in the first world countries, which does not recognizes its citizen's right to privacy as a constitutional right.

Though it has recognized some degree of right to privacy of individuals with respect to the personal data collected by Government agencies and companies through the Privacy Act of 1988, but that so is very limited in scope. The data offered protection through this Act is limited to 'collected data' (by Government agencies or companies for providing services) and does not extend to the private intimate data of individuals. But even with respect to such 'collected data' , the Australian Privacy Principles (APP) enshrined in the 1988 Act makes room for vast field of exemptions for disclosure of such information. Principle 3, 5 and 6 of the APP hold out that Enforcement agencies such as Police are exempted from the application of this Act. The Act therefore, does not offer protection to the individuals against the Australian state or the Enforcement authorities in criminal matters or investigation into criminal matters.

With such asymmetry between the privacy of individuals against invasive powers mandated in the hand of state enforcement agencies, the Australian human rights record is bound to decline. The Australian citizens have taken to streets, protesting against such brute-forcing of state surveillance into their private lives. What shall unfold in Australia, is for the world to watch closely, for such a trend by one state often inspires others to follow, as well. Traditionally surveillance has always been an industry operating in the mirth and voids of law. But this latest brandishing of Australian Parliament to sanction it as the supervening legal dictate against the human rights of its citizens, must be taken as a sign of concern for free people across the world.

~ Benjamin Carson

Historical Development

The philosophical origin of proportionality is said to have originated in the Babylonian times as seen from the Code of Hammurabi (1754 BC). It further found its place in the discussion of classical Greeks about the corrective and distributive justice. Ancient philosophers like Plato and Socrates expressed concepts of proportionality as fundamental concepts in their works. This concept was given a legal backing in the Magna Carta[1] (1215) as well. Social contract theory propounded by Hobbes and further reflected in the works of Locke and Rousseau floated the idea of limited powers being granted to the government for people's benefit reflecting the balancing notion of proportionality. Proportionality as a positive legal concept began appearing in Prussian administrative law in the second half of the 19th century[2]. From Germany this principle travelled to the United Kingdom. Since England was already following the test of "reasonableness" as inferred from the case of Wednesbury the applicability of proportionality test was difficult .Lord Ackron individually and Lord Diplock in the case of Council of Civil Service Unions v Minister for the Civil Service[3] observed that until and unless the European Convention for the Protection of Human Rights and Fundamental Freedoms was not adopted by the United Kingdom there lay no grounds for the adoption of proportionality. With the adoption of Human Rights Act 1998 the rights enumerated in the European convention were given the protection of proportionality. The global move towards proportionality has led many scholars to call this an 'age of proportionality.'[4]

Definition:

The principle of proportionality envisages that a public authority has to maintain a reasonable relation between the object and the particular goals that are sought to be achieved and the means used by its employees for meeting those goals so that the individual rights, are infringed to the minimum extent. Hence it can be said that any administrative action which discriminates arbitrarily or uses excessive means to meet the desired goals can be quashed by the courts on the ground that it is violative of the Doctrine of Proportionality.

Proportionality is made up of four components: -

1. Proper purpose

2. Rational connection

3. Necessary means and 

4. a proper relation between the benefit gained by realizing the proper purpose and the harm caused to the constitutional right – (proportionality stricto sensu – otherwise known as 'balancing').[5]

The doctrine of proportionality in Indian context

This Doctrine is not just limited to a particular type of litigation in India. It has found its mention in the constitutional law, administrative law and yet again in the criminal law**.  Proportionality means that any action should not be more drastic than it ought to be for obtaining the desired result implying that a cannon cannot be used to kill a sparrow**.[6]  Doctrine of proportionality comes into picture in constitutional law when the courts through judicial review or otherwise, judge the reasonableness of a restriction on the exercise of fundamental rights. The Supreme court stressed upon the proportionality test as early as in the 1950s in the case of Chintaman Rao v State of MP[7]:

"The limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public"

 Soon after, in the case of **VG Row v State of Madras[8] **the court discussed the concept of proportionality in a broader sense but not in the terms of a "test" or a doctrine. It held that:

"The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time should all enter into the judicial verdict."

A much more concretized form of the test was later developed in Anuj Garg v Hotels Association of India[9] wherein the Court moved towards adopting a "structured proportionality test". Court had to determine the constitutionality ofSection 30 of the Punjab Excise Act 1914 which prohibited, the employment of women at places where alcohol was consumed by the public in view of women's safety, the court held that the measure was not justified since enhancing women's security and empowering them was a 'more tenable and socially wise approach' than placing curbs on their freedom.

In Modern Dental Health College v. The State of Madhya Pradesh[10] the constitutional bench led by Justice Sikri further elaborated this phenomenon in the majority judgement. The judgment highlighted the change in interpretation as far 'reasonable restrictions' was concerned. Earlier the courts looked into the fact that whether the restriction was reasonable or not but from this judgement onwards the doctrine of proportionality was applied even to the reasonable restrictions of the fundamental rights.

Apart from its application in cases concerning constitutional law, the concept of Doctrine of proportionality finds its wide scale application is cases concerning administrative law as well, however it is still evolving in the latter law. Since administrative authorities often perform quasi-judicial functions and most of them are also capable of holding disciplinary proceedings and awarding decisions involving dismissal, suspension etc therefore it becomes important for the courts to clarify the extent to which they can apply this principle. This clarity was given in the case of **Canara Bank v. V.K. Awasthy[11] **where the court observed that where no fundamental freedoms are involved, the court will only play the secondary role, while the primary judgement will remain with the administrative authorities. However, in situations where fundamental freedoms are directly involved the court will exercise primary judgement.

The court took a similar stance in the case of State of Meghalaya v. Mecken Singh N. Marak[12]where the High court setting aside the dismissal order of a police officer who was found guilty in the departmental inquiry for losing his service revolver along with some public cash commented that it was too harsh a punishment. However, the Supreme court while applying the principle of proportionality held that the mental make-up of employee, nature of duty, honesty and job requirement should not be taken lightly by the court as inferred from the decision of the administrative authorities.

It is a cardinal principle of criminal jurisprudence that the punishment imposed should not be disproportionate to the gravity of the offence proved.[13]

Since criminal cases end up either in acquittal or in conviction followed by punishment, the doctrine of proportionality comes into picture while reviewing the punishment, which must not be "so inhuman or brutal that it cannot be accepted by any standard of decency," as laid down in the case of Vikram Singh v. Union of India.[14]

Conclusion

"Just like sword cannot be used in the place of a needle to sew; a needle cannot be used in place of a sword in order to kill"

A simple principle of proportionality enumerating the importance of balancing rights as against the freedoms and punishments as against the gravity of the crime committed, did not become a legal doctrine through any single statutory provision or through a dedicated case law. The doctrine of proportionality has become an inseparable part of the contemporary law, as it ensures the liberty of an individual through restrained state action. In this regard the words by Justice Barak are aptly suited, "The law exists to ensure Public life. It is not a goal, but an attempt to grant individual liberty. This Model of Rule of Law thus includes proportionality."

The independent Judiciary in India is the third limb of the Government which answers to the call for a guardian of rights. The main role of the Judiciary since its inception was application of the law of the land to the facts at hand and to provide justice to the parties who sought the jurisdiction of the court. However, with time, the judicial status started evolving and taking up other roles like interpretation of law, judicial review and judicial activism. Judicial review happens to be a weapon in the hands of the Judiciary which entails them to put some checks and balances on the functioning of the legislature and executive even though they are separate limbs.

Judicial review of administrative actions including various discretionary actions, allows the scrutiny and possible invalidation of a decision of any public authority brought to the court by the parties concerned. It is however pertinent to note here that, the trend of judicial decisions, renders this power of judicial review of the court to not be that of an appellate authority in association of an administrative decision. This means that the court refrains from reviewing the merits of the decision preserving the discretion od the administration. Rather, it is only limited to the three-fold classification of grounds namely: procedural impropriety behind reaching the executive decision, illegality, and irrationality of the same, as was held in the case of Council of Civil Services Unions v. Minister for the Civil Services. Arbitrariness and whether mala fides is the actuation behind the decision making are also some widely used principles resorted to in order to adjudicate an administrative action in question.

Irrationality as a ground, through years of progressive jurisprudence, can be equated with the principles of Wednesbury unreasonableness while adjudicating the legality of an administrative decision. This article will deal extensively with what the Wednesbury principle is, how it came into existence and the constitutional take on the principle.

WHAT IS THE WEDNESBURY PRINCIPLE?

The Wednesbury principle is a common law doctrine that can trace its origin back to the case of Associated Provincial Picture Houses Ltd. v Wednesbury Corporation before the United Kingdom, Court of Appeal. The contentions of the petitioners majorly dealt with limits to the scope within which the defendants (a local authority) could impose conditions to be followed and how the decision of the defendant was unacceptable and is liable to be quashed. The court upheld the judicial position with respect to judicial review and observed that the court cannot overturn a decision merely on the ground that the court disagrees with the same. The Court would not go into the correctness of the choice made by the administrator open to him and the Court would not substitute its decision to that of the administrator. In relation to this scope of judicial review, a test was laid down by the court, fulfillment of which enables the judiciary to intervene with the decisions of the administration which is now named as 'Wednesbury test'.

The court laid down various principles or points of reference while dealing with such cases in order to ascertain the grounds to intervene in the decision making of the administration. They are:

1. Whether they have taken into account matters which ought not to be taken into account; or

2. Neglected to take into account matters which ought to be taken into account; or

3. Despite acting within the 4 corners of the matter at hand, the conclusion they came at was so unreasonable that no reasonable authority could ever have come to it.

It is when the facts qualify into any of the above-mentioned tests, the court can interfere with the decision. The power of court here would not be that of an appellate authority to override the decision but to solely look into the contravention of any law while reaching the decision if any. The principle of unreasonable action beyond the actions of a reasonable man is the principle of Wednesbury unreasonableness.

WHAT IS WEDNESBURY UNREASONABLENESS?

Reasonableness as a concept is subjective in nature owing to different minds having different views. Oxford dictionary defines reasonableness as 'the fact of being fair, practical and sensible'. It is again subjective as what must be fair to a bench of judges might not correspond with the general crowd. Hence it becomes a matter which is to be interpreted based on rationale illustrated by the database of years of decided cases laying down various interpretations for the same. Reasonableness in case of exercise of a statutory discretion can be construed as the principle stating that the discretion cannot be exercised in a manner which can be held to be unlawful. Unreasonableness on the other hand would seem to exist where the authority exercising the discretion has taken a decision which is devoid of any plausible justification and any authority. It can also be inferred when it is so unreasonable that it might almost be construed as to be done in bad faith.

In the case of Associated Provincial Picture Houses Ltd. v Wednesbury Corporation, it was held that if the Decision on a competent matter is so unreasonable that no reasonable authority could ever come to it, then the courts can interfere. It is not based on what the court considers unreasonable. Rather, it is a measured as a decision that a reasonable man wouldn't come to. It has also been expressed that the court does not have the duty to determine what is reasonable and what is not. Rather, the court has to see whether, acting within the four corners of the jurisdiction available to the authority, what would be the prima facie condition that no reasonable authority would seek to impose.

This principle is stricter than the existing test of unreasonableness-based on merely showing that a particular decision was unreasonable-as this test provides a parameter of a reasonable man's thought process for comparison.

THE DOCTRINE AND THE CONSTITUTION

Under the ambit of judicial activism, Article 14 of the Constitution of India was interpreted in the light of arbitrariness. The courts in multiple cases have employed the principle of arbitrariness to invalidate any administrative action by declaring it violative of the fundamental right to equality. It was held in the case of Om Kumar v. Union of India that, for judging the arbitrariness of the order, the test of unreasonableness may be applied. The action of the State, thus, must be judged with extreme care and circumspection. This unreasonableness can be derived from the principle of Wednesbury unreasonableness.

In Maneka Gandhi v. Union of India, it was held that, the order to impound a passport could be declared invalid under article 19(1)(a) and (g) if it was so drastic in nature as to impose unreasonable restrictions on the individual' s freedom covered by these two clauses. This decision took view of the concept of unreasonableness, while observing that the scope of unreasonableness under article 19 was much wider than the principle of Wednesbury unreasonableness.

PROPORTIONALITY TEST

With the growth of the dynamic legal system, and the relation it builds with the status of a welfare state that India has assumed, a need was felt to develop this subjective and somewhat wide and vague concept into stricter and more comprehensible standard of reasonability. This led to the incorporation of the principles of proportionality in the law of the land. The test of proportionality lays down that it is not proportional where in the discretionary exercise of powers; there is no reasonable relation between the objective which is sought to be achieved and the means used to that end. This test is majorly result specific while comparing its intensity with that of the means. Standing to be stricter and more thorough, it has evolved from the Wednesbury principle itself.

CONCLUSION

The Wednesbury principle of unreasonableness is an old concept. Regardless of its longevity however, the importance of this principle cannot be discarded. This principle has been in usage through years of jurisprudence and has been the pivot for the development of the principle of proportionality as well.

It is hence safe to conclude that, while the Wednesbury test will ensure that courts do not improperly infringe upon the domain of the executive, the very introduction of proportionality test will initiate a change in judicial attitude and reservations towards a necessarily more rigorous inquiry being adopted as part of a context-specific variable intensity review.