The Limits of (Digital) Constitutionalism: Exploring the Privacy-Security (Im)Balance in Australia

Abstract

This article explores the challenges of digital constitutionalism in practice through a case study examining how concepts of privacy and security have been framed and contested in Australian cyber security and telecommunications policy-making over the last decade. The Australian Government has formally committed to ‘Internet freedom’ norms, including privacy, through membership of the Freedom Online Coalition. Importantly, however, this commitment is non-binding and designed primarily to guide the development of policy by legislators and the executive government. Through this analysis, we seek to understand if, and how, principles of digital constitutionalism have been incorporated at the national level. Our analysis suggests a fundamental challenge for the project of digital constitutionalism in developing and implementing principles that have practical or legally binding impact on domestic telecommunications and cyber security policy. Australia is the only major Western liberal democracy without constitutional human rights or a legislated bill of rights at the federal level; this means that the task of ‘balancing’ what are conceived as competing rights is left only to the legislature. Our analysis shows that despite high-level commitments to privacy as per the Freedom of Online Coalition, individual rights are routinely discounted against collective rights to security. We conclude by arguing that, at least in Australia, the domestic conditions limit the practical application and enforcement of digital constitutionalism’s norms.

Keywords: privacy, security, securitisation, cyber security, online surveillance, metadata retention, human rights, digital constitutionalism

JEL Classification: K00, K10, Z18