Join us online or in person for a seminar with CCH Member and Deakin Criminologist Dr Ian Warren.

‘Communication’ and Crime: An excursion into the history of the present

Ian is currently working on a project with colleagues in criminology and communication studies examining the definitions of communication in current Australian law. As with any rigorous legal scholarship, it is not enough to delve into what the law says today. We know, for example, that communication governance is largely framed around the contemporary practice of communicating through digital technologies. Much of this regulation is based on ensuring the secure operation of the system, while providing law enforcement (which includes conventional policing, signals intelligence and overseas organisations) with extensive powers to monitor online communications, both in real time and via the analysis of stored communications held by internet service provides under data retention legislation. Such powers work on the basis of exceptions to the presumption that digital communications will remain confidential, or involve a certain degree of privacy. With so many exceptions built up in current legislation, these presumptions are largely false.

This paper is a journey into the past to determine why this presumption exists as a central facet of Australian communication law. The journey starts in 1854, with the first Telegraph Act in Victoria, and traces criminal provisions in equivalent state laws, and in early federal laws made under the authority of the communications power in section 51(v) of the Commonwealth Constitution Act 1901. The striking finding, which I will demonstrate, is how criminal law has been inextricably tied to communication law throughout Australian history, and how this connection has evolved into our current regulatory and enforcement milieu. Without detailed comparative analysis, I do not want to suggest that Australia’s criminal/communications context is somehow unique or distinct from those in other Western democratic nations (commonly known as the 5-Eyes alliance, comprising the UK, NZ, the US and Canada). Rather, I want to demonstrate the criminal/communications nexus is a historically embedded element of Australian law, has quite specific applications that follow the evolution of communication forms under the s. 51(v) power, and go a long way to understanding contemporary regulatory, surveillance and governing practices in a digital age. Notably, I will demonstrate how the distinction between communication forms and systems rests at the core of understanding both the historical and contemporary criminal/communications regulatory framework in Australia, and will put forward some ideas about how this understanding can help to shape meaningful law and policy reform.

Dr Ian Warren is a Senior Lecturer in Criminology at Deakin University. You can read more about his recent project with the U3A in Geelong, funded by CCH, here.

Burwood: C2.05.01
Waurn Ponds: IC2.108
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