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Wednesday, 18 March 2015
Page: 2813


Mr HUSIC (Chifley) (16:30): It has been a long march towards this legislation. A number of years have now passed. We, actually, in government, had started looking at this issue. I remember having concerns then, as I do now, and I have been up-front all along about the impact of this type of legislation. I am not alone; the member for Wentworth, now Minister for Communications, has expressed his concerns in times past. He has not been the only one on his side of the fence or, certainly, on our side of the fence—for a number of reasons.

I have, however, attempted in this process to have an open mind. I have said all along that I remain to be convinced about the need to undertake the breadth and scope of what is being proposed in this legislation and in legislation past. I waited for the committee report and went through it, and I commend my colleagues on that committee—in particular the shadow Attorney-General and shadow communications minister—for the work that they have done in proposing a number of changes to what was put forward by the government last year. Having said that, I think it is only fair, right and proper, particularly given that we are told that parliamentary oversight will be a feature of this system in years to come, that I exercise my ability as a parliamentarian to express some concerns and ensure that, in due course, they are addressed along with other concerns expressed by colleagues in this chamber on either side of the House—some expressed publicly; others expressed privately.

In saying that, and recognising that there are deep feelings and concerns, I think it is important to come back to this point about having an open mind. There will be people who will not be convinced whatsoever about the need to do what is being proposed by this legislation. There will also be people on the other side of the argument who refuse to be convinced that those concerns are valid. However, we have a responsibility to find the midway point, and I think it is important to recognise, along with the concerns, that there are some things that will be done by this legislation that are important. My concerns relate to the scope and the effectiveness of what is being proposed, they relate to the cost and the impact on telecommunications companies and they also relate to the adequacy of parliamentary oversight.

Having said all that, having read the report and having seen the comments of law enforcement, I recognise most certainly that law enforcement will benefit from having access to metadata—there is no denying that. For people to not accept that is to ignore reality. I certainly appreciate the capacity to try to determine the undertaking of criminal behaviour and who is responsible for it and the ability of metadata to provide some assistance in that. I certainly recognise that and I think it should be appreciated. We also need to recognise that, for law enforcement agencies trying to undertake their important work, times have changed. We do not have the plain, simple telephone networks of old. We do not chase down facsimiles. We have a multitude of platforms and we have an explosion in the growth of data, which will continue to grow at phenomenal rates down the track. I do note the concerns of law enforcement agencies about their degraded capacity to keep tabs on that. This is important; we cannot deny it. So, certainly, when it comes to law enforcement, I appreciate the benefit.

But when it introduced this legislation, and in the lead-up to the introduction of the legislation last year, the government's foundation stone for this legislation was national security. I humbly suggest that that is contestable. The notion that this will have major benefit from a national security perspective is, I think, a contestable claim and needs to be tested. If the argument is that metadata will help identify and thwart terrorism suspects, you also need to recognise that the terrorism threat has evolved. We appreciate that, now, we do not have actors that are in sophisticated, complicated, collective activity; what we have now and what is a serious threat to us is isolated, unstable individuals who determine all of a sudden to do something. They will not have necessarily communicated with others, though I do accept that there is the possibility that they would have been in contact with others, but largely that may be sporadic. They may be under the age of 18. They may have been influenced improperly by what they have seen on social media or other outlets and have decided to act on their own. There should be a degree of caution about whether or not we conclude that these measures would have prevented the types of attacks that we have seen in the last 12 months.

This is not something that I just pluck out of the air; it is actually contained in the report. At 2.57 on page 25 of the report, I note the following:

The Committee noted evidence that data retention would likely not have enabled agencies to prevent these incidents. NSW Police gave considered evidence on this point, emphasising that attempting to determine whether such information could have assisted in hindsight necessarily involves a hypothetical, counterfactual exercise:

[A]s a hypothetical, with the nature of Sydney itself and where law enforcement would benefit from metadata in relation to, say, the Sydney incident, it most likely would not have prevented the Sydney incident.

That is an important point to bear in mind. I also read the remainder of the quote, which says:

At the time, metadata could have been essential in trying to identify any other persons who may be engaged in a group or involved in that type of offence.

That was Assistant Commissioner Lanyon from the Hansard of the committee hearing that took place on 30 January this year.

So, as I say, it is contestable whether or not this bill would necessarily have a benefit from a national security viewpoint, and we should be mindful of it because, through this legislation, we are about to undertake a massive effort to capture a massive amount of data that will be held for two years on:

who you spoke to; when you spoke to them; how long you spoke to them for; and how often you speak to them. This type of information does not necessarily rely on the content alone—it can establish a profile based on these types of behaviours. This is a serious issue. It will create a digital fingerprint of every single person in the nation.

It is also worth noting that the number of people who are on active surveillance or being watched is not the entire populace. It is a small number of people. I would have been interested to see, for example, why we are not reforming the preservation notice mechanism and trying to improve that mechanism as a way of capturing the metadata of people who are under active surveillance and ensure that that is done over that period of time, as opposed to the breadth and depth of what is being proposed here. What we are going to let through is fairly significant, and I think it is important that that be recognised.

It is also important to recognise that, in undertaking that, we should test whether it will be effective. I have made reference to some of the quotes earlier. I also make reference to testimony given by the Law Council of Australia. They looked at other jurisdictions and tested what the effectiveness of mandatory data retention was and, on page 38 of their report, they say:

there is little evidence from comparable jurisdictions that had previously had mandatory data retention schemes to suggest that such schemes actually assist in reducing the crime rate, for example in Germany, research indicates that a mandatory data retention scheme led to an increase in the number of convictions by only 0.006%;

Again, it is important that we remember that in this exercise, as much as I have already indicated earlier that law enforcement will benefit from this, that when it has been tested some of these figures have come up.

The other area where I have concerns relates to cost. I am deeply concerned about the number of figures that have been bandied around about how much it will cost telecommunications companies to set up the systems to ensure that this massive collection and retention of data occurs. We had iiNet indicate early on: $400 million—I understand the Prime Minister may have used a figure of $300 million. An industry working group established a bandwidth of between roughly $180 million and $300 million. But we have not had any firm commitment from the government about what it will do in the establishment and ongoing maintenance of such systems.

Bigger players, like Telstra and Optus, will understandably be able to absorb a lot of the costs. They have the wherewithal to do it. I am concerned—and I am not the only one, because the industry is concerned as well—about what impact this would have on smaller players. That is why a number of them wrote to the minister at the table and to his colleague the Attorney-General saying that this cost issue had to be resolved. I think it is unfair that this is left unresolved and that no firm commitment has been given.

The suggestion is that this will be passed off to the budget. This is not right. Today, for example, we had the government announce a measure where they would reverse something in relation to bank accounts and lost superannuation accounts. They announced this on the spot, without any notice—$300 million is the cost of this system today—reversing a previous government law. Why are our telecommunications companies not given this assurance? Instead, they are forced to wait with the prospect of it being fixed up in the budget. This is wrong. This should be fixed up now.

We may have a lot of disagreements across this table, but one of the things that we reckon works well is competition within the telecommunications sector. The multitude of players offering a multitude of services and being able to put pressure on the big players is important. But if we keep adding to the costs of those smaller players, we make their viability uncertain. I would implore the minister—and I am sure that he has done this, because he knows as well as others the cost pressures on those smaller players. It is not just this: Australia's internet and telecommunications costs are relatively high by world standards. We are going to add to this. If we do not fully fund the capex requirements, they will have to pass through these costs or die.

Mr Turnbull: They will not die.

Mr HUSIC: Okay, I will withdraw that. But certainly it will put massive pressure on their ability to continue their operations. It is not the only cost in the pipeline. When you look at TSSR, the telecommunications sector security review, and the cost implications that might come out of that, there are added costs. We have done nothing to provide some assurance to those companies—apart from this legislation. The government has rushed this legislation through, given no assurance and, when there is no ability to actually ensure that those people are looked after, they will then no doubt lowball the amount and put pressure on those small companies, even though they have the ability today to fix it up.

The other issue that I wanted to impress upon people is parliamentary oversight. For this to work, understanding that this is more likely than not to go through both houses of parliament, it is my fervent wish, when it is set up and parliamentary oversight is exercised—and this takes nothing away from the calibre, commitment and determination of my colleagues in sitting on those committees in the future—that we would continue to test the assumptions that are put forward. Security agencies will by their very nature be very cautious and want to ensure that the full breadth of measures available to them can be exercised. But you cannot necessarily write a blank cheque on these things, and I am genuinely worried that all it takes is for a security agency to say, 'We need these powers; if we don't, terrible things will happen.' We are going to have to test that. Our job as parliamentarians is to balance the need for security with the need for the exercise of freer liberties. It is certainly something that needs to be dealt with.

People are concerned about this. People outside this chamber recognise that the general groundswell of opinion is for governments and companies to lay off privacy. An article in CNET in early March was entitled, 'Tim Cook to governments: Lay off our privacy'. That is the Apple CEO saying that governments would need to be very mindful of people's privacy down the track. If someone in Apple gets it, it is because their consumers are telling it to them. They are responding. This is not an issue that is going to go away. The next generation of voters, the next generation of Australians, will value their privacy more and more, and that is why there is such concern about this.

Again, I recognise that we have to balance the issues that confront law enforcement with being able to have access to data that can help them in their work. But I also recognise and respect the value placed by the citizens of this country on their privacy. I recognise and value the work being done by telecommunications companies that will be impacted by this. I hope that these types of concerns are tested in the years to come. Bear in mind: this system will be set up in two years and then tested in two years after that. That is a long period of time for this system to be in operation.