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Wednesday, 22 August 2012
Page: 6037


Senator LUDLAM (Western Australia) (10:59): 'We are here now.' All right, then, I guess I will have to be satisfied with that as an explanation as to why this is occurring when of course it should be folded into the process the joint committee is undergoing. I have been appreciative—and I am happy to put it on the record again just to be completely clear—of the Attorney-General and her office for, rather than just blasting a bill through this chamber, putting a set of propositions to the public. I think that committee, apart from the fact that the Greens do not have representation on it, is the appropriate place for that to occur. I wish them well in their deliberations, noting that the national security inquiry has touched off a storm of protest online. The minister will no doubt be aware of that. But I suppose that is the purpose of referring these matters to open public debate and inquiry in the first place. I think it is an enormous shame that this debate, which gives effect to a certain part of that agenda, is occurring, but the minister will be well aware of that.

I now move Greens amendment (3) on sheet 7143:

(3) Schedule 1, page 20 (after line 6), after item 30, insert:

30A After paragraph 152(a)

Insert:

(ab) to inspect an enforcement agency's records in order to ascertain, so far as is practicable, the extent of compliance with this Chapter;

These provisions relate to the role of the Ombudsman. The committee's report noted that the former Ombudsman, Mr Asher, expressed several concerns about the practical operation of the preservation notice scheme.

Senators will note a certain consistency or a thread running through the amendments that we will be moving today with regard to the fact that we believe that law enforcement and intelligence agencies should have powers proportionate to the kinds of offences and matters that they are investigating. So the theme of the amendments that I am moving is providing that balancing context for the protection of privacy, for oversight of the agencies doing work and for an appropriate degree of transparency.

So the first of these which the committee picked up on was that:

… the Ombudsman expressed several concerns about the practical operation of the preservation notice scheme.

People will recall that the then Commonwealth Ombudsman was very concerned about the bill and—due to his expertise in the telecommunications area, having worked for the peak consumer advocacy organisation for a couple years prior—I found his insights particularly useful. Those in the committee are aware that he provided public evidence, in camera evidence and also a submission—and for good reason in both cases. The government chose to ignore advice from the Ombudsman that the bill should be amended to improve the Ombudsman's power to monitor compliance both with the reporting requirements of officials and with the obligation of ISPs and telcos to destroy data once orders have expired. He asked that his powers to inspect and audit compliance with the preservation and data retention regime be clarified to ensure that he can check compliance with the act and not mere record keeping.

This is a very important point. Try to imagine the grey areas that we stumble into when a foreign law enforcement agency comes after a warrant or a data retention order for something that is not even a crime in Australia or something of which there is no easy equivalent. I think the possibilities for ambiguity are huge. I recognise that that is the terrain that our law enforcement agencies operate in and that that is something that they would be completely familiar with.

But what we are doing here potentially is making things much more difficult for ourselves because the language in the bill regarding these ambiguities will be very difficult to interpret. So our amendment provides for the Commonwealth Ombudsman to have the power to—and I will quote from the part—'inspect an enforcement agency's records in order to ascertain, so far as is practicable, the extent of compliance

So we are not just taking the word of busy people and we do in fact have some oversight power, and of course the Ombudsman's office is the appropriate place for that.

As the committee's report noted, the Ombudsman was concerned that, as the bill is written, his role would be restricted to determining whether an agency had kept records, which is different to allowing him or her to verify the veracity of those records. This amendment cleans that up and it removes any doubt about the Ombudsman's oversight function. I look forward to the support of my colleagues and commend this amendment to the chamber.