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Wednesday, 22 August 2012
Page: 6054

Senator LUDLAM (Western Australia) (11:39): I will acknowledge the minister's point that this is a bigger issue. I think you said it is a completely separate issue; I do not take that on. But it is bigger than the nature of the bill that we are debating, and that is why I have brought it here, because it is the first opportunity that we have had to correct what I think is a really nasty loophole. I wonder whether the minister would then entertain—this will probably seem a little bit like haggling on the fly—a one-year penalty threshold to bring those offences within the ambit of the amendment, because I acknowledge that there are at least some of the things that the minister mentioned in his list that it would be a shame to knock out. But nonetheless there needs to be some allegation of a criminal act occurring. At the moment there is not.

Why does the minister think it is appropriate to have that criminal penalty applied for a phone to be tapped but for your detailed location every hour of the day and night to fall outside the net? That is the point that I continue to come back to: we treat metadata or traffic data as though it is of some lesser nature. You can build an utterly complete and intimate picture of somebody's life just using the traffic data—every transaction, everything you take out of the library, every phone call you make, every interaction on social media and everywhere you go. All of that is being, I think, quite casually disregarded as traffic data, and we are allowing a huge range of agencies open season on it. That is a big deal. Again, it is a little bit like the cluster munitions debate that went until late yesterday. Calling this a loophole really undercooks it a bit. This is not a loophole; this is just a gigantic void. It is a gap, and it is something that I think requires a legislative fix.

By all means, Minister, I will prosecute these arguments, although I do not have a formal membership on the PJC. I have made a detailed submission, and I look forward to hearing your direct response to it. This is a huge void in our present legislative protections of people's privacy. It is not enough to just dismiss it and say it is traffic data and it is of less consequence. It really matters. It matters as much as people having their phone calls snooped on or their emails read. It matters a great deal. If the minister wants to jump up and say, 'We'll meet you halfway: we'll make it a 12-month criminal penalty,' I will move the amendment myself. Otherwise I commend this amendment as it is to the Senate.

I would be delighted to hear Senator Brandis's view on this as well. As the senior legal representative of the party that stands for the individual against the power of the state, Senator Brandis, you have been silent so far. Do you think it is appropriate that this wide range of agencies can make a quarter of a million requests every year—it is probably higher now; the figures I have are 18 months old—for these detailed locational and intimate personal details of people's lives? We apply protections to their phone calls and we apply protections to reading emails, but no such protections apply to these vast new categories of data that did not exist in 1979, when this act was first drafted.