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Parliamentary Joint Committee on Intelligence and Security
Potential reforms of national security legislation
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Parliamentary Joint Committee on Intelligence and Security
CHAIR (Mr Byrne)
Ruddock, Philip, MP
Faulkner, Sen John
Danby, Michael, MP
Wilkie, Andrew, MP
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Parliamentary Joint Committee on Intelligence and Security
(Joint-Wednesday, 5 September 2012)
CHAIR (Mr Byrne)
Deputy Commissioner Pope
Det. Insp. Seagrave
Det. Supt Bamford
- Mr DANBY
Content WindowParliamentary Joint Committee on Intelligence and Security - 05/09/2012 - Potential reforms of national security legislation
BENDALL, Dr Anthony, Acting Privacy Commissioner, Office of the Victorian Privacy Commissioner
FORTE, Mr Jason, Senior Policy and Compliance Officer, Office of the Victorian Privacy Commissioner
Committee met at 8:59
CHAIR ( Mr Byrne ): I declare open this public hearing of the Parliamentary Joint Committee on Intelligence and Security for its inquiry into potential reforms of the national security legislation. Today the committee will take evidence from the Victorian Privacy Commissioner, Macquarie Telecom, the Castan Centre, the South Australia Police and the Victoria Police, the Human Rights Law Centre, Liberty Victoria and Electronic Frontiers Australia.
Although the committee does not require you to give evidence on oath I remind witnesses that this hearing is a legal proceeding of parliament and warrants the same respect as proceedings of the chambers. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. The evidence today will be recorded by Hansard and will attract parliamentary privilege. Do you want to make any introductory remarks before we proceed to questions?
Dr Bendall : Yes, I will make a very brief introductory comment. Basically the submission that we have made to the committee focuses, as you would expect, on the privacy issues raised by the proposals. Other issues in the discussion paper were either not relevant to my office's functions or the office had no position on those particular issues so, as you would expect, we focused on the privacy issues. As is pointed out in the submission, while a fundamental right, privacy is not an absolute right. It always has to be balanced against other rights and interests and, in fact, the legislation I administer, the Information Privacy Act Victorian statute, explicitly has that in its objects that calls upon the commissioner to balance the rights of privacy against the free flow of personal information. In a sense some of our concerns with these proposals focus on both aspects, not just the intrusion into privacy, but the potential impact on the free flow of information in discouraging people from engaging with electronic transactions. National security is, of course, in the public interest but these proposals, as always in laws to protect the national security, are privacy invasive so any extensions to the laws need to be closely scrutinised. I welcome the fact that the committee is doing that.
Since 2001 terrorism laws have stripped away many of the civil rights built up in the history of the common law, which are essential to maintaining a democracy, so extensions of those laws always attract the interest of privacy regulators like me. Where the state seeks to extend intrusive powers, they should meet four tests: they should be exercised for legitimate purposes; they should be used only when necessary and not in an arbitrary way or without reasonable cause; they should be carried out in a proportionate way and not be excessively intrusive or overly broad; and they should be effective in achieving their aims with transparent outcomes and reviews. In my view the proposals in the discussion paper fail to achieve these tests of legitimacy, necessity, proportionality and effectiveness.
As I have already mentioned, when privacy laws like the Information Privacy Act were introduced they were partially enacted so that information systems and particularly electronic information systems would be trusted and used. As I said, one of our other concerns is that some of those aims are undermined by some of the proposals in the discussion paper. I recognise that changes to telecommunications laws should update the legislation along with changes in technology but that should not come at the price of lower protections for human rights and civil liberties.
Our major areas of concern within the discussion paper are: the decreasing privacy protections based on misjudged community expectations of privacy throughout all of the various telecommunications legislation; increasingly intrusive warrant and search powers such as that to allow ASIO officers operational flexibility which detracts from proper court processes and judicial scrutiny; creating an offence for failure to assist in decrypting encrypted material—and as I have pointed out in the submission that could lead to some unintended consequences where people do not have the encryption key anymore or have forgotten it and could be convicted for unintentionally not participating in decrypting the information;—the lack of detail, scrutiny and safeguards for most of the proposals in the discussion paper, which make it difficult to know quite how intrusive and how draconian the proposals are given that they are not fully fleshed out; and, in particular, the two-year data retention scheme, which entirely undermines the fundamental underpinnings of privacy laws, which basically are that information should only be collected and stored where necessary and for a particular purpose, whereas these proposals seem to be that you store all the information just on the off chance that it might be useful down the track and you make up your mind how it would be useful at that point. They could also have an extreme chilling effect on online transactions or at least change the way online transactions happen so that more and more people are attracted to encrypting information or transacting anonymously using software. That may actually impede the usefulness of the data involved in those transactions whether it be for law enforcement, national security or other uses like research. They are, basically, the major areas of concern, and we are happy to answer questions about anything else raised in the submission.
Mr RUDDOCK: When I read the submission, I asked myself whether you have any examples in relation to—and they are quite separate and distinct, in terms of the way in which warrants are issued; some judicially supervised, others ministerially—excess in what you call 'legitimate purposes' and not for improper reasons? Are you able to assert and present evidence to us, that ASIO, for instance, in exercising those powers has used them for improper reasons?
Dr Bendall : No I do not. Basically, I guess what my concern is—
Mr RUDDOCK: The question I ask myself is: if what they are doing is simply seeking to ensure that the powers that they have—which are now supervised and which do deal with privacy issues—are being extended, together with the supervisory arrangements that are there now to ensure that they do not lose coverage of substantial issues, then why should I not agree to that if there is no evidence that they have used those existing powers improperly? Why would they use further powers improperly?
Dr Bendall : Our concern was that there would be that level of scrutiny involved, so that there would be a level of assurance that they were not going to be misused. That is really the point I was trying to get across.
Senator FAULKNER: I just wanted to ask you, Dr Bendall, about the status of the submission, so that I am clear on that. My understanding—but you can correct me if I am wrong—is that the Victorian Privacy Commissioner is a statutory officer. Am I correct in saying that?
Dr Bendall : Yes, that is right.
Senator FAULKNER: I would be interested in understanding whether the submission that you provided to us—and I thank you for it—is one that the Office of the Victorian Privacy Commissioner has discussed with any other responsible office holders or individuals in the Victorian public service at all, or whether this is entirely something that has been developed, considered and worked through within your own office?
Dr Bendall : It is the latter, basically. It is entirely my view, as the acting commissioner. It is an independent statutory office, so in doing this type of submission I do not speak for the Victorian government or anybody other than the office.
Senator FAULKNER: But I am interested in whether there has been any engagement. Have privacy commissioners from around the nation had discussions about this? Has there been any consideration or discussion, for example, with your Commonwealth counterpart and the like?
Dr Bendall : There has not been in the context specifically of the inquiry, but I think some of the proposals were mooted earlier than the actual discussion paper. So there have been discussions. We have an biannual meeting of privacy authorities of Australia. So there has been discussion in that forum around the types of proposals that are in the discussion paper, and we discuss regularly a range of issues informally—that has happened too. But there has not been a formal process of discussing the specific discussion paper.
Senator FAULKNER: So are you just saying that to the extent that there has been engagement on this, it has been on a largely informal basis?
Dr Bendall : Yes.
Senator FAULKNER: You would not be able to share with us whether other privacy commissioners—to the extent of your knowledge—shared some of the concerns that are strongly represented in your submission?
Dr Bendall : Not really, no, and I would not seek to speak for those people. Certainly in the discussion around retention of data at the forums that I have been to, some of the people have expressed some concerns around that, but not in a formal way.
Senator FAULKNER: In the broad what struck me about your submission was the strength of the views—I am not critical of that—and also in your opening statement you reiterated your concern that you do not see the matters that this committee is investigating, albeit proposed powers, as legitimate, necessary, proportionate and effective. That is very strong criticism, and I am interested in how you have been able to conclude that strength of view in these circumstances.
Dr Bendall : Moving away from what I said, at this stage I am not satisfied that they meet those criteria in that there is a whole lot of what-ifs that are in the discussion paper as to how things are going to happen and how they are going to work. Even the most controversial proposal, the data retention, is not really clear about what data is going to be retained and the extent of that. Given that I take the position as a privacy regulator, I need to be convinced in a sense that the onus of proof is, if you are going to invade privacy, you need to convince me that all the other interests override it. At this point, the business case that is put out in the discussion paper has not convinced me that all of those boxes have been ticked. I am not expressing that it is impossible that that might happen, but at this point of the discussion paper there has not been enough evidence given that either of these types of proposals are necessary for the purposes that have been set out or that the way they are proposed is the least intrusive and most protective that it could be.
Senator FAULKNER: On reading your submission, I think it goes beyond saying you are not satisfied about legitimacy, necessity, proportionality and effectiveness; it is effectively saying that the proposed powers simply do not achieve any of those benchmarks—unless I have misunderstood it as I have read your submission. It is a little stronger than saying you are not satisfied but tell me if I have misinterpreted what you are saying.
Dr Bendall : No, you have not. That is true: I do not think they meet those benchmarks at least on the strength of the case that has been put.
Senator FAULKNER: Also, in reading your submission, I am left with the impression—again, I would like you to correct me if it is not correct—that you have particular concerns in relation to those benchmarks about the two-year data retention scheme. The concerns that are broadly outlined in your submission are particularly reinforced in the proposal in relation to the data retention scheme. I would like you to inform the committee whether that is the case; and if you had to prioritise your concerns, would you put a particular emphasis on worries about concerns about that particular proposal?
Dr Bendall : I think that is right: that is the proposal that raises the most concerns.
Senator FAULKNER: You might assist us here in explaining why that is the case.
Dr Bendall : As I said, I think, in my introduction, my impression is that it turns on its head the premise that underlies privacy legislation and the whole concept of privacy that you only collect and retain information that is necessary and that you only do that in the least intrusive way. What this does is force telecommunications organisations and ISPs to collect and retain all data which is not necessary for their functions and it is not clearly necessary for anyone's functions at the point at which it is retained. It seems to me that that is a complete reversal of the types of underlying principles that underlie all privacy legislation, both the Victorian and the federal legislation. It assumes that everybody's privacy should be invaded to the extent that that retention happens, on the off-chance, and even if it turns out that it is useful, it would be useful in a tiny proportion of cases.
No-one has a problem with the idea that law enforcement and national security organisations have the right to intercept telephone calls, for instance, but this proposal is that we record all telephone calls, just in case they need to intercept that data later on. We have not moved to that at any stage in the past, as far as I am concerned. No-one has a problem with law enforcement agencies gaining a warrant and intercepting particular communications, but it has not been proposed up until now that we record everybody's conversations and retain those so as to allow that to happen sometime down the track. Instead we require those organisations that have a reasonable suspicion and make a case that they need to intercept and intrude into those people's privacy in order to carry out their law enforcement functions. This seems to reverse that premise, which is one of the reasons why it is so concerning.
The other concern really is that, as I said, it could lead to a change in the way people engage with electronic transactions. There is some evidence that I am aware of, from having read various reports, of that happening in other jurisdictions where people have engaged less with electronic transactions or they have done it in a way where they have used various devices to encrypt and anonymise their transactions. One of the concerns with that, of course, is that that actually lessens the amount of information available to law enforcement organisations. In a sense you are getting a warrant to intercept transactions, but if they are encrypted you get less information out of them. Or even without a warrant, I am aware that under privacy legislation one of the legitimate disclosures is in fact to law enforcement agencies where there is a reasonable necessity to do that for law enforcement purposes. But if the information is being transacted in a way that is not able to be used for law enforcement functions, that is a problem in itself. But there are all sorts of other uses too. One of the key catchwords around technology and privacy circles at the moment is 'big data', which is these enormous data stores that are generated by the daily transaction on the internet, which has got a lot of technology researchers excited about the research potential for that—the enormous data sets that have not been able to be utilised in the past. Of course, if people start using the internet to an extent that masks what they are doing, where they are going and those sorts of things, even that very beneficial use of that data is lost as well. So that is one of the risks as well—if this is done in a way that concerns people to the extent that they get the impression that everything they do online is going to be retained—not necessarily anything that is illegal or improper, just things that they are a bit embarrassed about.
Mr RUDDOCK: So it is more beneficial to have research than to have people's security protected.
Dr Bendall : I did not say that.
Mr RUDDOCK: That is what it sounded like.
Dr Bendall : What I am saying is—
Mr RUDDOCK: You are saying: one, there is an argument for it and the other there is not. That is what you are saying. An argument for research and to mine it for research but to mine it for security is not appropriate.
Dr Bendall : It is already possible to mine it for security.
Mr RUDDOCK: No, it is not if it is destroyed. Anyway, forgive me. I should not be so provocative.
Mr DANBY: Dr Bendall, you are aware that in this proposal—it is only a proposal—to have some databases kept for two years that there are telcos and other organisations which would be subject to such legislation that already keep information for longer than two years. I was a bit surprised, as Senator Faulkner was, with some of the strength of your remarks, particularly with regard to this, because you say:
… this proposal is characteristic of a police state.
Does that mean that we are already living in a police state because we have some organisations keeping these things longer than two years?
Dr Bendall : There is a difference between something that is mandated by the state and activity that private telcos decide to do on their own impetus. That was part of my concern. But I am actually concerned about the retention of the data and the fact that, at the moment, all those organisations are required to do, at least under privacy legislation, is to take reasonable steps. There have been quite celebrated cases where there have been major data breaches involving those databases. If we increase the amount of data that is retained by those organisations and make the ones that do not retain for that length of time do it then we actually increase the attractiveness of those databases for those people who will hack them and use them for nefarious purposes.
Mr DANBY: They could already do that with the existing ones that have information longer than two years. Would it not be another way of thinking about it, if they were to be extended to two years, to insist that your privacy strictures be applied to those agencies as well? I assume that if the recommendation from this committee came to that effect, and if there were legislation—these are all ifs, ifs, ifs—that you would be very strongly pursuing privacy with telcos or whoever had to keep data for more than two years?
Dr Bendall : That is right. In Australia we do not have data breach notification legislation at this point, so where there is a major data breach there is no specific legal impetus for those organisations to notify the individuals involved in order to mitigate their losses—for instance, even where it involves financial information and that sort of thing. My interpretation of the privacy legislation is that the information security principle would include some responsibility to do that because it mandates them to take reasonable steps to prevent misuse or unauthorised disclosure. But it is not a specific, unlike some other jurisdictions, like the United States; there is no specific legislation which says that the organisations must notify the individuals affected in a timely fashion. I think that would be a useful strengthening of the privacy armoury.
Mr DANBY: I think that sounds a valuable suggestion. Before I go on to my last question, I just want to clear this up: in point 37 of your submission you say:
… the Government appears to have already withdrawn its support for the proposal, …
I assume this is based, as the footnote says, on the newspaper report that the Attorney-General had withdrawn her proposal. I am sure you have seen the newspaper report yesterday which set the record straight. This was never her view and I wanted to make sure that that was cleared up.
Dr Bendall : Quite so, I wanted to make a speech—
Mr DANBY: It is not necessarily her view that this go ahead, either. I am not canvassing what it is—
Dr Bendall : No.
Mr DANBY: I just wanted to make sure that her views were at least indistinct to this committee.
My last question for you is question number 8 that I have written down here: what evidence do you have to suggest that data mining is ineffective in identifying terrorist links? Is that not a bit like saying that research is no use for submitting university essays?
Mr Forte : I might answer this one. During researching the submission we did come across some evidence from the United States National Research Council which looked at data mining for terrorism purposes. They did find that action should not be taken just on the basis of a data-mining exercise.
Mr DANBY: Just on the basis?
Mr Forte : That is part of their research. But they did find that it was more useful information rather than more information that actually resulted in finding links to terrorism. Our concern, I suppose, with having a multitude of data is that ultimately the data still has to be investigated by a law enforcement officer, and it might actually increase the resource requirements for false positives. It may be effective in a very, very small amount of cases. But to collect that amount of information as a whole, we probably consider that data mining might be ineffective.
Mr DANBY: But you are aware of how these agencies work, aren't you? They require a warrant for a very small area—a very small amount of information compared to the whole data that is being kept—because they believe that data mining that information will produce evidence that is valuable to protect the security of Australia.
Mr Forte : Yes.
Mr DANBY: At the end of the day, that is the nub of it. You say that it might be effective in a small amount of cases. Some advocates for these changes are going to say, 'Well, one of those small amounts of cases might be a case which saves the lives of many Australians from some catastrophic terrorist attack'. Here is the challenge that we all face as we work through these proposed legislative changes. This is what advocates, proponents of the changes, will say. I should ask you both what you say to them.
Mr Forte : It is a matter of proportionality for us. The privacy regulators consider that the balance between those two interests and collecting all data of all Australian citizens, for two years, is disproportionate to that one particular risk. I suppose that would be our position, in that sense.
Senator FAULKNER: That is a perfectly reasonable answer because, at the end of the day, this is the challenge for all of us. It is the challenge of balance between defending the rights, freedoms and liberties of individuals, on the one hand, and ensuring that Australians live in a secure environment, on the other hand. This is not new. This is a challenge that legislators and people such as yourselves, and those who work in security and intelligence agencies, are grappling with all the time. The question is: where do you draw the line? There are always the 'what if?'s. The proponents and advocates of legislative change will always talk about the risks, if governments do not act.
Mr Forte : I suppose our concern was more around the fact that the discussion paper does not list any safeguards. What offences may be created by misuse of that data and the risk caused by data breach may far outweigh certain terrorist acts. I am not equating data with deaths of individuals, but in our experience and considering, for example, the last 12 months—with the massive data breaches that have occurred and the lack of data-breach notification legislation—collecting all of that data creates a great risk, a honeypot, for hackers.
Mr RUDDOCK: What data breaches are occurring in relation to data presently retained by agencies?
Mr Forte : Sorry; in a general sense.
Mr RUDDOCK: I thought you were telling me there is evidence of data breaches.
Mr Forte : For example, Sony PlayStation hacked Telstra. AAPT was recently hacked by hackers. I think, as part of a response to this inquiry—
Mr RUDDOCK: So we should legislate to require all organisations to cleanse their data immediately.
Mr Forte : No. Our position is that a data-breach notification scheme, which requires organisations to notify individuals and the public, in general, of any breach—that does not currently exist in Australian legislation—would assist people in protecting themselves from issues such as identity theft.
Senator FAULKNER: With respect to our witnesses, the point you make about safeguards is an extremely important one. Perhaps your own submission does not identify that as strongly as it should. It is a very important point that you make to the committee. It is not an emphasis that your submission gives. Would that be a fair comment to make?
Dr Bendall : Yes.
Mr DANBY: If you were to suggest legislation to give notification of data breaches—a la the scheme you mentioned in the United States—to be parallel with this legislation, that might be a valuable contribution.
Dr Bendall : It was actually recommended. It is part of a huge number of recommendations the Australian Law Reform Commission made to the privacy legislation—
Mr DANBY: To this inquiry?
Dr Bendall : No, to the privacy legislation in 2008. It is part of the second tranche of reforms that the government is working its way through.
Mr WILKIE: I want to tease out a few of the points that have already been raised. First, is the issue of risk management. Risk management is: what is the likelihood of something and what are the consequences of something? If it has a very low likelihood but a very dramatic consequence you need a certain approach. If it has a very low likelihood and a modest consequence you need a different approach. To illustrate the consequences of what we are talking about here, without sounding overly dramatic, they are things such as: there is going to be a protest out the front of Parliament House later today, there will be thousands of people there and it would be easy for someone to very deliberately drive a truck at very high speed into that crowd and kill many people; it would be very easy for someone to drive a hire truck or van—not unlike in the Oklahoma City bombing in the US—into the mall down here when there is an event on, with many hundreds of people there, and potentially kill hundreds of people. So we are talking about things which presumably are of very low likelihood but with breathtaking consequences. That is what we are all looking at here to get the settings right and take the appropriate risk management approach to this.
Given how awful those scenarios are that I have described, why is it okay for, say, Flybuys to accumulate detailed information on the consumer habits of at least hundreds of thousands but I would assume millions of people over years? Why is it okay for the banks to accumulate detailed financial information on millions of Australians over years? Why is it okay for the poker machine lobbies with their loyalty schemes to know the detailed gambling habits of millions of Australians over years? Why is that okay, but it is not okay to be looking at something that could avert a hundred people being killed in the mall—God forbid—when someone drives a truck full of fertiliser into it next Saturday? I think we need to have a really clear understanding of what we are talking about here.
Dr Bendall : My personal view probably is that it is not okay for those organisations to do quite the amount of data analysis that they do. In a sense, some of the activities they do is stretching the secondary related purpose that a customer would reasonably expect, but under our present law they make the argument that that is what they are doing but they have told their customers—in very fine print in a 15-page privacy notice—that that is what they are going to do and so therefore the law allows them to do it. I am not sure that I necessarily agree with that. Perhaps the law should be a little more interventionist in that area as well. But I take your point; of course the consequences are different.
We do tend to think that the state should do a better job at balancing those interests. We are not denying that there are security interests the state needs to protect as well. As Senator Faulkner said, it is a difficult job of balancing those. All we usually expect corporations to protect are the interests of their shareholders and their profits and so whatever they do that maximises that pretty much is okay. I do not think that is true of the state. It is a different task on the part of the state, but I am not denying that it is a difficult one. Trying to find where you draw the line and where you strike that balance is the difficulty.
Mr WILKIE: Would it be fair to say that the duty the state has to protect the community is a more pressing case for storing data than, say, Flybuys knowing how many packets of Weet-Bix I have bought over the last three years?
Dr Bendall : Yes, but we would still argue that that needs to be done in a proportionate way. If you do the risk analysis in the way you have described, an infinitesimal chance of a really terrible consequence will always trump every other interest. That will mean it is a zero-sum game in the sense that privacy and other civil rights never get a guernsey at all because of the very small chance that one person might die sometime. So in a sense you cannot take that analysis to the nth degree. Certainly it is an analysis that needs to be done. In terms of the views of some of my colleagues, the Ontario commissioner, Dr Ann Cavoukian, in particular has talked about this. She does not like the terminology of 'balance between security and privacy' because the minute you say that—security—the consequence is always so enormous that you almost justify any intrusion into privacy because of the potential consequence. What you should try and do is to protect both things to the extent you can, rather than weighing one against the other, because the minute you are talking about the potential of someone dying then every other interest goes out the window. So it is particularly difficult.
Mr WILKIE: Is your philosophical concern about the state telling a company to keep information or is your concern about what might be kept? In your opinion, would it be acceptable to keep a particular type of information and not another—for example, call records versus the content of emails?
Dr Bendall : I think both are true. I would have a philosophical objection to the state ordering any potential data, but in terms of degree it will very much depend on what the scheme actually is. One of our concerns expressed in the submission is how little there is to go on in terms of what the scheme proposed actually is. That would make a difference in how intrusive the data retention actually is. If it is done in a way that is the very least intrusive in order to achieve the aims that it is meant to achieve then that would lessen the concern.
Mr WILKIE: Could you bring yourself to support a minimalist approach of, say, the call records so we know who someone has called on their mobile phone for the last two years—the data, time and number they called? Would that be acceptable?
Dr Bendall : I am leery of supporting any hypothetical proposal; but, if there were a more fully enunciated proposal that was, as you say, more minimalist than the broad-brush approach that is in the discussion paper, coupled with some of the safeguards we have already talked about, that certainly would change the playing field.
Mr WILKIE: It sounded like you would like this committee, even though it is completely outside our terms of reference, to make some sort of recommendation about privacy and the safeguarding of data in this country more generally.
Dr Bendall : I think so. In a sense, that is partly why it was not included in our submission: it is not about national security legislation. The data breach notification law would need to be part of privacy law reform which is already taking place and is before some other committees. But certainly we are strongly in support of those and would be in support of anybody else supporting them.
Mr DANBY: And they could be very useful together.
Dr Bendall : Absolutely.
Senator FAULKNER: Given that you have identified the two-year data retention scheme as a high-priority concern—and let me interpolate here that you are obviously not alone in doing that, we all understand that, I acknowledge that and I understand from what you have said why you do so—let me ask you this: can you envisage the establishment of some form of data retention scheme, be it for two years or another time period? Let's say two years. Can you envisage the establishment of such a data retention scheme that does have the adequate privacy safeguards or broader safeguards that you believe would be appropriate? Can you envisage such a scheme being developed and given legislative force or do you think that that is an outlandish proposition?
Dr Bendall : I would not say it is an outlandish proposition. I acknowledge this is just a discussion paper and not a draft bill. If it were, as I just said, a fully fleshed proposal with not just the data retention proposal but a regime of safeguards like offence provisions for misuse coupled with stronger privacy legislation and filling the gaps that have existed in the current privacy legislation—some of the exemptions and having stricter controls and a requirement to inform those affected by data breaches—that sort of more comprehensive and nuanced proposal I certainly do not rule out ever supporting or expressing les concern about than this one.
Senator FAULKNER: And I would be the first to say that the fact that we are not dealing with draft legislation but with a discussion paper certainly makes the work of this committee harder, particularly given that our terms of reference really outline a number of different categories of consideration for the committee. I will be the first to acknowledge that. I would have thought, Chair, that one thing that might be useful—although I am reluctant to suggest something that it is a make-work proposal for the Victorian Privacy Commissioner—that might considered in a further or supplementary submission or in further detail coming back to us is some suggestions about what might be some of those more adequate and better safeguards. It strikes me, having read your submission and listened to your evidence, that perhaps this is where your submission might be a little light on. It would be helpful if you were able to do that now. I do understand that in the absence of draft legislation before us this is not so easy. However, the work of this committee is perhaps to try and influence what the actual legislation might look like, so that is a thought.
Dr Bendall : We would certainly be willing to do that. I guess, in my own defence, the broad brush approach of the submission in a sense matched the broad brush approach of the discussion paper. So, to an extent, if we had had a more detailed, structured argument, ours might have been like that as well.
Senator FAULKNER: We acknowledge that. We acknowledge the fact that there are even different categories of consideration that the government has given to it, even in our own terms of reference, so that is a point well made.
Mr RUDDOCK: There are other areas in which you made some observations in relation to authorised intelligence operations. My recollection is that there was a situation in which some ASIO officers questioning an individual in a park were accused of false imprisonment—I think that is what happened. I do not know that it is happening every day of the week, but it does seriously compromise agents simply questioning somebody in a park when they are accused of false imprisonment. You would not disagree that that is something that should be addressed?
Dr Bendall : No, that is right. The point I was trying to make was that without justification for—
Mr RUDDOCK: So with justification it might not be false—
Dr Bendall : Yes, that is right.
Mr RUDDOCK: In respect of named person warrants, essentially, as I understand it, that is looking at a situation where you identify the person of interest and the warrant applies to all forms of communication you are using rather than having to identify that it is a telephone or a search warrant. Isn't that eminently reasonable?
Dr Bendall : Our concern around that was that it presumed that the level of intrusiveness for each of the activities was the same across that warrant, and that may not necessarily be the case.
Mr RUDDOCK: Sorry, that level of intrusiveness varies?
Dr Bendall : Interception of communications and, for instance, searching someone's home—those kinds of activities would, I think, be perceived as—
Mr RUDDOCK: Just as intrusive as going through my personal papers at home and looking at personal information on the computer.
Mr DANBY: I suppose you keep all your information on the computer.
Mr RUDDOCK: I do—in huge amounts. The mining would be very difficult; it is for me! As to the language you use about third parties—that it is usually characteristic of a police state—I do not see that linkage. I was the subject of a telephone intercept as a third party because there was somebody talking to me who was a target. It does not make Australia a police state, does it?
Dr Bendall : Again, that degree of concern was about, in particular, the power to alter rather than access a third party computer. So, in a sense, installing monitoring software on a computer, turning it into a kind of trojan horse based affair is—
Mr RUDDOCK: If it is being used by the person of interest but happens to belong to a third party, that should not necessarily protect it, should it?
Dr Bendall : I guess, partly, our concern too was that, again, the safeguards and accountability mechanisms were not set out in the discussion paper.
Mr RUDDOCK: So with appropriate safeguards it might be appropriate?
Dr Bendall : It still severely diminishes the privacy of individuals. Certainly, it would need the safeguards and accountability mechanisms and it would need to be strongly argued that it met those tests of legitimacy, necessity and proportionality. But there is not even an attempt, in my view, in the discussion paper to do that.
CHAIR: The committee members do not have any further questions. Thank you for your evidence and for appearing before the committee. If we have any further questions, the secretary will write to you. In terms of the submission that Senator Faulkner requested we as a committee would be very interested in that. We appreciate you taking the time to appear before us and also making a submission.
Dr Bendall : Thank you.