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Wednesday, 18 March 2015
Page: 2843


Ms O'DWYER (HigginsParliamentary Secretary to the Treasurer) (18:46): Modern communication technologies have drastically changed the way people communicate locally and globally. But just as everyday Australians have adapted to new technologies and have found easier, more instantaneous ways to communicate, so too have those who look to cause harm to our society and to our people. It is up to governments to put in place prudent measures that will protect the security of all Australians—prudent measures that assist our intelligence and law enforcement agencies to investigate, protect against and prosecute those who wish us ill and threaten our national security. Of course, governments must always be wary of laws and policies they put in place and be wary of how far they intrude into people's lives. There is always the need to balance what is good for the nation and what is good for its citizens.

The Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 is critical to protecting our citizens and our nation. This legislative package contains a number of reforms to prevent the further degradation of the capabilities of our law enforcement and national security agencies. It is important that they are equipped to do their jobs and do them properly. Access to metadata plays an important role in almost every counterterrorism, counterespionage, cybersecurity and organised crime investigation. It is also used in many serious criminal investigations, including investigations into murder, serious sexual assaults, drug trafficking and kidnapping. Indeed, we have heard in recent times from our intelligence and law enforcement agencies just how important it is for them to access information to enable them to do their job. The Australian Federal Police Commissioner, Andrew Colvin, has said that between July and September of 2014 telecommunications data was used in 92 per cent of counterterrorism investigations.

This is nothing new. The importance of telecommunications data to major counterterrorism investigations was well and truly made clear 10 years ago in Operation Pendennis, a combined ASIO and law enforcement operation that prevented a mass-casualty terrorist attack in Australia. Telecommunications data was used to identify a covert phone network that was being used in an attempt to hide activities from ASIO and the police. If it were not for this data being available, it is unlikely that the authorities would have understood the network of people involved in the planning of a terrorist attack. As a result of the work undertaken by ASIO and law enforcement, a mass-casualty terrorist attack on the Melbourne Cricket Ground was avoided and this work led instead to the arrest and conviction of 13 men on terrorism charges.

Telecommunications providers already store data they require for their own business practices. Often this is done to enable them to invoice their customers appropriately. However, changing technologies and business practice mean that providers are now keeping fewer records about the services they provide and are keeping those records for shorter periods of time. This has resulted in there sometimes being a lack of information available to our investigative agencies. In June 2013 the bipartisan Parliamentary Joint Committee on Intelligence and Security concluded that these changes have resulted in 'an actual degradation in the investigative capabilities of the national security agencies, which is likely to accelerate in the future'—a stark warning indeed. Given the current environment of threat that our country faces, we cannot let this essential capability deteriorate any further. David Irvine, the former Director-General of ASIO, has said, 'Unless metadata storage practices are changed, law enforcement and counter-terrorism efforts will be severely hampered.'

This bill will create a minimum, consistent obligation for record keeping across the Australian telecommunications industry, for law enforcement and security purposes, by requiring specific categories of telecommunications data to be retained for a period of two years, subject to implementation and exemption arrangements. It is important to stress that this bill does not include any changes to the current access regime for metadata. Currently the Telecommunications (Interception and Access) Act allows law enforcement agencies to access metadata where reasonably necessary for the enforcement of criminal law or laws imposing a pecuniary penalty or for the protection of public revenue. It is also important that we consider what metadata actually comprises. Metadata—the data this bill considers—is information about a communication, not the content or the substance of a communication. For example, for the internet, data could be information such as an email address and when an email is sent but would not include any of the content of the email itself, such as its subject line or the body of the email. The substance of a person's communication will continue to only be able to be accessed under a warrant. That is not changing, and rightly so. Data captured under this bill may only be accessed on a case-by-case basis where it is reasonably necessary for a lawful purpose, such as part of a national security investigation.

I acknowledge that there has been some concern surrounding these proposals. However, the government has introduced strong safeguards and protections in this bill to ensure that individual liberty is not unduly interfered with. These protections come on top of a number of safeguards and oversight mechanisms already in place. The Privacy Commissioner already plays a critical role assessing industry compliance with the Privacy Act. Protecting the security of personal information remains a key priority of both government and industry, and we expect that the standards and safeguards that industry already have in place to secure private information will continue.

This bill will implement additional oversights for the new data retention regime, in line with the 2013 recommendations of the Parliamentary Joint Committee on Intelligence and Security. The bill limits the access to data to agencies, such as law enforcement and intelligence agencies, that have a clear need for such access and well-developed internal systems for protecting privacy. Indeed, despite all the noise and all the chatter, the range of agencies permitted to access telecommunications data will be reduced—not increased—from around 80 agencies to around 20. The current open-ended definition for which agencies can access the data will be replaced with this shorter prescribed list of key agencies, and supplemented with a new declaration power for the Attorney-General to declare, at his discretion, a new agency that meets strict criteria relating to their need to access stored communications or data and their ability to protect privacy whilst doing so. In addition, this bill will also introduce, for the first time, comprehensive oversight by the Commonwealth Ombudsman for any Commonwealth, state or territory law enforcement agency accessing retained data. These new safeguards will, in fact, increase privacy protections.

Further, the government has indicated that it will move an additional amendment to require agencies to obtain a warrant in order to access a journalist's metadata for the purposes of identifying the journalist's source. Warrants are typically reserved for the most intrusive powers, such as the power to use force to enter a property, to intercept phone calls, use surveillance devices or to arrest a person. This bill does not, and did not, target journalists or their sources. Clearly, this additional protection for journalists and their sources is a demonstration of that.

Just before I conclude my contribution to this debate, I would like to acknowledge the work undertaken by the bipartisan Parliamentary Joint Committee on Intelligence and Security. The committee undertook a detailed consideration of the bill and considered a wide range of issues raised in evidence by a wide range of stakeholders, who participated in its inquiry. I particularly acknowledge the chair, the member for Wannon, Mr Dan Tehan, a good friend and colleague, who worked hard together with the rest of the committee members to deliver a unanimous, bipartisan report into this important bill.

This is an important bill, which deals with changes in technology and ways of communicating. As I spoke of earlier, just as Australians have themselves adapted to new technologies and have found easier, more instantaneous ways to communicate, so too have those who would look to cause harm to our people and our nation. It is clear that the government and this bill are putting in place the prudent measures necessary to protect Australian citizens against harm, whilst keeping a strong check on interference with individual liberty. I commend the bill to the House.