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Thursday, 19 March 2015
Page: 1957

Telecommunications Data Retention

Senator XENOPHON (South Australia) (14:33): My question is to the Attorney-General. Why won't the government allow, in the context of seeking journalist information warrants, the right for potentially affected media organisations and journalists to make submissions to the authority considering the issue of such warrants? Will the government vetted public interest advocates not be constrained in their ability to argue on behalf of media organisations because they will be banned from receiving instructions from affected journalists as to how to best deal with confidential material? Further, will these advocates have access to a searchable database of previous secret judgements for such or similar applications? Won't these applicants be flying blind in arguing a case on behalf of media organisations?

Senator BRANDIS (QueenslandDeputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (14:34): Thank you very much indeed, Senator Xenophon, for your question. I inform Senator Xenophon and other members of the chamber that the Telecommunications (Interception and Access) Amendment (Data Retention) Bill passed the House of Representatives shortly before question time. That is a great achievement, I must say. It is a great achievement because it will—assuming its passage through the Senate with the support of the opposition, which has been offered to the government—make Australians more secure. It will enhance the capacity of our crime-fighting agencies to fight crime. It will enhance the capacity of our national security agencies to deal with the menace of terrorism.

Coming directly to the question, one of the government amendments that was moved in the House of Representatives was, as Senator Xenophon referred to, for the creation of the Office of the Public Interest Advocate. That is in what will be section 180X of the Telecommunications (Interception and Access) Act. Under the terms of that provision, the Prime Minister is to appoint a person or persons as the Public Interest Advocate. That person may make submissions to the minister about matters relevant to a decision to issue or to refuse to issue a journalist information warrant or a decision about the conditions or restrictions, if any are specified, in such a warrant.

That is the way this works, Senator Xenophon. We have never accepted that the bill produced on 27 February in the form in which it emerged from the second PJCIS inquiry with 39 recommendations needed any further amendment. But to make doubly sure the government agreed to make special provisions for warranted access to protect journalists' sources.

Senator XENOPHON (South Australia) (14:36): Mr President, I ask a supplementary question. I would be grateful if the Attorney could answer the issue on the searchable database and the constraint on the public advocate. Why is the government rejecting the approach adopted for the last two years by our closest ally, the United States, in such matters, where media organisations and journalists as a general rule are given advance notice and an opportunity to directly argue issues of vital public interest before their metadata is accessed by authorities rather than being left in the dark, as is proposed by the government?

Senator BRANDIS (QueenslandDeputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (14:37): Senator Xenophon, the creation of the public interest advocate is a new office. It is a new level of protection in the architecture of this scheme. In relation to the second part of your question—and thank you for the courtesy of the advanced notice—I have taken some advice about the proposition that you advance: that the issue of warrants in the United States is contestable. I am advised that the proposition you put forward is incorrect. In fact, in the United States they are transitioning from one system to a different system but at the moment metadata is held by an agency; it is not retained by telecommunications companies. But when an application is made to their Attorney-General—I am told it is not called a warrant in the United States—there is no contestability at that stage.

Senator XENOPHON (South Australia) (14:38): Mr President, I ask a further supplementary question. I did not actually say 'warrant' for the US. Given the Attorney's enormous regard and respect for former director-general of ASIO David Irvine, does he agree with Mr Irvine's recently expressed concerns over metadata stored in a cloud-based system that it was preferable:

… the cloud hovered over Sydney or Melbourne rather than Shanghai or Bangalore, where it was governed by someone else's sovereign legislative system.

What guarantee can the government give that metadata storage will be in Australia rather than Shanghai, Bangalore or somewhere else overseas?

Senator BRANDIS (QueenslandDeputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (14:38): It is certainly true to say that I have a great deal of respect for Mr Irvine, the former Director-General of Security. Until his retirement last September, I worked with him very closely on almost a daily basis in relation to a range of national security matters, and I have had many, many, many conversations over the years with Mr Irvine about the issue of metadata. In fact, it was in the last parliament that I think it would be fair to say that Mr Irvine was the principal advocate, before the Parliamentary Joint Committee on Intelligence and Security, for the establishment of a metadata retention regime. When this bill passes the Senate next week, as I expect it will—

Senator Xenophon interjecting

The PRESIDENT: Pause the clock.

Senator Xenophon: Mr President, I raise a point of order. It is one of relevance, with 15 seconds remaining. My question is about concerns expressed by Mr Irvine about Australian metadata being stored overseas.

The PRESIDENT: Attorney-General, I remind you that you have 15 seconds left.

Senator BRANDIS: That was prologue, Senator Xenophon. In fact, there has been a lot of misunderstanding about what Mr Irvine said. Mr Irvine does not believe in a prohibition on offshoring and the views that have been attributed to him to suggest that he does are wrong.