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Tuesday, 18 September 2012
Page: 7184


Senator LUDLAM (Western Australia) (16:06): I thank the chamber. This debate has been triggered by matters that are presently before the Parliamentary Joint Committee on Intelligence and Security. I would not normally propose to bring matters like this before the chamber while they are in the capable hands of that committee because that process has a way to go—and I look forward to its report—but I have proposed this debate here this afternoon for a number of reasons: firstly, because of the extraordinary scope of the proposals put before the committee, which have sparked a consensus of opposition among some very unusual allies and, secondly, because of the almost total absence of detail or justification in the government's discussion paper when it comes to the most extraordinary examples of overreach proposed in the terms of reference. What I am hoping will come from this debate is some clarity from government senators as to what is being proposed and the rationale for it, because it is something I have not been able to ascertain. Judging by the behaviour even of some government senators in recent hearings, late last week, it appears even government MPs are not sure exactly what the government is proposing because some of these proposals are unjustified. From coalition senators, particularly from the Liberal Party, as Senator Mason beats a retreat from the chamber—

Senator Mason: I'll be back, Scott.

Senator LUDLAM: I am glad to hear that, Senator. I am very interested to know whether the party of liberalism proposes to stick up for the rights of individuals, whether their privacy is threatened offline or online, and why exactly it is that the coalition appear to be going along with this proposal. I would also acknowledge, however, that there have been some very strong statements by coalition senators. I am very keen to know whether this is the view of the party room or whether some individuals have been let out on a leash to test opposition to the proposals. These things are deadly serious. That is why I have made something of an exception this afternoon and brought these matters to the chamber while they are still under discussion by the joint committee.

The parliament and the joint committee have been brought into a conversation that the Attorney-General's Department has been pursuing with an unwilling technology sector for at least two years. What would it take, the government wants to know, for phone and internet companies to record all of our activity online—every move made by every Australian across all platforms? That is web traffic; it is who you emailed; it is your phone records, and probably also all of your social media activity; every financial transaction; every conversation; and, depending on how your mobile phone is configured, your location every minute of the day. This material can be accessed without a warrant by a very large number of government agencies—police and intelligence agencies but also the tax office, the health department, welfare services and so on. That is the prevailing situation at the moment; that is not the proposal that has been put to the joint committee.

Data of this kind is already kept by your phone company or your internet provider but a lot of it is simply jettisoned because of its enormous volume and the speed at which it accumulates. Such data as already exists is already being vacuumed up at an extraordinary rate by the agencies I have just mentioned: 243,631 in the 2010-11 financial year, none of it requiring a warrant, and none of it requiring judicial oversight or any accusation of criminal intent. I am sure that a fair number of these requests are used for tracking serious crimes; you just have to look at the number of anticorruption agencies that are involved in making these requests to understand that many of these requests will be in pursuit of serious criminal matters.

Compare that number, of just under a quarter of a million requests for traffic data, to the applications for intercepts, traditional phone taps and stored communications warrants, over the same time period. For phone taps: just under 3,500, with seven knocked back. Compare it to stored communications warrants over the same time period—300 requests, with two knocked back. To get access to that material, what you would consider traditional wire taps, based on decades of accumulated legal protection supported by all sides of parliament and the general community, you require a magistrate to sign a warrant, you are required to identify who you are targeting and you need to be pursuing a serious crime, one with a minimum custodial sentence ranging from between three and seven years. But, for all the metadata or traffic data that describes your life in intimate detail, whole categories of material that did not even exist five or 10 years ago, there have been a quarter of a million of these requests, with no warrants, and no requirement to be pursuing any form of criminal activity; applied indiscriminately—a quarter of a million, across the Australian population.

So for those who will come in here shortly and say that surveillance powers need to be updated to keep track of technology, I will say right now, on the record: I agree with you. But of course I thought that was what we were doing with the 45 amendments to the Telecommunications (Interception and Access) Act since 2001 and the 25 times we have amended the ASIO Act since 2001. What about updates to privacy protections, in a country with no constitutional protections for privacy, no bill of rights? Where are the 45 amendments to privacy protections to also keep track of the way technology is changing? Think about how much of our lives is now transacted and conducted online and think about where this is going.

Let us face one question head-on, the one I am asked most often: 'I have nothing to hide, so why should I worry about my privacy being basically annihilated?' My question back is: 'Do you have curtains? Why? If you have nothing to hide, why hang curtains on your windows?' Well, because you deserve privacy, because privacy is part of the dignity of your person. Would you be fine to post online your credit card bills, or all your transaction records for the past two years? Are you okay to do that? Of course, you would not be. If you wished to, you are free to do so, but I would not advise it. It is not a question of you having something to hide; it is because your transaction records for the last two years are none of anybody's business. It is perfectly legitimate to say, 'I may have nothing to hide but I don't necessarily feel like showing you either.' That is your right to privacy.

The First UN Special Rapporteur on the Impact of Counter-terrorism Laws and Human Rights, Martin Scheinin, was in Australia about two weeks ago. His response to the question, 'I have nothing to hide, so why bother worrying?' was, 'What I'm buying my daughter for her birthday is a secret. It's my secret. I don't want to share it with her or with law enforcement agencies. It's perfectly innocent, but it's my secret.' I have some sympathy for that position, whether they are political views and 'feelpinions', whether they are popular or unpopular, you should not be forced to disclose these things to a huge unannounced array of intelligence, security, police, welfare and tax agencies, to be mined indiscriminately and data-matched in case you turn out to be a criminal some time down the track.

The telecommunications industry has noted the serious cost impacts. They start at half a billion dollars a year and they only go up from there. The Pirate Party, in their submission to the joint committee, noted that one in two Germans had refrained from seeking help from professionals such as marriage and drug abuse counsellors and psychotherapists by phone, mobile phone or email because of privacy concerns. These sorts of powers have the effect of freezing up these kinds of things. One in 13 people have refrained from using telecommunications because of data retentions in Germany, which put the number at about 6½ million people. In Germany, where studies showed that using data-mining techniques for predictive purposes was a failure, it was found to be unconstitutional, as it was in Romania and Slovakia, so these things are being repealed there. This is not a path that we should go down.

I think many Australians are concerned generally about where the line has been drawn under the terrorism laws brought in under the Howard government and never repealed. This is a part of something larger. The surveillance powers that are gradually creeping in, year on year, amendment by amendment, are part of something much larger. The Victorian Acting Privacy Commissioner spoke in no uncertain terms at a recent hearing when he said:

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 …

The prohibition against torture, for example, was previously considered absolute. I want to know whether it is any longer. No, we can no longer say that that prohibition is considered absolute in free and democratic countries such as Australia, because it has been used, excused and instrumentalised, and as such it has taken a human rights framework in the international community back decades or longer. Senator Wright proposed an inquiry into the treatment of Australian citizen David Hicks in Guantanamo Bay where he was allegedly chemically tortured. This is one such example of the erosion under these terrorism powers.

I congratulate Australia's Attorney-General for at least referring these matters to the joint committee. Senator Brandis, who has joined us in the chamber, is on that committee. But we know that this proposal has been two years in the making, under secret talks with the industry—talks that, evidently, the Australian people were not trusted to be brought in on. Why should we then trust that this collected material will not be used and abused? Why should we trust that it will stay secure when, as recently as last week on the front page of the Sydney MorningHerald, we read about corrupt police using telecommunications intercepts to spy on honest police? This is unbelievable. I do not trust this government with these powers. I would not trust an Abbott government with these powers. And I would not trust a Greens government with powers such as these. These powers should be unconditionally condemned.