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Parliamentary Joint Committee on Intelligence and Security
26/09/2012
Potential reforms of national security legislation

WOLFE, Mr Simon David, Head of Research, Blueprint for Free Speech

[12:29]

CHAIR: Although the committee does not require you to give evidence on oath, I remind the witness that this hearing is a legal proceeding of the parliament and warrants the same respect as proceedings of the House and the Senate. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. The evidence given today will be recorded by Hansard and will attract parliamentary privilege. I invite you to make some brief introductory remarks before we proceed to questions.

Mr Wolfe : Thank you. I wish to first take this opportunity to thank the members of the committee for the fact that I am able to present these oral submissions in relation to and extending from our written submissions. I know that we are pressed for time before lunch, so I wish to only focus on what we consider to be the matter of primary importance, which is the effectiveness of data retention as a method of preventing serious crime and terrorism. From discussions this morning, I suspect it will be the focus of many of your questions. What I intend to do is walk you through the supplementary materials which I understand have been provided to you.

CHAIR: Yes. Before you do that, could we just move that we accept those.

Senator FAULKNER: I so move.

CHAIR: Thank you. Fire away.

Mr Wolfe : Before I do so, I wish to just make a brief point on the proportionality and balance debate that I know that this committee is grappling with. I understand this is a difficult issue. However, perhaps the balance argument has become divorced from an actual balancing act. Every time reforms have been sought over the last decade—and they have been sought frequently—the balance has been achieved and we have arrived in legislative terms every time at some point in the middle. It is a natural consequence that, if more powers are requested and you will arrive at some point in the middle, the balance is of course going to shift gradually towards more invasions of privacy.

In the interests of finding an objective balance, I think we can add a third element in this debate, and that is the efficacy argument, which brings me to this bundle of materials. I am not going to repeat the titles, in the interests of time. What they broadly deal with is the implementation of the EU Data Retention Directive in 2006. I am paraphrasing here, and you might disagree with me, but I believe that the two salient conclusions from these materials are (1) that data retention as a method used by law enforcement is ineffective as far as its impact on increasing convictions or clearance rates for serious and organised crime and terrorism offences is concerned; and (2) that there is a pattern of constitutional appeals across the EU which demonstrates that the impact on privacy is disproportionate to the usefulness of data retention. So what I propose to do now is to take you to each document and explain its relevance.

I wish, however, at this point to note that we have contacted the German expert Dr Patrick Breyer, who is behind many of these documents and in fact ran the constitutional case in Germany against the data retention proposals and was successful. He had agreed to appear before this committee, but I am led to believe that, by reason of not being able to run teleconferencing outside Canberra, he cannot appear today. But I note that we are happy to make him available should the committee be interested in speaking with him. The first document—

Mr RUDDOCK: Who is he?

Mr Wolfe : Dr Patrick Breyer works for a group called AK Vorrat, which is a shortening of a much longer German name that I—

Mr RUDDOCK: He works for an advocacy group, does he?

Mr Wolfe : Essentially. He holds a PhD for which his thesis focused on data retention.

Mr RUDDOCK: Amongst how many?

Mr Wolfe : A lot of Germans have PhDs; I agree with you. I think it is almost a requirement. I suppose his expertise is proved by the fact that he ran the constitutional case before the German Federal Constitutional Court and authored a lot of these studies. Of course, his relevance is to be determined by the committee, but I propose that he is a relevant expert.

If you look at the first document, behind tab 1, this document is commissioned by the German Federal Ministry of Justice. It was suggested by the police this morning when you quoted from our submission, Mr Ruddock, that perhaps some of the documents were 'absolute rubbish'—I quote. Perhaps that should be—

Mr RUDDOCK: I simply quoted from your submission.

Mr Wolfe : Yes. What I meant was the response to the quote. The German Federal Ministry of Justice, I assume, is a reputable body. It examines whether or not the use of data retention in criminal investigations has an effect on the clearance rates of serious crime. Its resounding conclusion was that data retention laws in Germany and Switzerland did not result in a higher clearance rate. Page 4 of that report is a reference to the bundle materials as a whole. There are three conclusions which I think are of special relevance. Conclusion 9 is:

Examining crime-specific clearance rates in the years of 1987-2010 one finds that the cessation of blanket data retention cannot be seen as a cause of changes in clearance rates.

Conclusion 10 is:

Nor do clearance rates relating to computer crime or so-called Internet crime point to changes in clearance rate trends during the period of blanket data retention …

Conclusion 11 is:

Considering specifically the year of 2008 when communications data retained without cause were generally available … no change in clearance rates relating to data access can be observed …

I understand that I am rushing through the documents, and I appreciate that the committee will go through these more fully in their own time.

Mr RUDDOCK: Just on this and the study—

Mr Wolfe : I do not have a hard copy. I have an electronic copy, but you might have to bear with me.

Mr RUDDOCK: The question really goes to what we are actually comparing in this study. Am I reading it correctly, in that the comparison is between the rest of Europe, which is applying the disclosure model, as against Germany, which has abandoned it, and the data is the broader Europe, still using it, and Germany, which has abandoned it?

Mr Wolfe : No, the comparison is year on year in Germany.

Mr RUDDOCK: In Germany?

Mr Wolfe : That is right: before the legislation was enacted, during the time in which it was enacted and after it was repealed.

Senator FAULKNER: And 2008 is the critical date of enactment? Is that correct?

Mr Wolfe : There were two phasing-in periods. The first phasing-in period related to mobile telecommunications; the second related to emails. That is my belief. But, if you look at the second document, that goes into the statistics upon which the first document relies, at least in part.

Mr RUDDOCK: The first document refers to the Max Planck institute study—

Mr Wolfe : Yes.

Mr RUDDOCK: so it is the Max Planck institute—

Mr Wolfe : That is right.

Mr RUDDOCK: that did this study?

Mr Wolfe : Yes, the first one. The second document was produced by AK Vorrat, which is the organisation which Dr Patrick Breyer represents. The statistics in this report are taken from the police crime statistics published by the federal crime agency, and this report details by type of offence—so it goes into even more fine-grained detail—the reporting rates and the clearance rates for crime in Germany. It shows, over a period stretching from before the implementation, during and after, that there was no impact on the clearance rate of serious crime. I can quote from that, but I refer you to page 12 of the report. It concludes:

There is no proof that the number of cleared cases, the crime rate or the number of convictions, acquittals or closed cases—

which of course speaks to the relevance of some testimony this morning. It continues:

There is no evidence that countries using targeted investigation techniques clear less crime or suffer from more criminal acts than countries operating a blanket communications data retention scheme.

Interestingly, I think that another fact that we should take out of this is that it points out that 'blanket data retention can actually have a negative effect' on criminal investigations. In short, the report points out that criminals just get smarter. They are using ways to obfuscate their identity through encryption or otherwise or use non-electronic communication channels. This can obviously undermine previously successful targeted surveillance regimes.

If you have no comments on that document, I am happy to move to the third document.

Senator FAULKNER: These are obviously very, very interesting documents. You would appreciate that this has literally just been handed to committee members.

Mr Wolfe : I am completely conscious of that.

Senator FAULKNER: I am going to be absolutely frank. I do not like saying this. I have not had a chance—I am literally trying to read this as you are speaking. I am sure you appreciate that. We are a bit limited because of that.

Mr Wolfe : I completely understand. By way of explanation: I have attended previous committee hearings and I understood this to be the salient point in this debate. It was in response to that that I have produced these materials and really wish to speak to them.

Senator FAULKNER: You would understand that, as you know, we have literally just been handed quite a substantial set of important documents.

CHAIR: I am sorry to cut across you, Senator Faulkner. Mr Wolfe, perhaps you could just talk about this. There have been some key themes that have been raised, and I note that you have been an assiduous activist in following those particular themes, so it might be helpful, given that you are in front of the committee, to talk to some of the evidence that you have heard about and what some of your concerns are, representing your organisation and referring to your original submission. Then, if we have any additional questions with respect to this submission that we have just been handed, perhaps we can talk to you a bit later on about that. I just think that there are some pretty key things that have been put out there, and I know that your organisation has some pretty strong views. I am wondering, in the time that we have together today, whether or not you could put some of those responses back to some of the evidence that you have heard to help the committee in its deliberations. Then we will be very happy, when we have got some time, to refer to this particular document. As I said, if we have got further questions we can get back in contact with you and get some elucidation. I think that might be the way to go.

Mr Wolfe : I am more than happy to do that.

CHAIR: If perhaps it could encapsulate some of your organisation's concerns about some of the evidence that you have heard and some of the concerns that you have had and that you have articulated in your initial submission, I think that could be helpful.

Mr Wolfe : Perhaps the chair would like to specifically direct me or would you prefer I talk—

CHAIR: No, it is up to you because I know you have certainly been on the twitterverse pretty active in terms of this.

Mr RUDDOCK: My threshold question is whether I need to listen to you because I do not know who you are, I do not know who your organisation is, I do not know whether to give you any credibility or not. So I ask the question: who is your organisation? I know you are the research officer for it. What does it represent? How many members does it have? I just do not know the organisation.

Mr Wolfe : The reason for that is we are extremely new.

Mr RUDDOCK: Extremely new?

Mr Wolfe : In a sense that we have not properly launched our website yet.

Senator MARK BISHOP: I have just tried to access it. It was not available.

Mr Wolfe : Yes, that is right. So it is in the process of launching. We focus on many issues that concern freedom of speech, so they could relate to issues of public interest disclosure, freedom of information, censorship. The timeliness of this debate forced us to comment on these reforms and we wanted to be involved and apply our expertise. In terms of my personal background, I am—

Mr RUDDOCK: Has it as an organisation 10 members or 100 members?

Mr Wolfe : By that do you mean people who work for it?

Mr RUDDOCK: No. I just do not know anything about the organisation.

Mr Wolfe : It is not a representative organisation.

Mr RUDDOCK: It is not representative?

Mr Wolfe : To most accurately describe it, it would probably be a liberal think tank.

CHAIR: As in a sort of liberal think tank?

Mr Wolfe : As in liberal in the true sense of the word.

Mr RUDDOCK: Yes, but a liberal think tank?

Mr Wolfe : But when you ask who the members are, it is not a representative organisation.

Senator STEPHENS: How many members?

Mr Wolfe : It does not have members. It has people that work for it, about 10.

Mr RUDDOCK: So 10 people who work for it?

Mr Wolfe : About 10 researchers.

Mr RUDDOCK: And they are paid?

Mr Wolfe : Of course.

Mr RUDDOCK: By whom?

Mr Wolfe : By the funders. I am happy to provide financial reports and all those sorts of things.

Mr RUDDOCK: Just give me some idea of where the organisation is coming from, what it is about.

Mr Wolfe : It is individuals who donate. It is a not-for-profit. I am not in a position to name who the donors are purely by reason of the fact that I do not know who they are.

Senator STEPHENS: And when was it established?

Mr Wolfe : In August of last year.

Mr RUDDOCK: So it could be a front for the telecommunications companies who do not want their data to be surrendered as it is going to interfere with their productivity?

Mr Wolfe : It could well be that my position on that is we are happy to be completely open and we can give you all of our records. You can ask corrective questions and I am more than happy to answer them.

CHAIR: But it is fair to say you have led a fair discussion and a fairly informed one on the twitterverse and that is my belief, not that that necessarily entitles you to be a witness here at this inquiry. But certainly you seem to represent a coalition of people that have, from what I can see, fairly broad concerns about the discussion paper and it all seems to have coalesced around your organisation as the spokespeople for that. A sort of community of interests—is that fair to say?

Mr Wolfe : I represent nobody who follows me in the twittersphere.

Senator FAULKNER: Mr Wolfe, are you a citizen of Australia?

Mr Wolfe : I am a citizen of Australia.

Senator FAULKNER: Well, as far as I am concerned, you are welcome at the committee.

CHAIR: But I think—

Senator FAULKNER: I am serious and that is as far as I am concerned. I think we should deal with the substantive issues. If people want to look behind the organisation you represent, Mr Wolfe, fine, but we have got such limited time that we are better off really trying to spend the small amount of time we have got on focusing on that and following the other issues up. We have not questioned anyone else's capacity to appear. I do not think we should bother too much here. Mr Wolfe is a citizen of Australia. He is here because we have invited him to sit at the table, for god's sake.

Mr Wolfe : And, to be clear, if there are further questions when perhaps the committee has more time I am more than happy to answer them.

CHAIR: I was talking about you enunciating some of the concerns that you might have, and in terms of the discussion paper in the broad it would be helpful at this point.

Mr Wolfe : The primary issue of the discussion paper was its opaqueness, and that is not an original position put by me. It is why I did not focus on it in my submission as so many groups had made that point. The most worrying thing about it, and without wanting to sound like the law student I used to be, is the problem of representative government. In a sense representative government means that the executive puts forward policies upon which people comment in a substantive way. The problem with these proposals put forward is that they have not been put forward in a substantiated way, which includes detailed reasoning in the sense that you have stated a fact and arrived at a conclusion—sorry, when I say 'you', I mean the person who drafted the paper—but you have not explained the reasoning of steps from A to Z. A real problem we have had as this debate has unfolded is that when people have appeared time and time again at these committee hearings they are talking about YouTube videos that the Attorney-General has published, or comments that have been in newspapers, rather than focusing on what should be the primary material in what is a parliamentary hearing. That is its central problem at the moment, irrespective of the underlying—and when I say 'underlying' I mean what we guess at being the underlying problems with this entire scheme.

Senator FAULKNER: Were you present when the AFP Commissioner and other police commissioners were here?

Mr Wolfe : Yes.

Senator FAULKNER: You might have heard my question at the end, when I asked the AFP Commissioner whether the AFP had had any engagement with international counterparts about the effectiveness of the European Union data directive. Effectively, at the police level it had not happened; I do not know whether it has happened at the Attorney-General's Department or not. How important do you think the experience of the European Union data directive is given that this is a model that the Attorney-General's Department, the Attorney-General and this committee are specifically looking at? How seriously should we look at the success and the weaknesses, if there are any, of that model?

Mr Wolfe : If you are going to impose a data retention regime, generally it would make logical sense that you look at one that has been implemented—especially in this case considering there have been several voices which have come out, certainly including that from the Attorney-General, but the EU directive is broadly what we are basing our data retention proposal upon. I would have thought that your first port of call would be people who have implemented it, people who have lived through it, people who have existed where there has been strong opposition to it. As I mentioned before, constitutional cases are running in the Czech Republic, in Germany, in Slovakia, in Austria; a case is currently before the European Court of Human Rights that the Irish high court has referred. There is a wealth of knowledge and experience dealing with exactly what we are talking about but that nobody seems to be talking about here.

Senator FAULKNER: I have just glanced through where these documents are sourced from. I cannot pretend to you that it is any more detailed than that. Are you aware in any of the European Union countries or in the EU itself of any official government or EU analysis for assessment of the effectiveness of the EU data directive? Above and beyond either judgments or the views of experts, think tanks and the like.

Mr Wolfe : My understanding is the EU commissioner is currently undertaking a serious review of it. That is the short answer to the question.

Senator FAULKNER: But beyond that you are not aware of any.

Mr Wolfe : No.

Senator FAULKNER: Thank you.

Mr Wolfe : That is why I suggested Dr Patrick Breyerbe made available to this committee because he is the expert on these issues and could happily point you in the right direction.

Senator BRANDIS: I am sorry I arrived a little late. In responding to Mr Ruddock and others a little earlier, you talked about the opacity of the discussion paper. Your objections are substantive objections, of course, aren't they—that is, that this just goes too far from a libertarian or a liberal point of view? That is the essence of your objection.

Mr Wolfe : That is a substantive objection—

Senator BRANDIS: That is the principal substantive objection. Do those concerns apply equally to the two topics which your submission treats, that is, data interception and warrants, ASIO powers and decryption assistance? They are somewhat different issues, aren't they?

Mr Wolfe : Indeed. Could you rephrase the question?

Senator BRANDIS: What I want to know is: do your concerns about the proposal for changing, for instance, the threshold for warrants, apply with equal force as your concerns about data retention? They are different issues; I can understand you might approach them from a common philosophical position. But is there a degree of gradation of your concerns among the two issues?

Mr Wolfe : Without limiting the forcefulness of our arguments about warrants, I would consider the arguments about data retention, and certainly the underlying problem with that proposal, to be worse.

Senator BRANDIS: Thank you.

Mr Wolfe : Perhaps 'worse' is a pejorative word.

Senator BRANDIS: You are entitled to use pejorative words here.

Senator STEPHENS: Perhaps you would like to explain why you think that is the case—going to those other issues, like the warrants and powers.

Mr Wolfe : Would you like me to talk about the warrants and powers now?

Senator STEPHENS: Yes, please.

Mr Wolfe : Obviously they have been summarised and I would only be paraphrasing from the written submissions that we have previously put, but I suppose if I were to generally paraphrase, if one were to create general powers, one could only assume, especially in these circumstances, that they would be used to their utmost limit. So I am forced in an argumentative sense to sound like a crazy conspiracist—which I do not like to appear like, but I do not have a choice. If you propose a warrant system in which you can seek a warrant over a particular topic, you can only assume that it will be used in its broadest sense. Therefore, my automatic reply has to defend that broadest sense.

Senator BRANDIS: That has not been the case with preventive detention orders and control orders under the 2005 Howard government legislation. The same argument was put to another parliamentary committee in which I participated. It is kind of a floodgates argument or, dare I say, a slippery slope argument. It is a perfectly logical argument, but that has not been the experience with the earlier antiterrorism measures.

Mr Wolfe : I cannot comment on those measures because I am not familiar with those statistics.

Senator STEPHENS: You were here this morning and you heard the argument for extending the warrant provisions to multiple points of interception—

Mr Wolfe : I do not have an issue with that.

Senator STEPHENS: You do not have an issue with that? So that is one of the extensions of power.

Mr Wolfe : I think that is perfectly reasonable.

Senator STEPHENS: What of your views about the proposition in the discussion paper to expand the duration of warrants from 90 days to six months?

Mr Wolfe : Again, our position would be: the longer the warrant period, the more danger is one's invasion to privacy. But obviously they need to be looked at on a case-by-case basis. I guess the answer to your question goes back to my original point, which was that it should not be our position that we need to explain why six months is too long. The position should be the Attorney-General explaining why six months is necessary. I do not think that has been done.

Senator MARK BISHOP: Why would it be dangerous to extend it to roll over the warrant? Warrants are issued for a purpose against a particular individual. Presumably, if the police want to come back two, three or four times to roll it over, the person of interest is a person of interest. Where is the privacy danger in continuing an investigation by rolling over warrants to a person to continues to be a person of interest?

Mr Wolfe : I appreciate the logic of that. My starting position is that the longer somebody is being intercept, necessarily the more there is an invasion to their privacy.

That might be necessary in certain circumstances, and certainly in that chain of logic that you have just walked me through that makes perfect sense.

Senator MARK BISHOP: That was the question Senator Stephens was asking you. I want to find out what the invasion of privacy is when a person continues to be a person of interest in a criminal or a security matter to the relevant police agency.

Mr Wolfe : Of course it is still a problem of privacy, but it is legitimised by reason of rolling over the warrants as long as—

Senator MARK BISHOP: The problem of privacy is legitimised, so it is not a problem? Is that your conclusion now—in that context, that scenario, obviously?

Mr Wolfe : In that context, I accept that conclusion.

Senator STEPHENS: Your proposition puts the notion that, rather than expanding the ASIO powers and powers of other law enforcement agencies, you are recommending the introduction of special advocates. How would you see that proposition working and why would that add value?

Mr Wolfe : I do not pretend to design the entire policy, but in simple terms it would be having trained advocates—lawyers who stand on the other side from ASIO's lawyers, if we use that as an example, to argue the case. Currently it works on an ex parte basis. ASIO's lawyers ask for the warrant, of course subject to their legal professional obligations, which are to present the other side of the case. Having special advocates enables the other side of the case to be presented by somebody who is purportedly independent. I am not saying that the lawyers who currently request warrants on behalf of ASIO do not act within their full legal professional obligations, but it is also about the appearance of doing so. I think that the creation of special advocates only increases that appearance by having another independent step in the review of those warrants.

Senator MARK BISHOP: So you would have to alert the person?

Mr RUDDOCK: You only argue that for ASIO. You do not argue it for police warrants.

Mr Wolfe : Did I trip over my words there?

Mr RUDDOCK: No, I am just looking at the submission.

Mr Wolfe : I was talking in the context of ASIO warrants.

Mr RUDDOCK: Yes. You only argue it for ASIO.

Mr Wolfe : Yes.

Mr RUDDOCK: So you are suggesting only ASIO's warrants need to have a third party or an independent party scrutinise the appropriateness of them. Police do not need it.

Mr Wolfe : That is the argument that has been put up. I do not necessarily agree with the fact that in some cases where police request them in an ex parte manner they do not need them. I was trying to appear reasonable, to only talk about certain situations.

Senator MARK BISHOP: Who does this special advocate act on behalf of and where does he get his instructions from? We know who ASIO acts on behalf of and we know their legislation, giving them authority to apply for ex parte matters.

Mr Wolfe : That is the difficult question, I think. Who does one take instruction from?

Senator MARK BISHOP: You are running the argument for a special advocate. My question again is: who does he act on behalf of and where does he or she get his instructions from?

Mr Wolfe : He or she receiving instructions is a very difficult matter. I do not have the solution to that.

Senator BRANDIS: You could say, perhaps, that it is like an amicus curiae.

Mr Wolfe : Exactly—well, not an amicus curiae in the sense that you are acting for the person who is going to have their phone tapped. So you actually have a client that you have no contact with.

Mr RUDDOCK: And you do this because you suggest the Inspector-General of Intelligence and Security is not adequate for the task.

Mr Wolfe : I did not say that, but it is on a gradient. He is adequate for the task now, but why not improve the situation?

Senator BRANDIS: I was just going to go back to the earlier exchange you had with Senator Bishop. I am philosophically predisposed towards your argument because I have always said that the onus of persuasion is on those who seek to expand the coercive powers of the state. However, it does seem to me that, in submitting to a committee like this, those who criticise a given proposal do themselves have a kind of persuasive burden to show why they say it goes too far.

What your submission amounts to, if I may say so, with respect, is basically: 'This goes too far.' You might be right, but don't you think you should identify the particular respects in which it goes too far, rather than simply say, in a relativist sense—and I am reading from your dot-point summary on the first page—'unreasonably interfere' and 'dramatically and unnecessarily expand' various public powers? The same argument you make, in other words, could be made against any expansion of the policing powers of the state, couldn't it?

Mr Wolfe : I agree with you. The problem in this circumstance is that we often do not know what it is that we are fighting against. The classic example, and I may sound like a broken record with the other people who have appeared before this committee, is that the data retention proposal is contained in 2¼ lines.

Senator BRANDIS: So you are saying for the purposes of this inquiry that you have not been given enough to work with, as it were?

Mr Wolfe : Exactly.

Senator BRANDIS: I understand.

Mr RUDDOCK: I would argue that there are safeguards against abuse in our existing system: the Inspector-General of Intelligence and Security and her role; in relation to other warrants that are issued, the Ombudsman's role; and the public reporting in relation to the inquiries they make. I go to page 3 of your paper in which you assert that there are not 'strong safeguards against abuse'. So presumably you would say that the Inspector-General of Intelligence and Security and the Ombudsman are not sufficient to deal with the abuse that is there, or are you assuming there is abuse? I am really asking you: when you refer to abuse, have you any evidence of abuse?

Mr Wolfe : I have no evidence of abuse. But, to pick up what you were saying, this is what makes me look like a crazy conspiracist, because we do not know what the potential abuses could be because we do not know what the proposed powers might look like, so we necessarily have to take the most extreme point of view. I do not mean at all to undermine the Inspector-General of Intelligence and Security. I assume that their overview powers would increase commensurate with the impact on privacy.

Mr RUDDOCK: The argument that we have is that all of these powers at the moment that are pursued are pursued under warrant, directed at particular targets; that there is scrutiny; that there is oversight; and that the effectiveness of the regime that has been there is, over time, being degraded. What they want to address is the extent of the degradation.

Mr Wolfe : Sure. I suppose I do not understand, in light of the efficacy arguments, how a data retention proposal manages to fix that.

Mr RUDDOCK: I may have to read the Hansard. I am not sure I understood it.

Mr Wolfe : My response?

Mr RUDDOCK: Yes.

Mr Wolfe : I am sorry, I am a chronic mumbler. What I mean to say is I do not understand, or certainly the reasons have not been put. There might be a cogent argument of which I am not aware, with substantiated reasons and backed-up statistics—I have not seen it; I do not think the committee has seen it—which says that a data retention scheme for two years, five years, seven years, or definitely, as the AFP asked for this afternoon, is going to fix that.

Mr RUDDOCK: The argument is that we had one provider, it was Telstra, and the information was always available and the authorisations could apply. Now a number of competitors are coming into the system who do not need to keep the same information that Telstra did because of the model that they had. The level playing field is effectively being diminished because there are people now who do not have to keep this information and will not keep this information. So even though they have had access all this time, now they will not.

Senator FAULKNER: And therefore the gap that Mr Ruddock mentions has the possible impact of affecting safety and security. That is the logical end point of it.

Mr Wolfe : Previously it sounded like a commercial argument in the sense that Telstra is commercially disadvantaged by having to keep that data. Do I understood that correctly?

Mr RUDDOCK: No, they have done it. They were a monopoly supplier, in effect, and so it was always there.

Senator FAULKNER: Now they are obligated to do it. It is not mandatory on anyone to do it, and the proposal is it be mandatory on all—not just Telstra but all carriage service providers.

Senator MARK BISHOP: Put it another way: you have heard three police commissioners say that, increasingly, their ability to engage lawfully with organised crime and those engaged in, arguably, the breaching of security laws in this country is much constrained and increasingly constrained by the growth and spread of technology and that they are simply seeking to update powers they had 20 or 30 years ago into the world of new technology. Those are two arguments that were put.

Mr Wolfe : I understand. I would like to talk to the later argument for just a second. The problem with that is that the data retention scheme is somehow seen as a cure for it. Let us talk about organised crime for a second. The German experience has shown that, if people know there is a blanket data retention scheme, criminals will adapt the way that they communicate with each other. So the previously effective targeted warrant regimes will not be as effective as they once were because, suddenly, people are using more technologically advanced encryption or they are not communicating via electronic means at all.

Senator BRANDIS: This is an argument about the point at which the investigative powers of the government impinge on the lives of the everyday citizen and whether the thresholds should be lowered or the powers should be expanded—that is one thing. I am putting this to you, as I have done to other people: if it were the case that no greater power in government were being sought but merely that, because of the greater sophistication of data and technology today, the scope or the range of the data which could be susceptible to existing invasive powers were greater, why would you have an in-principle argument against that?

Mr Wolfe : That of course assumes that the existing powers are appropriate with the different and changing—

Senator BRANDIS: That is a different issue of whether they should be scaled back. But you are saying in your submission that this proposal takes it further. If in fact it takes it further by changing the thresholds or the tests or whatever, you are right to make the point. But, if it merely means that there is a range of material which would be subject to existing powers which is not currently being caught, that is a technology issue not a liberty of the citizen issue, isn't it?

Mr Wolfe : I think the point at which the government makes that a requirement makes it a liberty of the citizen issue.

Senator FAULKNER: Mr Wolfe, Senator Brandis raises the issue because most, I cannot say all, law enforcement, security and intelligence agencies that have come before this committee have made as, really, their opening statement of principle, 'We don't want additional powers.' They are really saying to us, 'We don't want additional powers; we want to be able to apply existing powers in all and new circumstances.' I am putting that into layman's language but I think that is a pretty fair encapsulation of what the agencies are saying to us. Do you find that reasonable? In other words, there are no new powers just the capacity to ensure that existing powers apply in all circumstances—so that there is some obligation that they apply in all circumstances. CSPs that are not involved in new technologies and other evolutionary matters play no part—no new powers, just the existing powers applying in all circumstances.

Mr Wolfe : I think that is a better result than increased powers.

Senator BRANDIS: But you are kind of dodging the question, with respect.

Senator FAULKNER: You have done that in the past.

Senator BRANDIS: Only in parliamentary debate.

Mr Wolfe : I agree with you. If you talk about the substance of the underlying data and it becoming more available, the problem with the underlying data, even if you are only talking about metadata, is that by reason of its sophistication it enables a greater invasion of privacy.

Senator BRANDIS: This is the argument from hazard, isn't it: that there is a principle that if you do not change the powers you cannot object to the powers being more invasive?

Mr Wolfe : Exactly.

Senator BRANDIS: But you are saying that the way in which they would work upon a much greater scope of data or metadata makes the existing powers much more hazardous potentially in their application. Is that your argument?

Mr Wolfe : Yes.

Mr WILKIE: Although we have heard that through Senator Faulkner from all of these agencies, I find, Mr Wolfe, a contradiction in that statement from some of the agencies. While, on the one hand they just want to be able to apply existing powers to new technologies, they also want mandated data retention, and that is a new power. That is clearly something new.

Senator BRANDIS: It is not a new power; it is a new obligation.

Senator FAULKNER: It is a new obligation. The power that would be applied to the mandatory requirement is the same. It is just that there would be an obligation or a mandatory requirement that the metadata be retained for two years. That is not a current obligation. The power to access it and use it—they argue; this is their argument—is not enhanced. So this is the debate. This is a very important element of the debate. I am not putting an argument here. I am merely trying to encapsulate what I understood witnesses to be saying to us. I think it is a very fair encapsulation in the sense that, in a sensible way, the law enforcement and security and intelligence agencies are very clear. Their starting point is no enhanced powers, no further powers.

Senator BRANDIS: Other than enhanced amplitude of the existing powers.

Senator FAULKNER: Yes.

Mr WILKIE: Although, just to tease this out a bit, I actually think they are two quite separate things. In my mind, with being able to find information in a new technical space, it is clear that they are not seeking in any way to have additional powers. They are just wanting the law updated to be able to do it. They currently do and have always, say, with telephones, applied to wireless smartphones or at an internet cafe. But I think that is quite a separate issue to passing a law that will require commercial operators to do something they are currently not required to do.

Senator BRANDIS: I suppose it is a bit like saying, 'Well, we have two or three security cameras in critical places in the city that survey crowd behaviour,' and saying, 'We are going to put a security camera on every street corner of Sydney.' It is not a different power but the range or the amplitude in which the existing power is exercisable really is so greater that it changes the character of it.

Senator FAULKNER: The middle course could be that instead of a mandatory—

Senator BRANDIS: Do you agree with that proposition, Mr Wolfe?

Mr Wolfe : I agree with that.

Senator FAULKNER: A middle course could be a voluntary action on the part of the CSPs.

CHAIR: I think the interesting thing is that Mr Wolfe's appearance here is encouraging some sort of committee deliberation. On that basis alone, your appearance here has been very worthwhile. Thank you very much for your attendance. If we have any further questions, we will write to you. We appreciate your very strong interest in this matter as well.

Mr Wolfe : Thank you.

Proceedings suspended from 13:14 to 14:01