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Wednesday, 18 March 2015
Page: 2817

Mrs McNAMARA (Dobell) (16:44): I rise to support the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014. This bill introduces important measures to enhance our national security and better equip our law enforcement agencies to combat crime in our communities. In the past 12 months it has been quite difficult for Australia and we have witnessed unimaginable atrocities that have claimed the lives of innocent Australians. We have also heard of the outstanding work of our law enforcement agencies in preventing numerous attacks on our liberty, values and freedoms.

This government is steadfast in its commitment to improving national security to ensure that we have an inclusive and cohesive society. The measures within this bill have drawn a significant degree of commentary. At its core, we are debating to what degree we value personal freedom and liberties, weighed against national security needs. I would like to state that this is a question the government has given much thought and consideration to, as stated by the Hon. Malcolm Turnbull MP, Minister for Communications, during his second reading speech:

No responsible government can sit by while those who protect our community lose access to the tools they need to do the job. In the current threat environment in particular, we cannot let this problem get worse.

This bill is critical in enhancing the capabilities of Australia's law enforcement and national security agencies.

The need to take this action stems from technological change over the last 15 years where significant advancements in communications technology have led to substantial changes in consumer behaviour. The telecommunications industry is highly innovative and evolving at an unprecedented rate. Sophisticated criminals and individuals who engage in illegal activities are often early adopters of communications technologies for their own purpose. Without a satisfactory framework which identifies potential risks and prescribes relevant actions permissible by law enforcement agencies, they can also remain ahead of the game and avoid investigation and prosecution.

This bill amends the Telecommunications Interception and Access Act 1979 and the Telecommunications Act 1997 to require that companies providing telecommunications services in Australia, carriers and internet service providers, maintain a limited prescribed set of telecommunications data for two years. Such information has been successfully used in Australia to investigate, prosecute and prevent serious criminal offences, including murder, sexual assault, kidnapping, drug trafficking and fraud. It is essential that this information be made available for use against activities that threaten national security.

The nature of technological advancement has meant that the value of this information has lessened over time. I recently spoke in parliament about this government's reforms to enhance the online safety of children using the internet. This is another area where legislative requirements had failed to keep pace with technological advancement and, as a result, we have witnessed a steady increase in the instances of cyberbullying and threatening behaviour targeting Australian children.

Just as some individuals use the internet to carry out cowardly and vicious personal attacks, people in groups threatening Australia's national security are using telecommunications service providers and communications technology to plan and carry out their activities. Existing powers and laws are not adequate to respond to this challenge. Currently, the Telecommunication Interception and Access Act provides for our national security and law enforcement agencies to access information held by a communications service provider in order to investigate criminal offences and other activities that threaten safety and security.

The value of this data can be demonstrated with a couple of case studies. In February 2014 the Australian Federal Police received information regarding a person suspected of uploading suspicious photographs to an image-sharing website. Two different IP addresses were used by the suspect and requests were submitted to the relevant telecommunications companies to identify the users of the IP addresses. Of the two requests submitted, data was not available for one of the individuals. However, data obtained relating to the second IP address identified a user and subscriber, and a location. This information was subsequently used to obtain search warrants, which identified a large volume of child pornography material and information indicating possible abuse.

The individual in possession of the material was subsequently arrested. This outcome would not have been achieved without the provision of the initial data from the telecommunications company. In this instance, the information was obtained for the purpose of identifying individuals involved in illegal activities and to enable further, more specific investigation into their actions.

In recent times we have become aware of this information being used to foil acts of terrorism. The use of metadata to combat the threat of terrorism is not new. In 2005 a combined ASIO and law enforcement operation prevented a mass casualty-terrorist attack in Australia. The terrorist's plans included targeting the Melbourne Cricket Ground on the day of the AFL Grand Final. Telecommunications data was critical to the successful outcomes of the investigation and subsequent trial where 13 men were convicted on terrorism charges and where custodial sentences of up to 28 years were imposed.

It is confronting to think what may have happened on that day had this information not been made available to our law enforcement agencies. The fact is that metadata is used in almost every case to solve crimes such as the two that I have identified as case studies. It is important that we clearly define what information this bill seeks to retain.

Metadata is essentially information about a communication but not of its actual content. For example, if two people were communicating via telephone, the metadata would reveal that a number belonging to a particular account was connected to another number at a particular time and for a specific duration. It would not reveal the content of the discussion. Similarly, for internet users, it would reveal that a particular IP address was used to engage in unlawful activity by someone at a particular time. In the context of text messaging it would reveal the sender, recipient, time and date but, again, not the content. In no way does this legislation enable the government or any of our agencies to access the content of phone calls, text messages or internet usage, and it must be stressed that access to content requires a warrant. Additionally, agencies will be required to obtain a warrant in order to access a journalist's metadata for the purpose of identifying the journalist's source.

Data is often the first source of lead information for an investigation, helping to eliminate potential suspects and utilised to support applications for more privacy intrusive investigative tools, such as search warrants and interception warrants. We must also keep in mind that access to metadata has been used in almost every counter-terrorism, counterespionage, cybersecurity and organised crime investigation. The intent of this bill seeks to address the ad hoc nature in which metadata is retained by telecommunications companies. This government seeks to ensure that our law enforcement agencies have the necessary tools to investigate serious crimes, such as murder, sexual assault, kidnapping and drug trafficking, along with threats to national security. I believe that this is a view shared by the majority of law-abiding Australian citizens.

Sadly, these necessary reforms have been described by some members of this parliament as a mass surveillance scheme. In addition, the Australian Greens have described this government's proposal as:

… a time of renewed Government efforts to intrude, observe and monitor the private lives of ordinary Australians.

This is a complete misrepresentation of the intent of this bill and I, along with my government colleagues, reject this claim. In fact, this bill's statement of compatibility with human rights states:

The Bill is compatible with human rights because it promotes a number of human rights. To the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate.

Sadly, some members of this parliament are choosing to ignore the professional advice and requests of our law enforcement and national security agencies. Their actions and opposition to this legislation, unfortunately, do have the potential to put more innocent lives at risk. This government is committed to ensuring that this does not happen and that our law enforcement and national security agencies are equipped with the tools to fight crime and that ordinary Australian citizens are protected from those who seek to do us harm.

Currently, the Telecommunications (Interception and Access) Act does not prescribe the type of data telecommunications providers should retain for law enforcement and national security purposes. Moreover, it does not specify for how long information should be retained. This is resulting in a significant variation of data retention across the telecommunications industry and, more specifically, the type and quality available to law enforcement and national security agencies. Telecommunication organisations currently retain this data based upon business, taxation, billing and marketing needs. Law enforcement and national security agencies have specifically identified the lack of available data as:

… a key and growing impediment to the ability to investigate and to prosecute serious offences.

This bill specifically addresses these concerns by regulating a prescribed, consistent, minimum set of records that service providers who provide telecommunication services in Australia must retain for two years. This time period as been determined upon the advice of our law enforcement and security agencies.

In June 2014, the Parliamentary Joint Committee on Intelligence and Security handed down its report entitled Report of the inquiry into potential reforms of Australia's national security legislation. While the report noted the various views of committee members, it did make several recommendations about what a mandatory data scheme should include, if implemented. The bill will adopt and formalise several of the committee's recommendations, including that mandatory data retention will only apply to telecommunications data, not content, and internet browsing is explicitly excluded; that mandatory data retention will be reviewed by the committee three years after its commencement; that the Commonwealth Ombudsman will provide oversight of the mandatory data retention scheme and, more broadly, the exercise of law enforcement agencies' powers under the Telecommunications (Interception and Access) Act; and that an agency's use of and access to telecommunication data will be confined through access arrangements, including a ministerial declaration scheme based on demonstrated investigative or operational needs. These recommendations have been adopted, as this government recognises that data retention carries with it genuine concerns about privacy. This bill will ensure a high degree of oversight by the Commonwealth Ombudsman.

Comprehensive record keeping will be implemented in relation to the access to and dealing with stored communications by criminal law enforcement agencies and the access to and dealing with telecommunications data by criminal law enforcement agencies and enforcement agencies. This new record-keeping regime will require all Commonwealth, state and territory law enforcement agencies to maintain prescribed information and documents necessary to demonstrate that they have exercised their powers in accordance with their statutory obligations. This oversight will ensure that individual privacy is protected and that information is not accessed inappropriately.

It must also be noted that this bill does not provide our law enforcement and security agencies with any new powers to access communications data. We are simply enhancing the quality of data available to agencies as part of legitimate investigations. This bill will also allow the Police, Customs, crime commissions and anticorruption bodies access to data. Access to data will continue to be subjected to the same strict limits that currently apply. In order to respond to an ever changing security threat, this bill also allows provisions for the Attorney-General to declare, via a legislative instrument, additional agencies who can access this information. Again, this process will be subject to parliamentary oversight and must consider a range of strict criteria, including whether the agency is subject to a binding privacy scheme.

This government's actions are actually formalising the arrangements in which telecommunications data is maintained. As a result, we will have new and enhanced safeguards. For the first time, there will be an independent and comprehensive oversight of access to telecommunications data for law enforcement agencies. We will also require the Parliamentary Joint Committee on Intelligence and Security to review the effectiveness of this scheme no more than three years after the end of the implementation of the scheme. The Attorney-General will be required to report annually on the operation of this scheme. It is also important that we address the financial impact of this bill. This Bill will have financial impacts on service providers, who will be required to meet the new minimum data retention obligations. The Minister for Communications has made it clear that the government is committed to ongoing, good faith consultation with the industry and that we expect to make a substantial contribution to both the cost of implementation and the operation of this scheme.

This government is taking the necessary steps to ensure the safety and security of this country and its citizens. We are providing our law enforcement and national security agencies with the tools required to combat serious crime and threats of terrorism on our soil. We are also ensuring that the privacy and liberties of law abiding Australian's are protected and that specific details of their telecommunications activities are protected. This bill strikes the right balance between securing Australia's national security and protecting our rights and liberties. I commend this bill to the House.