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Wednesday, 18 March 2015
Page: 2833


Mr LAURIE FERGUSON (Werriwa) (18:00): I approach this legislation in the context of two of my father's favourite dicta: 'Politics is the art of the possible,' and, 'One should be thankful for small mercies'—because, quite frankly, I think we should be very thankful that the Parliamentary Joint Committee on Intelligence and Security has very thoroughly investigated this bill and that these 39 recommendations, obviously driven mainly by the opposition, have been accepted within the committee and by the government. I do have deep concerns about these matters. The world has been very affected by the revelations of Edward Snowden. David Cole, professor of law at Georgetown University, commented in Vanity Fair of May 2014:

We were sleepwalking into abandoning our privacy, and Snowden has woken us up.

A person on a very different part of the spectrum to me, former congressman Ron Paul, whom I would not agree with on many matters but is certainly a very credible person with regard to human rights, commented:

Thanks to one man's courageous actions, Americans know about the truly egregious ways their government is spying on them.

Furthermore, Jim Sensenbrenner, who actually was a driving force behind Bush's PATRIOT Act, commented:

While I believe the Patriot Act appropriately balanced national security concerns and civil rights, I have always worried about potential abuses.

…   …   …

Seizing phone records of millions of innocent people is excessive and un-American.

So we must be aware that we live in a world in which, by a secret legal opinion, the power of the PATRIOT Act was extended to justify very extensive spying around the world on US citizens and, indeed, through exchanges of information, people in many nations. This reached the stage where we saw the Chancellor of Germany, the President of Brazil, the wife of the President of Indonesia amongst those who were basically spied upon and had their communication interfered with. We have seen a significant number of instances around the world where, under the guise of national security, this kind of power has been utilised for corporate requirements. We have a situation where there are allegations that, in dealings with our own neighbour, Timor, the negotiators in that operation were basically listened to illegally. We live in that kind of context.

We must also be mindful that there is a very big question of how useful this technology is in combating terrorism and extreme crime, and there is also a question about the limited time that the data is useful for. The estimates in Europe are that 90 per cent of the requests are for information from the previous 12 months. Frank La Rue, the UN special rapporteur, commented:

When accessed and analysed, even seemingly innocuous transactional records about communications can collectively create a profile of individual's private life, including medical conditions, political and religious viewpoints and/or affiliation, interactions and interests, disclosing as much detail as, or even greater detail than would be discernible from the content of communications alone.

The UN High Commissioner for Human Rights commented:

… it has been suggested that the interception or collection of data about a communication, as opposed to the content of the communication, does not on its own constitute an interference with privacy. From the perspective of the right to privacy, this distinction is not persuasive. The aggregation of information commonly referred to as "metadata" may give an insight into an individual's behaviour, social relationships, private preferences and identity that go beyond even that conveyed by accessing the content of a private communication.

I can quote another person I give a bit of credit to, perhaps more than some people: Chancellor Merkel of Germany:

For the possibility of total digital surveillance touches the essence of our life. It is thus an ethical task that goes far beyond the politics of security. Millions of people who live in undemocratic states are watching very closely how the world's democracies react to threats to their security: whether they act circumspectly, in sovereign self-assurance, or undermine precisely what in the eyes of these millions of people makes them so attractive—freedom and the dignity of the individual.

Whilst in Germany, one of the other questions is the degree to which this measure would actually be effective. We are seeking, of course, to attack terrorists—religious fascists, psychopaths and sex criminals who are recruited to these kinds of causes—and, as people have commented, paedophiles et cetera. However, the Arbeitskreis Vorratsdatenspeicherung commented in Germany:

Blanket data retention can actually have a negative effect on the investigation of criminal acts. In order to avoid the recording of sensitive and personal information under a blanket data retention scheme, citizens increasingly resort to internet cafes, wireless internet access points, anonymisation services, public telephones, unregistered mobile telephone cards, non-electronic communications channels and suchlike. This avoidance behaviour can not only render retained data meaningless but even frustrate targeted investigation techniques (eg wiretaps) that would possibly have been of use to law enforcement in the absence of data retention.

It is interesting to note that President Obama's Review Group on Intelligence and Communications Technologies—one would think that they might have done a thorough review; one would think that they might have had some equipment to investigate these matters—commented:

Our review suggests that the information contributed to terrorist investigations by the use of … telephony … meta-data was not essential in preventing attacks…

That was the comment of the group. They went on to recommend that:

… as a general rule, and without senior policy review, the government should not be permitted to collect and store all mass, undigested, non-public personal information about individuals to enable future inquiries and data-mining for foreign intelligence purposes.

We have real questions as to the effectiveness: balancing the intrusion into people's lives with whether it will actually be that important in combating these crimes. We have questions about how long data should be retained and what percentage of it is actually useful after the event.

On the other side, of course, we must be aware of the growing corporate interest in ensuring that more people are snooped upon. In an article by David Cole in The New York Review of Books on 8 January this year, he made the point:

The US spent $3.3 trillion on counterterrorism in the first decade after September 11. There are forty-six separate national security agencies. Some 854,000 people have security clearances from the US government. Private technology and security companies, which land huge government contracts to develop and operate better surveillance tools, have become one of the nation's most lucrative industries. As a result, substantial institutional forces will press for expanded security authorities, and will seek to create ever more powerful ways to monitor human activity.

So indeed, as I said at the outset, I am thankful for small mercies—the committee has been persuasive upon the government. The context in which they did this was not encouraging.

Next month it will be 400 years since Samuel Johnson said—probably of Edmund Burke—that 'patriotism is the last refuge of the scoundrel'. I have to say that, when we see the Prime Minister of this country grabbing every flag in sight to place behind him as he makes announcements in this policy area, we might replace the word 'patriotism' with 'national security'.

It is interesting to note that the previous speaker made references to the so-called draconian efforts of the previous government with regard to the question of the internet and other areas, and that it outrageously tried to trample on people's rights. The government has to accept 39 amendments to a bill introduced by the Minister for Communications. This is a man who, like the member speaking previously, was critical of the previous Labor government's initiatives. Yet the bill he introduced has to accept 39 significant amendments so that people's rights were protected.

The work done by the committee was very important, because I do not regard this as the end point. Areas such as the Ombudsman's alleged ability to give people rights have been basically interfered with. It depends, of course, on the degree to which that organisation is financed, and I am pleased to see that there have been some agreements on that front.

There are very real questions about this, obviously, on the government side. I listened to the member for Berowra, a person that I respect deeply but, at the end of his contribution, he said that he did not think that these amendments were necessarily required. That was his conclusion. I have to say that I have more faith in the member for Ryan's comment that the amendments are indeed 'considered', 'sensible' and 'appropriate'.

The member for Berowra quoted extensively from an article in The Economist about the threats we face: the fact that 3,000 people in the United Kingdom were regarded as a dangerous threat to society. He also talked about commando raids, the soft targets that these people were exploiting and the fact that they needed scrutiny. In quoting that article in The Economist, he told us how serious the threat is, that there are many people who have been radicalised and that we should have measures. But I do not think there was any conclusion in that article whatsoever that justified the kinds of measures that we are moving towards. There seems to be some degree of difference as to how necessary these amendments are.

In summary, it is important that the dataset has been defined. Rather than it being an argument for this legislation, I find it alarming that there are 300,000 to 400,000 recourses to this. It is not just a question of the list of people that can access it being too long. Everyone is referred to—the RSPCA and various councils. There is also a question that the Australian public and the Australian parliament should be asking about whether it is too readily the activity of police and security forces to have recourse to this. Quite frankly, it is amazing that that level is thought to be necessary.

We also have the issue of the cost to these telecommunication companies. Quite rightly, the committee on all sides has fought to make sure that it is not advantageous to large telecommunications corporations as opposed to small operators, and there should be an up-front payment from the government. There is also the question of notification of breach, private alerts, for people who have been actively interfered with with regard to this. There is a recommendation for a mandatory review of the data retention scheme for no later than four years after the commencement of the bill. That is, indeed, very important because, as we have seen, in the United States in particular, there has been creep by the security forces well beyond what the legislators originally intended in the Patriot Act. It is important that there be a review in that period.

Obviously, a comprehensive inquiry into the potential impact of data retention on the freedom of the press and protection of journalists' sources is important. I noticed a discussion in a program the other night about the question of who journalists are. I do not think the only people who should be defended are the Albrechtsens, the Bolts et cetera of this world, who will never be launching investigative inquiries into the way people are abused in the public service. I think there is a real question about people who are not full-time journalists, but who perform the role of informing the public and are investigative in the way they operate also being covered. I am not clear at this stage whether that is the case, but it should be.

In conclusion, this is a measure that, because of the activity of the committee, people on all sides, but most particularly the opposition, has come down to a broad series of suggestions that have been summarised by many members of this parliament. It is more than necessary. Even though it is so-called neutral metadata, there is a real fear the more that is known about people. I heard someone today jokingly ask—I think he was serious—are people worried that they might be found going to sex shops or whatever? This is a more serious matter. There could be a situation where, in a particular political cause, a large number of people have broad agreement and a common connection on a particular position, say, on Palestine or West Papua, but they are possibly being stereotyped and their privacy is being affected because it could emerge at a later stage that one person who agreed with them in affiliation on those issues had acted more violently.