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Tuesday, 24 March 2015
Page: 2125


Senator JACINTA COLLINS (Victoria) (12:32): The Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 is a complex and controversial piece of legislation. Regrettably, the Abbott government has done an exceptionally poor job of explaining why these laws are necessary and how they will work. The government announced its intention to introduce this legislation in the middle of last year. The political agenda at that time was dominated by the Australian people's violent reaction to the Abbott government's unfair budget, and the Prime Minister and his colleagues were in a state of panic. It was in this chaotic and dysfunctional environment that the government foisted the data retention bill on the Australian people.

There is one particular element of this botched sales job that it would be remiss of me to fail to mention. I am talking about Senator Brandis's shambolic attempt to explain the terms 'metadata' and 'internet browsing' in his humiliating interview with David Speers on Sky TV in August of last year. I congratulate David Speers on winning a Walkley award for that interview. While the interview may have been an outstanding achievement in terms of journalism, it was not the high-water mark of public policy. Senator Brandis's performance was emblematic of the government's failure to persuade the Australian people of the importance of data retention.

Senator Ludlam interjecting

Senator JACINTA COLLINS: I do not mention the government's failings or Senator Brandis's embarrassing blunders gratuitously, as much as Senator Ludlam might like. I do so to illustrate how the Abbott government has failed to take the Australian people with it and win their support for the data retention bill.

This parliament has no greater duty than keeping Australia safe from the threats of crime and terrorism. Maintaining public confidence in our national security and law enforcement agencies is an essential element of this duty. It is incumbent upon the government to reassure the Australian people that national security and law enforcement concerns are being appropriately balanced with the importance of upholding fundamental democratic freedoms. The government must satisfy the people that additional power is not conferred on our security and law enforcement agencies unless it is necessary to do so and only where matched with robust oversight and accountability mechanisms.

The Australian people must be satisfied that in seeking to defend ourselves from crime and terrorism we do not trample upon the very rights and freedoms that characterise Australia as a free and open democracy. The Abbott government has failed this test. This failure has left the Australian people vulnerable to a scare campaign about data retention. Senator Ludlam, interjecting earlier, and the Greens Party have exploited this vulnerability ruthlessly. They have deliberately and irresponsibly misrepresented the facts for their own cynical political purposes. The Labor Party has found itself stuck between a rock and a hard place on this legislation: stuck between the failure of the government to take the people with it on the one hand and a hysterical campaign of misinformation by Senator Ludlam and the Greens Party on the other. Remember the YouTube interview, everyone? This is an invidious position. Nobody in the Labor Party is happy about once again being forced to rescue this government from its own incompetence.

Honourable senators: Oh!

Senator JACINTA COLLINS: And listen to the shrieks down at the end of the chamber. But, as the alternative government, unlike you, it is incumbent upon us, the Labor Party, to take a responsible, bipartisan approach to national security and law enforcement. We in the Labor Party believe that our law enforcement and national security agencies should have the power they need to protect Australians from the threats of crime and terrorism. However, we also believe in the importance of protecting the fundamental freedoms that define Australia as a democratic nation. It is critical that we get the balance right between keeping people safe and protecting the liberties we hold so dear.

The incompetence of the government and the hysteria of the Greens party have made it very difficult to have an open and honest conversation about data retention with the Australian people. Let me take this opportunity, though, to put some facts on the table. I have been astounded by the number of people who have responded to me in the last few days as we have been able to clearly elucidate these facts, so let me do so again. First fact: private companies have been retaining very large volumes of metadata in largely unregulated ways for many years. This data has been accessed by many dozens of federal and state and territory government agencies hundreds of thousands of times each year—with, in my view, insufficient safeguards to protect personal privacy. This is the status quo. This would be the consequence of no change.

Second fact: this legislation simply governs access to metadata, not content data. This is an important distinction to make. Metadata is data about a communication, not the content of that communication. Access to data under this scheme will allow an agency to determine the time a telephone call was made, the number dialled and the duration of the call, but it will not allow the agency to listen to the telephone call. It will allow access to the date and time an SMS message was sent and the number it was sent to, but it will not allow the agency to read the content of that message. It will allow access to the date and time an email was sent, but reading the content of that email will not be permitted. Importantly, access to a person's internet-browsing will not be permitted, despite the confusion caused—or perhaps it was a backflip subsequently—by Senator Brandis's remarks during his now infamous interview on Sky. Agencies wishing to access content data will still need a warrant, which must generally be sought from a judge subject to the usual oversight and accountability mechanisms.

Labor approached parliamentary consideration of the data retention bill as an opportunity to regulate and improve the use of metadata for law enforcement and counterterrorism purposes, while at the same time introducing safeguards that will greatly improve the transparency and accountability of storage and access to that data. Another fact: access to metadata is a legitimate tool used by security and law enforcement agencies and it plays a vital role in preventing, investigating and prosecuting crime, including terrorism. It is not some grand conspiracy—and those who say it has no role simply have it wrong. The joint parliamentary committee received evidence of 21 cases in which access to metadata was critical to the investigation, prevention and prosecution of serious wrongdoing.

Technological change and changing business practices of telecommunication providers means that less data will be retained by some companies in the future. This is the problem for law enforcement agencies. There is a significant risk that this will hamper the important work of security and law enforcement agencies and lessen their ability to keep Australians safe. It would be irresponsible for the Labor Party as the alternative government to pretend that these risks do not exist.

The bill was introduced into parliament by Malcolm Turnbull before Christmas last year and it was nowhere near good enough. The safeguards were inadequate and the detail was vague. This is why Labor insisted that it be sent to the joint parliamentary committee for proper scrutiny and to allow the public to have their say. The Labor members of the joint parliamentary committee listened very carefully and forced the Abbott government to accept 74 amendments to improve this bill, to better balance the importance of upholding fundamental democratic freedoms with national security and law enforcement concerns. And remember: the status quo is not good enough in terms of upholding fundamental democratic freedoms. As I previously mentioned, we have been particularly focused on oversight and accountability mechanisms. We believe these improved safeguards are essential to protecting the privacy of Australians and to giving the community confidence that personal data collected under the scheme will not be compromised or misused in the future.

Labor strongly believe that freedom of the press is one of the most fundamental elements of our democracy, and we will always fight to protect it. Labor forced the Abbott government to implement a regime whereby it will be illegal for agencies to access metadata for the purpose of identifying a journalist's source unless they first obtain a warrant, generally from a court. There will be a statutory presumption against issuing the warrant and agencies will be required to prove that the public interest in obtaining the metadata outweighs the public interest in protecting the confidentiality of a journalist's source, which is central to the freedom of the press. A public interest advocate will be appointed to stand in the shoes of the journalist and argue against the issuing of the warrant.

These changes will mean much stronger protections for journalists and their sources, certainly much stronger than what Malcolm Turnbull originally proposed. It has been very frustrating that it has taken so long for the Liberal Party to agree to support better protections for journalists. It is even more frustrating that the government still refuses to acknowledge that the stronger protection secured by Labor needed to occur. It took Bill Shorten writing to the Prime Minister insisting on defending the freedom of the press to force the government to back down in this area. I am told that the Prime Minister still does not see what the fuss is about. Nobody was worried about metadata when he was a journalist back in the early eighties, we heard. Somebody might like to tell the Prime Minister about the advent of the internet and mobile phones.

Senator O'Sullivan: Metadata was kept by telcos for decades.

The PRESIDENT: Order on my right.

Senator JACINTA COLLINS: I will come to that point. We do need to better regulate this area. The old envelope versus content distinction does not encapsulate the intrusion involved in accessing metadata today. We can trace people's locations with these things now, Senator O'Sullivan, and you should understand that better.

The data retention bill will limit access to metadata to a much smaller number of core law enforcement and national security agencies. Corporate and competition regulators will retain access to metadata to help them crack down on serious white-collar crime and other wrongdoing. But it is also important to point out that security and law enforcement agencies will use metadata in a targeted fashion to investigate specific subjects. It will not be part of some mass surveillance dragnet that is being suggested by some.

Labor members of the joint parliamentary committee insisted that the authorisation requirements for access to metadata be tightened. Before approving access, the authorising officer must be satisfied on reasonable grounds that any interference with the privacy of persons that may result from the access is justifiable and proportionate. In making this decision, the authorised officer should be required to have regard to: the gravity of the conduct being investigated, including whether the investigation relates to a serious criminal offence, the enforcement of a serious pecuniary penalty, the protection of the public revenue at a sufficiently serious level or the location of missing persons; the reason why the disclosure is proposed to be authorised; and the likely relevance and usefulness of the information or the documents to the investigation.

The data retention bill will also significantly strengthen the Ombudsman's powers to supervise access to information under the TIA Act. The Ombudsman will be empowered to comprehensively assess agency compliance with all of its obligations under the TIA Act, including the use of and access to metadata. Oversight of this category of data would also extend to auditing the use of and access to data retained as a result of the data retention obligation. This is a significant win for oversight and accountability. There is currently no independent oversight of the use of and access to metadata. Neither the TIA Act nor the predecessor arrangements in the Telecommunications Act included an independent oversight arrangement in relation to metadata. Labor has insisted that the Ombudsman be given additional resources to fulfil this important role.

Labor has been consistent in our belief that we must strike the right balance between keeping people safe and protecting the rights and liberties we value as Australians. Parliament has no greater responsibility, and it is essential that we take a mature and bipartisan approach to these issues. I am confident that the hard fought improvements won by the Labor Party achieve the right balance. As I have already said, Labor has pushed for comprehensive amendments to this bill. But there also remains some unfinished business.

Labor remains concerned about whether companies should be obliged to store retained data in Australia. Former Director-General of ASIO, David Irvine, said at a recent Defence and National Security round table that he would be concerned about the security of retained data if it was stored overseas because it would be:

… governed by someone else's sovereign legislative system.

This matter is currently being examined as part of the Telecommunications Sector Security Reform—TSSR—a process commenced by Labor while in government and which the Abbott government has stated will be completed well before the end of the data retention scheme implementation period. When completed, any TSSR legislation will come before the Parliamentary Joint Committee on Intelligence and Security. Consistent with the comments of the former head of ASIO, during the review of any TSSR legislation Labor will insist on a requirement that retained telecommunications data be stored onshore, an extra protection needed for people even today under the status quo.

There also remains unfinished business relating to the oversight of the entire architecture of Australia's national security agencies. My former colleague Senator John Faulkner, who retired from the parliament in February this year, was a fierce advocate of this cause. No one should doubt that Senator Faulkner believed that Australia is served by professional and well-run intelligence and security agencies. But Senator Faulkner also argued that effective safeguards against the abuse of security powers cannot depend and should not depend on the personal integrity and quality of the leaders of our agencies. If we are to have full confidence in our security agencies, we must have a suitable level of transparency built around them. It was Senator Faulkner's view that it is the parliament to which those agencies are accountable, and it is the parliament's responsibility to oversee their priorities and effectiveness, and to ensure agencies meet the requirements and the standards parliament sets. I agree.

Senator Faulkner developed a set of reforms designed to ensure that the effectiveness of parliamentary oversight of intelligence and security agencies keeps pace with any enhanced powers given to the agencies. One key reform was for the intelligence committee to have oversight of some operational matters of the security agencies. Progress towards that reform is evident in some ways in this bill, which Labor pressed be amended so that the committee could oversight the data retention scheme. But there is more to be done.

So Labor will bring forward legislation this year to give effect to the reforms proposed by Senator Faulkner to build better oversight of the whole national security framework. It is in this context that the bill was first presented. The bill now, as heavily amended, sits— (Time expired)