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Tuesday, 24 March 2015
Page: 2139

Senator CONROY (VictoriaDeputy Leader of the Opposition in the Senate) (13:31): I rise today to speak on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014. I would like to address some of the more general arguments and accusations that have been made by some members of this chamber.

I would like to talk first about what the philosopher John Locke called the social contract. It is a philosophy that underpins many democratic governments, particularly those in Europe and here in Australia. Locke's view is that the preservation of the security and the safety of the citizenry is not only a primary obligation of government; it is the source of its legitimacy. Under the social contract citizens notionally agree to forsake certain freedoms in exchange for the government assuring their security and safety on the basis of mutually acceptable moral principles. This is described as the consent of the governed.

In the Second Treatise of Civil Government, John Locke wrote:

The great end of men's entering into society, being the enjoyment of their properties in peace and safety, and the great instrument and means of that being the laws established in that society …

The government is there to support society in peace and safety. Even more so: as John Locke says, a government's legitimacy rests on its ability to secure the conditions for society to flourish freely and safely. This is what we are debating here today.

Our great country can only be so if we are safe. Our great country can only be so if we ensure as best we can a peaceful place for our citizens to flourish. There is a balance between freedoms of the individual and the freedom to live in safety. This is a balance that all government's and responsible oppositions must weigh up when it comes to questions of national security. It is easy for some in this place who sit outside government and the responsibilities it holds to pursue the populist route. It is also easy to quote Benjamin Franklin and claim that if somehow there is a balance between freedom of the individual and the safety of society then the terrorists win. To do so does this place a disservice.

Australia is not the United States. Unlike in the United States, the right to bear arms, thankfully, is not written into our Constitution. In Australia there is agreement that the primary role of government is to keep a society safe, whether it is the environment, whether it is labelling laws to ensure that we are not poisoned by foods, all of which get debated in this chamber on a regular basis. National security issues, the safety of people to go about their business in the streets or buy a coffee in a cafe in Sydney—all of these issues deserve to be and should be debated in this chamber. But to assert that the prime obligation is the freedom of the individual at the expense of all else is to walk away from the Lockean social contract, to walk away from the consent of the governed. There is always a balance between freedom and safety. It is a balance that all democratic and responsible governments have to grapple with.

So this bill comes to the Senate having been—and I stress this—heavily amended in the other place. It was the subject of a rigorous inquiry and report by the Parliamentary Joint Committee on Intelligence and Security. It is fair to say that this bill is wholly different from what the government originally proposed. The opposition is determined to ensure that our national security and law enforcement agencies have the powers that are necessary to keep Australians safe.

In recent times the Senate has dealt with three bills concerning national security. Like with the other bills relating to national security, Labor supports this bill, continuing our bipartisanship on national security matters. As well as defending our nation's security, Labor also strongly believes in the importance of upholding the rights and freedoms that define us as a democratic nation living under the rule of law.

This bill, it should be stressed, goes beyond matters of national security, though it does have an important national security dimension. Data retention is a tool used, in the main, for the ordinary enforcement of criminal law. It is essential that in passing these laws designed to protect the Australian community, we strike that balance between these freedoms, and Labor has approached this bill on that basis. Labor is determined to ensure that our national security and law enforcement agencies absolutely have the powers that are necessary to keep Australians safe. I will say that over and over again.

We understand, however, that this is controversial legislation. I understand why some people are concerned about it. But we need to be clear that data retention is not new. Data retained by private companies is already accessible without a warrant by a range of agencies under a scheme that has not been significantly reformed since 1979. Meta data has been collected and stored by telecommunications companies for many years. The fact is that many of the organisations that hold and manage our data for us already keep it. Some keep it for a week and others for up to seven years. They keep it in an environment that is loosely regulated with few rules and little oversight.

Also, there has been concern expressed by law enforcement agencies that technological changes and changing practices are seeing less data retained by telcos over time. This bill looks to resolve that by regulating the storage and access of metadata, including for our security agencies. As I have stated, access to metadata is currently allowed under the Telecommunications (Interception and Access) Act 1979. Police and other organisations access this data right now. The Parliamentary Joint Committee on Intelligence and Security heard evidence that last year Australian telcos had received more than half a million applications by law enforcement agencies to access metadata. The committee also heard that less data may be retained by some companies in future. We want to ensure that telecommunications data remains a reliable tool available to law enforcement and national security agencies where appropriate.

But we also want to tighten the regulation and supervision of that access ensuring Australians' safety is an objective that everyone in this parliament shares. Typically this means that proposals regarding national security are addressed in the spirit of bipartisanship. This does not mean, however, that the opposition will simply agree with all of the government's proposals no matter what. Instead, bipartisanship means the opposition will engage constructively with the government to ensure their proposals meet national interests. By way of example, while the opposition ultimately supported the National Security Legislation Amendment Bill (No. 1), the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 and the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014 last year, it was Labor that insisted that these bills be referred for scrutiny to the Parliamentary Joint Committee on Intelligence and Security.

The very substantial amendments agreed to by the government on the foreign fighters bill are an example of this proper scrutiny. On this bill, Labor has argued for and achieved a number of significant improvements to the original bill. For example, Labor argued for improved oversight of the scheme by two independent Commonwealth agencies: the Inspector-General of Intelligence and Security and the Commonwealth Ombudsman. Labor also argued that the bill should provide for the intelligence committees to have an operational oversight of security agencies under the data retention scheme.

Further, Labor argued for amending the bill so that an agency must be satisfied on reasonable grounds that interference with the privacy of any person is justifiable and proportionate. All of these are the recommendations from the committee that the government has accepted. In all, the committee made 38 substantive recommendations to the original bill. Labor insisted the government implement each and every one of them, and the bill was amended as required in the other place. As a result, the bill that we debate in this chamber is of a wholly different character to that introduced into the House last October.

Senator Ludlam: That is rubbish.

Senator CONROY: Most notably, the committee recommended and successfully implemented changes—

The ACTING DEPUTY PRESIDENT ( Senator Whish-Wilson ): Order!

Senator CONROY: It is like you actually think you live in the United States. You guys are an offshoot of the Republican Party nowadays—seriously. You are up there with the GOP.

The ACTING DEPUTY PRESIDENT: Order! Senator Conroy, I remind you to address your comments through the chair.

Senator CONROY: My apologies. I am being harangued by your colleagues in your party—

The ACTING DEPUTY PRESIDENT: I am aware of that.

Senator CONROY: But I did not notice you mention them in that little admonishment that I received.

The ACTING DEPUTY PRESIDENT: I would ask you to come to order, Senator Conroy.

Senator CONROY: Most notably, the committee recommended and successfully implemented changes to the bill that gave journalists and their sources some protection from this bill. The committee recommended that the Ombudsman, the Inspector-General of Intelligence and Security and the committee itself be notified where retained data was accessed to identify a journalist's source. This was a worthy measure, but it was not enough. It took Labor writing to the Prime Minister to force the government into creating a warrant regime to protect journalists and their sources. I am not standing here to score points. I welcome this change of heart, and I hope that it gives the media and the broader community some reassurance.

This amendment includes the creation of a Public Interest Advocate, the PIA, which is likely to be a senior barrister or barristers, that must be notified whenever an application for a warrant is made. The PIA will be empowered to stand in the shoes of the journalist and argue why it is contrary to the public interest to issue the warrant. These changes mean much stronger protections for journalists and their sources, certainly much stronger than the government originally proposed. This is a crucial improvement on the bill as originally introduced.

While this bill is largely different from what was originally put forward by the government, there remains some unfinished business. For instance, Labor remains concerned about whether companies should be obliged to store data in Australia. The former director-general of ASIO, David Irvine, recently said that he would be concerned about the security of retained data if it were stored overseas—because it would be 'governed by someone else's sovereign legislative system'.

Senator Ludlam interjecting

Senator CONROY: This matter is currently being examined as part of the telecommunications sector security reform process. This is a process that Labor started in government and which the Abbott government says will be completed well before the end of the data retention scheme implementation period. This is an issue that Labor will have strong views on and will continue to watch with interest.

Our security agencies have requested changes to these laws to support their work in fighting terrorism and organised crime. Labor has held the government to account during this process, as is appropriate—and the bill we debate today is, despite the protestations from my left, of a wholly different character to that which was first introduced into the House in October. Labor will always work to keep Australians safe and, at the same time, to get the balance right in upholding the rights and freedoms enjoyed by all Australians. Getting this balance right can be a challenging task, but it is a task that Labor undertakes seriously and diligently.

It may come as a surprise to some of those in the chamber who have been interjecting, but I when I opened by referring to 'some of the more general arguments and accusations that have been made by some members of this chamber', I was not actually talking about them—until they self-selected by intruding into my contribution. I was referring more to one of our New South Wales colleagues. But by interjecting you have emphasised the stark contrast between your position and that of the Labor Party on this legislation. I commend the bill to the Senate.