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Tuesday, 24 March 2015
Page: 2203


Senator LUDWIG (Queensland) (16:44): I would like to note at the outset, that this bill is invaluably complex—particularly the provisions on the data retention scheme. A number of factors have been considered by various committees and amendments have now been made to this bill. As I indicated, the bill differs greatly from the original bill introduced by the government, but this bill proposes to introduce mandatory data retention scheme, which was explored in the Parliamentary Joint Committee on Intelligence and Security in its 2013 report of the inquiry into potential reforms of Australia's national security legislation. At over 300 pages, the PJCIS report provides extensive analysis of, and commentary on, the bill and the proposed scheme more generally.

Some of the concerns raised by the PJCIS about the bill include: the appropriateness of using regulations to specify the definition and scope of data that must be retained; expansion of the category of services that will be subject to the data retention obligations; expansion of the number of criminal law enforcement and other enforcement agencies that can access the retained metadata; the length of time metadata is to be retained; the cost of the scheme; access to, and use of, retained metadata by civil litigants; the application of the Privacy Act of 1988 to all service providers covered by the scheme; the application of the scheme to offshore and over-the-top providers; and evaluation of the effectiveness of the scheme using retained metadata to identify journalists' sources. This unanimous and bipartisan report by the PJCIS made a total of 38 recommendations, and the government has accepted all of them—after what I could only refer to as the assistance of the Labor Party. There are significant recommendations in the report which provide for greater safeguards to the community.

Before I go to the detail, I would like to reflect on Senator Collins's contribution to this second reading debate. Senator Collins observed that Senator Ludlam and the Greens had launched what could only be described as a deliberately misleading and irresponsible scare campaign against this bill for what could only be considered as political purposes. Their campaign has been described by some as 'hysterical'—it is not the language I generally use—but I do think it clouds the proper debate on this bill. The criticism did provoke much excitement from Greens senators, and Senator Ludlam indicated that he disagreed with the assessment of his campaign. I share the view that Senator Ludlam's campaign against data retention has been over the top and has not always relied on facts. Perhaps the best example of Senator Ludlam's hysteria is a rap video that he appeared in regarding data retention. This video claimed that data retention was—

Senator Cameron: A rap video?

Senator LUDWIG: Yes, it was part of a conspiracy designed to coincide with last year's meeting of the G20 in Brisbane, which the video described as 'an event at which the captains of the world's most powerful states gather to plan a planetary fascist…' and it goes on with a phrase that I do not want to go to.

Senator Ludlam: Rap it for us.

Senator LUDWIG: I am no rapper, but can I say that this video was not entertaining to me in the slightest. The language was over the top; I would even say that at times I was surprised that Senator Ludlam could use such language. Senator Ludlam threatened to go 'full Gandalf' to stop the parliament passing the bill—a reference to a character from the fantasy novel, The Lord of the Rings. This is another thing I am not generally familiar with but, nonetheless, Senator Ludlam is always able to pursue ways of attracting attention to his particular interests. I think ultimately it was a most undignified and perhaps even an inelegant production—that is probably the best way I can describe it. I would like to acknowledge, though, that Senator Ludlam does take telecommunications interception seriously and has done so for many years in this parliament. The video did seem to depart from what I would call his usual approach to things. We can always depart from the usual path, and perhaps I can put it down to that in this instance.

I do worry that we then miss the whole debate proper and the need for it. My own view of this type of political campaigning is that you have to be very careful that you do not sacrifice your dignity for the sake of a few votes but, of course, I always leave that to the judgement of individual senators in this place. I will not go to other elements of Senator Ludlam's argument; I will only say that Senator Collins provided a note of congratulations to Mr David Speers for his Walkley-award-winning interrogation of Senator Brandis on metadata. From Labor's perspective, I did find that extremely amusing. It was reported on the Sky News website today that Mr Speers has been nominated for a Gold Logie for this interview. As Senator Collins noted, this interview was not the high-water mark of public policy. Indeed, it has been variously described as a train wreck, embarrassing and humiliating, but it was a fine example of good journalism in action, and I join with Senator Collins in congratulating Mr Speers on his achievements. To be fair in this place, yes, I have criticised perhaps what Senator Ludlam might say is unfair, but also the person who has brought this legislation forward. Perhaps if it had been made in a much more considered way, we would not have had a report which required so many amendments, which the government then had to accept. Why? Because it was a significant improvement to the legislation, in truth. The committee made a substantial number of recommendations. I will not go into them all. That did provide a vastly better bill.

The reality is that the opposition to this bill has been unjustified. I worry that the Greens do not support the retention of any metadata, even the existing arrangements. I think that colour came through, not because in this instance it will put regulations and safeguards on the collection and retention of metadata but because they simply do not support this type of legislation in any shape or form.

What astounded me the most was not the video but that, with respect to the legislation as it was originally introduced, the Abbott government and the Attorney-General, Senator Brandis, did not take with sufficient seriousness the safeguards that needed to be put in place to ensure it was effective and would garner the support of the Senate. The original version of this bill was severely lacking in the protections that the community and business would have expected. The bill gave a disproportionate amount of power to the Attorney-General to make decisions, with no parliamentary oversight. It placed fundamental provisions into regulations instead of into the primary legislation and provided no protection to journalists or their resources.

The introduction of the bill in its original form showed the lack of thought given to the privacy of our citizens and the integrity and freedom of the media. It is only thanks to Labor and members of the PJCIS, who pursued these common-sense, important and numerous amendments to the legislation, that this bill strikes the right balance between ensuring that there are sufficient tools available to our law enforcement agencies and that there are privacy protections. The requirement for a journalists information warrant was initially rejected by the government, but after a sustained public campaign the Abbott government finally succumbed to reason and commonsense and included the warrant provisions.

Our law enforcement and national security agencies should have the power they need to protect Australia 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 our civil liberties. There is nothing new about the collection of metadata. It has occurred for many years and it has been accessed by government agencies for many years with insufficient safeguards to protect personal privacy. Data being collected in huge volumes in an unregulated manner is what this bill aims to remedy.

The bill in fact aims to provide more security and confidence to the community about the reasons for and the manner in which this data can be accessed. It puts a greater burden on government agencies to prove the need for this information. This data has been accessed by many dozens of state, federal and territory agencies, including local councils, and that does beg that we require sufficient safeguards to ensure this legislation meets and demands the protection of personal privacy. Labor's approach to this bill is an opportunity to regulate and improve the use of data for law enforcement and counter-terrorism purposes while at the same time introducing safeguards that will greatly improve the transparency and accountability of storage and access to that data. We cannot overlook the fact that access to metadata is vital to the work of our law enforcement and national security agencies.

The bill was introduced into parliament late last year. It was inadequate at that time. In particular, safeguards were insufficient. Labor made sure that the bill would be sent to the Parliamentary Joint Committee on Intelligence and Security for proper scrutiny and to allow the public to have their input into the bill. As a result, the government has accepted many amendments to improve the bill to better balance the importance of upholding our fundamental democratic freedoms, with national security concerns addressed. In particular, Labor believes that freedom of the press is one of the most fundamental elements of our democracy and we will always continue to argue for its protection. Labor forced the Abbott government to accept a regime where it will be illegal for agencies to access metadata for the purposes of identifying a journalist's source unless they first obtain a warrant from a court. Agencies will be prohibited from accessing metadata to identify a journalist's source unless they obtain a journalists information warrant. Consistent with other warrants under the T(IA) Act, law enforcement agencies will seek warrants from a judge or an AAT member. ASIO will seek warrants from the Attorney-General. There will be a presumption against the issuing of the warrant, and agencies must prove that the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the identity of the journalist's source and having regard to, among other things, the importance of personal privacy, whether the agency has made reasonable attempts to obtain the information sought by other means, the importance of the matter being investigated, the extent to which the metadata sought would assist an investigation and any submissions made by the public interest advocate. There will always be a presumption against issuing the warrant, and agencies will need to prove that the public interest in obtaining the information sought under the warrant outweighs the public interest in protecting journalists' sources, which is essential to the freedom of the press.

The PRESIDENT: Pursuant to the order of the Senate agreed to earlier today, the Senate will now move to valedictory statements.