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Parliamentary Joint Committee on Intelligence and Security
26/09/2012
Potential reforms of national security legislation

BURNS, Mr Gary Thomas, Commissioner of Police, South Australia Police

HUDSON, Mr David William, Acting Deputy Commissioner Special Operations, NSW Police Force

NEGUS, Mr Tony, Commissioner, Australian Federal Police

PHELAN, Mr Michael, Deputy Commissioner, Australian Federal Police

SCIPIONE, Mr Andrew Phillip, Commissioner of Police, NSW Police Force

CHAIR: We now resume the hearing and welcome representatives of the New South Wales Police Force, the AFP and the South Australia Police to the table. Although the committee does not require you to give evidence on oath, I remind witnesses that this hearing is a legal proceeding of parliament and warrants the same respect as proceedings of the House and the Senate. The giving of false or misleading evidence is a serious matter and may be regarded as contempt of parliament. The evidence given today will be recorded by Hansard and will attract parliamentary privilege.

I would invite you to make some introductory remarks and then we can proceed to questions.

Mr Scipione : Let me start by thanking you for this opportunity to address this particular committee today on what we would say is a most important issue. With your indulgence, I propose to make an opening statement that will put into context some of the law enforcement concerns in relation to potential reforms in the national security legislation.

Firstly, as has been indicated, it is important that I note that I am joined today by the Australian Federal Police Commissioner, Mr Tony Negus, the South Australian Commissioner of Police, Mr Gary Burns and my deputy Commissioner of Specialist Operations, Mr David Hudson, together with the AFP Deputy Commissioner of Close Operations Support, Mr Michael Phelan.

The Commonwealth Attorney-General has asked this committee to look at potential reforms to national security legislation and, together with this, has provided a very broad discussion paper that provides limited detail of how such reforms may be achieved. Currently, the biggest legislative obstacle for the NSW Police Force in this field is the Telecommunications (Interception and Access) Act 1979—as we know it, the TIA. However, as the Commonwealth has ownership of this legislation we as a state police force are certainly restricted in our efforts to reform and modernise this piece of legislation.

This particular piece of Commonwealth law came into force in 1979, as you well and truly know. Since that time, whilst communications have drastically evolved and changed, the act itself has only been incrementally changed in an effort almost to keep up with the changing environment. It is my view, and it is my view alone, that this approach, in the main, has failed. This lack of change to the fundamental provisions of the TIA has created significant complexities throughout the legislation. The NSW Police Force believes that the very technological and operational assumptions on which the TIA is based are under threat. Therefore, amending the existing legislation will not be enough, as it will, amongst other things, likely result in greater complexity rather than less.

Reform of the TIA is strongly welcomed. The NSW Police Force suggests that to achieve this effectively the legislation perhaps needs to be rewritten almost from scratch, with broad law enforcement consultation and engagement. I cannot stress enough that the government cannot afford to rush in the reforming of this act, in my mind at least. As the largest user of telephone interceptions in the nation, the NSW Police Force continues to be frustrated with the incremental amendments to the act that fail to consider adequately the obstacles that it creates for operational agencies. I would suggest that the need for this committee alone shows the inherent difficulties with the current legislation, that is largely incomprehensible, inconsistent and, at times, almost unworkable.

Due to the fundamental changes to the way technology works and, importantly, how enforcement agencies work there is an unprecedented challenge to the ongoing effectiveness of this particular act. There can be no doubt that the T(IA) Act needs to be reformed and that agencies need to be given the opportunity to make some timely recommendations that lead to genuine change to the legal framework in order to improve their operational effectiveness to more thoroughly and efficiently investigate serious criminal activity.

There are a number of barriers to the effective use of intercepted information in the T(IA) Act. Definitions such as 'exempt proceedings,' 'relevant proceedings,' 'proceeding' and 'permitted purpose' provide complexity, which makes it very difficult for agencies to properly perform their functions. In fact, it makes it difficult for the community to understand the policy rationale or particular provisions.

Further, the access to and the subsequent use of information is framed throughout the T(IA) Act as one agency undertaking one investigation which will lead to a prosecution. I think that the act needs to be reformed to reflect new operational realities, including the different functions of agencies within the act and the fact that effective information sharing is a key component of successful investigations. The current information-sharing and dissemination scheme contained in the act is complex, confusing and cumbersome. The current provisions were not designed with joint agency operations in mind and are considered to be overly restrictive, with the default position being to prohibit communication of information that has been obtained lawfully.

Whilst acknowledging privacy concerns—and we do acknowledge privacy concerns and the intrusive nature of telephone interception—a simplified, more permissive information-sharing communication model really does need to be adopted. If agencies are going to be encouraged and properly equipped to perform their functions and to cooperate effectively, then we need to be allowed to disseminate, communicate or share information where there is a legitimate reason to do so. Naturally, appropriate oversight and safeguards need to be and must be incorporated in such a scheme. But, overall, it is the agencies that readily use this legislation that I think are best placed to assist in its reform and the New South Wales Police Force is in an excellent position to provide further input from an operational perspective.

A further significant challenge for law enforcement agencies investigating national security and serious criminal matters is the increasing use of sophisticated technologies by criminals. Frankly, organised criminals are now able to operate outside the reach of ordinary telecommunications interception and law enforcement agencies that are dealing with criminals who have access to unprecedented advancements in technology. Legislation that not only fails to adequately recognise this but significantly fails to future proof itself against rapidly emerging technologies is what we are dealing with here.

For example, the proliferation of smartphones means that people can now use the internet on the move and the transmission of videos, graphic and other modern material means the amount of data now transmitted is vast and able to overwhelm law enforcement resources. The reality is that investigative material that may once have been obtained with a standard search warrant can now only be obtained through a telecommunications interception warrant. A most important point to be made is that the T(IA) Act should not provide incentives for criminals to adopt particular services due to outdated legislation and a lack of capacity. Law enforcement will always face challenges. However, I would ask that the committee consider ways to ensure that law enforcement can effectively rely on legislation to lawfully gain access to communications which reveal evidence of serious crimes. Simply put, without telecommunications interception law reform, the capacity of law enforcement agencies to engage in effective telecommunications intercept will continue its current rapid decline. We will go dark.

With regard to the protection of privacy, I submit that the value of ensuring privacy in the T(IA) Act is to respect the empowerment that the internet and technology brings to people and to develop policies which cater for and which do not unnecessarily limit that empowerment whilst also giving the community a reasonable expectation that, unless they are involved in criminal activities, what they wish to remain private will do so.

Finally, in the light of the current shortcomings of the existing act, with reference to the legislative obstacles that are encountered by police forces such as mine in the national security and in the serious and organised crime environment, I would appreciate the opportunity for our agency to be involved in the redrafting of this legislation.

Can I respectfully submit that—as national security is not just a Commonwealth issue but is dependent on cooperation across every state and territory—any reforms that need to be made to any national security legislation be drafted in consultation with states and territories that actually enforce those laws?

If our aim is to ensure that such legislation is truly effective in protecting Australian men, women and children—and our own nation's interests—then all relevant law enforcement agencies have to be given the opportunity to comment and to contribute in this most important area of the law.

Thank you for listening to me. With your indulgence, I will hand over to Commissioner Negus and then perhaps to Commissioner Burns.

Mr Negus : I will make a few brief opening comments. At a recent meeting of Australian police commissioners we agreed that those who were available today should appear before the committee, in person, to demonstrate how important this issue is to law enforcement. Whilst we acknowledge this is predominantly a New South Wales opportunity to appear before the committee we thank you for your indulgence in allowing myself and Commissioner Burns to come here.

You heard evidence from the AFP last week and you have obviously read some submissions from a range of police jurisdictions but today I personally would like to restate some of the key position points on that, in public and for public consumption. Firstly, we are not seeking additional powers in this regard. We simply seek to maintain the current interception capability and current access to non-content data telecommunications as a significant tool for law enforcement in the investigation of serious crimes.

Interception capability and access to telecommunications remains fundamental to our work and I submit there is now a requirement to modernise the legislation to bring it into the 21st century. The vast majority of major investigations undertaken by the AFP in the last 15 years, for example, have used telecommunications data and interception as a core investigative tool. I understand that Deputy Commissioner Phelan, who is here again today, showed y ou some diagrammatic examples, last week—in camera—of the extent and range of those tools.

We see that maintaining our existing capability in the face of ongoing technological change is one of the most important challenges facing law enforcement for the next decade. The commissioners discussed this at length at a recent meeting. Communications remain the lifeblood of transnational, organised and domestic serious criminal activity. I do not think anyone could have imagined the changes that we have seen in technology since the introduction of the Telecommunications Act in 1979.

I also want to be clear to the committee that we understand the importance of individual privacy and we support this as a fundamental right in this country. I acknowledge that any reform in this area must be premised on maintaining appropriate levels of accountability for both intercepting agencies and industry in order to protect these rights.

Again, to clearly state our position in relation to data retention, the AFP advocates the retention of non-content communications data only. We maintain that content should only be accessed by warrant, as is currently the case.

I thank you again for agreeing to hear us in addition to Commissioner Scipione this morning and hopefully we can add something more to the committee's undertakings.

Mr Burns : I am aware that you have a SAPOL submission and I am also aware that Superintendent Bamford presented to this committee on about the 5th of this month. So I just want to reiterate the words of my fellow commissioners and provide some additional information from the South Australia Police perspective, which I am sure would be consistent with all other police around Australia.

Policing is about community safety and is about the protection of lives, the protection of livelihoods, the protection of property and, importantly, the respect of people's rights and privacy. Police expect and support the requirement for oversight and controls relevant to telecommunications interception; however, the current legislation is too complex, is difficult to interpret and is too restrictive in a number of areas as outlined in our submission. Terrorism is just one type of serious criminal activity that police use telecommunications interception to investigate and, on a daily basis, policy lawfully intercept telecommunications to investigate a range of very serious matters, including murders, child-sex offences and drug trafficking. All of these matters have a significant impact on the community and, as a consequence, there is an expectation by the community that police will use all available methods to apprehend these criminals.

When legislative safeguards and oversights are considered, the benefits of lawful telecommunications interception far outweigh the privacy concerns of individuals and groups. SAPOL supports the retention of data by carriers as, like other business records, it will provide historical evidence in criminal matters. This has obvious benefits when investigating victim based offences such as murder, as these investigations are always based on past events and actions. Unless data is retained by carriers, potential evidence is lost. The longer the data is retained the greater the likelihood the potential evidence will be available. All Australian businesses are currently required to retain financial records for between five and seven years. We see that telecommunications carriers should also be able to manage similar requirements to the banking industry.

Once again, thank you for the opportunity to present. This has been in conjunction with our previous submission and Noel Bamford's presentation.

Mr RUDDOCK: First, Commissioner Scipione, you are appearing as the New South Wales commissioner and a party to a submission we have received from the New South Wales government. Are you speaking for the New South Wales government in relation to this submission?

Mr Scipione : The New South Wales Police Force prepared submissions that were included and are part of the overall New South Wales government's submission. My primary role today is more to speak as part of a profession. As Mr Negus has indicated, commissioners around the nation decided it was that important that we do this so I offered my time and took this opportunity to address this committee. That is how strongly we felt about it. So, whilst I am here as the New South Wales police commissioner I think we almost have a wider remit on behalf of commissioners from around the nation to come and talk with you today to bring our concerns to your attention and to seek your assistance.

Mr RUDDOCK: Are you familiar with the submission?

Mr Scipione : The New South Wales government's submission? Yes.

Mr RUDDOCK: Who, do you think, is it that will speak to us about the suggested restrictions that might be imposed upon ASIO and its use of various powers?

Mr Scipione : I do not have that information. I am not sure who that might be. But we can certainly make that inquiry back through government, if you so desire.

Mr RUDDOCK: It seems to suggest that security matters ought to be equated largely with police investigations and subjected to much the same sort of monitoring, rather than the discreet monitoring arrangements that take place now.

Mr Scipione : Certainly, in terms of our use of telephone interception we were not specifically focusing on and nor did we in fact feel that it was necessarily all about countering terrorism, as Commissioner Burns has indicated. My concern in the day to day is as much about stopping somebody who may be a crazed armed robbery merchant who suffers from a drug addiction and goes out on a nightly basis and holds up corner stores with guns. To ensure that we can get the evidence to take that person out of circulation is just as important to us as dealing with a potential weapon of mass destruction event that may happen in the future.

Mr RUDDOCK: So it is not New South Wales police who are seeking restraint on ASIO accessing search warrants, for instance?

Mr Scipione : I am here today representing police.

Mr RUDDOCK: In relation the metadata—the one issue that has been in my mind today—and the length of time for which it should be held, the model that is proposed envisages it will be for two years, given that that has been the European model. I understand that that is an element of compromise. Some of the evidence we have received suggests that very significant investigations involving particularly intractable murder investigations might require data to be kept for periods substantially in excess of two years. Could I ask each of the commissioners whether or not, in relation to the investigations that your bodies undertake, a restriction of two years would significantly hamper inquiries? I am looking for some suggestion as to the percentage of matters. The New South Wales Crime Commission indicated that as many as 60 per cent, I think, of their investigations might be hampered if they were not able to access information over a longer period.

Mr Scipione : It could be greater than 60 per cent; it could be 100 per cent. But it is not just a matter of quantity; it is a matter of importance. Dave Hudson has responsibility for the New South Wales State Crime Command. One of the most important areas within that command is the Unsolved Homicide Team. For unsolved homicide cases that are years and years old—which we never stop investigating—not having that information could mean that we are not able to get anywhere near finalising a prosecution. The longer you keep it, the more it grows, particularly in terms of importance. It is a bit like a bank deposit—the longer you leave it in, the more interest you gain. Of course, if you have that information there it is always available. From a New South Wales Police perspective, two years—I think our submission indicated five years would be an appropriate time frame—is a bit shy of the mark. I am not sure about the South Australian perspective.

Mr Burns : I would not be able to give the committee specific data on that, but in general terms I agree with Andrew. The committee would be aware that we have cold-case investigations, some of which go back a decade or more. So, for us, the longer the material is maintained and stored, the better the opportunity to conclude an investigation at some stage in the future.

Mr Negus : Mr Ruddock, I think you already heard evidence from the AFP on this, but we originally suggested a time frame of five years as well. It is difficult to give you specific data, but the reality is that most of the cases we undertake go back 12 months to two years. We go back through that period of time. Obviously, the further back we can go, the greater the linkages we can identify and the greater connectivity we can determine in an organised crime or terrorism sense. That helps us work out who is involved in the structure of the entity we are looking at.

We also understand the practical implications of this. Storing data involves an enormous cost for industry. There are the practical issues around the sheer volume of data—there are tens of millions of text messages, for instance—coming in every other day. It is a difficult issue. Given that the European standard is two years—

Mr RUDDOCK: What about metadata?

Mr Negus : Even the storage of metadata is significant. We understand that. In that context, we could certainly live with the two-year proposal that has been looked at. It would not be ideal, but it would be something we could live with.

Mr RUDDOCK: Most of the argument is put to us in terms of proportionality. You look at the costs. You look at the privacy implications—given that metadata is not the actual material that is transmitted, that may constrain the privacy implications. And you look at proportionality. I am trying to get my head around the proportionality argument. Do you put a price on an unsolved murder that you may have been able to deal with and say, 'If it's a million dollars to store metadata for Telstra and a couple of million dollars to do so for Optus and some of the others, that's too big a price to pay.' Is that what proportionality means?

Mr Negus : I think it comes down to the committee listening to all components here and making some balanced judgements. We would like to have it indefinitely. If we had our druthers, we would have the material held indefinitely, so that we could reconstruct issues or crime scene events from many years ago. But we understand that that may not be practical in the context of the associated costs. So whilst, as I said, it would be ideal for us to have it indefinitely, we understand that, from the AFP's perspective at least, for most of our cases a period of one to two years would suffice. There will certainly be cases where we would not be able to go back further and that would be to the detriment of the investigation. But for most of the investigations we would go back one to two years.

Mr Scipione : If you would indulge me, Chair, I will make a comment on that. We often come at this from a different perspective. We do understand the cost and associated with this and fully recognise the privacy issues. When we look at that type of information, particularly in terms of the task that we have been given by government—to keep the nation safe, to keep people secure and to protect national interests—we often focus on not on what it would cost to keep, but what it would potentially cost the men and women of Australia if we did not have it, particularly if we were at the stage where we were trying to prevent some enormous event from happening.

It may well be that one piece of information that gives us the ability to go in there and stop a dreadful thing from taking place.

I guess that is the reason you have brought us before you today, and why you will have industry representatives on another day and privacy advocates probably a little bit later on today. But it is important for us to let you know that our motives in this are true and pure; we just want to keep Australia as the safest nation on the planet. We want to make sure that we are doing absolutely everything we can to safeguard what we hold jealously, and that is a safe and free Australia.

Mr RUDDOCK: I was really coming to the question as to whether the nature of the investigations might be different. If you were looking at preventing a terrorist attack, which might be the AFP's principal operation, it is very contemporary. You are presumably not looking at investigating activity that happened 10 years ago or seven years ago.

Mr Scipione : No, that is not quite right. We had look at some events in New South Wales where a police station was shot up. Some five or 10 years later we ended up taking a person into custody who was involved in a recent prosecution for conspiracy in an act of terrorism. To rely on that sort of information, and it may well be something as simple as an association, bear in mind that the data you are talking about is going to give us things like the A party, the B party, the location of call, duration and time. Those sorts of things are so important to us when we have to put together a really important brief and we start looking for every angle. The other thing that needs to be—

Mr RUDDOCK: I have to weigh that up with what the AFP is now saying, and I am asking whether the nature of their investigations more contemporary while yours—particularly in relation to a murder that you have to resolve—go back longer.

Mr Scipione : I suggest that just about every major enquiry in which they are involved in looking at terrorism involves the state or territory police force. If you look at the number of telephone interceptions in Australia last year, the total number was 3,495, and New South Wales police applied for and were issued with well over a third of them. We made applications for 1,282 and were granted 1,279. Many of those would have been working side-by-side with the AFP, and probably taking responsibility for a number of those telephone interceptions around countering terrorism.

Mr Negus : In a general sense, Mr Ruddock, your assertion is correct. Certainly, the New South Wales police and other state police forces would look far more at historical matters than the AFP would outside of our community policing role in the ACT. That is not to say we do not, and an example of that is the arrest of Mark Standen, which was publicly very well reported on. We went back five years into that matter to look at different associations and communications between particular targets throughout that investigation, and that material ended up being crucial to the investigation in putting a whole lot of pieces together. That is one example of a five-year investigation. From the AFP's perspective around serious drug trafficking and international organised crime our cases are more contemporary than would be the case for the state police. That is not to say it is any more or less important but, certainly, as the New South Wales police have said, they use probably twice as many telephone intercepts as we do in that context each year.

Mr RUDDOCK: I will finish on this further question. You have identified the number of warrants, but that does not indicate the extent to which police use metadata. I understand the authorisation procedures—and we were given some evidence of this—involve hundreds of thousands of examinations of relevant data. Given that you attach a good deal of importance to it, and given that we are also looking at this question of privacy and proportionality, it seemed to me that you could not— At the moment you have an internal authorisation process which does not involve a search warrant, and I would find it difficult to suggest that for hundreds of thousands of applications you would need to follow the search warrant methodology.

I do not know that our courts could cope with it. Have you thought about what other level of appropriate scrutiny ought to apply if we are essentially filling the gaps through a broader legislative regime?

Mr Scipione : From my perspective, if you were to suggest that we would move to some proscribed warrant type approach, it would be absolutely certain that you would need to employ a lot more judges and advocates at the tribunals and it would certainly mean that, from a cost perspective, it would be prohibitive. We would be reducing our investment in investigating crime significantly because we could not afford it and we would not have the time to prepare the applications, swear them and go through the process. That would put us significantly behind the eight ball if that were proposed. I would suggest that, regarding the level of authorisation within agencies—certainly within my agency as appropriate at the moment—it is certainly something that we treat very seriously. We realise that whilst we are not getting access to any content, it is the information that we get that assists us to do what we have to do, and we realise that, if there is any breach or impropriety around the use of that material, we will put at risk the future access that we so dearly need. So, certainly from my perspective, we do put the right sorts of safeguards around it at the moment. I am not sure how you would do it in a legislative form that would bring in a warrant sort of regime.

Mr RUDDOCK: I understand that. But, if you were to have, say, the ombudsman authorised to not review every action but, in fact, make spot checks as to whether or not utilisation was appropriate, would you see such a suggestion as being too difficult to work with?

Mr Scipione : I guess it depends how wide your dip-sample may be. You may need to employ some more ombudsman people, I would suggest, because there is a lot of work that is done in this area.

Senator FAULKNER: We heard from the Australian Federal Police at a previous hearing about the level of authorisation. I think it is at the superintendent level in the Australian Federal Police. I thought it might be of benefit to the committee if you could tell us which level it is in the New South Wales police. I assume they have a similar level of authorisation enabled. Would you be able to assist?

Mr Scipione : There are several levels. They are commissioned officers. We are talking about somebody who is not sitting as a sergeant in a station. It is not something that a sergeant who is on the road in charge of a squad can authorise. It has to be a commissioned officer. They have to be duly commissioned. We have a different rank structure to the AFP, as you would imagine. For us it is an inspector and above. Certainly, with the different regime to the AFP, it is pretty consistent.

Mr RUDDOCK: How many inspectors are there?

Mr Scipione : In New South Wales?

Mr RUDDOCK: Yes.

Mr Scipione : We would have in excess of 600.

Senator FAULKNER: Commissioner Negus, the committee has been grappling a little with the background of some of these proposals, one of which is the issue that we have just been canvassing: the two-year data retention scheme. That appears to have been on the table for quite a number of years. I would like you to confirm that is the case. If you are able to, could you explain to the committee why it has been taken off the table and has been given the prominence it has?

Mr Negus : In our original discussions with the Attorney-General's Department, we were looking at around five years as being a reasonable time frame. Again, in negotiations and discussions with the Attorney-General's Department, that was seen as not being practical. We have looked at what the Europeans have been doing in this regard and have looked at our own investigations and the content of those as opposed to what might happen in the states and territories. I will let them speak for themselves, but we think that certainly two years would be something liveable.

As I said, if I had my druthers I would like to see it continue indefinitely and we could go back and reconstruct things for that time, but that might not be practical in the context of what we are talking about here. But we have not really changed our view on this other than through negotiation with the Attorney-General's Department. We would seek as long a period as is reasonable and possible, but we understand that the two-year figure, being the European standard, has been discussed and that is something, as I said, we could live with.

Senator FAULKNER: It might be useful if we just understand how the state police forces have been able to engage in the development of the position that I suppose now is best embraced by the Attorney-General's Department's paper. My understanding is that there has been a very concerted, cooperative effort between the state police forces and the Australian Federal Police in developing the position that the AFP and others have been able to provide input on for the Attorney-General's Department. But you might confirm; I would be interested to hear on the record that that is the case, even though I think we understand that in terms of background.

Mr Negus : Deputy Commissioner Phelan has been instrumental in doing much of the discussion with the states and territories and with some of the other components of this.

Mr Phelan : Whilst not personally involved in the negotiations, components of this bill have been coming backwards and forwards for a period of time now and there has been involvement with the states and territories. You are completely right in your assertion, Senator: it has been a compromised position that has ended up in the discussion paper. States and territories have been involved and every state and territory has a different view. I do not know what all those different views are; we have already heard a couple of views today—as you know, ours was five years—but it is very much a compromise position that has made its way into the discussion paper for the purpose of this committee hearing.

Senator FAULKNER: I might ask Commissioner Scipione if he has been satisfied from New South Wales police perspective with his capacity to provide input into the process.

Mr Scipione : I have the head of my telephone interception division here with me today. His advice to me previously has been that, whilst we have been satisfied that we have been involved in the process, we have a fundamental view that even reform at this stage would be only incremental and therefore it is probably time for us to have a look at where this whole piece of legislation sits. We have a view which I espoused during the course of my introduction. The logic behind that is that increasingly we are trying to deal with crimes that are so new that we are still learning on a daily basis. If this committee were meeting eight years ago around this table talking about these things, the word 'Facebook' would not come into the equation because it simply did not exist then. Yet today, if it were a nation, it now would be the third biggest nation on the planet, with over 900 million users. Yet we are dealing with a piece of legislation that had its early origins and was crafted in 1979. We think that the technology has just sprinted away from the legislation and that, if we keep going and going with incremental change, as we go forward one metre with the legislation the technology goes forward one kilometre. This is what the commissioner's view is.

Our serious concern at the moment is that we are not even holding pace—we are falling behind. We simply do not want to go in front of the legislation, for that will be nigh impossible, but we really believe that we need to start keeping pace with what we are dealing with here. So, even with the level of exchange of ideas in consulting with state and territory law enforcement agencies and working with our federal colleagues, we just think that it is time for a fundamental shift so that we do not go in front. We are not asking for any more; we simply want to be able to hold our own on behalf of the community of Australia.

Senator FAULKNER: Thank you for that. A little earlier you talked about your motivation here—and I certainly do not question your motivation, Commissioner, or that of any of the other witnesses at the table whatsoever. I do not think that is in question. But you did speak in your opening statement about your strong view that there should be an involvement from the New South Wales Police in the redrafting of the legislation. I was interested in that and I am simply not in a position to make a judgement on whether we have mechanisms that enable that to occur. Perhaps either you or Commissioner Negus would care to comment on that, because as you would appreciate, Commissioner Scipione, it is not always the case that state authorities, whatever their responsibilities might be, are intimately involved in the drafting of legislative provisions at the Commonwealth level. I would be interested to hear from either of you on whether you think this is the case. I understand your motivation and the reason that the point was made, I am just not sure about whether there are adequate mechanisms to enable that to occur, and if there are not what the consequences of that might be.

Mr Negus : We have done our best to try and coordinate some of these responses. Again we recognise this is an issue for all Australian law enforcement. Some months ago I wrote to my fellow commissioners encouraging them to understand the context of what the committee was about and to make submissions if they saw fit. Also we sent Deputy Commissioner Phelan around the country and he spoke to every jurisdiction about the issues we saw as being important for Australian law enforcement. We then came back together as a group of commissioners only a few weeks ago. That is when we decided that those who were available today should come and if possible appear in person to give you a firsthand account of how important we think this is.

Obviously the Attorney-General's Department has a key role in coordination. We have a senior officers group and the deputy secretary of the Attorney-General's Department sits on that board. There are opportunities in those environments to hear from states and territories about their concerns or their issues in regard to a whole range of federal-state interactions and issues. The mechanisms are there for consultation to take place, and we do our best to ensure that the national interest is served rather than just getting a federal or state perspective on some of these things. One of the reasons we are here today is to represent our fellow commissioners, as we have said, so you can hear from a range of different individuals and also understand that the commissioners themselves see this issue as being of such importance that we are here together to present to you and to answer questions collectively.

Senator FAULKNER: The two issues I am grappling with seem to be related—the importance of the AFP and state police forces to be involved. That is an important principle, yet I remain perplexed that not a lot has happened for a period of time. When this was last canvassed was in 2009-10 and now it is 2012. I am trying to understand these somewhat conflicting elements as we work through these critically important issues we have in front of us.

Mr Negus : I agree they are critically important issues. I can only speak for the recent past, but certainly the Attorney-General's Department have been engaged. I have had a number of meetings with them to talk about how we can look to include the views of states and territories. We realise this is not just a Commonwealth piece of legislation that affects the Commonwealth. There are a wide range of views in the states and territories, so it is important that we do reflect our views. I think their involvement in drafting and all those sorts of things is something we could talk about down the track, but the views would be taken on board because we want to make this a best fit for the broader range of agencies that this affects. There is a commitment to do that. I have tried to take a bit of a coordination role from my perspective with my fellow commissioners here. As chair of the Australian Crime Commission board we have discussed it in those environments as well, and the Attorney-General's Department is represented on that board. There are a range of forums where now we are trying to make sure that people's views are heard and we give people an opportunity to submit their views on how things should play out to you and if necessary to future committees.

Mr WILKIE: Commissioner Scipione, to what degree are we talking about a significant current problem versus trying to get our minds around an emerging problem? If there is a significant current problem, in your opinion how urgent is the need for the federal government to remedy this? Are you able to paint a picture and give us some sense of, if there is a current problem, how much that is degrading your current operations? Are murderers walking free because you do not have this capability currently? I am obviously talking about interception.

Mr Scipione : There is no yes or no answer in this space, and it is very complex. Mr Ruddock was talking about metadata; Commissioner Negus talked about SMS. They are two different things, but they are so inextricably linked. An intercept is not just a straight intercept, and this legislation covers off on all bases. Some of the capacities that we have now are almost bandaid. I am mindful that we are in a very public hearing here, so I do not want and would not be in a position to talk about the specifics, but I think it important enough that I answer your question as best I can.

Some of the inconsistencies that we have been talking about for quite sometime are not even necessarily deficiencies of the law, so to speak. One that comes to mind is the storage of SMS messages. There are millions of SMS messages that go right across this nation each and every day—countless tens of millions. Those messages are vital to us. If you have a public-order incident from which you need to capture some of the key information, either in a post-event state or even in more forward-looking state, the retention at the end of the day is crucial to us. When we have difference across three carriers that go from one carrier retaining the information for 24 hours and that is it—and then it is gone—as opposed to another carrier at the other end of the spectrum saying, 'No, we think, reasonably, 14 days,' that drives us crazy. We like consistency so that investigators know how long they have when the clock starts ticking.

Clearly it is a matter of data retention, cost and storage. But we find that one carrier says, 'Yes,' and another one says, 'We don't quite agree with that.' Those sorts of inconsistencies in legislation are impacting us each and every day right now.

Mr WILKIE: To use a very recent example: are you able to say that your investigations into the dreadful riots in Sydney recently are in some way hampered by the current legislation?

Mr Scipione : I do not know that it is legislation. The example that I have given you is not necessarily legislation; it may be a lack of legislation. Let us assume that you go for the high -ide mark of carrier 3 that says, 'We will retain it for 14 days,' or 10 days or whatever it might be, as opposed to, 'We've made a commercial decision that we'll get rid of it in 24 hours.' That is not necessarily a legislative constraint that is placed on us; it may be that it is not prescriptive in terms of saying that for the greater good of the public there needs to be some targets set in terms of what you will need to do in terms of providing access to law enforcement for an authorised purpose to make the inquiries which need to be made. If you are talking in that space, then I do not have any key, specific examples, but you could be assured that, if there were some SMS messages which were carrying on one carrier and which we would have liked to have got access to, after 24 hours that opportunity was gone.

Mr WILKIE: You might be deliberately not talking about the events a couple of weeks ago, and I would understand that. I will leave it at that then.

Mr Scipione : There are matters before the court on that, and I do not want to put those at risk.

Mr WILKIE: Since 9/11, there has been a great amount of very worthwhile work done in trying to achieve better cooperation on information sharing between the intelligence community and the law enforcement community. Perhaps, Commissioner Negus, you might care to weigh in on this as well. Many changes have already been made; there are now more changes proposed in this discussion paper. Will that go far enough, or does the law enforcement community need further reforms?

Mr Scipione : Can I just reflect on it before I hand over to my colleague, Mr Negus? Having been on deck and intimately involved in a lot of this during 9/11, post 9/11, during Bali and ever since, I have to say that I have never seen better cooperation in this nation in terms of the notion of joining the dots. I have never seen a healthier relationship between all the tiers of relevant players in this space. Everyone should be encouraged in this regard. I think it is one thing which sets us apart as a nation. In comparison with similar situations around the world, we have enormous cooperation. For that we are truly grateful.

Could it get better? At the moment, in my setting, we see things within the legislation which cause us great concern. I will give you one example—and I am mindful that we did step away from that most recent event for the right reasons. There is a term we use: 'lawfully intercepted information'—or LII—'for general intelligence purposes'. The fact that we cannot use that has the potential to endanger my officers' lives. As an example, if we were tapping a telephone and, as a result of some information which came across that phone, we had concerns that someone was carrying a firearm on the street but we were not in a position to take any action, we cannot post that intelligence on a warning system for our officers. We would like to be able to put out a warning saying, 'If you pull this vehicle over with that person driving, be careful—intelligence suggests that they are armed.'

Another example might be where we have an interception operation running and, as a result of that, we come across some information about a child abuse situation. In that setting, we are not at liberty even to advise a child protection authority that there is a telephone interception running. That is because we are not able to use that lawfully intercepted information. That is difficult. We encounter that every day.

Mr WILKIE: That is quite remarkable. We would all understand and appreciate why great care must be taken with the use of intelligence information in a court of law as evidence. But are you saying you cannot use lawfully intercepted information to guide your investigations or to protect your officers?

Mr Scipione : It is 'lawfully intercepted information for general intelligence purposes'. We cannot intercept for intelligence purposes in our setting—the police force's. But often, through the process of a lawful intercept, we come across something which, in itself, would be very important intelligence—that would be really important for protecting our officers, as I have indicated. We are not in a position, as a result of that information, to post a warning on our COPS system.

CHAIR: Commissioner Negus, you mentioned SMS. I thought you were mentioning it in the same context as accessing metadata. Can you make that clear? I think it would be helpful to some of the committee members to explain where you are going with that—you started weaving SMS into the discussion of information you wanted to retain. I do not think that is tremendously helpful.

Mr Negus : To be very clear about that, I used SMS as an example there. There are tens of millions of these sent every day and the metadata from one where an SMS is sent and received—those are the things which would be contained in the metadata, not the content of the SMS in its own right.

Senator FAULKNER: I think that is the critical distinction that we are talking about here—and it relates to SMS and other forms of telecommunications. We are talking about—for example, with an SMS—the message details. It might be time, place, source, destination et cetera, as opposed to content. The same goes Commissioner Scipione's terminology of 'countless tens of millions', which of course is absolutely true. The same principle applies. I suspect the terminology we are all now using—I am hopeless on all this terminology, but I am now using it myself—of 'metadata' and so on may not be that well known beyond these four walls. That is why, if you like, the data retention concept of metadata or message details as opposed to preservation of content is a really important distinction. I think both commissioners have made it clear to us, Chair, that retaining the content is not what they are contemplating. Maybe it is worthwhile just confirming that.

Mr Negus : That is exactly right. It is information about the telecommunication, rather than what is in the telecommunication.

Senator FAULKNER: That will probably save us tens of thousands of emails.

Senator MARK BISHOP: I am hearing, in some respects, conflicting advice relating to operational matters from yourselves as to the utility of retention of metadata in the context of whether it be never, two years, five years, seven years or more. We had the evidence from the Police Integrity Commissioner this morning. Commissioner Negus, you have referred to an internal negotiation, which resulted in the two year figure going into the Attorney-General's position paper, which has now become well known. Can you just tell us about this internal negotiation, the conclusion of which some of the agencies do not appear to sign up to. Can you tell us how this two year figure emerged and why it has become so central in our hearings? Secondly, can the state agencies also comment on this argument as to whether metadata should be retained for longer periods than two years. Having lawfully retained the data for a specified period of time in the first place—and people in either the organised crime world or intelligence worlds, for want of a better description, probably stay in there as career ends—what is the argument from the police agencies' operational perspective of then getting rid of the data and not retaining it?

Mr Negus : Perhaps if I could start off and I will then hand over to Deputy Commissioner Phelan who could talk to you more about the negotiations with the Attorney-General's Department. I think that this is all about a balance. As I have said before the committee this morning, I would like to see it retained indefinitely. We originally thought a five-year period might be reasonable, and that was negotiated through the Attorney-General's Department down to two years. I think industry will have their own view and privacy components—

Senator MARK BISHOP: I am interested in your perspective. The others can present their arguments.

Mr Negus : We understand there are a variety of views on this and law enforcement do not have an exclusive view. From our perspective, if it was retained indefinitely, that would benefit us greatly. But when we look at the nature of the investigations conducted by the Australian Federal Police—and I will let the states and territories talk for themselves—in most of the investigations we conduct we would go back one to two years. Occasionally, as I said with the Mark Standen arrest, we have gone back five years; but that is not the norm. We would usually do this in a one- to two-year time frame. But I will let the Deputy Commissioner talk about the negotiations that were undertaken by the Attorney-General's Department.

Mr Phelan : I do not know if I can go into a lot of detail, simply because I do not know it. I can say there was a negotiation process while the discussion paper was being prepared. There has been involvement from states and territories at various working groups at various levels throughout the bureaucracy over a period of time. Jurisdictions have their view and we did too. Our view was five years. When that made its way into the discussion paper—obviously the Attorney-General's Department can give you much better evidence on that fact—it said two years. That does not mean that the AFP has abrogated its ability to go back to ask for five years because operationally five years would be better for us than two years; but, as the Commissioner said, the vast majority of the AFP's work fits within that time frame, and it is consistent with the European conventions. But it is not the position we hold. Our position is our original one—five years would be advantageous.

I have given evidence before as well that I cannot put my hand on my heart and say that even five years and one day would not be too short a period of time, because who would know what is available there? Even with the evidence we have given, associations are extremely important. Some associations can go back years—five years, 10 years, 15 years—and they do not actually become important until someone brings them to your attention today. That is why it is important to be able to go back. The negotiations were done by all people, but no-one is bound to those at the end of the day. It was a discussion paper that came forward here for discussion.

Mr Scipione : We put our views forward and they were listened to. The determination was that two years was the figure that would come out. Our view was five years.

Senator MARK BISHOP: Your view was five years.

Mr Scipione : That is what our view was and it remains there today. It is the art of the negotiable; we live in that space.

Mr Negus : Basically, the longer the information is retained the longer we have got an ability to access it as evidence if we need it. We think two years is a little short. Australian businesses have to keep financial records for between five and seven years, and that is the period we would look at. In real terms, the longer you can keep it the better it is for law enforcement. But we understand that there is a limit.

Senator STEPHENS: I want to go to the issue around warrants that are canvassed in the discussion paper. One of the issues is enabling a warrant issued by the Attorney-General to be varied by the Director-General. In the New South Wales government submission there are some concerns expressed about that. I wonder if you have a comment about that concern or how it might actually play out in practice.

Mr Scipione : We do not have that flexibility. The question that was asked was: who is going to come down and talk to this? It is not something that the New South Wales Police Force had a position on; it was not part of our submission.

Senator STEPHENS: What about the notion of expanding the duration of warrants from 90 days to six months? Do any of the services have a view about that?

Mr Negus : We do not really have a strong view on this. Obviously representation is made in our submission about the standardisation of warrants—going from four warrants to perhaps one. Particularly when you look at people and devices and the separation of those, it makes it very complicated in that context. But on the timing of those, particularly as it relates to the intelligence community, we do not really have a strong view.

Mr Scipione : For completeness of the record: we did not have a problem with 90 days. This is the diversity of views that you get across law enforcement. And that is understandable: we have different tasks, different settings and, in some regards, different responsibilities.

Mr Hudson : We can always roll them over.

Mr Scipione : We can just roll them over—correct.

Senator STEPHENS: You can roll them over?

Mr Scipione : You can apply for a rollover of a warrant, which is what we do.

Mr RUDDOCK: There are things you have to produce. You have to go before a prescribed officer. If you were issuing another 10,000 warrants, would you want to have to go back that additional number of times? I suppose the question is: how often do you roll over a warrant?

Mr Scipione : It depends how long a warrant runs for.

Mr RUDDOCK: Would you roll over 50 per cent of warrants issued?

Mr Scipione : I have not got that information with me. But, as you would know, you only roll it over if you reach the expiry date and you have a valid reason to keep going.

Mr RUDDOCK: Yes, I understand. But I am asking whether you could provide us with evidence at some point in time as to whether you roll over 20 per cent, 50 per cent—

Mr Scipione : I am getting advice that would suggest it is five to 10 per cent. Unfortunately, that figure is taken off the ceiling. So can I qualify that by saying we can provide that to you; I would rather get the facts on that.

Senator STEPHENS: There have been some suggestions that the act is too complex in establishing the grounds for a warrant to be made available. Would anyone like to comment on that? It has come through in several of the submissions that it is too complicated and it does not adequately provide for the issuing of warrants in urgent circumstances.

Mr Negus : Most of the comments today have been about simplifying what has become a very complex piece of legislation over time as it has been amended and updated in trying to keep pace with what is happening in that technological environment.

I think we are reasonably comfortable with the processes that are in place. If they could be simplified that would make it a lot easier for us.

To go back to Mr Ruddock's question, whilst five to ten per cent of New South Wales police warrants may be turned over, the AFP conducts significantly longer investigations as our core business. I think there would be a much higher percentage where we would go for warrants to be reindorsed to go forward in that context. I think broadly we are comfortable with the proposal you have just outlined.

Mr RUDDOCK: I think it would be helpful if you could give us data on that.

Mr Negus : Certainly, we retain those records. We could provide that to the committee.

Mr Burns : You will find in our submission from the South Australia police that we believe there is complexity in the act. There is a paragraph that we put in on it. I am not sure whether you want me to refer to it or whether you would have the time to read about it in the submission. We do think there is some complexity because it comprises 300 sections and is difficult to interpret and apply. While some of the aspects are very prescriptive, other areas are ambiguous and, as a consequence, we rely very heavily on Crown solicitor advice when making application for warrants and interpreting information release requirements. So there are some complexities in there for us.

Senator STEPHENS: My final question is around the issue on page 14 in the AFP submission. You made the point on that page that the TIA Act does not address the issue of encryption. We really have not discussed with you all how big issues of encryption and decryption are becoming. It would be helpful if we could understand what challenge that is for you.

Mr Negus : From our perspective, encryption is a terrific advancement for the Australian community. Because it helps protect people from those who would do them harm in scams and those sorts of things it is a very good thing. What we would be seeking as far as the uptake to the act goes is that, where we have a warrant to intercept particular information going to a particular service, that the service provider provide those encryption keys to us to allow us to undertake that interception under warrant—as I have said—rather than anything else. This is not about people's home encryption. This is about talking to service providers about their providing those encryption keys under warrant for us to then intercept a particular device which has been duly authorised.

Senator STEPHENS: You make the point in your submission about child protection operations and encryption. Can you actually elaborate on that a little so that we can understand the challenges that you are facing there?

Mr Negus : There are child protection operations. Certainly online child pornography is one of the real growth areas, unfortunately, that we deal with. I think we arrested around 170 people last year in regards to those types of offences. We see that paedophiles online are probably at the cutting edge of encryption technology across the world. These are people who are developing very difficult to get behind walls of protection as they exchange and share files with each other around the world. There is separate legislation, completely different to this, where those people are arrested and they have to provide encryption keys to law enforcement. They commit an offence if they do not do that. We are not suggesting anything like this in the broader context of the environment for telephone interception.

Senator STEPHENS: So you are not going to demand that someone gives you the password to their Facebook account.

Mr Negus : No. What we are talking about is providers giving us the proper access to intercept particular lines of communication after it has been duly authorised by a warrant.

Mr Phelan : Perhaps I could just put that in context. For example, there might be communications between the communications carrier and the target. There will be encryption and coding that sits on the outside of that which is proprietary, so they are public keys that enable it to go out into the internet, so that one device can connect to another. Those are the sorts of keys that we are after. It enables us to get the content and have a look at it. If it is encrypted inside that, we cannot force anybody to give us that because it is their own private encryption key and that defeats the whole purpose really because interception is covert. We ask for someone's interception key to their own communications, knowing we are going to intercept it.

It is about industry helping us with that outside stuff so that the product that arrives at our destination is readable or is in a format that we can decrypt. It is about supplying keys where they are available. For example, it is about asking companies like Skype—or Blackberry if they had a domestic server in Australia—for their encryption keys either side so that we can at least get the data, so that it is in some form that is able to be analysed. Certainly we are not talking about people's private passwords, people's private encryption keys or anything like that.

CHAIR: I have two questions before I pass on to Mr Ruddock. We took some evidence from a telecommunications alliance about data retention. I want to get your perspectives on this. This is from the EU. Ninety per cent of the data that was requested was six months old or less, 70 per cent was three months old or less. Why are those agencies asking for data around that time frame and comparable agencies like your own in Australia are asking for anything up to five years?

Mr Negus : Broadly from the AFP's perspective most of the cases we would do would fit in those time frames, one year to two years. But there are significant investigations that we undertake, and I use the Mark Standen example, where material that was gained from almost five years ago was crucial. You cannot exclude those. Certainly the states and territories deal with cold case homicides and those sorts of things. We understand that there needs to be a balance but we also need to let the committee know that these are not examples drawn from isolation, there are real events that do happen and our investigators are using them.

CHAIR: Why do you think the European law enforcement agencies are asking for data that is held for less than 12 months?

Mr Negus : I think that would be consistent with what we would see in this country as well, but as you draw the curve, the longer you go back the less you would use, but it still can be important in that context.

CHAIR: So in the AFP's case, if I can ask this question in public, in terms of the time frame of 12 months or whatever, when are the bulk of your requests made to telecommunications companies?

Mr Negus : We would not have that exact data—

CHAIR: Could you take that on notice, please?

Mr Negus : We will take that on notice, but I think in the broader sense they are made reasonably contemporaneously with the event. We investigate particular cases. These are a key part of the investigation going forward and they end up pre-empting what will happen after that. Particularly with metadata, we end up using that to target our resources, target our surveillance and target a whole range of things based on what the analysts can get from that original metadata.

CHAIR: So would most of the information you are seeking more contemporaneously be heading off threat. You would see a foreseeable threat and I presume that would apply to the state police law enforcement agencies at the same time. Would that be correct?

Mr Negus : A threat in the context could be a narcotics importation, the threat could be whole range of different things rather than looking at the conventional what we would term a threat to public safety or those sorts of things.

CHAIR: Section 5D: the number of your organisations have made submissions about their frustrations with 5D, which is the capacity to initiate a telecommunications intercept. You are basically seeking, I think, a reduction of the threshold for the issuing of telecommunications warrants. Could you talk to that, please?

Mr Negus : Most of the offences we would investigate would be certainly be the seven-year threshold that has been talked about. I think there are some that fall outside that. I read the Northern Territory submission, which suggests that sexual assault, for instance, does not meet that threshold so therefore telephone interception is not capable of being achieved and whether the community would be comfortable with that in that context from that investigation. But from a Commonwealth perspective most of the matters we do reach that threshold. I will let Andrew and others speak on that.

Mr RUDDOCK: We have a submission from an organisation called Blueprint for Free Speech. In it are these comments:

There is no evidence to suggest that data retention would assist with the prevention of crime or terrorism. A 2011 study of Germany's data retention directive found it had no impact on either the effectiveness of criminal investigations or the crime rate. Further, this study specifically found countries without data retention laws are not more vulnerable to crime.

That would suggest that there is no need to make any changes.

Mr Scipione : I am happy to give you one example from our setting. The fact is we have for a number of years been encouraging victims of sexual assault to come forward. Many of those victims are historical victims—that is, offences have happened some time ago. As we go down this path and we see the increased numbers of people reporting, it is not unusual for us to have a child that would come forward and speak to an agency and then come back to us and tell us of events that have happened in the past. These crimes may be continuing today, and we are looking for evidence that will allow us to take that paedophile out of circulation and stop sexually assaulting that young person or child.

We often rely on what has happened over the period of this crime, because it is not generally something that happens once and they walk away; we see patterns that go on for years. To get access to the metadata to confirm that there was contact, that there were locations that are important based on evidence that we get by way of statements from victims—that sort of information, if it has gone, it has gone. They do not normally indecently assault or sexually assault one victim; they normally have multiple victims. To be able to use that information to stop that person, take them out of circulation, put them before a court, subject to the evidence, convict them and put them away, I think is pretty important.

Mr RUDDOCK: It will be argued that that one case that you can cite is not statistically significant.

Mr Scipione : I suggest it is more than—

Mr RUDDOCK: The overall use of so many other cases without relying on this sort of data.

Mr Scipione : I suggest there is more than one case, unfortunately, in New South Wales.

Mr RUDDOCK: I want to be able to rebut the proposition and I will give you the quote from the study:

There is no proof that the number of cleared cases, the crime rate or the number of convictions, acquittals or closed cases significantly depends on whether a blanket data retention scheme is in operation in a given country or not. There is no evidence that countries using targeted investigation techniques clear less crime or suffer from more criminal acts than countries operating a blanket communications data retention scheme.

I have got the quote of the study—it was a study undertaken in Germany and it is in German.

Mr Negus : Mr Ruddock, I have not read the study. I do not know what is based on but I would say that is absolute rubbish. In 30 years of policing experience, I have seen literally hundreds of cases which have been formed and helped to be prosecuted before the courts using metadata and using a range of things drawn from metadata to direct police resources which would make it much more effective. Again, I have not done a scientific based study on that but I am just telling you, from 30 years of experience, that would be my view. To give you another example to support Andrew's position and one we would all know about was Operation Pendennis, which was Australia's largest terrorism trials here in Sydney a number of years ago. There was a vast array of metadata used in that investigation to get to the point over many years. The trial went for many, many months. There was a range of things put forward about associations in a circumstantial sense that the court then accepted as evidence. That case, which we would all be very much aware of, was based very strongly on a range of telecommunications interceptions but also metadata work to build associations and linkages about timings, about how things were occurring and what the individuals were up to. Those people are currently serving significant sentences, and a significant terrorist threat to this country was averted, so in my experience I would describe it as rubbish.

Mr Scipione : Mr Ruddock, I would welcome the opportunity to have a look if you have got an English version of the report, because it would be interesting to look at the depth and breadth of that particular study.

Mr RUDDOCK: I would care to invite you to have some of your people look at the material—

Mr Scipione : We would be very pleased to do that, Sir.

Mr RUDDOCK: because it is certainly a variant of what we are being told but so much of that is in fact descriptive rather than a study.

Mr Scipione : The interesting thing in this argument is: this information is not always used in an incriminatory sense; sometimes it is exculpatory. When we get an allegation that somebody has done something at a certain time in a certain place and they were involved in this communication, we can go back and check it and say, 'That didn't happen.' That allows us to short-circuit what could have gone on and on and on in terms of an investigation that would have been traumatic for all involved and horribly expensive. It is often used for the benefit of the person that may be the subject of an allegation in terms of clearing their good name, if that is the case.

If we go back to 1979, when this act was put into place, it was because police were doing things that at the time they were not lawfully authorised to do. In order to protect the privacy of Australia a decision was made that we needed an act of parliament that said you could lawfully do it but within these parameters. So what we are talking about here is not necessarily going to be used against people; it will be used to protect people.

Senator FAULKNER: Commissioner Negus, what we do know is that there is a European Union data directive in place. We also know—and I am sure you would agree with this—that the Australian Federal Police has developed very good relationships with its international counterparts. Are you able to say, in terms of the development of the position that you and state commissioners have put to the committee today, that you have been able to talk to any of your European counterparts about their experience with a data retention scheme very much the model on which the Attorney-General's Department is basing its proposal? If so, are you able to share any of that engagement with us?

Mr Negus : At this stage, no, I have not had discussions with my European counterparts, but there are European countries which routinely make requests of us which we are not able to satisfy in this country because of the lack of data retention and those sorts of things outside the context of this. So we have not had any conversations with them yet.

Senator FAULKNER: I am a little surprised to hear that in the sense that they have a scheme up and running which is the model. I thought perhaps you might have had some engagement with them. Anyway, no doubt that will happen at some point.

Mr Phelan : I can make one point. I suppose it also goes to Mr Ruddock's question. It is about even comparing Australia in that model. At the moment we are a country that does not have a data retention system. That is arguable because at this point in time, as I have said in evidence, we have access to a lot of metadata because it currently exists and we have the powers under the Telecommunications (Interception and Access) Act 1979 to access that material. What concerns us is moving forward when telecommunications companies and service providers do not have a commercial need to keep that information. In the absence of a data retention regime they will not keep that data. That is where law enforcement, effectively, will not have the tools to be able to do what we do. I concur with my commissioner saying that report is rubbish, because it is rubbish.

Senator FAULKNER: It may well be absolute nonsense, but the thing is that we do have in the European Union a scheme operating. That is a fact. We do have a proposal from the Attorney-General's Department in Australia to base a data retention scheme—'base' may not be fair, but it is similar in nature to the European Union data directive. The proposal, as you know, fair or unfair, has been quite a controversial one in the public and community debate. Whether that is fair or unfair we will put aside; we know it is controversial. I was a little surprised to hear that we had not talked to any of our European counterparts about those experiences.

Mr Negus : I cannot give evidence on behalf of the Attorney-General's Department, who have obviously been instrumental in the development of this paper. I can only speak from my perspective that I have not had those discussions. It is not to say that others within the process—

Senator FAULKNER: I appreciate that. I was asking about the AFP-to-international-counterparts basis. It may be perfectly reasonable not to have those discussions, but we can explore with the Attorney-General's Department.

Mr Scipione : Metadata is captured and stored in many different formats. It is not necessarily just from a telecommunications device, as you would clearly understand. I have certainly had discussions with former commissioners of the London Metropolitan Police Service and a number of chiefs of European agencies. Their rules and laws are very different from Australia, and you would understand that. For instance, if we were to adopt European standards and go to the UK to look at the data sets that they can store on the back of DNA samples, they go incredibly past where we can go in terms of what they can collect for, how long they can maintain it and how they can use it. We do not have anywhere near that flexibility. What we have got is consistent and appropriate for use here in Australia. In other terms, though, there is the storage of automated numberplate recognition details that come from some of the more sophisticated systems in use in Europe now. Their retention, again, is limited to two years. We do not have that retention.

Senator FAULKNER: I said that, Commissioner, and I said—

Mr Scipione : We have had those discussions—certainly with the Germans and more recently with the Brits— and clearly in reflecting on those there are differences. They have a view, I am sure, that it would be better if they could hold it longer—consistent with ours. I am pretty certain that these discussions have gone on. I know I have had them for and on behalf of my jurisdiction and I would certainly be surprised if the Attorney-General's Department have not had those sorts of engagements.

Senator FAULKNER: Sure but of course it is our police forces that are at the coalface, so to speak, and the Attorney-General's Department is not necessarily at the coalface.

Mr Scipione : That is why we will discuss these issues.

Senator FAULKNER: That is why I asked the question. It is not unreasonable given that we now have this European Union data directive as, if you like, a model. I am not putting it at a higher level than that. I am asking the question because I am interested in any interface and whether there has been any discussion about strengths and weaknesses which might be of use to our country as we look at how we deal with these issues. But I certainly hear what is being said. The point that both you, Commissioner Scipione, and Commissioner Negus make about the matter that we can address with the Attorney-General's Department is something that I will probably follow up.

Mr WILKIE: A quick one for all three police commissioners, please. There are obviously numerous databases in Australia. This committee is focusing on metadata from telephone and internet companies, but of course there are the records of millions of poker machine players in loyalty schemes, millions of shoppers in flybuys and banking transactions. When it comes to finding out if someone is or is not in a place at a certain time, do the police also go to the banks, poker machine companies and supermarkets and access that sort of data? The reason I am asking that question is: are we overly fixated just on the telcos when in fact this is already happening around Australia in a whole lot of different ways?

Mr Scipione : I am not too sure about the poker machine industry but I can assure you that the banking industry is a very good ally of the NSW Police Force and we do get access to a lot of material when we need it, particularly if we are dealing with a matter of some urgency. We are not exclusively reliant on telecommunications company metadata. That is the case, yes. I cannot speak for South Australia.

Mr Negus : I think, too, that where there are identified avenues of inquiry which could be evidence produced to a court we would certainly seek some of those things under warrant. I am not sure of the specific examples you use and in fact it is probably dangerous to go down that track in giving away what methodology we might be able to undertake. But in saying that we would seek to obtain some of that material under warrant if we thought there was a valid reason to present that to a court to prove certain associations or linkages or the location of a particular credit card at a particular time—those sorts of things. I would concur with Commissioner Scipione that certainly the banks, under warrant, do provide a range of material for law-enforcement agencies.

CHAIR: And South Australia?

Mr Burns : I have a very similar answer to that. We would explore every avenue to find evidence in relation to a particular crime so we will use bankers' orders et cetera; we will look at CCTV and go down a whole range of investigative avenues. What I would say in terms of the metadata is that that would be another tool for police and a key investigate tool for police in presenting all the evidence to the court in relation to a particular offence.

Mr WILKIE: In other words, not only is it the case that the telcos probably all keep at least some metadata for some period of time, but there is a range of other databases in existence with the equivalent of metadata—that shows they made a transaction in a supermarket or did something on a certain day—that you may well be accessing now as well.

Mr Burns : That is what we were saying. The South Australian position is for five to seven years. Obviously the longer the better for us in terms of evidence. But Australian businesses are required to keep records for between five to seven years so that we can access them, so we are looking for a similar approach.

CHAIR: Thank you very much for your evidence. If we have any further inquiries, the secretary will write to you.