Michael Danby (Melbourne Ports, Australian Labor Party, Shadow Parliamentary Secretary to the Leader of the Opposition) Share this | Hansard source

In my comments today about the G20 (Safety and Security) Complementary Bill 2014 it is worth remembering some of the history and context of this bill. Prime Minister Gillard won a place for Australia at the United Nations Security Council, despite the doubts and indecision of her then foreign minister. Former Prime Minister Rudd played a key role in making the G20 the eminent international forum that it has become and making Australia part of it. It is a forum that is probably more important even than the G8 these days—or the G7 as it is going to become.

The summit taking place in Brisbane will be the most significant meeting of world leaders in Australia. This important meeting demands extra security measures, which is why the opposition is supporting this bill. The bill provides a mechanism for dealing with any overlap between provisions in the Queensland act G20 (Safety and Security) Act 2013 and existing Commonwealth legislation. Importantly, the powers are exercisable for a limited period and apply only with respect to certain specified locations, including the Brisbane Airport, which is a Commonwealth property.

The G20 brings world leaders to Australia, and Australia will be responsible for their security. Our planning and our capability for the G20 and Australia's ongoing security capability rely extensively on Australia's security services. Above all, those security services performing their tasks and security for this event will primarily provide that via the use of electronic surveillance, interception and the monitoring tools we know that our security services use. The G20 will not only be protected by some Queensland copper and his dog sweating through the venue before the arrival of the VIPs; the careful intelligence work of our security services will also be the key to it. Of course, it is important to keep our security agencies accountable by ensuring the balance between our security and our liberty when it comes to information gathered about Australian citizens or in Australia. In the former government's examination of how we might do this, I was a strong advocate of data breach legislation that would give citizens the right to individually take legal action against government, or more likely commercial organisations, that improperly access an individual's private data.

In evaluating how Australia is to keep its enviable record of not having a successful terrorist attack on mainland Australia since 9/11 and keeping the G20 safe, we need to remember that the Australian intelligence services are amongst the most closely scrutinised, well governed and well administered in the world. The main checks that currently exist to ensure these services act with appropriate considerations include the ombudsman; the Administrative Appeals Tribunal; the Parliamentary Joint Standing Committee on Intelligence and Security, which I had the honour of being a member of; ministers and departmental secretaries; the Chief of the Defence Force; and the Inspector-General of Intelligence and Security, who oversights how these agencies perform. I might say that the Parliamentary Joint Committee on Intelligence and Security is a nonpartisan committee. Rulings by Australia that organisations are terrorist organisations are not made by fiat of the Attorney-General but under a long-ago agreement by all parties and with due consideration of the expert advice that we get.

It was recently recommended that these organisations have dual objectives: to protect the privacy of communications and to enable interception of and access to communications in order to investigate serious crime and threats to national security—in other words, so that the activities of these agencies can be done without overstepping the parameters of their existing legislation, maintaining the privacy of those individuals or organisations who are not intended to come under notice.

Since Mr Snowden began leaking US intelligence secrets last year, there has been a great deal of criticism of the way electronic surveillance has been used to protect the citizens of Western countries. It is an important debate that we need to have about the merits of security versus the desire for e-privacy. In my view, there has been a hysterical debate including allegations of totalitarian style surveillance of citizens in the West. Of course, one does not need to have this dilemma. One can, as we have in Australia to date, both protect individuals' privacy and maintain the security of Australia.

The Financial Review today addresses the old report of October 2013 that the Australian Signals Directorate had offered to share information collected about ordinary Australians with intelligence partners. This allegation confused metadata collected by the ASD as part of its foreign intelligence gathering with domestic surveillance operations. Under the Intelligence Services Act, of course, the ASD is not permitted to intercept domestic communications unless it gets explicit ministerial approval.

In the adult debate about these important issues following the leaking of 100,000 secret documents by the now Russian-based Mr Snowden, President Obama ordered the creation of a Review Group on Intelligence and Communications Technologies. One of the doyens of civil liberties in the United States, Professor Geoffrey Stone, joined that advisory group. Professor Stone started off very sceptical of these capabilities that will help protect us in Brisbane as well as, in an ongoing sense, around the world. He said that he had gone into it with severe doubts about the merits of these ideas but he came out after this review with the belief that the NSA 'operates with a high degree of integrity and a deep commitment to the rule of law'. Professor Stone also concluded that the NSA was being 'severely—and unfairly—demonised by its critics'. He said:

Rather than being a rogue agency that was running amok in disregard of the Constitution and laws of the United States, the NSA was doing its job.

That is very much my feeling about agencies here from my experience on the committee. Professor Stone further said:

… I approached my responsibilities as a member of the Review Group with great skepticism about the NSA. I am a long-time civil libertarian, a member of the National Advisory Council of the ACLU … I was skeptical … I came away from my work on the Review Group with a view of the NSA that I found quite surprising. Not only did I find that the NSA had helped to thwart numerous terrorist plots against the United States … since 9/11, but I also found that it is an organization that operates with a high degree of integrity and a deep commitment to the rule of law.

That is exactly my impression of the agencies working here.

Prior to the creation of the review group, there was a case brought by the American Civil Liberties Union against the NSA on the collection of telephony metadata. District Judge William Pauley's judgments are very interesting. He said:

There is no evidence that the Government has used any of the bulk telephony metadata it collected for any purpose other than investigating and disrupting terrorist attacks. While there have been unintentional violations of guidelines, those appear to stem from human error and the incredibly complex computer programs that support this vital tool. And once detected, these violations were self-reported and stopped. The bulk telephony metadata collection program is subject to executive and congressional oversight, as well as continual monitoring by a dedicated group of judges who sit on the Foreign Intelligence Surveillance Court.

Pauley cited the NSA's inability to connect the telephone dots ahead of the September 11 terrorist attacks. He wrote:

[Al-Qaeda's plot] succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda.

No doubt, the bulk telephony metadata collection program vacuums up information about virtually every telephone call to, from, or within the United States … That is by design, as it allows the NSA to detect relationships so attenuated and ephemeral they would otherwise escape notice. As the September 11th attacks demonstrate, the cost of missing such a thread can be horrific.

That is exactly what the pattern is here in Australia. The most important liberal voice in this debate of security versus privacy since the Snowden revelations is President Obama. Obama, of course, is a former civil rights attorney and lecturer in constitutional law. He says he has 'maintained a healthy scepticism towards our surveillance programs after becoming president'. Following the findings of the review group, he said:

Nothing in that initial review … and nothing that I have learned since, indicated that our intelligence community has sought to violate the law or is cavalier about the civil liberties of their fellow citizens ... To the contrary, in an extraordinarily difficult job ... the men and women of the … community ... consistently follow protocols designed to protect the privacy of ordinary people. They're not abusing authorities in order to listen to your private phone calls or read your emails.

Unfortunately, in Australia various assorted critics and occasional wild-eyed journalists have been the shrillest voices in this debate.

There is a need for public officials to explain to the public when undertaking events like the G20 in Brisbane how a democratic society can balance security and civil liberty. When the former government was examining the balance between security and liberty in relation to advances in electronic communication, I was a strong advocate of data-breach legislation that would give citizens the right to individually take legal action against government and more likely commercial organisations that accessed an individual's private data or, in the case of state interception, without judicial authorisation. The issue of commercial exploitation of people's data is something that is, in my view, the main game rather than any claims that there are any Australian state authorities that are abusing their powers.

Every day there are reports of Australian passport holders leaving to fight for jihadi or Hezbollah terrorists in Syria. We need to continue with the existing strict safeguards to allow our security services to access metadata so these individuals can continue to be monitored and their attacks prevented.

In conclusion, in special circumstances such as during the G20 conference, special measures are needed. But to maintain the security of our nation now and into the future, our security services need regulated surveillance powers. The NSA and its Australian equivalent, the ASD, does massive work for the common good. As The Financial Review editorial noted last Friday:

These agencies follow the rule of law, which means we do not have to choose between our security and our liberty. And if some accuse the US of hypocrisy by using the same snooping tactics as China, then well, since when did we object to democracies defending themselves against dictatorships? Edward Snowden and Julian Assange portray themselves as warriors defending the Internet realm of pure freedom. Instead they are dupes that have left us more exposed to a dark online world used by terrorists, dictators, warped loners, and criminal gangs who are far more likely to steal your personal data than any government agency.

It is not fair for political leadership to leave civil servants to defend their responsible actions conducted under the rule of law. It is up to us political leaders to state what these people are doing with our information and the experts doing the monitoring that they are working within the rule of rule, and that we keep a keen eye on these kinds of things via systems we have created such as the independent Inspector-General of Security and Intelligence. But if Australians are going to have this enviable record that I talked about of not having a successful terrorist attack on mainland Australia since September 11, we need to continue to keep this balanced approach that we have at the moment and not fall prey to some of the hysterical writings of Mr Snowden, Mr Assange and some of the 'Snowdenistas' who write for the Australian media.

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