Pat Conroy (Charlton, Australian Labor Party) Share this | Hansard source

I rise to speak on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014. This bill deals with extremely complex and concerning issues. I have wrestled with these issues and concluded that I can, and should, support the bill its current from. There are many legitimate concerns held about data retention, and a balance must be struck between enhancing our security and protecting the rights and liberties of Australians. The original bill did not have this balance, and it is only through months of work by Labor that this bill is in a presentable form. However, let us look at the facts of data retention as it currently stands. Right now, telecommunications companies keep a lot of data about us. They do not all keep the same data and they do not all keep it for the same period of time. Police and other law enforcement agencies access this data right now—and a lot of it. Last year there were over 500,000 applications by government agencies for access to metadata. It is part of most investigations by police. It does not always solve crimes but it is an important tool in their investigations. Sometimes it provides evidence that is critical to a conviction. We saw that in the case of the murder of Jill Meagher in 2012. Access to this data has grown very strongly in the last few years. Applications for access to that data were made by over 80 agencies—including councils, Centrelink, the RSPCA, Harness Racing NSW and the Victorian Taxi Services Commission. Most infamously, Wyndham Council applied for 18 authorisations in the past 12 months to chase people for unauthorised advertising, unregistered pets and illegal littering.

Those opposed to this bill do not accept the reality that there is a huge amount of metadata access going on right now with little or no regulation. This bill, if the balance I discussed is achieved, is the best chance of regulating and standardising access to metadata. What the Greens and others are really saying by their opposition to this bill is that they do not want to regulate this. They want local councils to be able to access our data. They want agencies that have no criminal law enforcement functions to continue to have access—and that is regrettable. Opponents of this bill will argue against any data retention and the need for 500,000 individual warrants. This is simply unrealistic. It is impractical and we cannot put the genie back in the bottle. I was opposed to the original bill, but the bill in its current form provides the opportunity to regulate this access and restrict it to national security and law enforcement agencies. I believe that, as this data is already being collected, this legislation presents the best opportunity to regulate the collection and storage of such data to protect the rights of individual Australians, not weaken those rights.

The work of the Parliamentary Joint Committee on Intelligence and Security should be applauded. The work of the Labor members has vastly improved this bill. Improvements include: listing the data set in the bill itself so that we know what data is being retained; limiting access to telecommunications data to only those enforcement agencies specifically listed in the bill; oversight of the operational use of this legislation by parliament's intelligence committee, the first time the committee has been given this power; authorising ASIC and the ACCC to access telecommunications data to assist in the investigation and prosecution of white-collar crime; requiring telecommunications companies to provide customers access to their own telecommunications data upon request; requiring stored data to be encrypted to protect the security and the integrity of personal information; prohibiting access to telecommunications data for the purposes of civil proceedings such as preventing its use in copyright enforcement; requiring a mandatory data breach notification scheme to ensure telecommunications companies notify consumers if the security of their telecommunications data is breached; increasing the resources of the Ombudsman to strengthen oversight of the mandatory data retention scheme; and a mandatory review of the data retention scheme by no later than four years from the commencement of the bill.

For me, the three outstanding issues once Labor won agreement on the committee recommendations were press freedom, data storage and parliamentary oversight. Labor believes the freedom of the press is fundamental to our democracy. Freedom of the press underpins our democratic system. An independent media is essential to holding governments to account and informing citizens.I agree with the member for Gellibrand that, to ensure the press are able to conduct their work free of this threat of censorship and oversight, we need to implement strong barriers against the arbitrary investigation of journalists and their sources.We cannot, and should not, simply trust any government of the day to respect press freedom; we need place limits through law.That is why Labor insisted that access to journalists' telecommunications data for the purposes of identifying sources should require authorisation via a warrant.After concerted pressure from Labor the Prime Minister has caved in and agreed to this amendment.We do need to ensure that the detail of the amendment matches the intent, but this is an important safeguard.This safeguard is the minimum level of protection journalists should have.We do need to observe closely how the UK safeguards operate, as they are developing a system at a similar time to us, and we should review this closely when the scheduled review is undertaken.

An unresolved issue that I am particularly concerned about is the storage of the retained data. During the inquiry iiNet made it very clear that the data would be stored overseas. The chief re gulatory officer of iiNet said: 'W e'll be looking for the cheapest, lowest-cost option. That means cloud storage , and the lowest-cost cloud storage in the world today is in China .'

I believe this is unacceptable . If we are to mandate that this data must be stored, then we should mandate that it be stored in Australia to give Australians confidence that it will be protected. This view is c onfirmed by the former Director- General of the Australian Security Intelligence Organisation , David Irvine. He said: 'W hile the cloud was a wonderfully efficient thing and it is where everyone is going, I would rather the cloud hovered over Sydney or Melbourne than Shanghai or Bangalore , where it is governed by someone else's sovereign legislative system .' Mr Irvine said he would feel much more comfortable with data governed by Australian law than by the law of some other country . He said: 'W e should be trying to develop for Australia, particularly for government and industry, the ability to manage national data on a national basis, with international hook-ups of course . T hen it can be subject to national law, which can be privacy law and national secu rity considerations.' I agree wholeheartedly. Like Mr Irvine, I am a cybernationalist and I am pleased that the parliamentary committee explored this issue and that Labor successfully argued for the bill to be amended to impose stringent safeguards on data security.These amendments were accepted by the committee, which recommended a requirement for stored data to be encrypted.

Labor also pressed for, and won, an amendment imposing a mandatory data breach notification scheme to be introduced so that anyone who has had their data compromised is informed of the breach and can take appropriate measures to respond. However, the committee did not resolve the ongoing onshore storage issue. This matter is currently being examined as part of the broader telecommunications sector security reform process, a process commenced under the last Labor government. The current government has stated that the process will be completed well before the end of the data retention scheme implementation period and, when completed, the TSSR legislation will come before the intelligence committee.

I am proud to repeat Labor's strongly held position: Labor will insist on a requirement that retained telecommunications data be stored onshore. I am very proud and relieved that, as part of Labor's consideration of this important policy area, we came to the conclusion that this data must be stored onshore to maximise the security of this data. There may be cost issues, and they need to be explored, but this data must be stored in Australia.

I now turn to my third concern, which relates to parliamentary oversight. Our system of oversight of intelligence activities is not as well developed or comprehensive as those of the United States or Western Europe. I have argued that, as we strengthen these laws to deal with evolving threats, we must also increase the level of parliamentary oversight. As the people's representatives, we must know what is being done in our name.

I fully support the reforms outlined in a comprehensive paper authored by former senator John Faulkner, a man who has spent decades looking at these matters in a most responsible manner. I was pleased to see that the parliamentary committee recommended, and the government accepted, a reform that was part of this process.

For the first time ever, the parliament's intelligence committee will have operational oversight over security agencies—a first step towards the reforms recommended by John Faulkner. I am also pleased that Labor will bring forward legislation this year to give effect to all of the important reforms contained in the Faulkner paper. These include: a more flexible Parliamentary Joint Committee on Intelligence and Security; to ensure that the best qualified parliamentarians serve on the committee; that the parliamentary committee's remit be expanded to cover the counter-terrorism activities of the Australian Federal Police; that the committee receives enhanced powers and access; that there be expansion of the committee's powers to generate its own inquiries; that there be increased resourcing of the Inspector-General of Intelligence and Security; that there be a stronger relationship developed between the parliamentary committee and other oversight bodies, including the Inspector-General of Intelligence and Security, the Independent National Security Legislation Monitor and the Australian National Audit Office; that there be a requirement for mandatory sunset clauses for all controversial national security legislation; and that there be a comprehensive review of the oversight of Australian intelligence agencies, encompassing the role, powers and scope of oversight mechanisms. These reforms are desperately needed, and I am proud that it is now Labor policy to implement them fully. There can be no greater tribute to the legacy of Senator John Faulkner than the full implementation of these reforms—reforms that he has passionately worked towards for decades.

In the time remaining, I would like to express my disappointment regarding the behaviour of the Australian Greens during this debate. As in almost every other policy debate I have witnessed, the Greens will never attempt to engage seriously on matters of complex public policy. Instead, they will adopt a position of empty populism that gives their members a warm inner glow and lures disappointed, progressive supporters of Labor. This is their real goal: to replace Labor as the party of the left by scoring cheap political points, rather than looking at what is in the national interest.

We have seen this petty opportunism on display during this debate. For example, we had Senator Ludlam from the Greens in the other place describe this bill as a 'fascist, Orwellian mass surveillance scheme'. They have not tried to engage on the substance nor do they recognise that we must regulate a data regime currently out of control. They argue either that data must not be retained or that all 500,000 accesses that occur per year should require an individual warrant. Both are unrealistic and clash with the genuine needs of our law enforcement agencies. They are also completely out of step with the expectations of the community.

To invoke fascism and George Orwell demonstrates that Senator Ludlam and the Greens are cheapjack populists and nothing more. Either they have not attempted to examine these issues seriously or they are cynically exploiting the significant public concern that exists, often without foundation, regarding this issue. Whatever the truth, it is a despicable position and demonstrates their unfitness to be accorded a serious role in political debate.

I would like to conclude by thanking the Shadow Attorney-General and shadow minister for communications for their consultative approach to this issue. Ever since this issue first arose in its current form in October last year, they have worked very closely with the Labor Party caucus and the various committees to develop a Labor position to enhance a bill that was deeply flawed, and to push a responsible agenda that balanced the rights of individuals versus the genuine needs of law enforcement agencies.

I also want to take this time to applaud the contributions to both the public debate and the debate within the Labor caucus by the members for Chifley, Gellibrand, Scullin and Griffith. I have not agreed with all their views on this issue but I have learned much from their serious engagement on this policy. I congratulate them for their great contribution to this debate.

This is an important issue, an issue of great contention, but we must standardise and regulate access to retained data. While this is partly driven by national security needs, it is primarily law enforcement agencies that need this data. Some people engaging in crimes will be able to circumvent this bill through technical innovations, be they Skype or VPNs. That said, this bill will help our law enforcement agencies to prevent crimes and catch criminals.

I echo the view of the member for Gellibrand: the fact that a proposal does not do everything does not mean that it does nothing of value. I believe that this bill, with strong protections for journalists through an effective warrants process, onshore storage of retained data and powerful parliamentary oversight, should be supported. I have been contacted by some members of my electorate expressing disappointment with Labor's position and outright opposition to data retention, and I can understand their disappointment. But I say to them: I believe this bill achieves the necessary balance—it balances individual rights with the genuine needs of law enforcement agencies to use every tool in their arsenals to catch criminals and prevent crimes. I firmly believe that with strong oversight and comprehensive review mechanisms in place we can have this bill go forward, we can review it when it is appropriate and we can tinker with it if that becomes necessary. But we must engage with this issue seriously rather than just saying no to a very important issue. I commend this bill to the House.

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