Chris Hayes (Fowler, Australian Labor Party) Share this | Hansard source

I too rise to speak on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014. Without doubt, this bill has generated significant controversy. There have been many submissions. Interest groups have made their positions known to members, on both sides, and many have taken the opportunity to make submissions directly to the Parliamentary Joint Committee on Intelligence and Security while considering this bill.

I take this opportunity to commend the committee on its analysis of the array of arguments and on delivering a very well-considered report. The committee's work has been critical in striking an effective balance between protecting the rights and privacy of individuals and enabling our security services, police and law-enforcement agencies to access the vital information they need to keep our country and communities safe. The committee's 39 recommendations were important in improving this bill, and they have made a substantial difference. Left in its original form, it would have been problematic to members on both sides of the House. The work of the committee has brought a focus, a balance, to the rights of individuals and the needs of our police and law-enforcement agencies.

Given the importance of law-enforcement and national-security bodies, I commend the work of the Labor members of the committee: Anthony Byrne, Jason Clare, Mark Dreyfus and Senator John Faulkner. They played a truly significant role in shaping these recommendations into a position where this bill, in its current form, will receive the support of both sides of the House. Their contribution has improved the bill, and much of the credit for the level of oversight and safeguards should go to them.

It is also worth noting that our police services have had access to metadata under the telecommunications legislation since 1991. Since this bill has been in the public eye significant controversy has surrounded it. It has been out there for a substantial period. Police are using techniques that prosecute serious and organised crime and that minimise and, hopefully, offset those who would perpetrate terrorist acts on our community.

This bill is not about access to a new form of information for police or security agencies, although it comes at a time when a lot of restriction is being made on access to information. In terms of having this information available to them, when we had a monopoly on our telecommunications systems it was clear that Telstra—and, for a large part of the time, Vodafone—held the information that was readily available to our police and national-security agencies. There are many new players in the telecommunications space now, and a degree of regulation is required. This is to ensure that they will house the necessary metadata and enable it to be sourced by our police and the national security agency.

This bill will ensure that bodies such as the AFP, state and territory police and ASIO continue to have access to metadata that the telecommunications companies already store for their own purposes. Given my background, I accept fully that access to this type of communication is essential in effective crime fighting, criminal investigations and counter-terrorism efforts. The declining ability to ready access telecommunications is undermining the efforts of our police and law-enforcement agencies; without access to this essential capability their efforts will be severely eroded.

The bill introduces a number of changes that will give a measure of comfort to those concerned about the level of access to stored telecommunications data. The bill provides access to data that will be limited to two years prior to the date of intervention. The bill specifies exactly which law-enforcement and security agencies are able to access the metadata, significantly narrowing the existing range of bodies that have access to that data. The bill also defines, precisely, the metadata that will be retained and available to law-enforcement agencies.

An important aspect of this bill is that it brings about a substantial level of oversight and reporting mechanisms that will ensure transparency of the access to information and the compliance regime within the law. The Commonwealth Ombudsman, in the case of law enforcement, and the Inspector-General of Intelligence and Security, in the case of ASIO, will have important roles in monitoring the overall integrity of the scheme and its day-to-day operations.

It is also important to note that these organisations that do have access to retained data are required to have regard to the privacy of individuals before they seek the data from the telecommunications service providers. Each access must be authorised by a senior officer of the relevant security or law enforcement agency and the authorising officer must be satisfied that any interference with a person's privacy is justifiable and proportionate. This is what will be monitored by both the Commonwealth Ombudsman and the Inspector-General of Intelligence and Security. This bill brings about a degree of oversight that was not there before when this information has been used—and I still say correctly used—by our police and national security agencies. People should have a far greater degree of comfort in the fact that the level of oversight that is now being brought about by regulation will ensure transparency takes place in terms of access to this metadata.

I know that in areas of the media there has been a concern about the passage of this bill, and I certainly appreciate that journalists have a very real concern that access to data retention could well compromise the anonymity of many of their sources. Whilst we may not always like it, I think all of us in this place appreciate the freedom of the press and that it is central to our democratic way of life. Therefore, we do have a need to protect journalists and particularly their sources of information. I think that is critical. We acknowledge the concern they raise and that it is critical to protect their sources of information but at the moment in the case of, for example, a leak investigation by a particular agency, that information is already available on request to a number of law enforcement and investigative bodies. So this is not something that is being introduced through this bill. I understand there is an area of concern there, but I am reasonably happy with the recent agreement with the government—albeit somewhat reluctantly on their part—to ensure that, where journalists' information is to be accessed, it can only be achieved by a warrant. I think that is a very substantial development. That warrant will require the intervention of a judicial officer. It should be acknowledged as something significantly greater than what currently exists in protecting the sources of journalists' information.

ASIO, in evidence to the committee, confirmed that communications data had been critical to the disruption of terrorist attacks in Australia and provided the committee with a detailed, unclassified summary of the use of telecommunications data in Operations Pendennis and Neath, ASIO's assessment was that, in both cases, had relevant telecommunications data not been available, ASIO would have been ignorant to critical information, including the existence of covert communications between members of the terrorist groups, which could have had 'disastrous consequences'. In the case of policing, the AFP advised the committee that telecommunications data is the 'cornerstone of contemporary policing' and allows the police to identify suspects or victims; to exculpate uninvolved persons from proceedings; to resolve life-threatening situations; to identify associations between members of criminal organisations; to    provide insight into criminal syndicates and terrorist networks; and, importantly, establish leads to target further investigative resources.

The fact is that police use metadata for investigations into counter-terrorism, serious and organised crime, firearm and drug trafficking, child protection operations, cybercrime, crimes against humanity such as slavery, people smuggling and human trafficking as well as community policing. This information is certainly well used by police agencies. We have been talking about the figures over the last 12 months. There have been around 250,000 applications for metadata use. I think that indicates not a reliance but the fact that this is a modern tool of law enforcement and one that has a significant impact in police investigations. So, for a range of reasons, I fully accept that for police and security agencies access to metadata is critically important.

Clearly, access to this data is already extensively relied upon by police. I note that, in the last reporting period of 2012-13, the annual report on the Telecommunications (Interception and Access) Act 1979 shows that the greatest use of metadata was by the NSW Police Force. Over that reporting period the alone accessed metadata under 119,705 authorisations. I am advised that metadata proved vital in seeing 18 men who were planning a mass casualty attack in Sydney in 2006 convicted of terrorism offences and, again, was vital in relation to the planned assault on the Holsworthy army base in 2009.

Only yesterday, I was talking to a couple of friends of mine, Ron Iddles and John Laird, from the Victorian Police Association. They were here in Parliament House attending a function in the President's chamber. They advised me of the importance of metadata to contemporary policing. Ron, who has had a long career as a homicide detective, told me that metadata was a crucial tool in assisting the Victorian police with tracking down Jill Meagher's killer and the place where he disposed of her body in 2012. Without access to this information, Ron tells me, the investigation process would have been quite slow because of the lack of witnesses. On this occasion, Jill Meagher's killer was brought readily to justice.

For a range of different reasons, which I cannot go into now because I am out of time, I support this legislation. It is crucial for policing. If we expect police to protect our community we, at a minimum, must ensure that they have the appropriate tools to do their job.

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