Malcolm Turnbull (Wentworth, Liberal Party, Minister for Communications) Share this | Link to this | Hansard source

by leave—I present a supplementary explanatory memorandum to the bill and move government amendments (1) to (41) and (49) to (74) as circulated together:

(1) Schedule 1, item 1, page 3 (line 11), after "to be kept,", insert "in accordance with section 187BA and".

(2) Schedule 1, item 1, page 3 (line 13), omit "prescribed by the regulations", substitute "specified in or under section 187AA".

(3) Schedule 1, item 1, page 3 (line 22) to page 4 (line 9), omit subsection 187A(2).

(4) Schedule 1, item 1, page 4 (line 19), omit "prescribed by the regulations", substitute "for which a declaration under subsection (3A) is in force".

(5) Schedule 1, item 1, page 4 (after line 24), after subsection 187A(3), insert:

  (3A) The Minister may, by legislative instrument, declare a service to be a service to which this Part applies.

  (3B) A declaration under subsection (3A):

  (a) comes into force when it is made, or on such later day as is specified in the declaration; and

  (b) ceases to be in force at the end of the period of 40 sitting days of a House of the Parliament after the declaration comes into force.

  (3C) If a Bill is introduced into either House of the Parliament that includes an amendment of subsection (3), the Minister:

  (a) must refer the amendment to the Parliamentary Joint Committee on Intelligence and Security for review; and

  (b) must not in that referral specify, as the period within which the Committee is to report on its review, a period that will end earlier than 15 sitting days of a House of the Parliament after the introduction of the Bill.

(6) Schedule 1, item 1, page 5 (lines 6 to 11), omit paragraph 187A(4)(c), substitute:

  (c) information to the extent that it relates to a communication that is being carried by means of another service:

     (i) that is of a kind referred to in paragraph (3)(a); and

     (ii) that is operated by another person using the relevant service operated by the service provider;

     or a document to the extent that the document contains such information; or

Note: This paragraph puts beyond doubt that service providers are not required to keep information or documents about communications that pass "over the top" of the underlying service they provide, and that are being carried by means of other services operated by other service providers.

(7) Schedule 1, item 1, page 6 (lines 3 to 6), omit subsection 187A(7).

(8) Schedule 1, item 1, page 6 (after line 6), after section 187A, insert:

187AA Information to be kept

(1) The following table sets out the kinds of information that a service provider must keep, or cause to be kept, under subsection 187A(1):

(2) The Minister may, by legislative instrument, make a declaration modifying (including by adding, omitting or substituting) the table in subsection (1), or that table as previously modified under this subsection.

(3) A declaration under subsection (2):

  (a) comes into force when it is made, or on such later day as is specified in the declaration; and

  (b) ceases to be in force at the end of the period of 40 sitting days of a House of the Parliament after the declaration comes into force.

(4) If a Bill is introduced into either House of the Parliament that includes an amendment of subsection 187A(4) or subsection (1) or (5) of this section, the Minister:

  (a) must refer the amendment to the Parliamentary Joint Committee on Intelligence and Security for review; and

  (b) must not in that referral specify, as the period within which the Committee is to report on its review, a period that will end earlier than 15 sitting days of a House of the Parliament after the introduction of the Bill.

(5) For the purposes of items 2, 3, 4 and 6 of the table in subsection (1) and any modifications of those items under subsection (2), 2 or more communications that together constitute a single communications session are taken to be a single communication.

(9) Schedule 1, item 1, page 6 (after line 21), after subsection 187B(2), insert:

  (2A) Before making the declaration, the Communications Access Co-ordinator may consult the Privacy Commissioner.

(10) Schedule 1, item 1, page 6 (after line 25), after paragraph 187B(3)(b), insert:

  (ba) the objects of the Privacy Act 1988; and

  (bb) any submissions made by the Privacy Commissioner because of the consultation under subsection (2A); and

(11) Schedule 1, item 1, page 6 (after line 30), at the end of section 187B, add:

(6) As soon as practicable after making a declaration under subsection (2), the Communications Access Co-ordinator must give written notice of the declaration to the Minister.

(7) As soon as practicable after receiving the notice under subsection (6), the Minister must give written notice of the declaration to the Parliamentary Joint Committee on Intelligence and Security.

(12) Schedule 1, item 1, page 6 (after line 30), after section 187B, insert:

187BA Ensuring the confidentiality of information

     A service provider must protect the confidentiality of information that, or information in a document that, the service provider must keep, or cause to be kept, under section 187A by:

  (a) encrypting the information; and

  (b) protecting the information from unauthorised interference or unauthorised access.

(13) Schedule 1, item 1, page 7 (line 6), omit "paragraph 187A(2)(a)", substitute "paragraph (a) or (b) in column 2 of item 1 of the table in subsection 187AA(1)".

(14) Schedule 1, item 1, page 7 (line 16), omit "paragraph 187A(2)(a)", substitute "paragraph (a) or (b) in column 2 of item 1 of the table in subsection 187AA(1)".

(15) Schedule 1, item 1, page 7 (line 31), omit "section 187C", substitute "section 187BA or 187C".

(16) Schedule 1, item 1, page 8 (line 6), after "keeping", insert ", and ensuring the confidentiality of,".

(17) Schedule 1, item 1, page 8 (line 11), after "keeping", insert ", and ensuring the confidentiality of,".

(18) Schedule 1, item 1, page 8 (line 13), omit "section 187C", substitute "sections 187BA and 187C".

(19) Schedule 1, item 1, page 8 (line 15), omit "section 187C", substitute "sections 187BA and 187C".

(20) Schedule 1, item 1, page 9 (line 4), omit "section 187C", substitute "sections 187BA and 187C".

(21) Schedule 1, item 1, page 9 (line 9), omit "section 187C", substitute "section 187BA or 187C".

(22) Schedule 1, item 1, page 12 (line 1), omit "the end of".

(23) Schedule 1, item 1, page 13 (line 16), omit "exemption", substitute "decision".

(24) Schedule 1, item 1, page 14 (line 19), after "data retention", insert "or information security".

(25) Schedule 1, item 1, page 14 (after line 22), at the end of Division 3, add:

187KA Review of exemption or variation decisions

(1) A service provider may apply in writing to the ACMA for review of a decision under subsection 187K(1) relating to the service provider.

(2) The ACMA must:

  (a) confirm the decision; or

  (b) substitute for that decision another decision that could have been made under subsection 187K(1).

A substituted decision under paragraph (b) has effect (other than for the purposes of this section) as if it were a decision of the Communications Access Co-ordinator under subsection 187K(1).

(3) Before considering its review of the decision under subsection 187K(1), the ACMA must give a copy of the application to:

  (a) the Communications Access Co-ordinator; and

  (b) any enforcement agencies and security authorities that were given, under subparagraph 187K(5)(a)(i), a copy of the application for the decision under review; and

(c) any other enforcement agencies and security authorities that, in the opinion of the ACMA, are likely to be interested in the application.

Matters to be taken into account

(4) Before making a decision under subsection (2) in relation to a service provider, the ACMA must take into account:

  (a) the interests of law enforcement and national security; and

  (b) the objects of the Telecommunications Act 1997; and

(c) the service provider's history of compliance with this Part; and

  (d) the service provider's costs, or anticipated costs, of complying with this Part; and

(e) any alternative data retention or information security arrangements that the service provider has identified.

(5) The ACMA may take into account any other matter it considers relevant.

(26) Schedule 1, item 1, page 14 (before line 24), before section 187L, insert:

187KB Commonwealth may make a grant of financial assistance to service providers

(1) The Commonwealth may make a grant of financial assistance to a service provider for the purpose of assisting the service provider to comply with the service provider's obligations under this Part.

(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the service provider.

(3) An agreement under subsection (2) may be entered into on behalf of the Commonwealth by the Minister.

(27) Schedule 1, item 1, page 14 (after line 33), after subsection 187L(1), insert:

  (1A) If the ACMA receives a service provider's application under section 187KA for review of a decision under subsection 187K(1), the ACMA must:

  (a) treat the application as confidential; and

  (b) ensure that it is not disclosed to any other person or body (other than the Communications Access Co-ordinator, an enforcement agency or a security authority) without the written permission of the service provider.

(28) Schedule 1, item 1, page 15 (lines 1 and 2), omit ", an enforcement agency or a security authority must, if it receives under paragraph 187G(1)(a) or 187K(5)(a)", substitute ", the Communications Access Co-ordinator, an enforcement agency or a security authority must, if it receives under subsection 187G(1), paragraph 187K(5)(a) or subsection 187KA(3)".

(29) Schedule 1, item 1, page 15 (after line 6), after section 187L, insert:

187LA Application of the Privacy Act 1988

(1) The Privacy Act 1988 applies in relation to a service provider, as if the service provider were an organisation within the meaning of that Act, to the extent that the activities of the service provider relate to retained data.

(2) Information that is kept under this Part, or information that is in a document kept under this Part is taken, for the purposes of the Privacy Act 1988, to be personal information about an individual if the information relates to:

  (a) the individual; or

  (b) a communication to which the individual is a party.

(30) Schedule 1, item 1, page 15 (lines 14 to 17), omit subsection 187N(1), substitute:

(1) The Parliamentary Joint Committee on Intelligence and Security must review the operation of this Part.

  (1A) The review:

  (a) must start on or before the second anniversary of the end of the implementation phase; and

  (b) must be concluded on or before the third anniversary of the end of the implementation phase.

(31) Schedule 1, item 1, page 15 (after line 19), at the end of section 187N, add:

(3) Until the review is completed, the head (however described) of an enforcement agency must keep:

  (a) all of the documents that he or she is required to retain under section 185; and

  (b) all of the information that he or she is required, by paragraphs 186(1)(e) to (k), to include in a report under subsection 186(1);

relating to the period starting on the commencement of this Part and ending when the review is completed.

(4) Until the review is completed, the Director-General of Security must keep:

  (a) all of the authorisations made under Division 3 of Part 4-1; and

  (b) all of the information that he or she is required, by paragraphs 94(2A)(c) to (j) of the Australian Security Intelligence Organisation Act 1979, to include in a report referred to in subsection 94(1) of that Act;

relating to the period starting on the commencement of this Part and ending when the review is completed.

(5) Subsections (3) and (4) do not limit any other obligation to keep information under this Act or another law.

(32) Schedule 1, item 1, page 15 (after line 23), after subsection 187P(1), insert:

  (1A) Without limiting the matters that may be included in a report under subsection (1), it must include information about:

  (a) the costs to service providers of complying with this Part; and

  (b) the use of data retention implementation plans approved under Division 2 of this Part.

(33) Schedule 1, page 16 (after line 1), after the heading to Part 2, insert:

Australian Security Intelligence Organisation Act 1979

1A Section 4

  Insert:

  retained data has the same meaning as in the Telecommunications (Interception and Access) Act 1979.

(34) Schedule 1, page 16, after proposed item 1A, insert:

1B Paragraphs 94(2A)(a) and (b)

  Omit "year", substitute "period".

1C At the end of subsection 94(2A)

  Add:

  ; and (c) the number of authorisations made during the period under section 175 and subsection 176(3) of the Telecommunications (Interception and Access) Act 1979; and

(d) the purposes for which those authorisations were made; and

  (e) the lengths of time for which the information or documents that were, or would have been, covered by those authorisations had been held when access was sought; and

(f) the number of those authorisations that related to retained data that included information of a kind referred to in item 1 of the table in subsection 187AA(1) of that Act; and

  (g) the number of those authorisations that related to retained data that included information of a kind referred to in item 2, 3, 4, 5 or 6 of the table in subsection 187AA(1) of that Act; and

(h) the number of those authorisations that were made under journalist information warrants issued under Subdivision B of Division 4C of Part 4-1 of that Act; and

  (i) the number of journalist information warrants issued under that Subdivision during the period; and

(j) information of a kind declared under subsection (2C) of this section.

1D After subsection 94(2A)

  Insert:

  (2B) A report under subsection (1) is to set out the matters referred to in paragraph (2A)(e) by specifying:

  (a) in relation to each of 8 successive periods of 3 months, the number of the authorisations sought for information or documents held for lengths of time included in that period; and

  (b) the number of the authorisations sought for information or documents held for lengths of time exceeding 24 months.

  (2C) The Minister may, by legislative instrument, declare kinds of information that are to be set out in a report under subsection (1).

(35) Schedule 1, page 16, after proposed item 1D, insert:

Intelligence Services Act 2001

1E Section 3

  Insert:

  retained data activity means an activity relating to information, or documents, that a service provider has been required to keep under Part 5-1A of the Telecommunications (Interception and Access) Act 1979.

  service provider has the same meaning as in the Telecommunications (Interception and Access) Act 1979.

(36) Schedule 1, page 16, after proposed item 1E, insert:

1F After paragraph 29(1)(bb)

  Insert:

  (bc) to conduct the review under section 187N of the Telecommunications (Interception and Access) Act 1979; and

  (bd) subject to subsection (5), to review any matter that:

     (i) relates to the retained data activities of ASIO; and

     (ii) is included, under paragraph 94(2A)(c), (d), (e), (f), (g), (h), (i) or (j) of the Australian Security Intelligence Organisation Act 1979, in a report referred to in subsection 94(1) of that Act; and

  (be) subject to subsection (5), to review any matter that:

     (i) relates to the retained data activities of the AFP in relation to offences against Part 5.3 of the Criminal Code; and

     (ii) is set out, under paragraph 186(1)(e), (f), (g), (h), (i), (j) or (k) of the Telecommunications (Interception and Access) Act 1979, in a report under subsection 186(1) of that Act; and

1G At the end of section 29

  Add:

(4) Subject to subsection (5), paragraphs (3)(c) and (k) do not apply to things done in the performance of the Committee's functions under paragraphs (1)(bd) and (be).

(5) The Committee's functions under paragraphs (1)(bd) and (be):

  (a) are to be performed for the sole purpose of assessing, and making recommendations on, the overall operation and effectiveness of Part 5-1A of the Telecommunications (Interception and Access) Act 1979; and

  (b) do not permit reviewing the retained data activities of service providers; and

(c) may not be performed for any purpose other than that set out in paragraph (a).

Note: The performance of the Committee's functions under paragraphs (1)(bd) and (be) are also subject to the requirements of Schedule 1.

(37) Schedule 1, page 16, after proposed item 1G, insert:

Privacy Act 1988

1H Subsection 6(1) (at the end of the definition of personal information )

  Add:

Note: Section 187LA of the Telecommunications (Interception and Access) Act 1979 extends the meaning of personal information to cover information kept under Part 5-1A of that Act.

(38) Schedule 1, page 16, after proposed item 1H, insert:

1J Subsection 6C(1) (note)

  Repeal the note, substitute:

Note 1: Under section 187LA of the Telecommunications (Interception and Access) Act 1979, service providers are, in relation to their activities relating to retained data, treated as organisations for the purposes of this Act.

Note: 2:   Regulations may prescribe an instrumentality by reference to one or more classes of instrumentality. See subsection 13(3) of the Legislative Instruments Act 2003.

(39) Schedule 1, page 16 (after line 17), after item 3, insert:

3A After subsection 280(1A)

  Insert:

  (1B) Subject to subsection (1C), paragraph (1)(b) does not apply to a disclosure of information or a document if:

  (a) the disclosure is required or authorised because of:

     (i) a subpoena; or

     (ii) a notice of disclosure; or

     (iii) an order of a court;

     in connection with a civil proceeding; and

(b) the information or document is kept, by a service provider (within the meaning of the Telecommunications (Interception and Access) Act 1979), solely for the purpose of complying with Part 5-1A of that Act; and

  (c) the information or document is not used or disclosed by the service provider for any purpose other than one or more of the following purposes:

     (i) complying with Part 5-1A of that Act;

     (ii) complying with the requirements of warrants under Chapters 2 and 3 of that Act or authorisations under Chapter 4 of that Act;

     (iii) complying with requests or requirements to make disclosures provided for by sections 284 to 288 of this Act;

     (iv) providing persons with access to their personal information in accordance with the Privacy Act 1988;

     (v) a purpose prescribed by the regulations;

     (vi) a purpose incidental to any of the purposes referred to in subparagraphs (i) to (v).

  (1C) Subsection (1B) does not apply:

  (a) in circumstances of a kind prescribed by the regulations; or

  (b) to a disclosure to an enforcement agency (within the meaning of the Telecommunications (Interception and Access) Act 1979); or

(c) to a disclosure that occurs during the implementation phase (within the meaning of that Act).

(40) Schedule 1, page 16, after proposed item 3A, insert:

3B Section 281

  Before "Division 2", insert "(1)".

3C At the end of section 281

  Add:

(2) Subject to subsection (3), this section does not apply to a disclosure of information or a document by a person as a witness in a civil proceeding if the information or document:

  (a) is kept, by a service provider (within the meaning of the Telecommunications (Interception and Access) Act 1979), solely for the purpose of complying with Part 5-1A of that Act; and

  (b) is not used or disclosed by the service provider for any purpose other than one or more of the following purposes:

     (i) complying with Part 5-1A of that Act;

     (ii) complying with the requirements of warrants under Chapters 2 and 3 of that Act or authorisations under Chapter 4 of that Act;

     (iii) complying with requests or requirements to make disclosures provided for by sections 284 to 288 of this Act;

     (iv) providing persons with access to their personal information in accordance with the Privacy Act 1988;

     (v) a purpose prescribed by the regulations;

     (vi) a purpose incidental to any of the purposes referred to in subparagraphs (i) to (v).

(3) Subsection (2) does not apply:

  (a) in circumstances of a kind prescribed by the regulations; or

  (b) to a disclosure to an enforcement agency (within the meaning of the Telecommunications (Interception and Access) Act 1979); or

(c) to a disclosure that occurs during the implementation phase (within the meaning of that Act).

(41) Schedule 1, item 5, page 16 (lines 24 to 28), omit the item, substitute:

5 Subsection 5(1)

  Insert:

  Defence Minister has the same meaning as in the Intelligence Services Act 2001.

  Foreign Affairs Minister has the same meaning as in the Intelligence Services Act 2001.

  IGIS official has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

  implementation phase has the meaning given by subsection 187H(2).

  infrastructure means any line or equipment used to facilitate communications across a telecommunications network.

  journalist information warrant means a warrant issued under Division 4C of Part 4-1.

  Part 4 -1 issuing authority means a person in respect of whom an appointment is in force under section 6DC.

  Public Interest Advocate means a person declared under section 180X to be a Public Interest Advocate.

  related account, service or device, in relation to a service to which Part 5-1A applies, means:

  (a) an account; or

  (b) a telecommunications device; or

(c) another service of a kind referred to in paragraph 187A(3)(a);

that is related to the service.

  retained data means information, or documents, that a service provider is or has been required to keep under Part 5-1A.

  service provider has the meaning given by subsection 187A(1).

  source (except in item 2 of the table in subsection 187AA(1)) means a person who provides information:

  (a) to another person who is working in a professional capacity as a journalist; and

  (b) in the normal course of the other person's work in such a capacity; and

(c) in the expectation that the information may be disseminated in the form of:

     (i) news, current affairs or a documentary; or

     (ii) commentary or opinion on, or analysis of, news, current affairs or a documentary.

(49) Schedule 1, page 17 (after proposed item 6Q), at the end of Part 2, add:

6R After subparagraph 181B(3)(b)(i)

  Insert:

     (ia) to enable a person to comply with his or her obligations under section 185D or 185E; or

6S Before subparagraph 181B(6)(b)(i)

  Insert:

     (ia) to enable a person to comply with his or her obligations under section 185D or 185E; or

(50) Schedule 1, page 17 (after proposed item 6S), at the end of Part 2, add:

6T Subsection 182(2)

  Repeal the subsection, substitute:

Exempt disclosures

(2) Paragraph (1)(b) does not apply to a disclosure of non-missing person information if:

  (a) the disclosure is reasonably necessary:

     (i) for a person to comply with his or her obligations under section 185D or 185E; or

     (ii) for the performance by the Organisation of its functions; or

     (iii) for the enforcement of the criminal law; or

     (iv) for the enforcement of a law imposing a pecuniary penalty; or

     (v) for the protection of the public revenue; or

(b) the disclosure is:

     (i) to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising powers, or performing functions or duties, under the Inspector-General of Intelligence and Security Act 1986; or

     (ii) by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under that Act.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

6U Subsection 182(3)

  Repeal the subsection, substitute:

Exempt uses

(3) Paragraph (1)(b) does not apply to a use of non-missing person information if:

  (a) the use is reasonably necessary:

     (i) for a person to comply with his or her obligations under section 185D or 185E; or

     (ii) for the enforcement of the criminal law; or

     (iii) for the enforcement of a law imposing a pecuniary penalty; or

     (iv) for the protection of the public revenue; or

(b) the use is by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

(51) Schedule 1, page 17 (after propose

Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to this | Hansard source

The federal opposition is determined to ensure that our national security and law enforcement agencies have the powers that are necessary to keep Australians safe. As well as defending our nation's security, Labor also strongly believes in the importance of upholding the rights and freedoms that define us as a democratic nation living under the rule of law. That is why the amendments to the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 that are being introduced are so important.

The bill that was introduced into this House on 30 October last year had a number of significant shortcomings. Labor recognised that the bill could not be allowed to pass in the form it was introduced and insisted that the bill be sent to the Parliamentary Joint Committee on Intelligence and Security with sufficient time for there to be comprehensive scrutiny of the bill and public hearings. As a consequence of the intelligence committee process, 38 significant recommendations for improvements to the bill were made. The government has accepted all of them.

I join with the Minister for Communications in thanking all members of the Parliamentary Joint Committee on Intelligence and Security, particularly the chair, the member for Wannon, and the deputy chair, the member for Holt, for the joint work that was done, under some time pressure, to produce very significant improvements to the bill. I am sure the member for Blaxland, who with me was added to the committee for the purpose of this inquiry, would endorse those comments.

Significant recommendations that were made—all of which are now to be found in the amendments before the House—which are directed at better safeguarding the rights and privacy of Australians under the proposed scheme include: specifying the dataset required to be retained in the bill itself, rather than in regulations; limiting access to telecommunications data to enforcement agencies specifically listed in the bill; authorising ASIC and the ACCC to have access to telecommunications data to assist those agencies 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 retained data for the purposes of civil proceedings—for example, preventing its use in copyright infringement lawsuits; 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 Commonwealth Ombudsman to strengthen oversight of the mandatory data retention scheme; and, importantly, a mandatory review of the data retention scheme no later than four years from the commencement of the bill.

I would say in summary that these amendments are critically important to making this bill what it should be—a bill that will help our law enforcement and security agencies to make Australians safer but without compromising our rights and freedoms that we, as citizens of democracy living under the rule of law, must also defend. I want to reiterate what I said in this House about the context of this bill. Data retention is not new. Telecommunications data has been retained for many years in Australia, but it has been occurring in a largely unregulated manner by private companies across Australia. And the data that has been retained by private companies has been accessed under the current legislation, the Telecommunications (Interception and Access) Act 1979, by a large number of agencies, hundreds of thousands of times a year. However, while access to this data is often vital to their operations, technological changes and changing business practices of telecommunications providers mean that less data will be retained by some companies in the future. Given this context, Labor has approached this bill and the negotiations over its amendments as an opportunity to regulate and improve the efficacy of data retention for law enforcement and counterterrorism purposes while at the same time introducing safeguards that will greatly improve the transparency and accountability of both telecommunications data and access to that data.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

On the government's own admission, the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 is a serious bill that alters the balance between government and individuals when it comes to their right to privacy. It also, on the government's own admission, gives new powers for collecting information in a way that it has not been collected before and to an extent that it has not been collected before to effectively be stored now in one place or in several places and then be able to be accessed by a range of organisations. And on the government's own admission it is important that this bill, according to them, passes this parliament. So, given how serious this is, and given that, according to the opposition—who apparently has done a backroom deal with the government that they are now deigning to let everyone else see—there are a number of significant concerns with the original bill that needed to be amended, and given in the light of that that we saw for the first time a handful of minutes ago 30 pages of amendments with 74 separate amendments, and given the seriousness of this bill and what it will mean for individuals, what it will mean for people who use their smartphone and the internet without being suspected of having committed any crime whatsoever, then I ask the minister: will he defer and adjourn this debate to allow the parliament enough time to consider 30 pages of 74 amendments that have been seen by other members of this chamber for the first time a handful of minutes ago? Or, will the minister insist that this be rushed through now, without the chance for members of the crossbench—and who knows who else has seen it within the other parties—having the opportunity to scrutinise it? Will the minister insist on these amendments being passed right now, even though we have had only a handful of minutes to look at them? I ask the minister: will you adjourn this debate to allow the parliament sufficient time to scrutinise these amendments? The minister may say, 'Well, some of these amendments came out of the PJCIS report, so they shouldn't be news to anyone.' I would say to this that it is up to the parliament, surely, to work out whether what is in here matches what is in that committee's report, and we should have the opportunity to do that. I ask the minister whether he will adjourn the debate to allow us time to do that.

Malcolm Turnbull (Wentworth, Liberal Party, Minister for Communications) Share this | Link to this | Hansard source

In response to the member for Melbourne, the amendments that we are dealing with now, that I have just moved, faithfully implement the recommendations of the Parliamentary Joint Committee on Intelligence and Security, which reported in considerable detail on 27 February. The honourable member has had ample opportunity—and I know he has a keen interest in this area—to read that report and to discuss it with his colleagues in the Greens. It has been the subject of considerable publicity and debate. The amendments we are debating right now are a faithful implementation of a detailed report that has been widely debated and read for weeks, now, and the honourable member really should have no difficulty in dealing with these issues today.

Jason Clare (Blaxland, Australian Labor Party, Shadow Minister for Communications) Share this | Link to this | Hansard source

As I said in the second reading debate on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, this is complex and controversial legislation, and that is why it was appropriate that it be referred to the Parliamentary Joint Standing Committee on Intelligence and Security for proper consideration and proper investigation. The work the committee did demonstrated that the legislation in its original form is not good enough and that there do need to be substantial changes to it. And we do believe that the recommendations the committee made are faithfully represented in these amendments before the House now and that they substantially change this legislation. We believe that in its original form the legislation gives too much power to the Attorney-General to decide what metadata should be kept and who should have the rights to access it and does not provide sufficient oversight over the use or potential misuse of this legislation. Therefore, we made 38 substantial recommendations in all, which are represented in something like 74 amendments that will be considered by the House now in two tranches.

In particular, it is recommended that the definition of metadata, or the dataset, should be in this legislation rather than left to regulation. That provides real certainty for telcos about what they should keep and what they do not have to keep. It is also recommended that it should be the parliament that decides which agencies should have the right to access this metadata, and that it not be left to government—to the Attorney-General—to decide by regulation.

It is recommended that the data itself should be encrypted to provide a higher level of security.

It is recommended that people should have the right to access their own data. This has been unclear in the past. It will be clear now because of this amendment. Once again, I just want to recognise that Telstra quite recently announced that it would do this, as of 1 April.

It is recommended that we establish, for the first time, a data breach notification system, so that if your data is hacked into you will be notified of it. The former Attorney-General, my friend Mark Dreyfus, introduced legislation to do this in the last parliament. On the prorogation of parliament, that lapsed. Now, because of this recommendation and the government's agreement to implement it, that will happen as well.

Extra resources are recommended for the Ombudsman. Oversight here is critical. If you give law enforcement agencies more power it is important that you also equally increase the oversight of those powers. The Ombudsman said that they are very able to do this work, but they need additional resources—about 12 additional staff, which will require about $2 million in the first year and about $1.65 million thereafter. We recommended that that occur, and the government has agreed to do that.

We also recommended that for the first time the Parliamentary Joint Standing Committee on Intelligence and Security should have the same sorts of powers that its equivalents in the United States and the UK have—the power to conduct investigations into the operations of national security agencies in respect of this legislation. This will now be possible for the first time. It is an important first step in the implementation of the John Faulkner reforms. His proposition, introduced into the Senate, was that this committee should have those powers with respect to national security agencies generally. We think that is an important reform, which we will continue to press for.

Finally, there is the issue of costs. This is important because this is not an inexpensive scheme. This is expensive. The PwC work shows a wide arc of potential cost between about $180 million and over $300 million. That work focuses on capex; we do not have specific details yet on opex. In the committee's work, we made the point that it is very important that, in the funding model that is developed, the government has special consideration for small ISPs—sometimes very small businesses that might have less capacity to implement this scheme than your Telstras of the world, or Optus or Vodafone. Quite legitimately, the Australian telco industry, represented by Communications Alliance, wrote a letter recently to the minister and to the Attorney-General asking that the government provide industry, the parliament and the wider community with a degree of certainty as to the size of the government's planned contribution and the planned methodology for apportioning those funds between CSPs of differing types and market shares. I think this is a valid point. Industry will bear a significant proportion of this cost. The minister has indicated that the government will bear a substantial proportion of the cost, but a significant proportion will still be borne by industry—big and small. I seek the assistance of the minister in providing more information in this regard.

Ed Husic (Chifley, Australian Labor Party, Shadow Parliamentary Secretary to the Shadow Treasurer) Share this | Link to this | Hansard source

I expressed a number of concerns yesterday in the substantive debate. I have no interest in traversing ground already travelled on. On the issue of cost, the minister is well aware of the concerns I expressed yesterday, and I re-express them today. They have also been given voice by the shadow minister. There are a number of things in relation to this. As the shadow minister for communications, the member for Blaxland, just indicated, the type of system changes that will be required by this legislation are significant. This will require a great investment, particularly when you consider the smaller providers. They do not necessarily have the resources of larger players to be able to accommodate these requests.

Also, some of the amendments that have been put forward in the process—that have rightly been reflected on in in a very positive way—will require a greater degree of encryption, and that will require different standards. Some of the smaller players do not necessarily adhere to those standards, and they are rightly concerned.

I have also had expressed to me in the last few weeks a concern from smaller players. They say to me, 'The Attorney-General's Department believe that consultation with Telstra and Optus should represent all that is required when it comes to talking to the telecommunications sector.' The Attorney-General's Department may rightly point out that there is an industry working group and a lot of views are canvassed by that. I understand and appreciate their point, but it would be remiss, at this point in time, to ignore the argument that has been put forward by smaller players that says: 'Telecommunications consultation should not just be limited to Telstra and Optus. The smaller players should be taken into account.'

They feel that, in the course of this legislation being considered, their views are not being taken into account. That is a serious concern. If these costs do impact on them in such a way that it puts serious pressure on their operating future, that is of great concern, because they are providing the type of things that consumers want—competition and pressure on some of the big players to provide better service because of the existence of competition. I am very concerned that those smaller players will face an uncertain future as a result of the inability or the unwillingness of the government to actually spell out what will be done in terms of covering the up-front costs, the capex, and the ongoing running costs, the opex.

I know the minister is very alive to these issues, but I have to say the fact that there has not been greater certainty in terms of what costs might be covered is of concern. I also appreciate that the minister has only just got the PwC report, which I understand—and he can correct me if I am wrong—has not been widely discussed with the sector. It may be the case that it has and I am not aware of it, but I am told that that report has not been discussed in detail with the sector and there has not been a walk through. That is of concern. That certainly needs to be addressed.

I do appreciate that the government is trying to work out, based on the PwC work and the consultations with the IWG, where they will land on this. I would certainly urge that there be greater certainty. I know this matter will be debated in the other place, and it would be beneficial if the government were able to spell out where its thinking is on that.

I would also hope—and this was expressed by the shadow minister—that greater support can be provided for the smaller players to accommodate these changes. It may be the case that Telstra and Optus are in such a strong position with their systems that they can accommodate the transition relatively easily. But certainly I would hope that greater support is extended to those smaller players in meeting the capex, the up-front cost of establishment, and that there is some sort of signal given for opex as well. Overall, again, I know that the minister is alive to these issues, but I am concerned that we have had no signal given. The government made some big expenditure decisions yesterday on other matters that totalled $300 million, yet on this matter there has been no signal given as to what will be done to help those smaller players. I urge the government to give that signal and provide greater certainty to the sector.

Malcolm Turnbull (Wentworth, Liberal Party, Minister for Communications) Share this | Link to this | Hansard source

I will respond very briefly to the member for Chifley. This matter of costs is dealt with in recommendation 16 of the joint committee. The government is committed to paying a substantial portion of the capex, the implementation costs, for this data retention scheme. I made that very clear in the second reading speech. We will take into account each of the seven factors identified by the committee. They include, firstly, providing sufficient support for smaller service providers that do not have the same massive capital budgets that Telstra or Optus do, for example. Obviously operating costs once the system is set up will be reimbursed on a cost recovery basis, as is currently the case.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

I would like to get some clarity. Are we dealing with the amendments in two sets or in one set?

Malcolm Turnbull (Wentworth, Liberal Party, Minister for Communications) Share this | Link to this | Hansard source

Two.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

Are the amendments that are being dealt with at the moment the ones coming out of the PJCIS report?

Malcolm Turnbull (Wentworth, Liberal Party, Minister for Communications) Share this | Link to this | Hansard source

Yes, that is correct.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

Thank you. We just heard from various speakers, including speakers leading the charge from the opposition, that this is complex legislation and that the amendments that are being debated here came out of significant and lengthy examination by some people in this parliament of what is already a complex piece of legislation. Presumably the amendments are similarly complex. Despite that, we are being asked to vote on dozens of amendments on complex legislation, having seen them all for a matter of minutes and without the opportunity to even read them. You could not have even read through this sheet of amendments in the time since it was circulated let alone digested the amendments or formed a view about whether they adequately reflect the concerns coming out of PJCIS.

If this is something that, as the minister says, has been canvassed over several weeks on topics out there in the public realm that could have been discussed then these amendments could have been too. These amendments could likewise have been circulated with sufficient time in advance if that is how long they have been on the table and known. Why have they been kept under wraps until now? The minister and the opposition are essentially saying to us: 'Tony Abbott and Bill Shorten have done a handshake deal. Just trust us that these amendments do what we say they do.' On an issue as serious as giving security agencies additional rights and powers over people's smartphones and internet records, they are saying, 'Just trust us, because we did a deal last night. Even though we have been talking about this for weeks and even though the report has been out for weeks, we would not deign to circulate these amendments to you so that you could form a view on them. Just trust us.'

That is not the way a parliament should be run at any time. It is especially not the way a parliament should be run of when it comes to serious questions like these that everyone has admitted are serious. But it seems that the government and the opposition want to shotgun this through this place without any opportunity to consider these amendments. Our objection to that is strongly noted. If they want to do that, it says a lot about what they consider is the role of this place and what they think of the public, because the public have not had a chance to digest these amendments but their representatives are being asked to vote on them after a handful of minutes to consider them—not even enough time to read them.

Perhaps I can ask the minister for some detail about something that we do know about. Something that has been raised during the course of the debate is the question of civil suits. That was raised by the PJCIS as well. It has been said by some that this new regime will not give any information that will allow someone to be prosecuted for downloading Game of Thrones. Let's assume that that is right. Given the limited time to go through all of this, who knows whether that is true. You have Tony Abbott saying, 'Trust me.' Given as Labor reminds us continuously that you cannot trust the Prime Minister to say one thing before an election and then mean it afterwards and you cannot trust the Prime Minister's budget, why on earth would anyone trust him on this? Labor is prepared to, but we are not.

Let's just focus on this question of someone who downloads Game of Thrones. The minister tells us that such a person will not be prosecuted. What if a media company or someone else wants to sue that person? What if they want to sue someone for downloading something? Or what if they want to sue them about something completely different? What if it is not related to that? What if it is a suit between a company and an individual or a company and another company? Given that there will now be a massive honey pot of information that is going to be kept, can the minister tell us whether in these amendments or in the legislation there is rock-solid, shieldlike protection against anyone ever having this data disclosed in the process of a civil suit?

Malcolm Turnbull (Wentworth, Liberal Party, Minister for Communications) Share this | Link to this | Hansard source

Amendments (39) and (40) will amend sections 280 and 281 of the Telecommunications Act. The effect is that service providers are no longer permitted to disclose telecommunications data either in response to a subpoena, a notice of disclosure or a court order or as a witness in civil proceedings where the data has been kept solely for the purpose of complying with the proposed new part 5-1A—that is, the new data retention regime—and the data is used or disclosed by the service provider only for that purpose; for a limited range of defined public interest purposes, such as to prevent a threat to life or to assist the telecommunications industry ombudsman in the consideration of a complaint; or for a purpose incidental to one or more of those purposes.

As the honourable member would be well aware, at the moment civil litigants currently do access call charge records, telephone records and dynamically allocated IP address records resolved to the account holders' names, and that is done for a whole variety of civil suit reasons. All of that is available now and there is no limitation on it whatsoever. So, in fact, the bill and the amendments that we are talking about now, which flowed from the committee's work, actually restricts the access of civil litigants to information of this kind.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

Could the minister advise the House whether, in these amendments or elsewhere, attention has been paid to the location of storage of this metadata and whether there will be a requirement that it is either done here or done overseas? Also, what protections will be enforced on the ISP who is keeping this metadata, to ensure that it is secure?

Malcolm Turnbull (Wentworth, Liberal Party, Minister for Communications) Share this | Link to this | Hansard source

I thank the honourable member for his inquiry. There is no requirement in the bill or the amendments that the data be stored inside Australia, although that is obviously a matter of some controversy that is, as I understand it, going to be considered further by the committee. It may well be the subject of an amendment in the Senate. Of course, the honourable member is talking about the lack of consideration of these amendments, but there is another place in which his party is quite amply represented, so there is plenty of scope for this legislation and his party's concerns to be dealt with. So, yes, there is no provision that requires the server hosting that data to be physically located in Australia.

Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to this | Hansard source

On the last point that was raised by the member for Melbourne, the issue of where data stored under this mandatory data retention scheme is actually physically stored is a concern to Labor. It is something we raised in the course of the deliberations of the committee, it is something that has been raised publicly by a range of interested parties and, indeed, it is something that was commented on publicly by the former Director-General of ASIO, a very eminent Director-General of ASIO, David Irvine, just in the last few days, with David Irvine expressing his own view that it was appropriate for data that is stored under this scheme to be stored in Australia. I think he described himself as a 'cyber nationalist', but certainly expressing the view that it was not appropriate that the storage of data be governed by some other country's sovereign legislation but not be governed by our own. It is something that was not appropriately able to be dealt with directly in this legislation that is before the House, because there has been, under a process commenced by Labor in government, a process called the telecommunications sector security reform, which will come to a conclusion. In his second reading speech, at the commencement of parliamentary consideration of this bill, the Minister for Communications noted that that process was coming to a conclusion and is likely to be completed before the end of the implementation phase of this data retention scheme. Labor's view is that this is an important matter, but that it is something that is more appropriately dealt with as part of the larger reform known as the telecommunications sector security reform. That was a reform investigated, commented on and recommended on by the intelligence committee in its report in 2013. It will cover a much wider range of matters concerned with telecommunications sector security than simply the question of storage of retained data. Nevertheless, that telecommunications sector security reform process is the right place to deal with this legislation, and following on from that is the right place to deal with the question of location of storage. Labor intends to keep a very close eye on that process and, when that matter comes before the parliament, we will certainly be insisting on onshore storage of data retained under this scheme.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

There you have it. You ask a couple of questions about amendments that you are given with a couple of minutes notice and it turns out that one of the issues raised by the PJCIS about location of data is not, in fact, dealt with in these amendments. The very serious question about whether all of this information that is collected is going to be stored in Australia under Australian laws or whether it is going to be stored somewhere else is not even dealt with. We have just been asked, not a few minutes ago, to be assured by the minister and the opposition representatives that everything that has been dealt with is covered in these amendments. I ask a couple of questions and it turns out that it is not. And who knows what else we would find out if we went through every one of these line by line. But we are not given the opportunity to do that because we are asked to vote on it straight away. But the very simple and serious question that people have been on notice about for a while, 'Where is this going to be stored and what are the protocols around it to ensure that it is stored safely?' is not even dealt with in here, despite us being assured a moment again that it will all be okay. And that is exactly why we are not willing, and nor should the parliament be willing, just to be a rubber stamp for a back-room deal that has been done, because who knows what else is in here.

In a similar vein, I ask the minister or anyone else who has been involved in the negotiations: what is there in these amendments or elsewhere about the destruction at the end of two years of this information that is being kept? What is the requirement that is going to be put on ISPs, and how will the government or the public be satisfied that this data has been destroyed at the end of the two years?

Malcolm Turnbull (Wentworth, Liberal Party, Minister for Communications) Share this | Link to this | Hansard source

I assume the honourable member is referring to recommendation 28, where the committee recommended:

… the Attorney-General's Department oversee a review of the adequacy of the existing destruction requirements that apply to documents or information disclosed pursuant to an authorisation …

The committee recommended the Attorney-General report to the parliament on the findings of that review. The government will conduct the review as recommended by the committee.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

Another question, and it turns out there is not even anything in this legislation or these amendments to ensure that the data gets destroyed. Who knows where it is going to be kept and who knows how long they are going to keep it? There is nothing to say it is going to be destroyed. We are being asked to take this on faith and on face value with a few minutes' notice and to rush it through the parliament. What an appalling way to conduct such a significant piece of legislation! I ask, in another vein, when it comes to legal professional privilege, what protections will there be to ensure that a government agency does not get access to emails, or the content of emails or metadata that may be subject to legal professional privilege?

Malcolm Turnbull (Wentworth, Liberal Party, Minister for Communications) Share this | Link to this | Hansard source

The answer to that very simply is that the metadata dataset does not include the content of emails, so the honourable member is labouring under a misapprehension on that point. It is an issue that does not arise.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

It follows from that that if you contact a lawyer to seek information, the metadata that signals that you have contacted your lawyer to seek advice is presumably metadata that is going to be caught and the government gets access to that. The government will know you have sought legal advice about something or have spoken to a lawyer. Is that how this legislation operates?

Malcolm Turnbull (Wentworth, Liberal Party, Minister for Communications) Share this | Link to this | Hansard source

The honourable member should be aware that the fact that you have had communications with a lawyer is not subject to legal professional privilege. The advice is what in most circumstances is subject to legal professional privilege. The fact that you have telephoned your lawyer at a certain time or a number that is in fact belonging to your lawyer is information that is held by telcos now. It can be accessed now. But the content of the telephone call or indeed the content of an email is expressly not covered—it is not retained by the telco at all and it is expressly not covered by this legislation.

If I could touch on something the honourable member raised earlier, just to provide a little bit more information, the committee considered it entirely appropriate for service providers to retain telecom data for longer than two years where they had a legitimate business purpose to do so or in accordance with another regulatory obligation, such as the Telecommunications Consumer Protection Code. The Privacy Act:

… provides a framework for the destruction of personal information where this information is no longer required under law or for a legitimate business purpose …

It requires service providers to destroy or de-identify information when it is no longer required for a legitimate purpose. Nothing in this current bill overrides or removes that obligation.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

It is apparent from a few moments' questioning that this set of amendments does not automatically implement every recommendation of the PJCIS or address the concerns that have been raised. We find out within a couple of questions that there are no restrictions on where the data is kept or impositions around the destruction of that beyond what the minister has just added. We are not prepared to take all of this on face value. The short period of time we have had to digest this limits any prospect for sensible debate in this place. I repeat the request that, given that we have just found out about the issue of data storage and destruction, for example, the minister reconsider pushing this legislation through this afternoon and give us further time to digest the amendments so that we can find out what else is in there and whether, in fact, the legislation gives effect to the recommendations.

Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to this | Hansard source

I would say in respect of the remarks that have been made by the member for Melbourne that this set of amendments directly and faithfully gives effect to the 38 substantive recommendations made by the intelligence committee. One of the concerns that I have had throughout the debate about this proposed data retention scheme is the number of misconceptions and myths that have been put about about both the legislation and what might be involved, even after a lengthy report of the intelligence committee was delivered on 27 February.

The member for Melbourne and anyone else anywhere in Australia who is interested in this topic has had almost three weeks to read that very lengthy report of the intelligence committee. I am assuming that it is not intentional, but the comments of the member for Melbourne might have left the impression in respect of the two topics that he has chosen to ask questions about—restrictions on where the data is to be kept and the destruction of retained data—that in some way the amendments that have been brought before the House do not give effect to recommendations of the intelligence committee. The fact of the matter is that the intelligence committee did not make a recommendation in respect of restricting where the data be kept. It did in the body of the report discuss the issues raised, as I mentioned in my earlier remarks. Those issues are a real concern expressed by members and expressed publicly by this side of the House, by Labor, that retained data should be stored in Australia. Certainly, the intelligence committee accepted that there is an ongoing process called the telecommunications sector security reform, which is going to deal with not only that question of where retained data should be kept but a whole range of other questions to do with telecommunications sector security.

On the question of the destruction of retained data, there is detailed consideration in the intelligence committee's report of the existing provisions of the Privacy Act which have been part of Australian law for many years that require private companies that are keeping personal information of Australians to keep that information for no longer than they require it for the business purpose for which they have collected it, and the same obligation applies to government—that government is not to keep personal information of Australians for longer than it is needed for the purpose for which it was collected—and at the end of that period it is to be destroyed or all personal identifiers removed from it.

I make those points because I would not want it thought that, in respect of either of the matters that the member for Melbourne has chosen to ask questions about, the government's amendments have not dealt in any way with the recommendations in the committee's report. Indeed, both those matters are going to be dealt with and kept very much under review and carefully attended to by Labor. Thank you.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

Briefly, in response to the member for Isaacs: wouldn't a simple way to allow us to be satisfied of that be to give us time to actually read the amendments?

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

Was that a question to the minister?

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

No.

Malcolm Turnbull (Wentworth, Liberal Party, Minister for Communications) Share this | Link to this | Hansard source

This is very important legislation. This has been given very detailed consideration over a considerable time. The amendments we are discussing, as the honourable member for Isaacs has observed and as I have noted, do faithfully implement the recommendations of the committee. I commend these amendments to the House.

Question agreed to.

by leave—I move government amendments (42) to (48):

(42) Schedule 1, page 17 (after line 2), at the end of Part 2, add:

6A After section 6DB

  Insert:

6DC Part 4 -1 issuing authorities

(1) The Minister may, by writing, appoint as a Part 4-1 issuing authority:

  (a) a person who is:

     (i) a judge of a court created by the Parliament; or

     (iii) a magistrate;

     and in relation to whom a consent under subsection (2) is in force; or

(b) a person who:

     (i) holds an appointment to the Administrative Appeals Tribunal as Deputy President, full-time senior member, part-time senior member or member; and

     (ii) is enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or a Territory; and

     (iii) has been enrolled for at least 5 years.

(2) A person who is:

  (a) a judge of a court created by the Parliament; or

  (b) a magistrate;

may, by writing, consent to be appointed by the Minister under subsection (1).

(3) A person's appointment ceases to have effect if:

  (a) the person ceases to be a person whom the Minister could appoint under this section; or

  (b) the Minister, by writing, revokes the appointment.

(4) A Part 4-1 issuing authority has, in relation to the performance or exercise of a function or power conferred on a Part 4-1 issuing authority by this Act, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.

(43) Schedule 1, page 17 (after proposed item 6A), at the end of Part 2, add:

6B Section 64 (heading)

  Repeal the heading, substitute:

64 Dealing in connection with Organisation ' s or Inspector -General ' s functions

6C Subsection 64(1)

  After "its functions", insert "or the performance by the Inspector-General of Intelligence and Security of his or her functions".

6D Subsection 64(2)

  Repeal the subsection, substitute:

(2) A person, being the Director-General of Security or an ASIO employee, ASIO affiliate or IGIS official, may:

  (a) in connection with the performance by the Organisation of its functions; or

  (b) in connection with the performance by the Inspector-General of Intelligence and Security of his or her functions;

communicate to another such person, make use of, or make a record of, foreign intelligence information.

(44) Schedule 1, page 17 (after proposed item 6D), at the end of Part 2, add:

6E Paragraph 176(5)(b)

  Repeal the paragraph, substitute:

  (b) unless it is revoked earlier, ends at the time specified in the authorisation, which must be a time that:

     (i) is no later than the end of the period of 90 days beginning on the day the authorisation is made; and

     (ii) if the authorisation is made under a journalist information warrant—is no later than the end of the period specified under section 180N as the period for which the warrant is to remain in force.

6F Subsection 176(6)

  Repeal the subsection, substitute:

Revoking the authorisation

(6) An eligible person must revoke the authorisation if:

  (a) he or she is satisfied that the disclosure is no longer required; or

  (b) in a case where the authorisation is made under a journalist information warrant:

     (i) the warrant is revoked under subsection 180N(1); or

     (ii) the Director-General of Security has informed the Minister under section 180P that the Director-General is satisfied that the grounds on which the warrant was issued have ceased to exist.

Note: Section 184 deals with notification of authorisations.

(45) Schedule 1, page 17 (after proposed item 6F), at the end of Part 2, add:

6G Paragraph 180(6)(b)

  Repeal the paragraph, substitute:

  (b) unless it is revoked earlier, ends at the time specified in the authorisation, which must be a time that:

     (i) is no later than the end of the period of 45 days beginning on the day the authorisation is made; and

     (ii) if the authorisation is made under a journalist information warrant—is no later than the end of the period specified under subsection 180U(3) as the period for which the warrant is to remain in force.

6H Subsection 180(7)

  Repeal the subsection, substitute:

Revoking the authorisation

(7) An authorised officer of the criminal law-enforcement agency must revoke the authorisation if:

  (a) he or she is satisfied that the disclosure is no longer required; or

  (b) in a case where the authorisation is made under a journalist information warrant—the warrant is revoked under subsection 180W(1).

Note: Section 184 deals with notification of authorisations.

(46) Schedule 1, page 17 (after proposed item 6H), at the end of Part 2, add:

6J Section 180F

  Omit "have regard to whether any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable", substitute "be satisfied on reasonable grounds that any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable and proportionate".

6K Before paragraph 180F(a)

  Insert:

  (aa) the gravity of any conduct in relation to which the authorisation is sought, including:

     (i) the seriousness of any offence in relation to which the authorisation is sought; and

     (ii) the seriousness of any pecuniary penalty in relation to which the authorisation is sought; and

     (iii) the seriousness of any protection of the public revenue in relation to which the authorisation is sought; and

     (iv) whether the authorisation is sought for the purposes of finding a missing person;

(47) Schedule 1, page 17 (after proposed item 6K), at the end of Part 2, add:

6L After Division 4B of Part 4 -1

  Insert:

Division 4C—Journalist information warrants

Subdivision A—The requirement for journalist information warrants

180G The Organisation

(1) An eligible person (within the meaning of subsection 175(2) or 176(2), as the case requires) must not make an authorisation under Division 3 that would authorise the disclosure of information or documents relating to a particular person if:

  (a) the eligible person knows or reasonably believes that particular person to be:

     (i) a person who is working in a professional capacity as a journalist; or

     (ii) an employer of such a person; and

(b) a purpose of making the authorisation would be to identify another person whom the eligible person knows or reasonably believes to be a source;

unless a journalist information warrant is in force in relation to that particular person.

(2) Nothing in this section affects by implication the kind of person in relation to whom a warrant (other than a journalist information warrant) may be issued under this Act.

180H Enforcement agencies

(1) An authorised officer of an enforcement agency must not make an authorisation under section 178, 178A, 179 or 180 that would authorise the disclosure of information or documents relating to a particular person if:

  (a) the authorised officer knows or reasonably believes that particular person to be:

     (i) a person who is working in a professional capacity as a journalist; or

     (ii) an employer of such a person; and

(b) a purpose of making the authorisation would be to identify another person whom the authorised officer knows or reasonably believes to be a source;

unless a journalist information warrant is in force, in relation to that particular person, under which authorised officers of the agency may make authorisations under that section.

(2) An authorised officer of the Australian Federal Police must not make an authorisation under Division 4A that would authorise the disclosure of information or documents relating to a particular person if:

  (a) the authorised officer knows or reasonably believes that particular person to be:

     (i) a person who is working in a professional capacity as a journalist; or

     (ii) an employer of such a person; and

(b) a purpose of making the authorisation would be to identify another person whom the authorised officer knows or reasonably believes to be a source.

(3) Nothing in this section affects by implication the kind of person in relation to whom a warrant (other than a journalist information warrant) may be issued under this Act.

Subdivision B—Issuing journalist information warrants to the Organisation

180J Requesting a journalist information warrant

(1) The Director-General of Security may request the Minister to issue a journalist information warrant in relation to a particular person.

(2) The request must specify the facts and other grounds on which the Director-General considers it necessary that the warrant be issued.

180K Further information

(1) The Minister may require the Director-General of Security to give to the Minister, within the period specified in the requirement, further information in connection with a request under this Subdivision.

(2) If the Director-General breaches the requirement, the Minister may:

  (a) refuse to consider the request; or

  (b) refuse to take any action, or any further action, in relation to the request.

180L Issuing a journalist information warrant

(1) After considering a request under section 180J, the Minister must:

  (a) issue a journalist information warrant that authorises the making of authorisations under Division 3 in relation to the particular person to which the request relates; or

  (b) refuse to issue a journalist information warrant.

(2) The Minister must not issue a journalist information warrant unless the Minister is satisfied that:

  (a) the Organisation's functions would extend to the making of authorisations under Division 3 in relation to the particular person; and

  (b) the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the identity of the source in connection with whom authorisations would be made under the authority of the warrant, having regard to:

     (i) the extent to which the privacy of any person or persons would be likely to be interfered with by the disclosure of information or documents under authorisations that are likely to be made under the authority of the warrant; and

     (ii) the gravity of the matter in relation to which the warrant is sought; and

     (iii) the extent to which that information or those documents would be likely to assist in the performance of the Organisation's functions; and

     (iv) whether reasonable attempts have been made to obtain the information or documents by other means; and

     (v) any submissions made by a Public Interest Advocate under section 180X; and

     (vi) any other matters the Minister considers relevant.

(3) A journalist information warrant issued under this section may specify conditions or restrictions relating to making authorisations under the authority of the warrant.

180M Issuing a journalist information warrant in an emergency

(1) The Director-General of Security may issue a journalist information warrant in relation to a particular person if:

  (a) a request under section 180J has been made for the issue of a journalist information warrant in relation to the particular person; and

  (b) the Minister has not, to the knowledge of the Director-General, made a decision under section 180L in relation to the request; and

(c) within the preceding period of 3 months:

     (i) the Minister has not refused to issue a journalist information warrant in relation to the particular person; and

     (ii) the Director-General has not issued such a journalist information warrant; and

(d) the Director-General is satisfied that, security will be, or is likely to be, seriously prejudiced if the access to which the request relates does not begin before a journalist information warrant can be issued and made available by the Minister; and

  (e) either:

     (i) the issuing of the warrant is authorised under subsection (3); or

     (ii) the Director-General is satisfied that none of the Ministers specified in subsection (4) is readily available or contactable.

(2) The Director-General must not issue a journalist information warrant unless the Director-General is satisfied as to the matters set out in paragraphs 180L(2)(a) and (b).

Authorisation to issue a warrant under this section

(3) A Minister specified in subsection (4) may, if he or she is satisfied as to the matters set out in paragraphs 180L(2)(a) and (b), orally give an authorisation under this subsection for the Director-General to issue the warrant under this section.

(4) The Ministers who may orally give an authorisation are:

  (a) the Minister; or

  (b) if the Director-General is satisfied that the Minister is not readily available or contactable—any of the following Ministers:

     (i) the Prime Minister;

     (ii) the Defence Minister;

     (iii) the Foreign Affairs Minister.

(5) The authorisation may specify conditions or restrictions relating to issuing the warrant.

(6) The Director-General must ensure that a written record of an authorisation given under subsection (3) is made as soon as practicable (but no later than 48 hours) after the authorisation is given.

Duration of a warrant under this section

(7) A journalist information warrant under this section must specify the period (not exceeding 48 hours) for which it is to remain in force. The Minister may revoke the warrant at any time before the end of the specified period.

Copies of warrant and other documents

(8) Immediately after issuing a journalist information warrant under this section, the Director-General must give the Minister:

  (a) a copy of the warrant; and

  (b) a statement of the grounds on which the warrant was issued; and

(c) either:

     (i) a copy of the record made under subsection (6); or

     (ii) if the Director-General was satisfied as mentioned in subparagraph (1)(e)(ii)—a summary of the facts of the case justifying issuing the warrant.

(9) Within 3 business days after issuing a journalist information warrant under this section, the Director-General must give the Inspector-General of Intelligence and Security:

  (a) a copy of the warrant; and

  (b) either:

     (i) a copy of the record made under subsection (6); or

     (ii) if the Director-General was satisfied as mentioned in subparagraph (1)(e)(ii)—a summary of the facts of the case justifying issuing the warrant.

(10) Subsection (9) has effect despite subsection 185D(1).

180N Duration of a journalist information warrant

     A journalist information warrant issued under section 180L must specify the period (not exceeding 6 months) for which it is to remain in force. The Minister may revoke the warrant at any time before the end of the specified period.

180P Discontinuance of authorisations before expiry of a journalist information warrant

     If, before a journalist information warrant issued under this Subdivision ceases to be in force, the Director-General of Security is satisfied that the grounds on which the warrant was issued have ceased to exist, he or she must:

  (a) forthwith inform the Minister accordingly; and

  (b) takes such steps as are necessary to ensure that the making of authorisations under the authority of the warrant is discontinued.

Subdivision C—Issuing journalist information warrants to enforcement agencies

180Q Enforcement agency may apply for a journalist information warrant

(1) An enforcement agency may apply to a Part 4-1 issuing authority for a journalist information warrant in relation to a particular person.

(2) The application must be made on the agency's behalf by:

  (a) if the agency is referred to in subsection 39(2)—a person referred to in that subsection in relation to that agency; or

  (b) otherwise:

     (i) the chief officer of the agency; or

     (ii) an officer of the agency (by whatever name called) who holds, or is acting in, an office or position in the agency nominated under subsection (3).

(3) The chief officer of the agency may, in writing, nominate for the purposes of subparagraph (2)(b)(ii) an office or position in the agency that is involved in the management of the agency.

(4) A nomination under subsection (3) is not a legislative instrument.

(5) The application may be made in writing or in any other form.

Note: The Electronic Transactions Act 1999 deals with giving information in writing by means of an electronic communication.

180R Further information

(1) The Part 4-1 issuing authority may require:

  (a) in any case—the chief officer of the agency; or

  (b) if the application is made, on the agency's behalf, by a person other than the chief officer—that other person;

to give to the Part 4-1 issuing authority, within the period and in the form specified in the requirement, further information in connection with the application.

(2) If the chief officer or other person breaches the requirement, the Part 4-1 issuing authority may:

  (a) refuse to consider the application; or

  (b) refuse to take any action, or any further action, in relation to the application.

180S Oaths and affirmations

(1) Information given to the Part 4-1 issuing authority in connection with the application must be verified on oath or affirmation.

(2) For the purposes of this section, the Part 4-1 issuing authority may:

  (a) administer an oath or affirmation; or

  (b) authorise another person to administer an oath or affirmation.

The oath or affirmation may be administered in person, or by telephone, video call, video link or audio link.

180T Issuing a journalist information warrant

(1) After considering an application under section 180Q, the Part 4-1 issuing authority must:

  (a) issue a journalist information warrant that authorises the making of authorisations under one or more of sections 178, 178A, 179 and 180 in relation to the particular person to which the application relates; or

  (b) refuse to issue a journalist information warrant.

(2) The Part 4-1 issuing authority must not issue a journalist information warrant unless the Part 4-1 issuing authority is satisfied that:

  (a) the warrant is reasonably necessary for whichever of the following purposes are applicable:

     (i) if the warrant would authorise the making of authorisations under section 178—for the enforcement of the criminal law;

     (ii) if the warrant would authorise the making of authorisations under section 178A—finding a person who the Australian Federal Police, or a Police Force of a State, has been notified is missing;

     (iii) if the warrant would authorise the making of authorisations under section 179—the enforcement of a law imposing a pecuniary penalty or for the protection of the public revenue;

     (iv) if the warrant would authorise the making of authorisations under section 180—the investigation of an offence of a kind referred to in subsection 180(4); and

(b) the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the identity of the source in connection with whom authorisations would be made under the authority of the warrant, having regard to:

     (i) the extent to which the privacy of any person or persons would be likely to be interfered with by the disclosure of information or documents under authorisations that are likely to be made under the authority of the warrant; and

     (ii) the gravity of the matter in relation to which the warrant is sought; and

     (iii) the extent to which that information or those documents would be likely to assist in relation to that matter; and

     (iv) whether reasonable attempts have been made to obtain the information or documents by other means; and

     (v) any submissions made by a Public Interest Advocate under section 180X; and

     (vi) any other matters the Part 4-1 issuing authority considers relevant.

180U Form and content of a journalist information warrant

(1) A journalist information warrant issued under this Subdivision must be in accordance with the prescribed form and must be signed by the Part 4-1 issuing authority who issues it.

(2) A journalist information warrant issued under this Subdivision may specify conditions or restrictions relating to making authorisations under the authority of the warrant.

(3) A journalist information warrant issued under this Subdivision must specify, as the period for which it is to be in force, a period of up to 90 days.

(4) A Part 4-1 issuing authority must not vary a journalist information warrant issued under this Subdivision by extending the period for which it is to be in force.

(5) Neither of subsections (3) and (4) prevents the issue of a further warrant under this Act in relation to a person, in relation to which a warrant under this Act has, or warrants under this Act have, previously been issued.

180V Entry into force of a journalist information warrant

     A journalist information warrant issued under this Subdivision comes into force when it is issued.

180W Revocation of a journalist information warrant by chief officer

(1) The chief officer of an enforcement agency:

  (a) may, at any time, by signed writing, revoke a journalist information warrant issued under this Subdivision to the agency; and

  (b) must do so, if he or she is satisfied that the grounds on which the warrant was issued to the agency have ceased to exist.

(2) The chief officer of an enforcement agency may delegate his or her power under paragraph (1)(a) to a certifying officer of the agency.

Subdivision D—Miscellaneous

180X Public Interest Advocates

(1) The Prime Minister shall declare, in writing, one or more persons to be Public Interest Advocates.

(2) A Public Interest Advocate may make submissions:

  (a) to the Minister about matters relevant to:

     (i) a decision to issue, or refuse to issue, a journalist information warrant under section 180L; or

     (ii) a decision about the conditions or restrictions (if any) that are to be specified in such a warrant; or

(b) to a Part 4-1 issuing authority about matters relevant to:

     (i) a decision to issue, or refuse to issue, the warrant under section 180T; or

     (ii) a decision about the conditions or restrictions (if any) that are to be specified in such a warrant; or

(3) The regulations may prescribe matters relating to the performance of the role of a Public Interest Advocate.

(4) A declaration under subsection (1) is not a legislative instrument.

(48) Schedule 1, page 17 (after proposed item 6L), at the end of Part 2, add:

6M After subparagraph 181A(3)(b)(i)

  Insert:

     (ia) to enable a person to comply with his or her obligations under section 185D or 185E; or

6N After paragraph 181A(3)(b)

  Insert:

  ; or (c) the disclosure is:

     (i) to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising powers, or performing functions or duties, under the Inspector-General of Intelligence and Security Act 1986; or

     (ii) by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under that Act.

6P After subparagraph 181A(6)(b)(i)

  Insert:

     (ia) to enable a person to comply with his or her obligations under section 185D or 185E; or

6Q After paragraph 181A(6)(b)

  Insert:

  ; or (c) the use is by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under the Inspector-General of Intelligence and Security Act 1986.

These amendments will amend the bill to create a scheme that will require ASIO and the enforcement agencies, the police, to obtain a warrant prior to authorising the disclosure of telecommunications data to identify a journalist's source. The new warrant will be named the journalist information warrant. Agencies will no longer be able to make an internal authorisation to require the disclosure of telecommunications data of journalists for the purpose of identifying a source.

The warrants will be issued by an independent issuing authority which, in the case of the enforcement agencies—typically the police—will be a judge, a magistrate or a member of the Administrative Appeals Tribunal; and, in the case of ASIO, will be the relevant minister, the Attorney-General. That independent issuing authority must be satisfied that the public interest in the issuing of the warrant outweighs the public interest in protecting the confidentiality of the identity of the journalist's source. These tests recognise that journalists have a duty to protect their sources' identities and should take care to do so, but the legal protections that flow from that duty are not absolute. The protection can be overruled if other public interests outweigh the public interest in protecting a source's identity.

In relation to metadata specifically, journalist's privilege has never prohibited the police from investigating criminal offences committed by a journalist or their source, by using investigative methods that do not involve direct compulsion of the journalist themselves.

Further, this new warrant scheme

Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to this | Hansard source

A critical matter of concern to Labor was the potential for the bill, in the form in which it was introduced by the Abbott government, to stifle freedom of the press. A number of working journalists and their organisations have expressed legitimate concerns that the data retention scheme as proposed by the government would compromise the anonymity of journalists' sources. Labor have been clear that we share the concerns expressed by journalists. The Leader of the Opposition wrote to the Prime Minister, making clear that Labor believe that the relationship between journalists and their sources should be protected by warrant and that this important matter needed to be progressed.

Although the Attorney-General suggested several times this week that the concerns of the journalists were misguided, at one stage describing those concerns as 'a red herring', the government has agreed to Labor's demand to put in place a warrant system to protect journalists' sources. Labor has been working to negotiate a warrant scheme to protect freedom of the press, and I am pleased that the scheme has now been agreed and is the subject of this group of amendments before the House.

The key aspects of the framework to protect journalists' sources are as follows. Agencies seeking access to retained data will be prohibited from accessing telecommunications data to identify a journalist's source unless that agency obtains a journalist information warrant. There will be a statutory presumption against issuing a journalist information warrant. Agencies must establish that the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the identity of the journalist's source, having regard to matters including the extent to which the personal privacy of individuals would be interfered with, the gravity of the matter in relation to which the warrant is being sought, the extent to which the information being sought would assist the agency seeking it to perform its functions, whether the agency has made reasonable attempts to obtain the information sought by other means, and any submissions made by the public interest advocate.

This last point is of particular importance and I will say a little bit about the public interest advocate, because the public interest advocate will play a critically important role in the protection of journalists' sources. The public interest advocate will speak for the matters of public interest that are to be taken into account in any decision as to whether or not to issue a journalist information warrant. The amendments provide that the Prime Minister 'shall' appoint a public interest advocate. For the avoidance of any doubt, the government has committed to appoint a public interest advocate, because that advocate, as I have said, central to the operation of the warrant system to protect freedom of the press in the context of the data retention scheme. I must say that I am a little puzzled about the government's choice of the word 'shall', given that the Office of Parliamentary Counsel's Plain English Manual says that 'must' should be used in preference to 'shall' because 'shall' is ambiguous. If there is any doubt created by using the word 'shall', let me remove it by saying that this legislation will oblige the Prime Minister to appoint one or more public interest advocates.

The public interest advocate is to be notified whenever an application for a journalist protection warrant is made. The public interest advocate is charged with responsibility to, in effect, stand in the shoes of the journalist and argue the public interest issues relevant to preserving the confidentiality of a journalist's sources in relation to a particular warrant application. Labor expects that the public interest advocate will be a very senior lawyer or lawyers appointed within the Prime Minister and Cabinet portfolio, similar to the existing arrangements for the Independent National Security Legislation Monitor. If a warrant is issued, the Inspector-General of Intelligence and Security or the Ombudsman—depending on which agency has obtained the warrant—and the Parliamentary Joint Committee on Intelligence and Security must be notified as soon as practicable. The intelligence committee will be empowered to order the IGIS or the Ombudsman to provide a briefing on the issuing of the warrant. I commend this scheme for journalist information warrants, which will provide protection in respect of journalists' sources and thus provide some protection for freedom of the press, to the House.

Jason Clare (Blaxland, Australian Labor Party, Shadow Minister for Communications) Share this | Link to this | Hansard source

These are important amendments which have resulted after a lot of hard work after a lot of disagreement. As the member for Isaacs said, this is an area where the Parliamentary Joint Standing Committee on Intelligence and Security could not agree. Labor members argued that a warrant was necessary for law enforcement and security agencies to get access to a journalist's metadata for the purposes of identifying their source. Liberal members did not agree. We believe that it is important that a warrant should be required, because we believe that journalists are special, that journalists are different.

As I said in the second reading debate, the privacy of journalists' sources is integral of the freedom of the press. It is why shield laws exist for journalists. It is important, because sometimes it is journalists who are investigating law enforcement. To this point, the United Kingdom recently passed legislation enacting a code of practice, which will come into effect before their election, to create a warrant based process before law enforcement can get access to a journalist's metadata for the purposes of identifying their source—and they have done it for good reason. Work that has been conducted in the United Kingdom has identified where law enforcement access to journalist metadata has been misused and has identified that this is a necessary check. Karen Bradley, the Minister for Organised Crime in the UK, recently said:

We accept that journalists are a special case because, for example, in investigating a leak, determining who spoke to whom may be more important than what was said, but the same argument does not apply to other sensitive professions.

That is why we have been adamant, consistent and insistent that a warrant is necessary if law enforcement or national security agencies want to get access to a journalists' metadata.

Thankfully, finally, the Prime Minister backed down on this on Monday. He did that after a letter from the Leader of the Opposition on the weekend that said, 'We will listen very carefully to the evidence that is to be given tomorrow at a hearing of the committee by the chief executive officers of News Limited, Fairfax, Channel 9, Channel 10, Channel 7, ABC and SBS and we reserve our right to move amendments in the Senate.' I think the threat of those individuals attacking the Prime Minister and the absence of this amendment in this legislation was enough to force him to back down.

As I said on Tuesday morning, we also believe that this warrant must not be just a tick and flick. After a lot of hard work, we have got amendments in this legislation which I believe now meet that test. I draw the House's attention to two key elements of this warrant process. The first is the establishment, for the first time, of a public interest advocate, and the second is a standard that the judge will need to be satisfied of before they can grant a warrant. In respect of the first, the establishment of a public interest advocate, as the minister and the shadow Attorney-General have said, this creates an independent voice in the court acting for the public interest, and it is a critical part of making sure that this is not a tick-and-flick approach. It is based on the public interest monitor system that exists in Queensland and Victoria. It has existed for 20 years in Queensland with respect to listening device warrants and for five years in Queensland with respect to phone taps. It would be a senior barrister in private practice that would fulfil this role.

In understanding how important this provision is, I draw members' attention to an opinion piece written by Terry O'Gorman, the president of the Australian Council for Civil Liberties, in The Australian, in June 2011 entitled 'We need more accountability for phone taps to guard civil liberties'. In arguing the case for a similar regime in Victoria at that time, he said that there should be a similar type of model in all states and territories, including for federal law enforcement agencies. He said:

The Queensland PIM has worked well for more than 15 years. It is an accountability measure that should be introduced Australia-wide.

I think that demonstrates the seriousness of this role and the role that it provides in making sure that this is not a tick-and-flick approach.

I also draw members' attention to the proposed section 180T(2)(b), which states:

(b) the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the identity of the source in connection with whom authorisations would be made under the authority of the warrant …

This is the key test that the judge needs to be satisfied of and provides an assurance that this is not a tick-and-flick warrant process. (Time expired)

Andrew Wilkie (Denison, Independent) Share this | Link to this | Hansard source

I have a comment and a question for the minister. I am the first to agree that journalists should have some level of protection. They should have some certainty that they can keep their sources confidential, particularly when it comes to national security articles they might be working on. In fact, the minister would remember that, early in the 43rd Parliament, I progressed successfully the so-called shield laws to give journalists greater protection as far as ensuring that they could keep their sources confidential.

The issue here is not so much that journalists need extra protection; the issue is why don't other people have greater protection? For example, why would we say that it is important for a journalist to keep private the name of a source, but yet it is not important for a lawyer for instance—or perhaps a judge or a medical professional—to keep private the fact that he or she had a communication with someone? Some in this place would even argue that a priest should be able to reliably keep confidential the names of the people that they might deal with. What about members of parliament, who might be approached by someone in the community on a very, very sensitive matter? That member of the community would feel that their identity must be reliably kept confidential.

The point is that there are lots of people in the community who have an equally legitimate need to have their identity kept secret in certain circumstances, for very good reasons and for reasons equally as good as a journalist. In fact, in my personal opinion, I think warrants should be required for the security services to access metadata in any case, for any person. We know that already the security services are accessing metadata hundreds of thousands of times. Every time they access metadata, they are effectively searching someone's private property. We accept in the community that, when it comes to the search of private property, it is entirely proper that the security services should get a warrant if they are going to go into someone's house or search someone's property. So why is this different?

As I made perfectly clear in my speech to this bill in this place yesterday: this is a missed opportunity. It is a missed opportunity to examine the need to give protection to all members of the community. I can see no good reason why this bill should not require warrants for any access of metadata, for any purpose, for any person. Yes, that would slow things up. I accept that that would make it more difficult for the security services. But the point that I made yesterday, and I make it again, is that because it would be a bit more difficult, because there would be a bit more of a tension in the process, the security services would be reluctant to just ask for information at the drop of a hat. The number of times that metadata is accessed would fall dramatically because the security services would find it, frankly, an embuggerance. They would focus just on the people that they really need to focus on, and they would not be accessing metadata on a whim, which I have no doubt occurs at the moment. Because at the moment and if this bill becomes law, for everyone except journalists, it will be just so easy for any security service officer to pick up the phone, ring up Telstra, Optus, Vodafone or whoever, and ask, 'What have you got on Harry Bloggs?' There will be next to nothing to put any sort of impediment in the way of that going on.

By the way, I do not accept the minister's answer that there is no, and should be no, protection or confidentiality when a lawyer speaks to a client or someone who might be a client, but that is not the point here. The point here is that we accept that journalists should be able to keep private that they are in contact with someone, surely that should be extended to lawyers. My question to the minister is: what is so special about journalists that only they get protection, not lawyers, not doctors, not members of parliament, and not priests perhaps, as would be view of some people? Why can't we all have protection? (Time expired)

Malcolm Turnbull (Wentworth, Liberal Party, Minister for Communications) Share this | Link to this | Hansard source

In response to the honourable member's question, I can only concur with the remarks of the junior minister Karen Bradley in the UK, who was answering this very same question, as the member for Blaxland referred to earlier, and who made the point:

We accept that journalists are a special case because, for example, in investigating a leak, determining who spoke to whom may be more important than what was said, but the same argument does not apply to other sensitive professions.

The important point there is that the privilege that attaches to lawyers' advice, or the privilege that attaches to a priest's discussion with someone who is making their confession, attaches to the content, and the content is not dealt with here. We are literally only talking about the metadata, which—relevantly, in the circumstances we are talking about now—would indicate that telephone A called telephone number B at a particular time. There is no privilege attaching to that at all. There never has been.

This issue is that journalists have a special role in terms of their need to protect their communications with informants, otherwise they cannot do their work. I can say more about the extraordinary qualifications and virtues of journalists but, given my previous occupation, that might be seen as self-serving.

Andrew Wilkie (Denison, Independent) Share this | Link to this | Hansard source

Thank you, Minister, for that answer. What then of someone ringing up their member of parliament? That could be every bit as important, and just as relevant, as the case of a journalist. Let's say someone rings me up or rings you up and reports wrongdoing. You or I would stand up in the chamber on the next sitting day and take the opportunity that this place provides to ventilate those concerns. Shouldn't that source be protected in the same way as journalists' sources would be given protection?

Malcolm Turnbull (Wentworth, Liberal Party, Minister for Communications) Share this | Link to this | Hansard source

I thank the honourable member. I come back to the point that I made earlier. The content of the conversation—the content of an email or a text message—is not the subject of this legislation; it is purely the record. I just remind the honourable member for Denison that these records are there now. They cannot be accessed by the police out of idle curiosity. It has to be in the context of investigating the commission of a crime and so forth. I am sure the honourable member is well aware of this.

If there were an investigation of a crime that required examination of metadata that might include telephone records between a member of parliament or somebody else, that information is available now and is being accessed now. The rationale the member is advancing in that example would basically mean that the whole system of access to metadata would grind to a halt. We have special protections in this bill for journalists, given their special role.

I do not want to overdo the lavish praise for journalists and journalism but we cannot get away from the fact that the work journalists do is as important as anything the honourable member and I do—or any of our colleagues do. It is absolutely critical in their ability to access information confidentially and to protect their sources. I repeat that it is the journalist's job to protect his or her sources and they should take every care to do so; and their employer should ensure that they take care to do so.

There is a vital public interest in ensuring that we have a free and robust press. We all feel the lash, from time to time, and we all feel we have been mistreated and misunderstood, but we will not have a democracy without a free and fearless and independent press. So it is very important to recognise that journalists sit in a different situation.

Andrew Wilkie (Denison, Independent) Share this | Link to this | Hansard source

I am sorry, Minister, that I am labouring this point. An observer might think it a bit self-indulgent that members of parliament are talking about the need for greater protection for members of parliament, but I am only using the example of you and me—or someone in this place—because I think it is a very helpful way of understanding a flaw in the bill.

The amendment accepts—and I agree—that journalists have a very important role to publicise wrongdoing. I agree with you. It is legitimate that journalists should have protection. But in what the government is trying to achieve here, with the support of the opposition, the logic is breaking down somewhere. If we agree that journalists should have protection so that they can effectively publicise wrongdoing, then surely my standing up here and ventilating a concern expressed to me privately by a constituent about, say, misconduct in a Public Service department, is equally important. And that source of information surely should have the same protection as the source who might go to a journalist instead.

For example, let's say someone rings me up from the Department of Veterans' Affairs this afternoon and tells me of a serious wrongdoing in DVA. If I think, 'Okay, that's very important,' I might jump up here next Monday and take the opportunity afforded me to describe that wrongdoing in DVA. The chances are that someone, somewhere is going to ask who made a call from a DVA number to my number today. I am sure you can see what I am getting at. It is an example. Why shouldn't the source of information in DVA—in that example—have just as much protection as someone who might have gone to a journalist?

Malcolm Turnbull (Wentworth, Liberal Party, Minister for Communications) Share this | Link to this | Hansard source

The honourable member poses a good question. He poses it in good faith, as we all accept, but you have to draw the line somewhere. We have drawn the line with respect to journalists because they are in a very special category. The job of journalists is finding and publishing information that people do not want to have published. I think that one great newspaper man at some time said that the definition of news was something that people in power do not want the public to read. So that is a very special situation that journalists are in.

The point the honourable member is making is a perfectly reasonable question to ask.

The government has chosen to deal with journalists in this very specific way. No doubt this debate will continue, but it is very important that this legislation be passed. We really do need to get on with it. This issue has been knocking around for some years now without resolution, and the government is committed to getting this legislation passed. The police and ASIO are very anxious that it be passed, but it will still be debated, of course—assuming it is passed in this House today—in the other place as well. But I thank the honourable member for his very thoughtful question nonetheless, and I hope he finds my answers at least somewhat satisfying.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

Following on in part from the answer just given, whatever may be said about the first set of amendments—given that they arose, we are asked to understand, out of the PJCIS and that that had been ventilated for some time—the same cannot be said about this second set of amendments. It may be that, if we have the opportunity to understand these amendments, they are worthy of support because they make a bad bill slightly less awful than it currently is. But, given that we have just been given 15 or 16 pages worth of amendments that we are told are designed to offer some protection to journalists, I ask the minister again: in respect of these, given that this was not an agreed outcome of PJCIS and was not, as the minister has urged us to accept with respect to the first set of amendments, something that has been out there in the public domain for a long period of time, surely we should have the opportunity now to go and test these amendments with journalists, with people who represent journalists and with free speech advocates before all of us sitting in this parliament are asked to vote on them. That surely should be an uncontroversial proposition: that we now have time to go and consider these amendments which have just come out of the blue today. I ask the minister to please adjourn this debate so that we can go and seek advice about whether these amendments give journalists the kind of satisfaction that they are seeking.

Malcolm Turnbull (Wentworth, Liberal Party, Minister for Communications) Share this | Link to this | Hansard source

Again, I thank the member for Melbourne for his question. As I said earlier, it is very important that we get on with this legislation and get it passed. It will, of course, be subject to debate and consideration in the other place, the Senate. As far as this particular set of amendments is concerned, these are straightforward and very readily comprehensible. The honourable member, famous for his quick and agile intellect, has had no problem in understanding them. The structure is very clear.

I would think there is only one real issue of contention with the media sector, which I have spoken to and which we have consulted with intensely. I want to thank journalists again—for example, Laurie Oakes, the elder statesman of the press gallery, has been very eloquent on this matter—and, of course, their union and the employers themselves and the editors. I thank them all for their contribution. Many of them made an argument that, before a warrant of this kind was issued, the journalist should be given prior notice so that the journalist could appear, either personally or with counsel, to oppose the issuing of a warrant. That would be a massive, radical change to the way in which warrants are issued and would have implications and create a precedent that would go well beyond this case, so neither the government nor the opposition supported that. But, apart from that, I think this provides answers to the concerns of the media organisations and, based on my discussions with them today, they have broadly welcomed it.

So I really do put to the honourable member that he has more than adequate time to deal with this. We often have to deal with things quickly in this House. Sometimes people think the wheels of government grind very slowly, but on occasions we have to crank it up and get things done. We are here to legislate, not just go round in circles on issues, and we have been going round. I make no criticism of anybody, but this issue has been kicking around for years, and we are bringing it to a resolution now. It is a great credit to the Prime Minister for his energy in making sure that this matter is brought to resolution, and I also pay credit to the Leader of the Opposition and his colleagues the member for Isaacs and the member for Blaxland for their cooperation with us this week in getting these amendments resolved.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

I thank the minister for his flattery but, with respect, we have 30 pages of amendments, and we have been on our feet and in this chamber debating the first 15 pages, so the suggestion that during that time we have had enough time to read, consider and form a view on the last 15 pages is just fanciful, and I suspect the minister knows that. Given that we are doing this on the fly, with no time to seek advice or consider it, let me ask the minister a couple of questions about how this is intended to operate. I see in proposed section 180L that there is reference to the minister issuing a warrant with respect to the journalist. I am wondering if the minister can explain who that minister is and what the minister's role in respect of issuing warrants is under these amendments.

Malcolm Turnbull (Wentworth, Liberal Party, Minister for Communications) Share this | Link to this | Hansard source

I thank the honourable member for his question. The minister, as I am sure the honourable member is aware, is the minister responsible for the organisation, which is ASIO, and that is the Attorney-General. Under the existing law, the minister is responsible for giving warrants to ASIO when ASIO seeks warrants. I am sure the member for Denison is very familiar with all of this given his background. So the process with respect to ASIO has the issuing authority as the minister—that is, the Attorney-General—and with respect to the AFP and the enforcement agencies it is a judge or magistrate and so forth. If you are on the public interest advocate panel, I suspect you would spend a long, long, long time waiting for the opportunity to make a submission in respect of a warrant application relating to a journalist to the Attorney-General. It is a rare occurrence even with the police, but a very rare occurrence with ASIO.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

The minister has touched on an issue which I seek further clarification on. In his submission, the member for Blaxland said—and I believe he was speaking on behalf of the opposition—that the amendments that have been secured would require anyone who wanted a warrant with respect to a journalist to approach a judge. He used the word 'judge' repeatedly. He said it is the judge who issues the warrants. So you would have a chance, as a public interest advocate, to argue in front of a judge that warrants should or should not be issued. I am after clarification as to whether that is in fact right. Are the member for Blaxland and the Labor Party are right in saying that, under these amendments, all of these warrants will have to be argued in front of a judge, or whether the effect of 180L is that some of them will not have to be argued in front of a judge and will in fact be argued in front of the esteemed Attorney-General.

Malcolm Turnbull (Wentworth, Liberal Party, Minister for Communications) Share this | Link to this | Hansard source

I will pass on to the Attorney-General the esteem which you hold him in. He will be very touched by that. So that it is clear: the requirement for journalist information warrants, which is the term, where they are sought by the organisation, which is ASIO, they are sought from the minister, not from a judge. That is the case at the moment when ASIO seeks warrants in other contexts. Where a journalism information warrant—and I am now looking at Subdivision C, which is on page 19—is sought by an enforcement agency—the police, for example—that is sought from what is inelegantly called a part 4-1 issuing authority, which is a judicial officer—a member of the AAT, a magistrate or a judge. What the member for Blaxland was referring to was the issue of warrants to the police.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

It occurs to me then that the situation is this: if ASIO—and there may be other security agencies; I just do not know, because I did not have time to read these amendments in detail—are wanting to seek a warrant for something that a journalist is doing, and it may be that the journalist is perhaps talking to someone in a government department who is raising concerns to them about potentially even the minister himself or herself as the case may be, that process does not get argued out in front of a judge. What will happen if a journalist is talking to someone and ASIO wants to know a bit more about it is that, in a closed process, ASIO would go to the minister, who may in a future government be the minister that the journalist is actually investigating, and it will never be argued in front of a judge. All that will happen is that this new public interest advocate will have the right to make a submission to the Attorney-General, but that otherwise it will never come in front of a judge. Is that correct? And is that the intention of this amendment?

Malcolm Turnbull (Wentworth, Liberal Party, Minister for Communications) Share this | Link to this | Hansard source

The application for a warrant by ASIO goes to the minister, who is the Attorney-General.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

Again, just going two or three pages in, without the opportunity to digest these amendments, I think it becomes apparent that if you are a journalist who is getting information that might relate to a future Attorney-General or might relate to something else, and if ASIO wants to seek a warrant for you and what you are doing, it will never go to a court and all the public interest advocate gets to do is go and talk to the person who you may be investigating, wanting to write a story or wanting to follow up. If that is right, I wonder whether it is up to them as to whether they want to stand up. I wonder whether the Labor Party agrees with that or whether they have been sold a pup, because that is pretty significant and it is not in accordance with what I understood from previous submissions from the opposition side to be the level of protection accorded in these amendments. In the short time available to us, that is one question which we have been able to point to. Can the minister explain under what agency or under whose control the public advocate will be, within the government department. Can the minister also explain who they will report to and how much funding this public advocate will get.

Malcolm Turnbull (Wentworth, Liberal Party, Minister for Communications) Share this | Link to this | Hansard source

The short answer, as the honourable member knows, is that ASIO warrants have always been issued by the minister, so there is absolutely no change from that practice. The change in respect of accessing metadata, a warrant relating to a journalist and his sources, is that a warrant is needed at all. So, from the perspective of the honourable member, as a I divine it, this is a considerable improvement. If his objection is that the minister, the Attorney-General, should not be issuing warrants in respect of applications by ASIO then that is a much bigger question that relates to the whole range of warrants that the organisation may be seeking. As far as the role of the minister vis-a-vis ASIO and warrants is concerned, this is very much status quo.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

On another matter: is there contained in these amendments a definition of a journalist? What counts as a journalist under these amendments?

Malcolm Turnbull (Wentworth, Liberal Party, Minister for Communications) Share this | Link to this | Hansard source

Can the honourable member repeat that.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

What is the definition of a journalist? Is there something in these amendments that defines what a journalist is?

Malcolm Turnbull (Wentworth, Liberal Party, Minister for Communications) Share this | Link to this | Hansard source

It is an English word, and it describes an occupation—a very important occupation. It is not defined in the act. Assuming it was ever controversial, perhaps some day a court could look at it. The reference, of course, is to a journalist working as a professional in a professional capacity, so I think that it is very well understood. I do not anticipate there being any problems arising. Some issues of interpretation of words arise even when you try to define them elaborately. I think that it is a very well understood term.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

I wonder if, in that respect, whether it includes a blogger because we have heard on several occasions from this government, including from the minister, about the transformative role of the internet in journalism. In many respects I agree with the minister. There are now many people who would say they are performing activities as journalists, which are similar to the functions that used to be carried out by journalists, but they may not be in the employ of a media organisation. They may be doing freelance work. It might be that they are in the employ of someone else, but that someone is not considered to be a traditional media organisation.

A very real question will now arise because although, historically, we might know what a journalist is—yes; it is an English word and I hope most of the words in this set of amendments are English words—and it has been clear, historically, what a journalist is. But there is now a very real question in the context of a bill about what happens on the internet. In the context of a bill that is about surveillance of metadata, surely it is something that ought to have been considered in that context—whether people who do things online as bloggers, and the like, count as journalists. That has certainly that has been agitated for more broadly. It is certainly something that has been raised by journalists, amongst others. I do not think that it is at all fanciful to ask the question about whether someone who is publishing solely online in the form of a blog, and who might not be in the employ of someone else, would count as a journalist. I wonder whether that has been given any thought in the preparation of this, or whether being a journalist is perhaps comparable to being in the MEAA, for example.

I ask the minister to explain with respect to bloggers in particular. Will bloggers be counted as journalists for the purposes of this? If they are not, what that means is apparent—the full force of this legislation applies to a blogger. A blogger is someone who would be conducting most of their activity online and, you would argue in many respects, most of their journalism. They would be doing that online, so a blogger is certainly someone who wants to maintain the security and privacy of their communications with others in same way as a journalist would.

They are, in fact, less likely to be in the same vein as those the member of Denison referred to, who you would have a phone call with and communicate with by the old means. They are much more likely to be conducting their activities online and, as such, are more likely to be caught within the remit of this legislation. For them, it is probably even more important that they be covered. Given that these amendments have been moved apparently with some significant thought and preparation—even though we have not had the courtesy of seeing them in this parliament and being able to consider them for any extended period of time—surely this question of online-only journalism ought to have been considered. It is something that has been raised in the public debates. If the minister's response is, 'Some of these issues have been canvassed publicly over several years, so surely we are in a position to move on'—well, this is something that has been canvassed in the years gone by, and especially online. I ask the minister the simple question: does a blogger count as a journalist?

Malcolm Turnbull (Wentworth, Liberal Party, Minister for Communications) Share this | Link to this | Hansard source

The answer is that many journalists blog. In fact, I would say that probably most journalists blog nowadays. If they are doing it in their professional capacity, then they are covered by these protections. That is quite clear.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

Following from that, if this amendment means that a blogger is counted if they are doing it in their professional capacity, does that mean that blogger has to be drawing a salary? Does that mean that they have to be in the employ of someone else? For a blogger to count as a journalist, does that mean they have to be a member of a registered organisation? What if the person who is the blogger operates in a number of other capacities and not just as a journalist?

Given the minister's answer, and given that, at the end of the day, some very, very serious consequences hang on this—namely, whether or not your activity online, and who you speak to or do not speak to, is going to be kept for two years, which might be of great significance to someone who is an investigative journalist and who does it in the course of being a blogger—there ought now, at least, to be some clarity as to whether or not that person counts as a journalist.

If the minister's answer is, 'If you are doing it in your professional capacity as a blogger, then you count as a journalist', can we have some clarity about what counts as a 'professional capacity'? Let's give some examples: someone who is in the employ of another organisation—are they acting in their professional capacity? Someone who is not in the employ of another organisation but this is their sole means of staying alive—are they acting in a professional capacity? Someone who does it not because they are getting paid but because they believe in what they are doing—is that someone who is doing it in their professional capacity. As the minister suggests, do you have to be otherwise employed as a journalist and someone who blogs, or can you be someone who is not separately a journalist—in the employ of the Guardian, or in the employ of Fairfax—who only blogs? Will that count?

I repeat the point for the minister: this is quite serious because this goes to whether or not that person has the capacity to know that all of the activity which they are going to be conducting online counts as private. Some very, very important questions hang on this, so, given the reference from the minister—

Bruce Scott (Maranoa, Deputy-Speaker) Share this | Link to this | Hansard source

Order! The debate is interrupted in accordance with standing order 43. The debate may be resumed at a later hour.

Malcolm Turnbull (Wentworth, Liberal Party, Minister for Communications) Share this | Link to this | Hansard source

on indulgence—I just ask for an indication from the honourable member for Melbourne whether he proposes to keep speculating about the definition of 'journalist' for a lengthy period. If we were to give this bill precedence over the 90-second statements, we could deal with the bill before question time, but, if the honourable member wants to keep talking about the definition of 'journalists' for another half an hour or so, we can allow 90-second statements. It is really a question of whether the honourable member wants to run down the clock or not. That is the issue.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

Perhaps I can hear an answer from the minister and we will take it from there.

Bruce Scott (Maranoa, Deputy-Speaker) Share this | Link to this | Hansard source

No, I will have to proceed with the 90-second statements. I am governed by standing orders. I call the honourable member for Fowler after allowing some indulgence.