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

Regrettably, it is looking increasingly as if everyone in this place will vote in support of the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, with the exception of the member for Melbourne and me, and perhaps one or two other crossbenchers. In other words, virtually everyone in this House is taking the position that the end justifies the means. That has in fact been made clear in a number of speeches we have heard in this place already in regard to this bill. Just about every person has jumped up and made the point that compulsory retention of metadata for two years will in fact help law enforcement and security agencies to do their work. I do not dispute that. As someone who served in the military for 20 years, including a stint in intelligence, I have no doubt that if the security services could have access for a period of two years to all of this metadata on everyone with a computer, a smartphone, a tablet or whatever it will make their job a little bit easier.

The question is: where do you draw the line? The point is that we should never let the end justify the means. During the last parliament I was on the Parliamentary Joint Committee on Intelligence and Security, which looked into this matter previously. I came to the conclusion—and without giving too much away I think a number of my colleagues on the committee came to the same conclusion—that this would be an unreasonable extension of the power of the state. That is the challenge for us in this place: to work out where to draw the line. If you said to the security agencies that you could do whatever you wanted to about any matter, I reckon they would solve a lot of matters. If you summarily executed every suspected shoplifter, I am sure we would very quickly reduce the incidence of shoplifting. But that of course is a ludicrous proposition. It would never be done, because we know where to draw the line.

But when it comes to national security we always seem to be tempted to move that line just a bit further and extend the power of the state that little bit further. That puts us on a slippery slope, because where does this end? I recall that when this was mooted a few years ago mandatory metadata retention was only to be about national security and defeating terrorism. The government at the time was very careful to emphasise that. People in this House were very aware that that was what we were talking about. But in speeches and comments made both inside and outside this place we hear about all sorts of other forms of crime. So, already, we are seeing incrementalism at play, where it is not just about terrorism. It is that we want to keep for two years the electronic footprint of every person with some sort of smart device, perhaps so that we can track them down and prosecute them for any number of offences short of terrorism.

Rather than talking about the expansion of the metadata arrangements and making them mandatory, I think we in this place should be questioning the metadata arrangements that are already in place and asking why there is already so much metadata stored without any sort of legal cover, and why the authorities are accessing it so many times without necessarily having a warrant. In fact, when I look at the figures for the last couple of years, I see that in fiscal 2011-12 federal and state security services accessed metadata 290,358 times. In fiscal 2012-13 federal and state security agencies accessed metadata 319,874 times. This was done all without any sort of legislative framework, and none of it with mandatory recourse to a warrant. I think that is the sort of thing we should be discussing in this place. So much metadata is already sloshing around and it is already being accessed. Why should we already be allowing metadata to be searched, without a warrant, when we accept that for someone's property to be searched normally there should be a warrant. This is their property. Surely a requirement for warrants should be introduced right now.

I do not accept the comment made by a previous speaker that getting a warrant is just too hard. That is the whole point. The whole point of getting a warrant is that there should be a tension in the process—that it should be a bit difficult. The onus should be placed on the security official to make the case to a judge, and it should be a bit difficult, because we want to have that tension and make it a bit hard. We want warrants to be issued when the case for a warrant can be unambiguously made when a judge, without any doubt in his or her mind, is convinced that a warrant is necessary.

I have already made the point that I am intrigued by the incrementalism that has already crept in—the fact that this was originally all about terrorism, but now we are talking as much about paedophiles and other heinous and serious crimes. I am the first to say that we must track those people down and prosecute them. But where do you draw the line? I fear that we are already on a slippery slope and we do not know where this slope is going to take us. Before we know it, there will be this massive volume of metadata before stored and people will be making applications to access it perhaps in civil matters. What will the government of the day make of that?

I fear that eventually this will be a resource for anyone to access. That would be so far removed from the original purpose both in this country and in other countries where they have looked at metadata or mandatory metadata retention.

I have made the point that mandatory metadata retention will assist the security agencies, but I worry that in this place some members have been too quick to take at face value the assurances of the security agencies about just how much use metadata is. We know from history—we know without any doubt from history—that the most clever terrorists know what they are doing. We saw this on 9/11 when a very small group of people using innovative means carried out those shocking attacks in 2001. We know that these days fortunately most would-be terrorists are not very bright, and we are able to track them down and detect them, and take action against them. But there are a small number out there who are very clever and know how we operate. They know with these new laws that, if they come to pass, there will be ways to defeat them. It will not be hard for them to defeat them. It will not be hard for them to use foreign-based telecommunications environments to beat our laws because for them the relevant metadata will be stored in another country which we cannot access.

We also know that a large amount of the World Wide Web is not accessible normally, and it not accessible normally to the security agencies. This is where the real evildoers hang-out. This is where terrorists will sometimes communicate. This is where paedophiles will sometimes share their pictures. This is where all sorts of unspeakable things go on in places like the Deep Web—that portion of the World Wide Web content that is not indexed by standard search engines—or the dark internet, which is made up of computers that can no longer be reached via the internet. That is where we will push the real evildoers. This means that mandatory metadata retention will end up being much more a matter for law-abiding people like ourselves who are having our electronic footprint recorded, and lesser criminals who have not got the smarts to go to places like the Deep Web and to use facilities like the dark internet or have not got the nous to use a foreign-based communications environment.

I worry that we will not achieve what we are trying to achieve to the full extent—even though we will be paying the enormous price that our electronic footprint will be stored for two years. Let us not underestimate what that footprint means. Speakers are very quick to say, 'Don't you worry about that; it will be just the fact that you made a call.' It will be a darned sight more than that. For example, every time your phone is recorded as having a location, it will be recorded for two years. In other words, the security services will know where every phone has been located, while it has been turned on, for the last two years. This is an unprecedented extension of the power of the state. I do not know that people in this House understand the scope of the extension of the power of the state that is being contemplated in here and likely to pass the parliament. Not even in the United States have they contemplated such a remarkable extension of the power of the state, and most countries in Europe have baulked at going anywhere near this because they know it is an unprecedented extension of the power of the state. It is. I do not mean to sound overly dramatic, but it is a step towards the police state, when all of a sudden our security agencies will have in their possession, or access to, your electronic footprint for the last two years. They will know every time you have made a phone call; every time you have sent an email; everywhere your phone has gone, which presumably is on your person—quite remarkable.

When I was on the Parliamentary Joint Committee on Intelligence and Security in the 43rd Parliament and we did look into these matters, I was quite affected by the volume of public submissions and the breadth of public submissions. There were thousands of submissions from all sorts of individuals and organisations, and not from your usual suspects. Mostly these submissions were from people and organisations that should be listened to, and they were overwhelmingly opposed to mandatory data retention. So why are we ignoring them? I cannot fathom it. I can only assume that members of the government and members of the PJCIS in this parliament have gone inside the tent, and when secrets are shared with you it is intoxicating—you start to drink the Kool-Aid; you start to believe everything that is being said. When the security agencies are asking for a cheque, you hand them a blank cheque because you have drunk the Kool-Aid and you are believing everything they have said. Of course they will ask for everything, that is their job. It is our job to limit what they get; to limit it to what is acceptable to the community; to limit the power of the state to acceptable levels.

I might have had a different response to this bill if a couple of aspects were addressed. They will not be addressed. I have raised them before. One is that there needs to be much more effective parliamentary oversight of the intelligence services. I think it was the member for Greenway who was expressing some confidence in this bill because she was able to say that we in the parliament would keep a close eye on this—we would know what is going on and monitor it, and be able to take remedial action. I support the member for Greenway's sentiment, but the reality is that parliament has no oversight of operational matters of the security services. The Parliamentary Joint Committee on Intelligence and Security only has a remit of administrative oversight of some of the security services. It is, in fact, the ministers who have oversight of the relevant agencies. That is fine when you have good ministers, but what happens in the next parliament, or the one after that, or the one after that, when you have a dud minister—someone who is prepared to go just that bit further. Again, we are back on the slippery slope.

I might have had a different approach to this if we had taken this opportunity to ask: why is it that already, every year, the security services access metadata without warrants hundreds of thousands of times? That is effectively searching someone's property. There should be a warrant arrangement in place now. Surely any sort of mandatory metadata storage and access arrangement must include warrants for any access—not just for journalists but to access anyone's metadata.

Yes, that will be hard. It will slow things up. But it will ensure that the security agencies less and less unnecessarily access our property and more and more focus on the property of people who should be scrutinised. That is what is required. Again, this is a missed opportunity to give the parliament greater oversight and to put in place a warrant requirement for all access to all metadata. Instead, the parliament is doing what it does.

I hope I am wrong. I hope more than the member for Melbourne and I and perhaps one or two other crossbenchers oppose this bill. I will certainly oppose this bill. I will continue to oppose it and speak out strongly against it. I will call on a future parliament to wind it back.

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