Dan Tehan (Wannon, Liberal Party) Share this | Hansard source

I stand today to speak on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 not only as the member for Wannon but also as chair of the Parliamentary Joint Committee on Intelligence and Security. I would like to talk about a few things today just to be clear about the process which has led to us being here today. I would also like to talk a little about the process that has led to some members putting forward amendments—I would call them pious amendments—the recommendations that the committee has made, the environment we are dealing with currently and why this piece of legislation, which is before us today, in my view, needs to be passed.

The committee took its time in considering this legislation. It considered every significant, important matter that this bill brings before this place and has dealt with it in a very systematic way. I would like to take this opportunity to commend all members of the committee who participated in this inquiry—the five coalition members and the four Labor members. Everyone who was involved in the committee process acted in very good faith and in a truly bipartisan way. I think it is significant for this parliament that, when it comes to issues of national significance, we can act in a bipartisan way. It is reassuring to the Australian community and the Australian people that when a bill like this comes before us, which deals with national security and individuals' rights, we can consider it in a way which brings all those concerns together and to put in place a piece of legislation which I think makes this nation safer but at the same time also puts in place greater protections than there are currently. The way the committee has been able to do this, I think, has been very, very significant.

It is why I have found the contribution of the Greens in this place, and in particular the contribution of the member for Melbourne, so disappointing. For the member for Melbourne to suggest that the data retention regime is being put in place without safeguards, sadly, shows that he is on a completely different planet. In an example that he gave, he said that it was like watching his dog play chess. It was a tiny bit enlightening because, obviously, he has spent far too much time watching his dog play chess and not bothered to read the committee's report and consider, in particular, the evidence that was received by the Australian Federal Police, other law enforcement agencies and our national security agencies.

This debate brings together two important elements, and I think that not to consider one of those elements is concerning, worrying and, as a matter of fact, downright disturbing. I would say to the Greens that, when it comes to considering this bill, there are serious national security implications that are involved and you should consider them, not just turn a blind eye.

Having got that out of the way, I would now like to turn to what the committee recommended when it considered this legislation. The data retention bill will implement a mandatory telecommunications data retention regime. It contains measures to require telecommunications suppliers in Australia to retain certain data for two years, with web-browsing history and the contents of communications excluded. It does not involve the storage of content. The bill also seeks to limit the organisations able to access telecommunications and store data to those with a demonstrated need and with appropriate internal procedures to protect privacy, and expands the role of the Commonwealth Ombudsman in overseeing the exercise of these powers.

The report recommends that the bill be passed by the parliament and makes 38 further recommendations aimed at strengthening the regime and improving oversight and safeguards. These include: including the proposed dataset in the bill rather than in regulations as proposed; listing all criminal law enforcement agencies and enforcement agencies in legislation; establishing emergency declaration powers, subject to safeguards, for the Attorney-General to include items in the dataset, or declare an additional agency able to access data; prohibiting civil litigants, with appropriate exceptions, from accessing telecommunications data being held solely in compliance with mandatory data retention requirements; and strengthening the safeguards around the use of telecommunications data for the purpose of determining the identity of a journalist’s sources by requiring agencies to provide a copy to the Commonwealth Ombudsman or the Inspector-General of Intelligence and Security of any authorisation for access to such data. The Ombudsman or the IGIS would then be required to notify the committee as soon as practicable and provide a briefing accordingly. This was a major safeguard when it came to the media. We have now, as a result of further bipartisan work between the two major parties, sought to put an additional safeguard in there by requiring a warrant.

There is also additional funding for the Commonwealth Ombudsman, commensurate with the office's expanded oversight role. Not only have we given increased oversight powers to the Ombudsman; we have also agreed that he needs to get more funding. Privacy and data security measures, including a mandatory breach notification scheme, will also be introduced.

The committee recommended that the government make a substantial contribution to the up-front capital costs incurred by service providers in implementing their data retention obligations. The committee also recommended that, when designing funding arrangements, the government ensure that an appropriate balance is achieved that accounts for significant variations between the services, business models, sizes and financial positions of different companies. This was something that the previous speaker spoke about. The committee has sought to ensure that both the small end of town and those larger providers are taken into account when it comes to how those capital costs contributions will be rolled out.

There are other aspects to what was agreed—and this is important—including when it comes to the proposals which were put forward by former Senator Faulkner. The committee has agreed, and this is of particular significance to parliamentary oversight, that the committee be able to look at operational matters in the limited area of authorisation of access to telecommunications data relating to ASIO and the AFP, consistent with the committee's remit. This is the first time that the committee will be granted those powers. This is a significant recommendation, which has been agreed to by the government and which goes a huge way in increasing the remit of the committee. That is the seriousness with which this government has taken the bill before us.

We received more than 200 written submissions from a broad range of sources and heard from 30 organisations over three days of public hearings. The committee's report also built on previous work done by this committee in the previous parliament. I commend the deputy chair of the committee, Anthony Byrne, for the role he played in that preliminary report, which was produced by the committee in the previous parliament. It has very much led a path to where we are today. So when others talk about a process which is being rushed, that is utter, utter nonsense. This is a process which has been to a committee in the previous parliament, the government has put legislation to this parliament, the committee has further looked at that and made further recommendations, and that is why we are here today now looking at and examining this bill.

This has been an extended process and an extended bipartisan process and one which all members of this place, in my view, should commend, particularly given the current security climate that we are operating within. For the first time in its 11-year history we saw the national terrorism public alert system raised to 'high' last September. There are 90 Australians known to be fighting and supporting terrorist groups in Iraq and Syria. Over 30 have returned to Australia. At least 140 people in Australia are actively supporting extremist groups. Since December 2013, 24 people have been charged as a result of seven joint counter-terrorism team operations.

Metadata is important in dealing with these threats. Operation Pendennis was a joint investigation between the AFP and ASIO and state law enforcement agencies in New South Wales and Victoria into terrorist cells based in Victoria and New South Wales. It was the first serious counter-terrorism investigation prosecuted in Australia. As a result of the investigation, a total of 13 individuals were charged in Victoria with a variety of terrorism offences. A further nine individuals were charged with similar offences in New South Wales. A number of trials were subsequently held in Victoria and New South Wales. The Victorian trial of 13 individuals for membership of a terrorist organisation concluded in 2009 with seven accused found guilty, two accused pleading guilty and four accused acquitted. Historical data was a crucial tool supporting the investigation and was used to identify a covert phone network that was being used in New South Wales in an attempt to conceal illicit terrorist planning activities from law enforcement.

We have to take these things into consideration when we are dealing with these matters. I understand, and the committee understood, the importance of getting right the privacy aspects of this bill and other individual freedoms that potentially could have been challenged. But we also had to take into account the evidence that was put to us by the AFP and ASIO. My view is that the committee has got the balance right. My view is that this legislation, with the recommendations and the amendments that have come before it as a result of the committee's work, ensures that we have got the balance right. This bill should now be passed by this House and it should be passed by the Senate and should become law.

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