Scott Ludlam (WA, Australian Greens) Share this | Hansard source

I will speak to the report of the Legal and Constitutional Affairs References Committee, which I chaired: Comprehensive revision of the Telecommunications (Interception and Access) Act 1979. This report has been 15 months in the making. We kicked this off in November or December 2013. It has proven to be quite appropriate that we are tabling it as the Senate has begun consideration of the mandatory data retention legislation. It has been so long in the making.

This matter, however, is a little bit different. Senators would, no doubt, be aware in the second reading contributions that I, Senator Hanson-Young and Senator Wright have made thus far that we are dead against the government's proposed mandatory data retention scheme and cannot for the life of us understand why the Labor Party has caved in and given Prime Minister Abbott the surveillance lifeline. However, it is not enough to simply put on record what it is that we oppose. This report gives some guidance as to what we support.

I guess I should break it to the Senate at this stage that, although there is a consensus document and a majority report here, it contains largely uncontroversial matters related to the warranted surveillance regime in Australia. That is, roughly 4,700-odd warrants that are issued for intercepts or for reading stored communications, such as emails. Then of course we parted ways.

The opposition has tabled additional comments and I believe government senators have done so as well. So anybody listening to this debate will need to draw their own conclusions as to where different parties landed on the issue.

It is clear to everybody, from the former secretary of the Attorney-General's Department down, that the Telecommunications (Interception and Access) Act is in urgent need of reform. That does not mean the kind of tinkering around the edges that we have seen repeatedly in recent decades. The Telecommunications (Interception and Access) Act was written in 1979, when Malcolm Fraser was Prime Minister, when the internet had not emerged into public consciousness and mobile phones did not exist. Yet we are still dealing, in my estimation, with a system that has failed to keep up with the march of technology.

This report effectively breaks out into a couple of different sections, and the first part, which is the consensus view of the committee, goes through ways that we could appreciably streamline the existing warranted telecommunications regime. The second part, which I guess then goes to the chair's minority additional comments, goes through the regime of access to metadata. Here our recommendation could not be more clear: if an interception warrant is required to listen to someone's phone call, if a warrant is required to read someone's email, a warrant should be required to gather bulk metadata, telecommunications data—also known as the private records of your location and of your social network; everybody you are in touch with and many other details of your life. We propose effectively a streamlining of the process. At the moment there are a number of different warrants that agencies need to apply for, and agencies made the case in my view—it was not an uncontested case—that this regime needs to be streamlined and slimmed down somewhat.

We have proposed, cautiously, what is known as an attribute based warrant and the introduction of a public interest monitor similar to that which exists in Queensland and Victoria. From the evidence we took, it is working reasonably well. The things this proposal does are twofold: It streamlines the process for which warrants can be sought and granted but it also places between the agencies and the granting of that warrant a public interest advocate whose job it is to contest—not to simply roll over, but to contest. You have to imagine that, if such an entity had existed in New South Wales, perhaps the police surveillance scandal that is unfolding at the moment might have been prevented. We had very strong evidence that such a public interest monitor should exist at the Commonwealth level, and for me these two recommendations go together—rolling the various kinds of warrants in with attribute based warrants on one hand, and introducing a public interest monitor to provide that contestability is equally important.

The other recommendation I want to draw senators' attention to is that warrants should be sought for bulk metadata. That is effectively updating our surveillance laws and our interception regime to take into account the huge changes that have occurred in technology since 1979. When those early drafters under the Fraser government identified that agencies would need to seek a warrant to intercept a phone call or read a message—not that email really existed in any sort of form at that stage—I think it would also have occurred to them that being able to track someone's location everywhere they go should require warranted access as well. That is one of the key recommendations we have made here—but not for everything. It was not the view of many witnesses that reading the white pages should require a warrant, so basic subscriber data identifying who was the subscriber to a particular account or a particular handset would continue to be applicable under the existing authorisations regime, although we do propose some additional safeguards—but bulk metadata of an invasive kind should require a warrant. We also believe that the act should have an objects clause, which may seem a little bit obscure to those without a legal background, but the fact is that the word 'privacy' is barely mentioned in our Telecommunications (Interception and Access) Act. We believe an objects clause modelled on article 17 of the International Covenant on Civil and Political Rights and the privacy principles contained in Australia's own Privacy Act 1988 should be baked into telecommunications interception legislation here in Australia.

We also pointed very briefly to international experience. Despite the fact that the government appears to believe that precisely the opposite is occurring, in Europe the mandatory data retention regime, which provided for three months to an upper limit of two years of mandatory data retention, was struck out by the European Court of Justice on the grounds that it was offensive to principles of privacy and in fact offended human rights. That is remarkable and it seems to have gone completely over the head of Senator Brandis and Prime Minister Tony Abbott, because on more than one occasion they have tried to persuade people that international practice is moving in this direction when in fact it is moving in precisely the opposite direction. On figures provided to the committee, many jurisdictions in Europe—nearly a dozen—have some form of judicial oversight over access to telecommunications data—that is, for some or all of this material you need to go to a judge and get a warrant. That is the kind of international best practice that we believe Australia should be heading towards. The situation in the United States is obviously much less clear, but the debate that has unfolded there since the revelations of Mr Edward Snowden has created some rather unusual allies across the United States political spectrum who are seeking to have the powers returned to that which are necessary and proportionate and which indeed are in accord with the United States Constitution and their Bill of Rights.

This report is extremely timely. Those who understand that the Australian Greens are opposed to mandatory data retention can find in this document what it is that we support and the kind of reforms we believe would bring our telecommunications interception regime into line with the way technology and expectations of the public have emerged in the early years of the 21st century. We could not have done this without the secretariat and we also could not have done it without the hard work of Senate colleagues from across the political spectrum. Chairing this inquiry was not always easy—it was sometimes arduous—but everybody did apply themselves over a period of time. To my great surprise, Senator Ian Macdonald, who will willingly profess his ignorance of these matters, applied himself to the task with quite a lot of dedication. He asked hard questions and did not take anything for granted, and I found myself surprised from time to time by the degree to which Senator Macdonald in particular and also Senator Reynolds, when she joined the work of the committee in its later phases, did apply themselves with diligence. Nonetheless, politics and party discipline have regrettably prevailed and that is why we see a splintering of minority reports and additional comments reflecting the views of the leadership.

We simply could not have done this work without the hard work of the secretariat who do their work behind the scenes, particularly Ms Sophie Dunstone and Ms Sandra Kennedy—who regrettably the Senate has lost to the House of Representatives committee system. To those two in particular, and to Ms Jo-Anne Holmes, on behalf of the committee I thank them for their extraordinary work.