Thursday, 26 March 2015
Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015; Third Reading
I am not in the habit of making third reading speeches. I agree with other speakers, including the Attorney-General, that this was not a rushed exercise, unlike the previous National Security Legislation Amendment Bill, and I am very pleased that was not the case. However, I do wish to draw attention to one amendment of mine that I know was taken seriously on all sides of the chamber and, in some form, was also considered in detail by the Parliamentary Joint Committee on Intelligence and Security. During the Senate Committee of the Whole consideration, Senator Brandis reassured everyone in this place that mandatory data retention would not be used to pursue trivial crimes. He pointed out that proposed section 180F will require authorised officers to:
… 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.
Amendments to proposed section 180F(a) also required authorised officers to consider both the seriousness of the offence and the seriousness of the penalty involved before making any authorisation. In the view of both government and opposition, these safeguards are clearly considered adequate, and I thank the Attorney-General for setting out why he thinks they comport with the recent European Court of Justice ruling overturning the European Union data retention directive. For the reasons he gave, my amendment to ensure retained data was only used for the enforcement of serious contraventions was rejected. I mean not disrespect to the Attorney-General when I say that I do not believe him. I am not comforted by his reassurances, because I already have abundant evidence for the invasive use of retained data to pursue trivialities. In the existing law, section 180F already requires authorised officers to:
… have regard to whether any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable …
In other words, despite the presence of a decently drafted, clear requirement not to invade people's privacy without justification, hundreds of thousands of authorisations have been made, often in connection with requests that are absurd. In the year to June 2013, for example, there were almost 320,000 authorisations to access telephone records. Yes, it is good that the number of agencies that can stick their fingers into this particular data honey pot has been reduced. However, the list can be added to with remarkably little parliamentary oversight, and ASIC and ACCC have also been included.
The Attorney-General seems content to accept undertakings from security and law enforcement agencies that retained data will not be misused. Indeed, it would appear that the police and security agencies are never self-interested. Lawyers, by contrast, as we heard at length yesterday, should be ignored because they are self-interested. I suspect the truth probably lies somewhere in the middle. Everyone is capable of acting in pure self-interest at least some of the time. Unfortunately, this bill gives the truth tick only to the police and brushes the Law Society's concerns to one side. As a classical liberal, I know which body of people is most likely to abuse our rights and undermine our freedom. Lawyers may have money, but police have guns. Individual policemen may be fine human beings, but there is no escaping the institutional reality that they are part of the executive and the executive ought to be restrained. I do not look forward to saying, 'I told you so,' when this law is used—just as the Regulation of Investigatory Powers Act in the United Kingdom was used—to pursue illegal dumping, dog fouling, unpaid rates, minor welfare fraud and petrol stations comparing fuel prices.
Mark my words, however, that is what will happen. It may take a while. It took some time for police forces and local authorities across England and Wales to realise just what they could do with the data at their disposal. But once they got started, misuse became pervasive. I condemn this bill.