Monday, 16 March 2015
Questions without Notice
Telecommunications Data Retention
My question is to the Attorney-General, Senator Brandis. Attorney, I refer to representations made to the government by national broadcasters, publishers, journalists and the Australian Press Council that the government's policy of mandatory data retention poses a threat to press freedom through warrantless access to the phone and internet records of journalists and their sources. Does the Attorney-General agree that his data retention bill poses a threat to investigative journalism; and, more importantly, will he commit to postponing parliamentary debate on the bill until after the Parliamentary Joint Committee on Intelligence and Security has reported on these matters in early June?
The answer to both of those questions, Senator Ludlam, is no. But, since you refer to the parliamentary intelligence committee's report, might I acquaint you—since you seem to be unaware of the relevant recommendations—with recommendations 26 and 27, which dealt with the matter of freedom of the press.
In response to recommendation 26, the government adopted the committee's recommendation that there be a further consideration of the issue by the committee for three months. In responding to that recommendation, the government noted:
… that Australia's existing legal framework is founded on robust legal principles to provide fair and equal treatment of all subject to its laws
The same laws, Senator Ludlam, apply to all citizens and they ought to apply equally. But perhaps even more germane is recommendation 27. The government adopted a recommendation by the PJCIS to:
… amend the Bill to require agencies to provide all authorisations issued for the purpose of determining the identity of journalists' sources be provided to the Commonwealth Ombudsman or the Inspector-General of Intelligence and Security as appropriate at the next relevant inspection.
The government also agreed to a recommendation to amend the bill to require agencies to notify the Attorney-General of each such authorisation and further require the Attorney-General to provide a report annually to the Parliamentary Joint Committee on Intelligence and Security.
So, Senator Ludlam, this issue was addressed. It was addressed in a bipartisan fashion. It was the subject of two bipartisan recommendations, both of which have been adopted by the government.
Mr President, I ask a supplementary question. I would note, about the response to my first question, that nobody appears to be very convinced. Is the Attorney-General aware that in recent days the District Court of The Hague has struck down the laws underpinning a 12-month data retention scheme in the Netherlands, finding that mandatory data retention violated fundamental rights to privacy and protection of personal data? Why is the Abbott government exploiting the absence of strong human rights protections here in Australia and insisting on pressing ahead with this unpopular measure?
I have seen those reports, Senator Ludlam, and—with no disrespect intended to the district court in The Hague—you might care to reflect that there are perhaps thousands of courts of inferior jurisdiction within the nations of the European Community. If the best you can do to advance your argument is to light upon one isolated decision by a district court in The Hague then you are not doing very well.
The significant thing is that, when the European Data Retention Directive was struck down by the European human rights commission in April of last year, the human rights commission—as you should know, Senator, but apparently do not—struck that data directive down on the basis of proportionality. In its reasons for judgement, the European Court of Human Rights held that a properly expressed data retention directive was consistent with human rights principles.
Mr President, I ask a further supplementary question. Can the Attorney provide the Senate with any evidence from any jurisdiction anywhere in the world that indiscriminate collection of the private information of millions of innocent people helps solve crime or keep people safe?
First of all, Senator Ludlam, you used the expression 'indiscriminate'. We are not talking about indiscriminate access to metadata at all. Nevertheless, Senator Ludlam, let me give you two instances. First of all, there is the advice of the former Director-General of Security, Mr David Irvine, who, in one of the last press conferences he conducted before his retirement last September, described these measures as 'absolutely crucial'.
His words—his expert opinion, Senator Ludlam, is evidence. You may not understand what evidence is. The expert opinion of a person seized with this particular responsibility clearly is evidence.
The second item of evidence I could offer you, Senator Ludlam, is the major Europol investigation into paedophilia in Europe some two years ago, in which the use of metadata was regarded as essential for breaking that paedophile ring. (Time expired)