Michael Danby (Melbourne Ports, Australian Labor Party, Shadow Parliamentary Secretary to the Leader of the Opposition) Share this | Hansard source

The most popular novel on espionage ever written was John Buchan's The Thirty-Nine Steps. We are taking 38 steps recommended by the Parliamentary Joint Committee on Intelligence and Security to amend this legislation. In my view this amended legislation is a victory for those who value privacy, the regulation of security services and the protections of the supremacy of an elected parliament over the agencies of government. In my 15 years in parliament, I have never seen legislation so intensively amended or improved through the process of consultation with all sides of parliament and with parliamentary committees. In my view it is a paradigm of social democratic mentality: pragmatic and committed to freedom, but not lily-livered in the defence of democracy.

This legislation, which began when a report was sought by the previous Labor government, addresses a clear and present danger the Australian people are facing—circumstances not of our making. Labor is aware that many Australians have legitimate concerns about our rights being compromised. Data that would be retained under this scheme does not include the content of communications. Metadata includes the internet identifier, assigned to the user by the provider, for the customer's email address. For mobile services it would be the number called or texted. The time and date, duration and location would be retained, but not the content of emails or private blog posts, the history of websites visited or the content of text messages or phones. The second category of information about the parties communicating includes details about the person who owns the service being used such as the billing address, name and contact details.

Currently, as a number of speakers have pointed out, 500,000 existing requests for metadata are made by the police or authorised agencies. To give this more context, over 100 people in Australia have had their passports revoked. There are 90 Australians who are fighting with the barbarians of Daesh—terrorists who we saw recently cut off the heads of Coptic workers in Egypt with blunt knives; who desecrate churches, plough up the graves of priests, engineer the mass rape of women and violate their own children by getting them to murder Muslim prisoners or hold up the severed heads of innocent journalists, Christians or civil society volunteers.

We have nearly 40 Australians who have been arrested, charged, tried and convicted under our democratic laws for involvement in terrorist crimes that are so grave they include attempts to kill tens of thousands of Australians at the MCG on grand final day. Australia is spending hundreds of millions of dollars with its police and security services to prevent mass casualty attacks in Australia, as happened in the US on 9/11, in the UK on 7/7 and in Spain, France and other democratic countries. In my electorate, and across the country, certain schools are fortified and have armed guards to prevent the replication of this kind of terrorism, particularly against school children, so cruelly perpetrated by the barbarians from Daesh in Toulouse, Copenhagen, Brussels, Paris and Canada recently.

The cause—the source— of this problem is not of our choosing. By the day it becomes more dangerous and diffuse. The prominence of internet and mobile phone usage has greatly increased the reach and capability of terrorists. Use of telecommunications interception is the principal way we have so far been successful in preventing mass casualty attacks in Australia by the use of metadata. As the member for Throsby valuably pointed out, it has been incredibly valuable in terrible cases of crimes like the crime against Jill Meagher in Melbourne. The Australian Federal Police Commissioner, Andrew Colvin, has said that between July and September last year metadata was used in 92 per cent of counter-terrorism investigations, 87 per cent of child protection investigations and 79 per cent of serious organised crime investigations. So far this access has been unaccountable—not balanced by privacy considerations, properly supervised by parliament or monitored by the Inspector-General of Intelligence and Security or the Commonwealth Ombudsman.

The profusion of technology and technology service providers risks the security services going dark and not being able to intercept or use this metadata as they might have in the past. The last thing we want is for this parliament to be reacting to an incident in our country, on the mainland, that might otherwise have been avoided by the judicious use of this metadata. Many of the provisions of the ASIO Act and the Telecommunications Act have not been amended since 1979, long before the information and communications revolution.

Evidence presented by the Parliamentary Joint Committee on Intelligence and Security has further established that telecommunications data is used in law enforcement at all levels, not just for espionage and terrorism threats.

At Labor's insistence, the parliament referred the draft metadata legislation to the intelligence and security committee for consideration. The committee, of which I was a member, has since provided parliament with 38 recommendations. Labor's recommendations and amendments that we fought for in the committee provide protections for individuals that were missing from the draft legislation as it stood, such as requiring telcos to provide customers with access to their own metadata that is being stored and to notify them if the security of their data is breached, and a provision that metadata may not be accessed for civil proceedings. Labor's recommendations also called for the legislation to have better definitions and descriptions of what data is to be retained and a clarification of what data is not to be retained. The government has also accepted Labor's insistence that we reduce the number of agencies, as the member for Throsby valorously pointed out, with the RSPCA and Bankstown Council having access to this material. We have reduced the number from 80 to 20 agencies.

A recommendation of key significance that Labor fought for is improved oversight of the scheme by two independent government agencies—the Inspector-General of Intelligence and Security and the Ombudsman. In addition Labor argued for the significant reform of assigning operational oversight of security agencies under the data retention scheme to the intelligence committee in accordance with measures proposed by Senator Faulkner. Senator Faulkner is a vehement advocate for government transparency, the value of well-run security and intelligence agencies, and the need for the federal parliament to prescribe safeguards against abuse by security powers. Furthermore, Labor has convinced the government to agree to a change the bill to require the intelligence committee to conduct ongoing reviews of the entire scheme on a biannual basis, the so-called sunset clauses.

The committee has examined security issues pertaining to the storage of retained data in response to concerns that the data would be a honey pot for hackers. Labor has argued that the bill needs to be amended to enforce strict standards for data security, including a requirement for stored data to be encrypted, and a system of mandatory notifications of data breaches or privacy alerts, which is something I have been advocating since I was a member of that committee. One of the collateral benefits of the changes sought and agreed to in this bill is based on the right to know when the security of personal information has been compromised. Initially, the government's redraft of the bill did not include such a scheme.

Security concerns remain relating to whether companies will be compelled to store data within Australia. David Irvine, the extremely capable, former Director-General of ASIO, raised this issue at a recent defence and national security roundtable and expressed apprehension at the prospect of data being stored overseas as it then might be governed by someone else's sovereign legislative system. This matter is being assessed as part of the telecommunications sector security reform, a process initiated while Labor was in government. Consistent with the comments of the former head of ASIO, during the review of any TSSR legislation Labor will insist on a requirement that retained telecommunications data be stored onshore.

Labor's view is that finding the right balance between security and freedom is an ongoing task, and the government needs to respond to national security risks in a flexible manner as they arise or diminish. This is very clearly outlined in the contribution of my friend the member for Isaacs, the shadow Attorney-General. In recognition of this, Labor established the office of the Independent National Security Legislation Monitor. Despite the Abbott government's misguided determination to abolish the monitor under so-called 'removal of red tape', Labor fought consistently for its retention. Thankfully the government woke up, listened and has reinstated it, and has finally appointed someone.

Labor have achieved considerable success in having these recommendations accepted. Just yesterday the Prime Minister backed down on our insistence on more protection for journalists. Now security agencies will need to obtain a warrant to access metadata to identify a journalist's source. There is still much more work to be done. It is important to note that Labor have yet to agree to this legislation and will not do so until we have evaluated the final redraft.

Data retention is a complex, global issue and must be dealt with in this age of technology. Looking for an international precedent, Britain has recently rushed new emergency laws through their parliament making data retention mandatory. In Europe a similar scheme was ruled invalid by the Court of Justice in response to complaints. I believe various European governments now see the peril of the court's recommendations and will be making their own rules, appealing and doing various things to ensure that they have the ability to access the metadata while, at the same time, protect people's privacy. The real crux of the data retention debate is how to strike the balance between preserving the privacy of individuals and enhancing our ability to protect this nation from the genuine threat of terrorist attacks. Of course, as a nation we value freedom, but without effective security measures in place to protect us from imminent danger, we will live in peril, not freedom.

Labor has maintained a sensible, bipartisan approach to national security, and I pay tribute in particular to the shadow Attorney-General Mark Dreyfus, the Deputy Chair of the Intelligence and Security Committee; Anthony Byrne; a minister who is present in the chamber, the shadow minister Jason Clare; and our leader Bill Shorten who has been back and forth, in and out, of Mr Abbott's office, again and again, forcing changes that would improve this legislation out of sight. It now has the balance of security and privacy and, I am proud to say, has a real Labor stamp. The shadow Attorney-General, the member for Isaacs, summed it up best in his concluding remarks when he said:

Labor will always work to keep Australians safe and, at the same time, to uphold the rights and freedoms enjoyed by all Australians. Getting this balance right can be a challenging task, but with the addition of the numerous amendments to the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 that Labor has fought for, and with the government's agreement to further amendments to protect freedom of the press, we believe that the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 strikes the right balance.

This process shows the value of parliamentary committees. It also shows that the importance and rights of the parliamentary Labor Party in fighting for reforms is constantly a paradigm of our behaviour. We do not believe that leaving important issues like this to the hysteria of press commentary, particularly commentary in social media, is the way to deal with these things. With the threat of terrorism coming to this country, this is a real and present danger to Australian citizens. We have seen two terrible incidents. One was in my friend's, the member for Holt, electorate at the police station where officers were attacked and the perpetrator shot dead, most terribly, in Sydney.

It is not sufficient for members of parliament to come into this place and say nothing about these things and just appeal to a narrow sector of the Australian public, who are rightly concerned with the effect on their social media, on their privacy and on their personal blogs. We do not want to troll through some teenager's email to see if they are looking at pornography. That is not the idea of this bill. The idea of this bill, with the amendments that Labor has forced through, is to protect the security of the Australian people. This is a very serious task. We have approached it very seriously, and I am very pleased to see that, both in government and in opposition, the Labor Party has stuck to its mission of reforming Australia to make it a better place, in this case in the most serious of issues: the security of the Australian people.

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