Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

[by video link] by leave—In late 2014 the government introduced the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 into the parliament and referred it to the intelligence and security committee for inquiry and report. While its 2015 report concluded that the introduction of the mandatory data retention regime was justified, the committee was not satisfied that the regime in its original form was subject to adequate safeguards and oversight. That is why the committee made 43 detailed and bipartisan recommendations to improve the bill. For example, in 2015 the committee recommended that the proposed mandatory data retention regime be amended to: (1) limit the number of agencies that could access telecommunications data without a warrant to prescribed law enforcement agencies and ASIO, (2) better protect journalist sources and, (3) provide for increased privacy protections and more rigorous oversight. The government accepted each of the committee's recommendations.

It has now been over five years since the mandatory data retention regime became law. Over that time many concerns have been raised about how the regime has operated in practice. Loopholes have been identified, gaps in oversight have emerged and the adequacy and effectiveness of key safeguards have been called into question. For that reason the committee's review—which began last year and formally concluded in April of this year—was timely.

Before I mention a few of the committee's key recommendations, it's important to place the mandatory data retention regime in context. Significant intrusions into privacy by government—such as the search of a person's home, opening a person's mail, installing a listening device or obtaining a saliva sample—generally require agencies to obtain a person's consent or a warrant from an independent issuing authority. By contrast, agencies do not require a warrant to access telecommunications data under this regime. Consistent with the position we took in 2015, the committee has not recommended the introduction of such a requirement now, but, make no mistake, when an agency obtains a person's telecommunications data without consent, that is a significant invasion of that person's privacy. The absence of a warrant requirement therefore makes it especially important that the powers to access telecommunications data be subject to rigorous oversight, and that they only be exercised in appropriate circumstances by properly qualified individuals. To that end, as this report makes clear, all committee members agree that the mandatory data retention regime is not currently up to scratch and a number of changes need to be made.

I do not have time to go through each of the 22 recommendations in the committee's report, but I would like to mention a few of them. The committee has today recommended that section 280(1)(b) of the Telecommunications Act 1997 be repealed. This should not come as a surprise and nor should it be controversial, but it is, nonetheless, significant. The committee received evidence that with assistance of that provision, at least 80 non-law enforcement authorities have been accessing the telecommunications data of Australians outside the framework of the Telecommunications (Interception and Access) Act. Those authorities include local councils and the RSPCA.

As I alluded to earlier, in 2015, the committee recommended that only prescribed law enforcement agencies and ASIO should have access to telecommunications data. Moreover the committee clearly intended that such access should be governed by the framework set out in the Telecommunications (Interception and Access) Act. The government accepted that position in 2015 and it was on that basis that the mandatory data retention regime was passed by the parliament. The way in which section 280(1)(b) of the Telecommunications Act 1997 has been used by dozens of authorities across Australia is therefore completely at odds with the way in which the mandatory data retention regime was intended to operate. It should be repealed urgently.

In addition, the committee has recommended significant improvements to existing record keeping and reporting requirements to facilitate greater oversight and public scrutiny and better decision-making by authorised officers. The committee has recommended that the Telecommunications (Interception and Access) Act be amended so that, among other requirements, only individuals who have completed a compulsory training program and who have the requisite experience, knowledge and skills be authorised to access telecommunications data.

The committee has recommended that the government prepare national guidelines on the operation of the mandatory data retention regime by law enforcement agencies to ensure greater clarity, consistency and security in respect of requests for and the collection and management of telecommunications data. The committee has recommended amendments to the Telecommunications (Interception and Access) Act to increase the existing thresholds for ASIO and law enforcement agencies to access telecommunications data, and, recognising the ongoing difficulty in distinguishing between content and metadata, the committee has recommended that the Telecommunications (Interception and Access) Act be amended to delineate more clearly between content and metadata. Those are just some of the committee's recommendations.

It is true that in one respect Labor members believe the committee should have gone further in seeking to balance the legitimate interests of law enforcement on the one hand with the protection of privacy on the other. That is the subject of an additional comment by Labor members. I would stress that this is very much an additional comment, not a descent, and, rather than dwelling on that single area of this agreement, I want to use my time today to talk about the many more areas of agreement between Labor and Liberal members of this committee.

The report which the chair of the intelligence and security committee has tabled today is the product of a lengthy and ultimately very productive dialogue between 11 individuals from both sides of politics. That dialogue was informed by nearly 50 submissions from agencies, industries, civil society organisations and members of the public. I thank the member for Canning, the member for Berowra, the member for Goldstein, Senators Stoker and Abetz and, in particular, Senator Fawcett, for the constructive and considered way in which they approached this important review.

Finally, I would also like to thank the many submitters to this inquiry for their detailed, thoughtful submissions and the staff of the secretariat for the support that they continue to provide to committee members. Thank you.

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