Dan Tehan (Wannon, Liberal Party) Share this | Link to this | Hansard source

I am pleased to present the committee's advisory report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014.

Report made a parliamentary paper in accordance with standing order 39(e).

by leave—Before I explain the bill, and the safeguards which have been put in place in the bill, can I take this moment to thank all members of the committee—including the deputy chair who is sitting opposite—for the real spirit of bipartisanship which was shown in putting this report together. This is a complex piece of legislation dealing with national security and other important security matters. The committee has spent a vast amount of time looking at the legislation and putting together 38 substantial recommendations. We have taken our time. We have given great thought to it—great consideration—and every member of the committee has participated in a real and bipartisan way in ensuring that we have the outcome that we have reached. So to all members of the committee, and in particular to the deputy chair: thank you very much for your cooperation in this regard. Can I also thank the members of the secretariat, some of whom are with us here today: thank you, also, for your great efforts in putting this report together. I think that the Intelligence and Security Committee has met for longer hours than any other committee in this term of parliament; I think we have also produced more reports than any other committee of this parliament. A lot of that is due to the great work that you have undertaken in your secretariat roles, so thank you very much for the outstanding work that you have all done.

The bill is intended to reverse the long-term erosion of the investigative capabilities of Australia's law enforcement and national security agencies, which has been caused by changing technology and business practices within the telecommunications industry. The bill would require companies providing telecommunications services in Australia to keep a standard set of telecommunications data for two years. The bill also contains new safeguards and accountability mechanisms that will apply to law enforcement agencies accessing the content of communications and telecommunications data. In particular, the bill substantially expands the role of the Commonwealth Ombudsman in overseeing the use of powers under the Telecommunications (Interception and Access) Act 1979. The committee strongly supports this measure, and considers that this enhanced role for the Ombudsman will provide significant reassurance to the parliament and to the community.

This inquiry has followed on from the committee's 2012-13 inquiry into the potential reforms of Australia's national security legislation, which was chaired in the previous parliament by the now deputy chair. The committee has also had the benefit of reviewing the reports on the bill by the Parliamentary Joint Committee on Human Rights, and the Senate Standing Committee for the Scrutiny of Bills. In the course of this inquiry, the committee received 204 submissions, 31 supplementary submissions, and more than 200 pages of evidence at three public hearings, in addition to private evidence. The committee has carefully considered all of this evidence, and has produced a comprehensive report with 39 recommendations aimed at ensuring the proportionality of the proposed mandatory data retention scheme, and further strengthening the bill's safeguards and accountability mechanisms. The committee has concluded that the introduction of a mandatory data retention scheme is a necessary and proportionate measure in response to the current challenges faced by security and law enforcement agencies.

The committee has recommended that the two-year retention period that is proposed in the bill be maintained. The committee has made this recommendation in light of the particularly strong public interest in investigating serious and complex criminal activity, and serious matters of national security. These investigations rely heavily on access to older telecommunications data. The committee has made a number of recommendations to strengthen parliamentary oversight of the scheme, including that the data set and the list of agencies permitted to access data should be set out in primary legislation. Complementing this, the committee has recommended establishing emergency declaration powers, subject to safeguards, for the Attorney-General to include items in the data set or to declare an additional agency able to access data. Further, the committee has recommended an ongoing role for the Parliamentary Joint Committee on Intelligence and Security in reviewing any changes to the regime. I draw particular attention to the committee's recommendation that it be enabled to look at operational matters in the limited area of authorisation of access to telecommunications data relating to ASIO and the AFP, consistent with the committee's remit. This recommendation would enable, for the first time, direct parliamentary oversight of the operational activities of the AFP and ASIO in this limited area, and represents a significant new safeguard.

The committee has recommended strengthening the safeguards around the use of telecommunications data for determining a journalist's sources, requiring agencies to provide a copy to the Commonwealth Ombudsman or the Inspector-General of Intelligence and Security (IGIS) of any authorisation for access to such data. The Ombudsman or IGIS would then be required to notify the committee as soon as practicable and provide a briefing accordingly. The committee has also sought to conduct a separate review on this topic, to be undertaken within the next three months.

Finally, the committee has made recommendations to ensure the privacy, security and confidentiality of telecommunications data that would be retained under the bill. In addition to recommendations to ensure that retained telecommunications data is stored securely and is encrypted, the committee has recommended prohibiting civil litigants, with appropriate exceptions, from accessing telecommunications data being held solely in compliance with the mandatory data retention requirements.

Following consideration of its recommendations, the committee has recommended that the bill be passed by the parliament. Once again, I thank all members of the committee, and I thank the secretariat. On behalf of the committee, I thank all of the organisations and individuals who participated in this inquiry.

I commend the report to the House.

Anthony Byrne (Holt, Australian Labor Party) Share this | Link to this | Hansard source

It is my pleasure as deputy chair to speak on the advisory report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014. I appreciate the opportunity to speak relatively briefly on this particular report. I would also start off by commending all of the members of the Parliamentary Joint Committee on Intelligence and Security. It is not a committee where you get headlines or where you get the latest instalment of some breakdown in bipartisanship—where one person says one thing and another person says another thing. It is one of the very few committees in this parliament that comes together and puts aside political considerations in the national interest to come up with the best possible consideration of any legislation or matter before it. Given the competing tensions that existed in the matter as it was being debated, the depth of feeling within the community—which was matched by the desire of the agencies to have the powers that they are seeking—it says much for the debate that occurred within the committee and it says much about the character of the committee members. I would like to commend the chair of the committee, the member for Wannon, for his incredible work in very difficult circumstances. I notice that the member for Bass, Mr Nikolic, is here and I commend him for his work on the committee as well. I also commend the long-suffering secretariat, who are sitting in the advisory box, and thank them for their enormous work, along with the two seconded officers, who we are not allowed to talk about, but I will thank them anyway.

Unfortunately, when you read the headlines and the cutaways, you do not see the phenomenal amount of work and consideration that goes into a matter as complex as the one we are debating here today. As the chair said, in 2012-13 the committee or its predecessor was faced with the enormous task of reporting on an extensive collection of proposed national security legislation reforms. We have seen the follow through of that with three tranches of legislation that have come before this parliament, and this is the third tranche of legislation that was contemplated in that 2012-13 report. I am certainly pleased that a number of the reforms proposed have been considered and referred to the committee for further consideration. It is with great pleasure that I am able to talk about the advisory report on this third, and probably most controversial, tranche of the national security legislation reforms.

Leading up to this inquiry, there was little doubt that data retention would be the most extensive and controversial tranche of the proposed national security legislation reforms, but it is also important to state that these reforms may also be the most significant tranche in ensuring the protection of Australia against the ever-growing threat posed by terrorism, both international and home-grown. Despite the threat level we face today, the proposed changes to the Telecommunications (Interception and Access) Act certainly have not been welcomed with open arms by all parties concerned. We acknowledge that, but it has been the role of this unique committee to take into consideration the position, knowledge and insight of all those parties both for and against these reforms. The committee was then required to assess whether the proposed changes were necessary measures to take; whether the measures proposed were a proportionate response to the threat that we face today; and whether granting these measures is an appropriate response to this threat. The decision taken by the committee was that these powers needed to be given to the agencies to combat the ongoing threat of terrorism in our country.

As someone who has had a terrorism event occur in his electorate, I can speak with some measure of authority and knowledge about the impact a terrorism event has on your community. This is not any mere discussion for me about a proposed or potential terrorism threat; this was a real event that occurred that almost led to the murder of two police officers and to the assailant being killed by an officer trying to protect himself, his fellow officer and the Endeavour Hills Police Station. Whilst I counsel some about this discussion of the national discourse about terrorism being a long way away from me, it was not a long way away. For me it was real—it was real enough in that it was some 300 metres away from where I lived for many years.

This is not a hypothetical event for me; this is an event that occurred and that informed a lot of my consideration about why the agencies did in fact need these powers to combat the threat of terrorism. One of the key things that came out in the evidence about why the agencies need these powers—which some describe as draconian but I would describe as necessary—is the incredible pace of change that is occurring with the radicalisation. In some cases it can be a mere four weeks between someone accessing the internet and becoming radicalised. I have seen this in a local instance, not far from my electorate, where a young woman was radicalised in the space of four weeks and is now one of these so-called jehadi brides in Syria. To me this is not a theoretical discourse about what might happen in our country; it is what has happened in my electorate and what continues to happen around my region; and what we need to do to give the agencies the powers to prevent further activities of this nature taking place in my electorate, my community and our country.

It is not as though this committee did not consider these matters carefully and deeply. As the chair knows, we took evidence from a variety of individuals, both from the agencies seeking to have the additional powers and from those diametrically opposed to the law enforcement agencies having these powers. I must say in contemplating the outcome of these reports and these hard-argued recommendations—which I hope will be adopted in full by the Attorney-General and which we will see reflected in the legislation to come before this House or perhaps the Senate before the end of this week—it is a testament to the work that has been done in a bipartisan way by the committee. To those who say that this has been rubberstamped by the committee, which I find offensive, I would say this: 'Look at the 38 recommendations that are contained in the report.' I have been somewhat disheartened by some of the commentary that this committee basically did not look at the matter seriously or that it did not offer the community the protections it needs. I would ask those who make those criticisms to examine the regime in the United Kingdom and United States. Having been deputy chair of the previous committee and deputy chair of this committee, my view is that there is no other committee to my knowledge in the Western world that has looked at data retention as closely as our committee has or has had so much import into the structure and architecture of this report.

I might also say, with respect to those that you would have expected to have criticised this data retention regime, that we have had eminent people, like Professor George Williams from the Gilbert + Tobin Centre of Public Law, that have accepted the need for mandatory data retention; and also, I think, Professor Gillian Triggs, who for the Human Rights Commission acknowledged that there was a need for a data retention regime. So I would say to those that blithely say that the committee has not fully considered this matter that it has; that, as the chair said, there have been many, many, many hours of discussions about the principles that surround the architecture of this metadata regime.

In quickly finishing off, look at some of the protections: listing the dataset in the bill itself, so we know what data is being retained; limiting access to telecommunications data to only those law enforcement agencies specifically listed in the bill; oversight of operational use of this legislation by the committee, which is the first time this committee has been given the power; authorising ASIC and the ACCC to access telecommunications data to assist in the investigation and prosecution of white-collar crime; requiring telecommunications companies to provide customers access to their own telecommunications data upon request; requiring stored data to be encrypted to protect the security and integrity of personal information; prohibiting access to telecommunications data for the purposes of civil proceedings—for example, preventing its use in copyright enforcement; requiring a mandatory data breach notification scheme to ensure telecommunications companies notify consumers if the security of their telecommunications data is breached; increasing the resources of the Ombudsman to strengthen oversight of the mandatory data retention scheme; and a mandatory review of the data retention scheme by no later than four years from the commencement of the bill. That is a very comprehensive list of safeguards, and they are not the safeguards in their entirety.

We cannot have a discussion about national security laws without acknowledging the growing threat that our country faces from the terrorist menace. What needs to be contemplated by those that have some resistance to this metadata regime is that they can be reassured that the committee looked very extensively at the case for and against. You can rest assured that some of the safeguards that have been put into this report—that hopefully will be enshrined in legislation—are amongst the strongest safeguards in the Western world for any data retention regime. You can be reassured that we will continue to monitor the implementation of this data retention regime.

It has been a great honour to work as the deputy chair of this committee on this report, to work with my fellow committee members, and I certainly and wholeheartedly commend this report to the house.

Andrew Nikolic (Bass, Liberal Party) Share this | Link to this | Hansard source

Very briefly, I congratulate the member for Wannon, the chair of our committee, Dan Tehan, and the deputy chair of the committee, Anthony Byrne, for their professional leadership of our committee. Some incredibly complex issues relating to making our country safer tomorrow than it is today were debated in a very bipartisan way. I strongly associate myself with their leadership and the outcomes of the deliberations of our committee.