Nick Xenophon (SA, Independent) Share this | Hansard source

This is an important issue, but I want to give a different perspective in relation to the matters raised. I do not question the need for surveillance to prevent terrorist acts and criminal activity and to assist in those responsible for those acts and activities being caught. There is no question about that. I hear very clearly what Senator Fawcett said earlier in his contribution and I do not disagree with him. But it is appropriate to question the level of surveillance and whether there are appropriate safeguards and checks and balances, and I do not believe that there are.

In relation to metadata surveillance, there is something like 300,000 metadata searches each year in this nation. The bodies that have authority for such metadata surveillance include city councils—for instance, the Bankstown City Council—the RSPCA and even the Victorian Taxi Directorate, because they can obtain your phone and email records in the context of their statutory powers under the legislative framework. I think we need to look very closely at the safeguards in the Telecommunications (Interception and Access) Act 1979. It needs to be reviewed.

The other issue that I have great concern about is the ability of journalists and members of parliament to do their job in the context of dealing with whistleblowers, members of the public and public servants that may have information of malfeasance, of maladministration, of corruption in government or of, simply and importantly, taxpayers' money being wasted. These are issues that need to be dealt with. What we have now is a situation where there are inadequate safeguards. I have been pursuing this for a number of months, and on 18 November Australian Federal Police Commissioner Tony Negus conceded, after a series of questions I put to him in Senate estimates, that there are a number of members of parliament—less than five; presumably four—who have had their records intercepted in the context of investigations under sections 70 and 79 of the Crimes Act. Those are the sections that relate to whistleblowers coming forward to members of parliament. We need to have safeguards in place so members of parliament and journalists can do their work without fear of their sources—whistleblowers—being uncovered through metadata surveillance.

Let us look at what the US Department of Justice has done. I will be moving a series of measures next week based not on what a totalitarian government is doing, but on what the Department of Justice of the United States government is doing. I urge senators and members in the other place to read the guidelines issued on 12 July 2013 by the US Department of Justice, the Report on review of news media policies. This is what they are doing. There are presumptions to ensure that notice is given to media outlets, in all but the most exceptional circumstances, of metadata surveillance. There is advance notice given to members of news media of the opportunity to engage with the department regarding the possible use of this. There are enhanced approvals and heightened standards. These are very important matters. That is what we should be doing here, and the level of judicial overview they have in the United States is much greater.

I want to turn finally and, I believe, very importantly to the matters raised by the Attorney-General today about the raid carried out by ASIO on the offices of solicitor Bernard Collaery, who is currently in the Hague on an arbitration between Timor-Leste, which he represents, and the Australian government. I pay tribute to the Attorney-General and welcome his ministerial statement today. It is a very useful statement and I accept the Attorney-General acted appropriately on the advice of ASIO in approving the raid. I also accept without equivocation that he has conducted his role with integrity; he is a person of integrity. However, I query whether the collateral consequence—the cancellation of the passport of the star witness in the arbitration for Timor-Leste—has, in fact, prejudiced Timor-Leste in relation to the arbitration. That is a legitimate issue. This is not a criticism of Mr Irvine, who I believe has served his country very well over many years. He is now the director-general of ASIO. He initiated the warrants which deal with matters he allegedly dealt with as director-general of ASIS back in 2004. I am not suggesting he has done anything wrong, but I think there is a perception of safeguards, checks and balances that ought to be considered in any review.

We need to review this. We need to have issues of security first and foremost but we also need to have, parallel to that, members of parliament and journalists able to do their jobs in the public interest. Right now, our level of surveillance, our laws, and our checks and balances fall way behind those of the United States of America. That is something we really need to consider. We could do a lot worse than use the guidelines of the US Department of Justice, which have given great comfort to news organisations. We need to do something similar in order to do our work as members of parliament.