Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Hansard source

I rise today to speak on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014. I would like to address some of the more general arguments and accusations that have been made by some members of this chamber.

I would like to talk first about what the philosopher John Locke called the social contract. It is a philosophy that underpins many democratic governments, particularly those in Europe and here in Australia. Locke's view is that the preservation of the security and the safety of the citizenry is not only a primary obligation of government; it is the source of its legitimacy. Under the social contract citizens notionally agree to forsake certain freedoms in exchange for the government assuring their security and safety on the basis of mutually acceptable moral principles. This is described as the consent of the governed.

In the Second Treatise of Civil Government, John Locke wrote:

The great end of men's entering into society, being the enjoyment of their properties in peace and safety, and the great instrument and means of that being the laws established in that society …

The government is there to support society in peace and safety. Even more so: as John Locke says, a government's legitimacy rests on its ability to secure the conditions for society to flourish freely and safely. This is what we are debating here today.

Our great country can only be so if we are safe. Our great country can only be so if we ensure as best we can a peaceful place for our citizens to flourish. There is a balance between freedoms of the individual and the freedom to live in safety. This is a balance that all government's and responsible oppositions must weigh up when it comes to questions of national security. It is easy for some in this place who sit outside government and the responsibilities it holds to pursue the populist route. It is also easy to quote Benjamin Franklin and claim that if somehow there is a balance between freedom of the individual and the safety of society then the terrorists win. To do so does this place a disservice.

Australia is not the United States. Unlike in the United States, the right to bear arms, thankfully, is not written into our Constitution. In Australia there is agreement that the primary role of government is to keep a society safe, whether it is the environment, whether it is labelling laws to ensure that we are not poisoned by foods, all of which get debated in this chamber on a regular basis. National security issues, the safety of people to go about their business in the streets or buy a coffee in a cafe in Sydney—all of these issues deserve to be and should be debated in this chamber. But to assert that the prime obligation is the freedom of the individual at the expense of all else is to walk away from the Lockean social contract, to walk away from the consent of the governed. There is always a balance between freedom and safety. It is a balance that all democratic and responsible governments have to grapple with.

So this bill comes to the Senate having been—and I stress this—heavily amended in the other place. It was the subject of a rigorous inquiry and report by the Parliamentary Joint Committee on Intelligence and Security. It is fair to say that this bill is wholly different from what the government originally proposed. The opposition is determined to ensure that our national security and law enforcement agencies have the powers that are necessary to keep Australians safe.

In recent times the Senate has dealt with three bills concerning national security. Like with the other bills relating to national security, Labor supports this bill, continuing our bipartisanship on national security matters. As well as defending our nation's security, Labor also strongly believes in the importance of upholding the rights and freedoms that define us as a democratic nation living under the rule of law.

This bill, it should be stressed, goes beyond matters of national security, though it does have an important national security dimension. Data retention is a tool used, in the main, for the ordinary enforcement of criminal law. It is essential that in passing these laws designed to protect the Australian community, we strike that balance between these freedoms, and Labor has approached this bill on that basis. Labor is determined to ensure that our national security and law enforcement agencies absolutely have the powers that are necessary to keep Australians safe. I will say that over and over again.

We understand, however, that this is controversial legislation. I understand why some people are concerned about it. But we need to be clear that data retention is not new. Data retained by private companies is already accessible without a warrant by a range of agencies under a scheme that has not been significantly reformed since 1979. Meta data has been collected and stored by telecommunications companies for many years. The fact is that many of the organisations that hold and manage our data for us already keep it. Some keep it for a week and others for up to seven years. They keep it in an environment that is loosely regulated with few rules and little oversight.

Also, there has been concern expressed by law enforcement agencies that technological changes and changing practices are seeing less data retained by telcos over time. This bill looks to resolve that by regulating the storage and access of metadata, including for our security agencies. As I have stated, access to metadata is currently allowed under the Telecommunications (Interception and Access) Act 1979. Police and other organisations access this data right now. The Parliamentary Joint Committee on Intelligence and Security heard evidence that last year Australian telcos had received more than half a million applications by law enforcement agencies to access metadata. The committee also heard that less data may be retained by some companies in future. We want to ensure that telecommunications data remains a reliable tool available to law enforcement and national security agencies where appropriate.

But we also want to tighten the regulation and supervision of that access ensuring Australians' safety is an objective that everyone in this parliament shares. Typically this means that proposals regarding national security are addressed in the spirit of bipartisanship. This does not mean, however, that the opposition will simply agree with all of the government's proposals no matter what. Instead, bipartisanship means the opposition will engage constructively with the government to ensure their proposals meet national interests. By way of example, while the opposition ultimately supported the National Security Legislation Amendment Bill (No. 1), the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 and the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014 last year, it was Labor that insisted that these bills be referred for scrutiny to the Parliamentary Joint Committee on Intelligence and Security.

The very substantial amendments agreed to by the government on the foreign fighters bill are an example of this proper scrutiny. On this bill, Labor has argued for and achieved a number of significant improvements to the original bill. For example, Labor argued for improved oversight of the scheme by two independent Commonwealth agencies: the Inspector-General of Intelligence and Security and the Commonwealth Ombudsman. Labor also argued that the bill should provide for the intelligence committees to have an operational oversight of security agencies under the data retention scheme.

Further, Labor argued for amending the bill so that an agency must be satisfied on reasonable grounds that interference with the privacy of any person is justifiable and proportionate. All of these are the recommendations from the committee that the government has accepted. In all, the committee made 38 substantive recommendations to the original bill. Labor insisted the government implement each and every one of them, and the bill was amended as required in the other place. As a result, the bill that we debate in this chamber is of a wholly different character to that introduced into the House last October.