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

I indicate my serious reservation about this legislation and its safeguards or, rather, its lack of adequate safeguards. We do have an existential threat in our nation with the threat of terrorism—I acknowledge that; I am acutely aware of it—but the issue is how you best tackle this threat. My concern is that this bill, the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015, will have a number of consequences that will impact on the freedom of the press in this country, which will be unambiguously bad for our democracy. I am concerned that this bill will have the potential to cause serious harm to our democracy without appropriate checks and balances in place. I do recognise the need for legislation to adapt and change in response to new technologies, new political and social circumstances and, above all, threats to our security, but I believe such change should be measured, thought out and carefully considered. This is particularly the case when it comes to security and intelligence, which should have greater accountability and scrutiny than all others because of their greater capacity for abuse. It is interesting to reflect on remarks made by former Senator Faulkner, who put the very simple proposition when the counterterrorism legislation amendment, the foreign fighters bill, was in this place last year that enhanced power requires enhanced accountability. This is enhanced power because of the swoop of metadata storage. The capacity of the state to have everyone's online information, in terms of whom they have contacted, does carry with it a need for much greater scrutiny.

I am concerned in particular about the adverse impact of some of the measures in this legislation on journalists' ability to do their jobs. There is a line that has often been attributed to George Orwell:

Journalism is printing what someone else does not want printed. The rest is public relations.

To me, this epitomises the essence of what journalism, at its very best, should be about. Journalism should provide the checks and balances, should hold public figures accountable for their actions and should inform the public and foster debate. There are countless examples of times when journalists have broken stories that were clearly in the public interest but those in power did not want that information to be disclosed. Look at Woodward and Bernstein's expose of Watergate; the Frost-Nixon interviews; the Spycatcher story, when our now Minister for Communications, as a barrister, very courageously defended Peter Wright; the coverage of detainees David Hicks and Mamdouh Habib; and the saga of Dr Mohamed Haneef. My concern is that the provisions in this bill will mean that journalists will no longer be able to investigate such stories because sources and whistleblowers will be too frightened to come forward and because, in some cases, to report on such things will be an offence punishable by imprisonment.

I acknowledge that the government and opposition attempted to address these concerns in relation to the access of journalists' metadata, but I must say I am very disappointed with the compromise that has been reached. The committee stage will give us an opportunity to explore that. With respect, the amendments moved in the House of Representatives do not go nearly far enough. We need to put this in the context that things go wrong. The authorities, our intelligence services, sometimes make mistakes and they need to be held accountable for that. For instance, on 18 February last year the Australian Federal Police raided the offices of the Seven Network in a very heavy-handed manner, as part of a proceeds-of-crime investigation related to a story on Schapelle Corby. Seven West Media chairman Kerry Stokes, the owner of the Seven Network, is big enough and, dare I say, ugly enough to look after himself. And he did, eventually getting an apology for his network from the AFP for executing search warrants, later quashed by the Federal Court, erroneously describing a Seven West lawyer a suspect in the case. But the botched raid shows that the authorities can make mistakes and that the ability for journalists to expose that may well be compromised by this.

The metadata bill will give the AFP and intelligence agencies very long arms to reach into our everyday lives to track our whereabouts and with whom we have been communicating. For journalists, they will require a warrant, but some fear it will be issued as a formality, and the very process of that warrant concerns me greatly. What kind of future are we ushering in for our democracy with this bill? I foreshadow that I will be moving some amendments in the committee stage in an attempt to fill a number of the gaps left by the government and opposition, and I will speak further on this at that stage.

I want to look at the intention of this bill as a whole. The Australian law has, in general, lagged far behind technological advancements. We see this in all sorts of areas, not just national security—the way we have failed to respond to regulation of online gambling, for example—but in this case the most significant matter we are looking at is the regulation of metadata. It is important to note that there is no legal definition of metadata in Australian law or, indeed, in this legislation. While it concerns metadata as it is generally understood, it outlines this under the term 'retained data'. In essence, metadata is everything but the content of a communication, so it includes the fact that I made a phone call at a certain time to a certain person but not what was said between the two parties. When you browse a webpage, however, the distinction between content and metadata disappears because it is all machine-produced and machine-understandable information about web resources. It is all metadata.

As Professor Clinton Fernandes from the University of New South Wales Centre for Cybersecurity said a few months ago: 'Metadata can be incredibly intrusive. For instance, if a woman rings her GP and then an abortion clinic and then her mum but not her boyfriend, you can probably figure out what's going on.' That is incredibly intrusive. Examples of metadata include the email address, the phone number, the voice over internet protocol number, the time and date of the communication, the general location of information such as cell tower data, information about the duration of the communication, and the names and addresses—home, postal and billing if they are different—of the parties.

Under current law, law enforcement agencies do not have to get a warrant to access metadata. They do, however, have to get a warrant to access content. Further, there are a huge number of organisations that can request metadata, and some of the examples that I have put out over the last couple of years include local councils, parking enforcement services and the RSPCA. I acknowledge that this bill tightens that access to law enforcement agencies, although organisations can come under that umbrella term if designated by the minister. But my question is: why shouldn't warrants be required for access to any metadata, but, more importantly, why shouldn't there be much stricter safeguards and protocols for journalists, who are an essential part of our democracy? A free press is at the very foundation of a democracy. Of course the police should be able to access metadata when investigating serious crimes or a terrorist plot in the making and, indeed, they should be able access that information quickly and efficiently, but why should journalists and whistleblowers, who invariably want to expose malfeasance, corruption or waste in government, be subject to the same rules as ISIS, or Daesh? Indeed, there are increasing calls from citizens around the country that the government should not have the right to access their data willy-nilly. That was the response that I got from an article that I wrote for The Drum not so long ago. The extent of information that can be gathered through metadata and the conclusions that can be drawn from it mean that, in some situations, content is almost superfluous.

The arguments put forward by some of my colleagues in this place, Senators Ludlam and Leyonhjelm in particular, have clearly dispelled the myth that metadata is less intrusive than content and so can safely be subject to a lesser level of control and scrutiny. The fact that both Senator Ludlam and Senator Leyonhjelm, on perhaps very different parts of the political spectrum, take this position indicates that this is an issue that goes beyond ideology. Many people are unaware of the scrutiny their information could be subject to both now and under this proposed legislation. The government are, in effect, asking the public to trust them with this information—to trust that it will not be misused or abused—even though there are not any measures to protect against this, as I see it. Historically, blind trust in government has not worked out well for democracy in general and individuals in particular.

The key potential drawbacks to the compromise that was reached between the government and the opposition on the public interest advocates are, firstly, that the public interest advocate cannot disclose any confidential information to the affected journalist or receive instructions from them about how to deal with it, thus limiting the journalist's ability to test any adverse evidence. Secondly, the playing field will be skewed in favour of the authorities. Unlike the authorities, such as the police, who have the resources, researchers and analysts, public interest advocates will lack the resources of an ordinary legal team for the purpose of mounting a proper case in secret. Thirdly, unlike that available to the police or those seeking the warrant on the journalist, who have a long corporate memory, the lack of a searchable database of secret judgements will mean that individual public interest advocates are unaware of what arguments are likely to sway the judge who decides whether to issue the warrant. Fourthly, public interest advocates may well have no power, as I see it, to call witnesses. Finally, the tactic that could be used of prejudicially late disclosure may eliminate the public interest advocate's practical ability to call evidence.

Contrast this bill with the approach in the United States of America, our closest ally. No-one can question their seriousness in tackling terrorism and threats to their citizens, particularly after the calamity of the terrorist attacks of 9/11. After a bungled attempt to obtain metadata from the Washington bureau of the Associated Press some two years ago, the US Attorney General, Eric Holder, issued comprehensive guidelines and protocols to protect journalists' sources. In the United States, media organisations and journalists are given advance notice of an attempt to obtain metadata and have the right to argue the public interest case before a decision is made. I will be moving amendments based on the American approach. Not only has this worked well but just two months ago Mr Holder, the US Attorney, issued new guidelines that further strengthened protections. Just this month, legislation was introduced to the UK's House of Commons which included draft codes of practice to protect journalists' sources where the public interest is also a primary consideration. Back home, it seems the approach to metadata by both the government and the opposition can be paraphrased this way, with apologies to Sting: every click you make, every keyboard stroke you take, the government will be watching you.

I just wanted to reflect briefly on the most recent terrorist attack that this country has had, the awful events of the Sydney siege. Some people say that Man Haron Monis was a madman. He may well have been a madman, but he was also a terrorist. He fulfilled the definition of a terrorist. I still do not understand why this man, with his appalling history of taunting the families of Australian soldiers who had died in service overseas, did not continue to be on a watch list; why this man, with a long history and string of sexual assault matters before the courts, was not still on the watch list; why this man, who was charged as an accessory before the fact of the murder of his wife, was still in the community; and why this man, who praised the work of ISIS and other terrorist groups and jihadists, was allowed on the streets. That does not involve metadata. That involves some decent intelligence work, some appropriate surveillance and, more importantly, information that should have been used and that should have been collated to prevent this man—both madman and terrorist—from doing the terrible harm that he did. Two innocent lives were lost, in my view, needlessly, and I will wait—of course, we need to wait—for what the New South Wales coroner will say.

These are important matters. The impact of this legislation on the free press in this country, in my view, will be chilling. We failed to have the same sorts of safeguards that the United States, our closest ally, has or, indeed, the broader safeguards that are in the process of being adopted in the United Kingdom. For that reason, I will be moving a number of amendments. I look forward to the committee stages of this bill. But I am deeply concerned that our democracy will be weakened as a result of the chilling impact this will have on journalists and their ability to do their valuable work.