George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

In closing the second reading debate, I thank honourable senators for their contributions. In particular, I acknowledge the thoughtful contributions of Senator Leyonhjelm and Senator Xenophon, and I will respond with particularity to certain of the issues which those two senators from the independent crossbench have raised. I see Senator Xenophon is still in the chamber. So let me say to you, Senator Xenophon, that anyone listening to the broadcast of this debate could be forgiven for thinking from some of the language that has fallen from the lips of Senator Xenophon or Senator Leyonhjelm and others who have spoken from the crossbench or from the Greens that this bill proposed an important or significant or even draconian new set of powers which the state would be able to exercise over the citizen. You would think that that was so from what those contributions suggested.

I can tell you and those who may be listening to this broadcast tonight that this bill contains no powers exercisable by the state over the citizen. Not one. The only change that this bill makes to the relationship between the state and the citizen is to introduce safeguards in relation to the access of law enforcement agencies to metadata which were not there before. That is the only change this bill introduces to the relationship between the state and the citizen. Senator Leyonhjelm, whose libertarian principles I greatly respect, would be reassured to know that, whereas under existing law some 85 government agencies and even local councils and NGOs can access metadata, as a result of the bill before the chamber this evening, that number of agencies has been reduced to 21. Those 21 agencies—all of them law enforcement agencies—are set out in the bill, and they cannot be added to except by regulation, which is disallowable by this chamber. So, far from expanding the power and the reach of the state, this bill very significantly reduces the power and reach of the state by reducing by three-quarters the number of bodies which can access metadata without a warrant.

It would shock you, Mr Acting Deputy President Williams, to learn of some of the agencies which today can access metadata but, as a result of this bill, will no longer be able to do so. Some eight Commonwealth departments will no longer be able to do so. Australia Post will no longer be able to do so. The Clean Energy Regulator; the Office of Environment and Heritage of the New South Wales government; and municipal authorities including the Ipswich City Council, the Knox City Council and the Wyndham City Council can today access metadata. As a result of this bill, they will no longer be able to do so.

Would you believe, Mr Acting Deputy President, that even the RSPCA can today access metadata? But, as a result of this bill, they will no longer be able to do so, because this bill, by proposed section 110A, limits the agencies which can access metadata specifically to law enforcement agencies: the Australian Federal Police and the state and territory police forces; the anticorruption authorities in the states; and the principal economic regulators—ASIC, the ATO and the ACCC. All of those agencies of course can access metadata today, as can another 60-odd agencies or entities; as a result of this bill, they will be prohibited from doing so. So, far from expanding the power of the state over the individual, Senator Xenophon and Senator Leyonhjelm, this bill actually does the opposite.

It also introduces a provision that is not part of our law at the moment—that is, a large and detailed architecture of protection for journalists. There are no protections for journalists under existing law. There are none to prevent access to metadata concerning journalists or their sources. But, as a result of this bill, there are protections. And I have heard your critique of them, Senator Xenophon; I will deal with it in particularity during the committee-stage debate. I simply make the broad proposition that, whereas under existing law there are no protections for journalists and their sources in relation to metadata, under this bill there will be. How this bill can then be described as having a 'chilling effect' on the freedom of the press, when it introduces a protection of the freedom of the press which forms no part of the existing law, escapes me.

As well, there are other protective mechanisms, Senator Xenophon. There is, for example, a new role given to the Commonwealth Ombudsman which does not exist under existing law, to ensure that access to metadata is not abused. There are additional powers of oversight given to the Parliamentary Joint Committee on Intelligence and Security which do not exist under the current law, to ensure that access to metadata is not abused. So, far from this being a bill that introduces draconian new powers, it introduces no new powers but extensive new safeguards.

Mr Acting Deputy President Williams, let me explain very simply why both sides of politics, after long deliberation, have concluded that there is a need for this legislation. For more than 20 years or so, telecommunications service providers and ISPs have collected the metadata of their clients as a business record—as a business record—because they needed it for billing purposes. That is why the metadata was stored, and it has been accessed by the 85 or more agencies and entities that I mentioned before, essentially for law enforcement or regulatory purposes. But, with the evolution of technology, the retirement of legacy systems and, in particular, the change in the billing practices of the telcos, it is no longer necessary for them to retain that metadata, so they are not doing so. But, as a result, the capacity of the law enforcement agencies to conduct criminal investigations, which are materially assisted by access to metadata, has been degraded. So the core provision of this bill is to impose upon telecommunications companies an obligation to retain the metadata that they hitherto had retained anyway for two years. What the bill does, in effect, is freezes the status quo.

So, not only does the bill contain no new powers of the state against the citizen, not only does the bill contain protections which do not exist under existing law; what the bill does in relation to the telcos is it freezes a status quo which has existed for the last two decades and about which we have heard no complaint from those who have suddenly and rhetorically seen fit to claim, erroneously, that the bill contains draconian new powers.

Let me turn to another error, which came from Senator Xenophon, I am sorry to say, and from others who have spoken in this debate—that, as a result of this bill, 'The government will hold our metadata.' No, it will not, Senator Xenophon. The government will not hold metadata as a result of this bill. What this bill does is mandates private industry to retain metadata that it currently retains. It is the private sector, not the government, that will retain the information, the metadata, that it actually currently retains. You praise the American system, Senator Xenophon, but you do not refer to the fact that, in the American system, government agencies hold metadata. But, under our system, no government agency holds metadata. The 21 agencies listed in proposed section 110A of the bill will have access to that metadata on the same basis that they currently do, but with additional safeguards. But that is all.

Let me turn to the claim that has been made, in particular in Senator Ludlam's contribution, that this legislation has been rushed and that there has been insufficient deliberation. Well, Senator Ludlam, I do not know what you think is rushed, but the process by which this legislation was developed was initiated in May 2012—almost three years ago—when my predecessor, then Attorney-General Roxon, sent a reference to the Parliamentary Joint Committee on Intelligence and Security, asking it to review, among other things, the applicability in Australia of the European Data Protection Directive. The Parliamentary Joint Committee on Intelligence and Security, of which I was a member during the last parliament, deliberated at great length throughout the rest of 2012 and the early months of 2013. In May 2013 it produced a unanimous report after a year of deliberation, in which there seemed to me to be endless hearings—the hearings are actually listed in the appendices to the report. It received thousands of pages of submissions. The PJCIS produced this unanimous report. Then, with the change of government and acting upon the unanimous report that was tabled during the period of the previous Labor government, my department developed this bill.

The bill was introduced by my colleague, Mr Malcolm Turnbull—who is not well-known for his authoritarian propensities, I might say—into the House of Representatives on 30 October last year. The bill was referred back to the same committee, which, now under the chairmanship of Mr Dan Tehan, the member for Wannon, deliberated at great length again—in particular during the Christmas period—and on 27 February produced a detailed report with 38 recommendations, many of which involved amendments to the bill, plus a 39th recommendation that the bill be passed. That report was also unanimous. The government, having considered that unanimous report of the PJCIS decided to adopt all of the recommendations of the report. We have the balance of this week—for many hours to come—to debate the bill in the committee stage. So far from being rushed, it cannot honestly be said that that is so, when this is the work of two parliaments, of two successive governments, of two long inquiries by the Parliamentary Joint Committee on Intelligence and Security, spanning almost three years.

Let me, in the time left to me, turn to—though we will return to it more detail—the claim that we heard from Senator Xenophon that this will have a chill effect on freedom of the press. Well, Senator Xenophon, about a quarter of the bill, about 20 pages, is devoted to a very extensive architecture of protections of the very thing about which you claim to care but which under existing law has no protection is at all—none at all. Division 4C is devoted to the matter. To respond to your claims, Senator, that you fear that a rubber-stamp approach might be taken to approvals, we have a long series of criteria about which the minister must be satisfied and then a long series of criteria in relation to which a court must be satisfied and, uniquely in my experience in Commonwealth law, we have the creation of the special statutory office—a public-interest advocate who can appear and argue where appropriate that it is not in the public interest that a warrant be issued in relation to a journalist or a journalist's source. At the moment, access to metadata by some 85 agencies and entities is warrantless. This legislation introduces a requirement for a warrant, where none existed before; a more complex series of preconditions and the procedural steps and criteria for the issue of the warrant, where none existed before; and a unique provision for a public-interest advocate, which is unknown in any other area of Commonwealth law enforcement where warrants are required.

It is being claimed by some, particularly from the Greens, that metadata has no utility. Senator Leyonhjelm said the same thing: that the retention of metadata has no investigative significance. I note what you say, Senator Leyonhjelm and Senators from the Greens, but that is not the view of those who actually have the responsibility for carrying out these investigations. As I have done many times, I refer you to the view of the much-respected former Director-General of ASIO, Mr David Irvine, who, when asked about the importance of metadata in the investigation of terrorist crime and terrorist networks, said that it was 'absolutely crucial', a view shared by the current Director-General of ASIO, Duncan Lewis, and by the Commissioner of the Australian Federal Police. You may have a scepticism about the law enforcement authorities being interested in accreting to themselves more power, but, as I have pointed out to you, they do not have any additional powers under these laws—none. I, with all due respect to my colleagues, would rather rely on the professional judgement and advice of those who actually have the responsibility than on the wild rhetorical claims of certain senators with no professional experience in the field at all. Metadata is in fact used in every significant criminal, organised criminal, paedophile and terrorist investigation.

Finally, let me address the issue of cost, and I note Senator Ludlam's second reading amendment, which, of course, the government will oppose. The question of cost is a matter of discussion, and has been for some months now a matter of discussion, between government and industry. The government announced, as Mr Turnbull made clear in his second reading speech in the House of Representatives on 30 October, that the government will make a substantial contribution to the capital costs of industry in establishing a retention regime. In relation to the ongoing costs, a PricewaterhouseCoopers review has estimated that, even if there were to be no government funding, the average cost over 10 years would equate to between $1.83 and $6.12 per customer per annum, with a median price of $3.98 per customer per annum. That is not, it seems to me, with all due respect, Senator, a vast cost for what this legislation seeks to do to preserve—not to extend; in fact, in important ways to limit—an important investigative capability.