Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Hansard source

The Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 is a complex and controversial piece of legislation. Regrettably, the Abbott government has done an exceptionally poor job of explaining why these laws are necessary and how they will work. The government announced its intention to introduce this legislation in the middle of last year. The political agenda at that time was dominated by the Australian people's violent reaction to the Abbott government's unfair budget, and the Prime Minister and his colleagues were in a state of panic. It was in this chaotic and dysfunctional environment that the government foisted the data retention bill on the Australian people.

There is one particular element of this botched sales job that it would be remiss of me to fail to mention. I am talking about Senator Brandis's shambolic attempt to explain the terms 'metadata' and 'internet browsing' in his humiliating interview with David Speers on Sky TV in August of last year. I congratulate David Speers on winning a Walkley award for that interview. While the interview may have been an outstanding achievement in terms of journalism, it was not the high-water mark of public policy. Senator Brandis's performance was emblematic of the government's failure to persuade the Australian people of the importance of data retention.

Senator Ludlam interjecting—

I do not mention the government's failings or Senator Brandis's embarrassing blunders gratuitously, as much as Senator Ludlam might like. I do so to illustrate how the Abbott government has failed to take the Australian people with it and win their support for the data retention bill.

This parliament has no greater duty than keeping Australia safe from the threats of crime and terrorism. Maintaining public confidence in our national security and law enforcement agencies is an essential element of this duty. It is incumbent upon the government to reassure the Australian people that national security and law enforcement concerns are being appropriately balanced with the importance of upholding fundamental democratic freedoms. The government must satisfy the people that additional power is not conferred on our security and law enforcement agencies unless it is necessary to do so and only where matched with robust oversight and accountability mechanisms.

The Australian people must be satisfied that in seeking to defend ourselves from crime and terrorism we do not trample upon the very rights and freedoms that characterise Australia as a free and open democracy. The Abbott government has failed this test. This failure has left the Australian people vulnerable to a scare campaign about data retention. Senator Ludlam, interjecting earlier, and the Greens Party have exploited this vulnerability ruthlessly. They have deliberately and irresponsibly misrepresented the facts for their own cynical political purposes. The Labor Party has found itself stuck between a rock and a hard place on this legislation: stuck between the failure of the government to take the people with it on the one hand and a hysterical campaign of misinformation by Senator Ludlam and the Greens Party on the other. Remember the YouTube interview, everyone? This is an invidious position. Nobody in the Labor Party is happy about once again being forced to rescue this government from its own incompetence.

Honourable senators: Oh!

And listen to the shrieks down at the end of the chamber. But, as the alternative government, unlike you, it is incumbent upon us, the Labor Party, to take a responsible, bipartisan approach to national security and law enforcement. We in the Labor Party believe that our law enforcement and national security agencies should have the power they need to protect Australians from the threats of crime and terrorism. However, we also believe in the importance of protecting the fundamental freedoms that define Australia as a democratic nation. It is critical that we get the balance right between keeping people safe and protecting the liberties we hold so dear.

The incompetence of the government and the hysteria of the Greens party have made it very difficult to have an open and honest conversation about data retention with the Australian people. Let me take this opportunity, though, to put some facts on the table. I have been astounded by the number of people who have responded to me in the last few days as we have been able to clearly elucidate these facts, so let me do so again. First fact: private companies have been retaining very large volumes of metadata in largely unregulated ways for many years. This data has been accessed by many dozens of federal and state and territory government agencies hundreds of thousands of times each year—with, in my view, insufficient safeguards to protect personal privacy. This is the status quo. This would be the consequence of no change.

Second fact: this legislation simply governs access to metadata, not content data. This is an important distinction to make. Metadata is data about a communication, not the content of that communication. Access to data under this scheme will allow an agency to determine the time a telephone call was made, the number dialled and the duration of the call, but it will not allow the agency to listen to the telephone call. It will allow access to the date and time an SMS message was sent and the number it was sent to, but it will not allow the agency to read the content of that message. It will allow access to the date and time an email was sent, but reading the content of that email will not be permitted. Importantly, access to a person's internet-browsing will not be permitted, despite the confusion caused—or perhaps it was a backflip subsequently—by Senator Brandis's remarks during his now infamous interview on Sky. Agencies wishing to access content data will still need a warrant, which must generally be sought from a judge subject to the usual oversight and accountability mechanisms.

Labor approached parliamentary consideration of the data retention bill as an opportunity to regulate and improve the use of metadata for law enforcement and counterterrorism purposes, while at the same time introducing safeguards that will greatly improve the transparency and accountability of storage and access to that data. Another fact: access to metadata is a legitimate tool used by security and law enforcement agencies and it plays a vital role in preventing, investigating and prosecuting crime, including terrorism. It is not some grand conspiracy—and those who say it has no role simply have it wrong. The joint parliamentary committee received evidence of 21 cases in which access to metadata was critical to the investigation, prevention and prosecution of serious wrongdoing.

Technological change and changing business practices of telecommunication providers means that less data will be retained by some companies in the future. This is the problem for law enforcement agencies. There is a significant risk that this will hamper the important work of security and law enforcement agencies and lessen their ability to keep Australians safe. It would be irresponsible for the Labor Party as the alternative government to pretend that these risks do not exist.

The bill was introduced into parliament by Malcolm Turnbull before Christmas last year and it was nowhere near good enough. The safeguards were inadequate and the detail was vague. This is why Labor insisted that it be sent to the joint parliamentary committee for proper scrutiny and to allow the public to have their say. The Labor members of the joint parliamentary committee listened very carefully and forced the Abbott government to accept 74 amendments to improve this bill, to better balance the importance of upholding fundamental democratic freedoms with national security and law enforcement concerns. And remember: the status quo is not good enough in terms of upholding fundamental democratic freedoms. As I previously mentioned, we have been particularly focused on oversight and accountability mechanisms. We believe these improved safeguards are essential to protecting the privacy of Australians and to giving the community confidence that personal data collected under the scheme will not be compromised or misused in the future.

Labor strongly believe that freedom of the press is one of the most fundamental elements of our democracy, and we will always fight to protect it. Labor forced the Abbott government to implement a regime whereby it will be illegal for agencies to access metadata for the purpose of identifying a journalist's source unless they first obtain a warrant, generally from a court. There will be a statutory presumption against issuing the warrant and agencies will be required to prove that the public interest in obtaining the metadata outweighs the public interest in protecting the confidentiality of a journalist's source, which is central to the freedom of the press. A public interest advocate will be appointed to stand in the shoes of the journalist and argue against the issuing of the warrant.

These changes will mean much stronger protections for journalists and their sources, certainly much stronger than what Malcolm Turnbull originally proposed. It has been very frustrating that it has taken so long for the Liberal Party to agree to support better protections for journalists. It is even more frustrating that the government still refuses to acknowledge that the stronger protection secured by Labor needed to occur. It took Bill Shorten writing to the Prime Minister insisting on defending the freedom of the press to force the government to back down in this area. I am told that the Prime Minister still does not see what the fuss is about. Nobody was worried about metadata when he was a journalist back in the early eighties, we heard. Somebody might like to tell the Prime Minister about the advent of the internet and mobile phones.