Scott Ludlam (WA, Australian Greens) Share this | Hansard source

I understand that we are probably going to adjourn this debate in a couple of minutes, so I will just put a couple of quick remarks on the record.

I think Senator Brandis oversimplifies the way in which this material is used. We have a regime of mandatory data preservation notices in Australia, and we have had this regime for a period of time—so telling the chamber that you have three months to solve your complex crime, or to bust your organised crime network, is actually pretty disingenuous. During that period of three months of data retention—or however long the material is retained; some material lies around for a lot longer than that already—you have the ability to make a case, and either to go and get a warrant for fairly invasive tapping of people's phones or for various other forms of intercepts, or you have the ability—if you do not need that level of intrusion—to seek data preservation notices, which is, effectively, targeted data retention. People do not find themselves particularly offended by the concept of data retention for particular suspects or persons of interest. So it is not that we would be demanding that investigative agencies conclude everything within three months, and I think you know that, Senator Brandis. There are plenty of ways in which agencies can go ahead and get the information that they need. You did use a phrase though, Senator Brandis—through you, chair—of diminishing returns, and I acknowledge that that is quite correct. The EU Court of Justice Evaluation report on the Data Retention Directivethat is, the directive that that same court threw out—pointed out that only two per cent of accessed data by law enforcement agencies was over one year old, which I think actually bears out your conclusions about diminishing returns. Goodness knows what it would be for material that was two years old—assumedly practically nothing. The fact that we in Australia do not have actually have statistics such as those is quite instructive. I can quote the statistics from the EU Court of Justice because they bothered to collect the information; the Federal Police do not. In their submission to the PJCIS, the AFP pointed out:

… there are a number of reasons that prevent us from actually quantifying the accurately quantifying the age of requests for historical telecommunications data within the current timeframe.

AFP systems are not configured to capture this information, and extraction of this information from historical records would require significant resources to manually review.

So I can quote statistics from Europe—because they bothered to collect that material—and give some quantification to Senator Brandis's quite correct assertion that there would be diminishing returns. But we have no idea what the numbers are for Australia—maybe they are similar, maybe they are not—because we do not bother to collect the information. And that is why some people, including myself—I guess would put myself in this category—have been quite critical of the fact that two years falls out of the air, as a result of conversations behind closed doors in the PJCIS, but we have to take the word of the investigative agencies and the intelligence agencies without the benefit of evidence.

Progress reported.