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

I think in light of the debate and the arguments that we have heard thus far, I will put my strong disagreement on the record and note that the Australian Greens amendment (6) is slightly at odds with the way in which Senator Leyonhjelm sought to do this. Nonetheless, I think we will just withdraw the amendment and move onto the next one. I move amendment (7) on sheet 7669:

(7) Schedule 1, item 1, page 11 (before line 6), at the end of Division 1, after proposed section 187CA, add:

187CB Destruction of records

     If:

  (a) information, or a document, is kept, or caused to be kept, by a service provider in accordance with section 187A; and

  (b) the period for which the service provider must keep, or cause to be kept, the information or document has ended; and

(c) the information or document is no longer required in relation to billing by the service provider;

the service provider must cause the information or document, including any copies of the information or document, to be destroyed as soon as practicable.

Note: If a preservation notice is in force under Part 3-1A this section does not apply to require the destruction of any information or documents that are the subject of the preservation notice.

Australian Greens amendment (7) relates to the introduction of data after the retention period. This is an amendment that requires telcos to destroy retained data after the mandatory retention period, unless that data is explicitly required for building purposes. What it effectively does is set the two-year minimum threshold that the Australian government is proposing to establish for new material, recognising, as I think a number of speakers have pointed out, that some service providers keep some categories of material for much longer than that.

An overall data destruction amendment would not make much sense. I have got personal email records—and I am sure most of us have—going back much longer than two years. I am certainly not interested in the service provider wiping them, but categories of material that have been brought into being for the sole purpose of the objects of this bill should be subject to an explicit data destruction policy. So materials that are recorded for longer than two years for billing purposes and materials that are recorded for longer than two years for all sorts of legitimate reasons, obviously, would not be subject to this amendment. Material that is only being brought into being to satisfy the government and the opposition's objectives should not hang around forever.

I might be so bold as to anticipate an objection that Senator Brandis might raise: why would service providers hang onto it, if we are making these arguments that it is so immensely costly? But, of course, most of the costs are in the set-up, creating the space for it in the first place. I suspect keeping it for longer would be of marginally much lower cost. What we would like to do is ensure that material that was forced into being solely for the purpose of a mandatory data retention scheme, which we do not believe is necessary, is not then hanging around in the ether for longer than that.

Without an explicit data destruction policy, the default would be that many telcos would be likely to retain data beyond the two-year mandatory data retention period. We do not want to see that two-year period become indefinite, even though some records, as I have identified, would be indefinite. I would like to get a read from the Attorney-General of what his understanding is of the way that the bill is presently structured. Is my suspicion correct that there would be no obligation as the bill is currently drafted for material to be destroyed or deleted if it has been brought into purpose solely for the legal obligation as set out in this bill?