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

I thank the Attorney for joining us. Probably Senator Xenophon will reserve his right to ask general overview questions. I ran through most of mine last night so I am proposing to start working through the amendments. I also offer a note of thanks to the clerks, who probably worked all night to give us the running sheet for a very complicated set of amendments from a few different sources. I now seek leave to move Australian Greens amendments (1) and (4) on sheet 7669 together.

Leave granted.

I move:

(1) Schedule 1, item 1, page 3 (line 14), omit "specified in or under section 187AA", substitute "specified in section 187AA".

(4) Schedule 1, item 1, page 8 (line 1) to page 9 (line 2), omit subsections 187AA(2) to (5), substitute:

(2) For the purposes of items 2, 3, 4 and 6 of the table in subsection (1), 2 or more communications that together constitute a single communications session are taken to be a single communication.

These amendments are identical to those of Senator Leyonhjelm, so presumably he will add some commentary as well. This debate has been somewhat bogged down from the very beginning in definitions of the kind of data that the government wants telecommunications carriers to collect. Everybody would be well aware that the Attorney did not help his cause at all by not being clear, but that is not a confusion that is isolated to the Attorney-General alone. The discussion has been bogged down in definitions of metadata, which is a phrase that is not even really a term of art in the telecommunications sector. It can mean pretty much what people want it to mean.

It is extraordinary, firstly, that the government initially proposed to bring together a bill to impose on telecommunications carriers an obligation to store material that some of them were not storing. There are matters on the record from Telstra and from the Communications Alliance that this is not just about extending a reporting obligation for material that is already being stored. No matter what the government thinks, and the communications minister has been just as guilty of making this contention, it is simply not the case. The Attorney-General's Department has been proposing an arbitrary two-year mandatory data retention capture and storage plan since at least 2008 that I am aware of, but as recently as January the government still did not know what kinds of material it wanted to force industry to keep. That is remarkable in itself.

The second interesting thing is that the government wanted to keep that definition of the material it wanted industry to store outside the act, in regulations, which makes it much easier for the definition to arbitrarily change. That has flow-on consequences for service providers who have to adjust their systems, not only in capturing the material but in organising for it to be retrieved, presumably reasonably promptly for agencies that will occasionally be in a serious hurry, and brought to light in a form that could potentially be used as evidence in court proceedings. What the government wanted to do, and the bill before us is not completely dissimilar to the government's original intention, was have the definition in regulations so they could change it very rapidly, without consultation with the technology sector or the general public and without recourse to this parliament.

The government has taken a measure of credit, and I guess we should observe it where it is due, that the definition of metadata is now in the bill—I will have a little more to say about that later—but the government still reserves the right to arbitrarily change the definition of material it wants to capture and store and then give itself 40 sitting days for parliament to ratify the decision. Last count, looking at the parliamentary calendar, there were only 58 Senate sitting days this year—the House sits a little bit more than we do because we have four weeks of budget estimates—which means that the time between the government, potentially on a whim, deciding that it needs new material and needs to expand the scope of the bill in the regulations and parliament catching up and ratifying the decision could be seven or eight or nine months.

We will move an amendment down the track that takes that extraordinary 40-day sitting day window and restricts it to four, but that amendment will only be necessary if this amendment of the Australian Greens does not prevail. What this amendment seeks to do is remove the ability of the Attorney-General to arbitrarily widen the scope of metadata that it insists telecommunications carriers trap and store.

Before I commit the amendment to the chamber, I am very interested to know what criteria the Attorney-General proposes to apply—because my understanding is that this will reside with your office, Attorney—for adding information types to the scope of the bill. So what would we expect to be happening behind the scenes prior to an announcement by the government that it is has actually widened the scope of the data retention scheme? What process will you follow and what criteria will you have regard to before making such a decision?