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

I want to take us back briefly. I will say at the outset that I cannot let get Senator Brandis get away with the comments that he made about the Court of Justice of the European Union and the findings that it made on 8 April 2014. I am well aware that I am not a lawyer, and so I am also well aware that Senator Brandis is likely to treat what I am about to say with massive condescension. You are free to fire away, as you tend to do.

I am going to read verbatim from the press release that the Court of Justice of the European Union issued on finding that the European Data Retention Directive was invalid:

The Court of Justice declares the Data Retention Directive to be invalid

It entails a wide-ranging and particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data, without that interference being limited to what is strictly necessary.

The court goes on to say:

The Court takes the view that, by requiring the retention of those data and by allowing the competent national authorities to access those data, the directive interferes in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data. Furthermore, the fact that data are retained and subsequently used without the subscriber or registered user being informed is likely to generate in the persons concerned a feeling that their private lives are the subject of constant surveillance.

It is language remarkably similar to that adopted by our very own Parliamentary Joint Committee on Human Rights, which was looking at these issues, not through a lens of what the security agencies are demanding but through a lens of fundamental human rights, including the right to privacy. The cold-blooded way in which Senator Brandis has just gone ahead and said he has set aside the views where these issues are looked at through a human rights lens and wholeheartedly adopted the views of the committee that looks at these things through a lens of what ASIO wants is remarkable.

Senator Brandis made a very important point about proportionality. I am glad that he brought it forward, in that he is effectively—I am paraphrasing a little bit—arguing that data retention could well have been considered proportionate by the European courts had the way that the directive was implemented at a national level in national parliaments and congresses been done a little bit differently. It is an important point and it is one on which Senator Brandis is quite correct. But when the court was considering proportionality, it considered a couple of issues as to whether national parliaments and legislatures had to take proportionality into account. The grounds, from which I will quote very briefly, are fascinating. I quote again from the press statement:

Firstly, the directive covers, in a generalised manner, all individuals, all means of electronic communication and all traffic data without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime.

What do you know? One of the proportionality thresholds that the European court thought was important and that Senator Brandis just brought to our attention is effectively gravity of conduct, that if you are going to place the population under blanket surveillance the measures should really only be used in light of the objective of fighting serious crime. Senator Brandis, in the same breath, rejected Senator Leyonhjelm's amendment that would effectively deal with that issue of proportionality. The judgement continues:

Secondly, the directive fails to lay down any objective criterion which would ensure that the competent national authorities have access to the data and can use them only for the purposes of prevention, detection or criminal prosecutions concerning offences that, in view of the extent and seriousness of the interference with the fundamental rights in question, may be … sufficiently serious to justify such an interference.

Again, gravity of conduct. In that same clause, the court goes on to express, and this is important:

In particular, the access to the data is not made dependent on the prior review by a court or by an independent administrative body.

Get a warrant, is effectively what the European court said. Thirdly, on the data retention period, it noted:

… the directive imposes a period of at least six months, without making any distinction between the categories of data on the basis of the persons concerned or the possible usefulness of the data in relation to the objective pursued.

On all three grounds, the Australian government's bill—supported blindly, wilfully and, I would say, recklessly by the Australian Labor Party—fails the same tests of proportionality that Senator Brandis drew to our attention. There is no chance that the Australian bill as presently legislated would pass the threshold tests that were stated in black and white by the European courts. Feel free to unload, Senator Brandis. I have no doubt that you are quite looking forward to it.