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

This amendment comes somewhat out of order for us. I would like to explain how we are intending to proceed. The Australian Greens have a very similar amendment that proposes a protected class warrant effectively. I will explain why in a moment, but for us this is very much a fallback measure. We are persuaded, and I will speak to it when we get to it on the running sheet, by the government's protections, adopted with massive reluctance. Let's acknowledge that you, Senator Brandis and the government, were dragged kicking and screaming to these amendments as a result of negotiations, which broke down after the PJCIS had already concluded and which dragged on and delayed Senate debate for the better part of last week. Since Mr Dreyfus has joined us for the remainder of this evening's debate, let's give credit where it is due; you did not want these provisions in the bill. You had to be dragged kicking and screaming to put them in the bill. The PJCIS made no such recommendations. Those negotiations were conducted entirely outside the ambit of the committee. So it is remarkable that you come in here ensuring us that we have protection for journalists and sources when you did not want them in the bill. In fact, the Prime Minister—and I suspect yourself, too—had said that you do not believe these amendments should exist at all, that you only did it in order to get the compliance of the Australian Labor Party.

We are not persuaded that these amendments are sufficient, and that is why I describe even this amendment of Senator Leyonhjelm's as something of a fall-back position. Shortly I will be introducing and debating an amendment that would require and provide, as 11 or 12 jurisdictions in Europe do at the moment, a level of judicial oversight for access to telecommunications data or metadata. I will speak to that amendment in detail when we get there.

For the time being, I foreshadow that I will let our amendments (1) to (13) on sheet 7670 lapse when we get to them and I will discuss our reasoning now; it is a shame it has been debated out of order. If our amendment for getting a warrant across the whole population fails, because that is what I believe the law should provide, then we would effectively propose a protected class warrant as is proposed here by Senator Leyonhjelm, and by us later on the running sheet.

The amendments include a class of protected professionals. Law enforcement agencies should need a warrant to access the metadata of these so-called protected professionals. Also, we believe the role of the public interest advocate, which crudely mirrors the role of public interest monitors in Queensland and Victoria, should apply to a wider range of professionals than journalists. People more eloquent than myself and people who have got long experience in the press gallery here and elsewhere have quite sharply critiqued the amendments. They said that effectively you have made a tougher front door and you have thrown some procedural hurdles in the way of warrantless access of journalists' metadata, but of course the back door is wide open. If you are trying to hunt down who is leaking embarrassing information on the horrific conditions on Manus Island, for example, you can scrape the phone and internet records of those employees that you think might be communicating with journalists and that will give you what you are after. No warrants need to be applied for as the back door is still, in fact, wide open.

I would acknowledge that it would be formidably difficult to draft an amendment that would coherently catch that kind of behaviour. Actually, I would call into question the actions of a government that suddenly seems to be so interested in tracking down journalists' sources. Senator Brandis, I think you were among those who voted unanimously for Commonwealth shield laws to provide protection precisely against that kind of behaviour. But of course, warrantless metadata access to potential sources makes these shield laws almost obsolete. This proposition that Senator Leyonhjelm has advanced extends these protections—inadequate as I would argue that they are—to other classes of professionals including lawyers. We did traverse this briefly last night, so I will not detain us for long. The President of the Law Council of Australia, Mr Duncan McConnel, put it the following way:

There is no apparent public policy basis for recognising the need to safeguard confidential journalists' sources, while not also protecting confidential and privileged information between lawyers and their clients. People who engage a lawyer need to know their communications are confidential and that legal professional privilege is not lost under the proposed Data Retention Bill. The confidentiality of client-lawyer communication is a long-held common law right and we need to be vigilant to protect it. It is not difficult to envisage situations where client-lawyer telecommunications data would reveal a range of information that could compromise confidentiality and even legal professional privilege.

I will pause here and point out that Mr Duncan is well aware that the bill, in black and white, precludes the acquisition of content from the range covered by the bill. So Mr Duncan is absolutely well aware that it is simply telecommunications data or metadata that has been caught here, rather than content. I think, Senator Brandis, that you went to that in an earlier comment.

For example, Mr Duncan goes on:

…what would happen if a whistle-blower seeks legal advice prior to, or during communication with a journalist? Under the proposed amendments, the journalist's communication may be confidential, but what of the communications between a journalist or journalist's source and the lawyer? Data could allow inferences to be drawn from whether a lawyer has been contacted; the identity and location of the client, lawyer and witnesses; the number of communications and type of communications between a lawyer and a client, witnesses and the duration of these communications.

…The Law Council's position is simple: lawyer communications deserve the same level of protection as that afforded to journalists.

Mr Duncan let it go there, but I of course would add 'the same level of protection to that afforded to everyone in the country.'

The Law Institute of Victoria president, Katie Miller, puts it this way:

In many cases it is very important to keep confidential and protect even the fact that a lawyer is in contact with particular people. Any mass retention of communications data between lawyers and their clients could threaten the necessary trust between lawyers and their clients, allow an issue of sensitivity to be inferred or revealed and undermine the ability of lawyers to advocate on behalf of their clients.

In both cases the word 'inferred' or 'inferences' is used, and that is the difference between tapping somebody's phone and listening in and transcribing their conversations as opposed to making maps of where they are and who they are in contact with over extended periods of time. We are well aware that agencies that would be enabled by this bill not merely to continue the status quo. Let us get that out of the way, because this is the status quo that prevails at law at this time, I am very well aware of that. What the government and the opposition are proposing to do is to bolt on new warehouses of material that do not exist at the present time, thus entrenching a very bad situation.

The agencies that are empowered to retrieve this material on a warrantless basis can then feed that data into very sophisticated network mapping tools that allow them to establish, more or less in real time, where people are and who they are communicating with. They can then potentially cross-match that with other records such as open-source social media publication, for example, and various other kinds of material—all of it without a single warrant needing to be issued. That is why we believe that journalists and their sources should not only be covered; lawyers should be covered and medical professionals should be covered.

Effectively, even though we have approached it legislatively in different ways we support the intent of this amendment. We would have moved it in a slightly different way if our amendment had been dealt with first. I strongly believe that all Australians should be afforded the protection of warranted surveillance rather than warrantless surveillance and that, if it is not accepted, that at the very least these professional classes of people and those who they serve should be protected.