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

I foreshadowed this amendment last night. In a way, the amendment of Senator Leyonhelm that we just voted on really was our fallback. This is probably the most important amendment that the Australian Greens will move during this debate. It is colloquially known as the get-a-warrant amendment. We strongly believe that in 1979 when this act was passed into law that if we had had the multitude of devices, data types and platforms that we have today, the drafters who were considering the substantial overall of telecommunications interception legislation as they were in 1979 would have looked around the field and said, 'You can tap people's phone, you can read people's email, you can track their movements around the landscape, and you can map of their social networks and find everything about their lives. These things will all be covered by a warrant and what will not be covered by a warrant is simple subscriber data so that agencies can very rapidly establish who owns the handset, who holds a particular prescription for a particular service.

And so we would have ended up with the same two-tiered system that we have today, but those invasive forms of data access—whether they be tapping the phone call or reading your location as you move around the place—would have been within the warranted regime. I have no doubt about that at all. What we have seen, quite frankly, is the failure of the law to keep up with the march of technology. We still have a fairly robust warranted regime. Last night, Senator Rhiannon pointed out some of its failings, and we are certainly aware of those. We have a robust warranted regime and I think the number is about 4,700. We do not know how many ASIO applies for because that is done through a different process, but the entire law enforcement and anticorruption community around the country has about 4,700 warrants a year.

But, as I have said more times than I care to remember, there are 750-odd thousand applications for warrantless access to people's private information. And that is just because these categories of material basically did not exist in 1979. So while intelligence and policing agencies have been very keen to run the argument that the TIA Act needs continual incremental change to keep up with the march of technology, privacy protections have not. And that is one of the reasons why opposition to the data retention regime has been so strong; it effectively forces carriers to entrench and embed a broken access system that henceforth will have access to vast new quantities of material.

This is not a view that the Greens are alone in putting forward. It is shared by people as widely separated across the political spectrum as the Institute of Public Affairs—good friends of Senator Brandis—the Law Council of Australia, the telecommunications sector, digital rights organisations like Electronic Frontiers Australia and also Bret Walker SC, who is the former National Security Legislation Monitor. Now, lest anybody fear that I am verballing him, Mr Walker believes that there should be a data retention regime in Australia. But he also believes that it should be circumscribed and that these long-overdue protections of getting a warrant are added. This is what Mr Walker said on 7 August of last year:

It seems to me a warrant is a traditional way by which we say drastic powers ought to be exercised so as to breach what would be otherwise be ordinary personal privacy only when somebody outside the agency, usually a judge or a magistrate, is satisfied that sufficient cause is shown to justify that reversal of what we expect.

This was in an interview that he did with Lateline last year. He goes on:

And if we don't have a warrant system, we don't have that independent umpire to check in the usual way of warrants, making a very formal record, which can be produced later in a court if there's litigation about it. If we don't have that, I fear that there will be an understandable suspicion, hostility, about the operation of agencies, which I stress, we need to be doing a good job.

There is not a word of that with which I disagree, and I think that most right-thinking people would agree with Mr Walker, who has many years of experience in weighing up the checks and balances. And, as I said, he is a proponent of mandatory data retention. Obviously, we part company on that issue, but it is his view that if the government forces a scheme such as this into existence then for the obvious reasons that I have described today—and for years, actually—we need to bring these huge categories of material into the warranted regime.

The way that the amendment is drafted excludes subscriber data. So, the argument that is made frequently about those 750,000—or, if you believe the Attorney-General's annual report, the 340-odd thousand warrantless requests—is that the government says, 'Look, a lot of that is for subscriber data. We don't know how many of those requests are for basic subscriber data so we do not propose to drag that information into the warranted regime.' But—quite seriously—if two dozen agencies want to be able to know where you are at any time of the day, or where your mobile phone handset is, and if they want to be able to scrape your email records and work out your whole social graph and know who you are talking to at any given time, get a warrant, Senator Brandis—get a warrant!

I commend this amendment to the chamber.