Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I inform the Senate that at 8.30 am this morning Senator Bernardi and Senator Siewert each submitted a letter in accordance with standing order 75 proposing a matter of public importance. The question of which proposal would be submitted to the Senate was determined by lot. As a result, I inform the Senate that the following letter has been received from Senator Siewert:

Dear Mr President, Pursuant to standing order 75, I propose that the following matter of public importance be submitted to the Senate for discussion:

The urgent need to establish whether law-abiding Australian citizens have been subject to indiscriminate data collection.

Is the proposal supported?

More than the number of senators required by the standing orders having risen in their places—

I understand that informal arrangements have been made to allocate specific times to each of the speakers in today’s debate. With the concurrence of the Senate, I shall ask the clerks to set the clock accordingly.

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

I thank the Senate for the opportunity to bring these matters forward. We in the Australian Greens believe that this is a debate of urgency and that it is a matter of great public importance. This morning, we felt that it was urgent for the Attorney-General to make a statement of explanation about activities undertaken by our intelligence agencies in raiding a lawyer's office and interrogating witnesses hours before legal hearings got underway overseas. Three weeks ago, it was urgent to ask why the Indonesian President and his wife were under surveillance by some of these same agencies. Today, we are focusing on the urgency of what we find most alarming and which we have been raising consistently in this chamber and in the community since the first daggy power point slides from the US National Security Agency became available, introducing the concept of PRISM to wide public understanding.

The subject of this debate today is the need to establish the degree to which law-abiding Australian citizens and people all around the world are the subject of wide-scale, indiscriminate, passive, real-time or retrospective surveillance. The revelations by the brave whistleblower Edward Snowdon would appear to show that the government of the United States and its allies, including Australia, have been systematically spying on the whole world. And I strongly contest the statement that our Attorney-General, the highest law officer in the land, made the other day in this chamber in which he described Edward Snowdon as an American traitor. Senator Brandis, if you want to know why your standing in the general community is so low and why you are held in such casual disregard by everybody who has come across your work, look no further than a statement like that. Such surveillance, not only domestic but also extra-territorial, by various states' parties, violates the human right to privacy. Such surveillance reverses a fundamental tenet of democracy—which is that we are innocent until proven guilty—because it is a form of retroactive policing: 'We will collect all of your communications, in case you turn out to be a criminal one day.' Surveillance carried out through intelligence organisations—such as the NSA in the US, GCHQ in the UK and ASD, formerly DSD, in Australia—is all pervasive.

It quite clearly is an attempt by these agencies to capture, in real time, all digital communications by all people, whether you are a suspect in a criminal investigation or not. There are voice calls, emails, secure networks and servers. Some of the most common and ubiquitous software services and hardware services in the world appear to have been backdoored. This covers all countries, including close allies of the United States: France, Mexico and the Chancellor of Germany among many others. This data is then stored for future use, just in case anybody, including people in this chamber, ends up becoming a suspect in some sort of national security or criminal investigation.

On 20 November, the UN General Assembly passed a resolution on the right to privacy in the digital age. This resolution notes that the large-scale use of new information and communications technology has also enhanced the capacity of governments, companies and individuals to undertake surveillance, interception and data collection. It has made it possible but it is time to recognise that we need to draw limits somewhere. Just because you can do these things does not mean that you should. We use the phrase deliberately, that these agencies are out of control. Having loosened themselves from the rule of law, operating effectively at the margins of national, state and international law, they need to be reined in.

The European parliament is extremely concerned about this. It immediately established an inquiry on electronic mass surveillance, once the revelations had been made public by TheGuardian and TheWashington Post. The French, Canadian and German parliaments, and Westminster itself—all considered like-minded democracies—initiated inquiries immediately. This was followed by Brazil, Ecuador and many others. In the United States, the head of the NSA was called before congressional committees and told to explain himself. As it happened, he lied to one of those committees, further undermining the credibility of the agency.

On 7 October, 10 entities that run the architecture of the internet, including ICANN, the Internet Corporation for Assigned Names and Numbers, signed the Montevideo statement, which said:

They expressed strong concern over the undermining of the trust and confidence of Internet users globally due to recent revelations of pervasive monitoring and surveillance.

ICANN is not some civil-liberties non-government organisation; it is a fairly dry organisation that was created by the US government. It operates and carries out its responsibilities under an MOU with the US Department of Commerce, and all these nations and entities are breaking away.

What do we have in Australia? We have the ALP and the coalition hiding—cringing, in fact—behind the statement 'We do not comment on intelligence matters' or they claim that everything happening here and in the US is entirely within the law. Why then refuse even the mildest terms of reference for a thorough inquiry into these matters? Until fairly recently the government's tactics were nothing more than denial, obfuscation, 'pretend it's not happening', the political equivalent of curling up into a tiny little ball under your desk and just pretending and hoping that this will all go away. But in this last fortnight we have noted a new and dangerous change in tactics and that is to attack the messenger. George Brandis called Edward Snowden an 'American traitor'. Tony Abbott and Malcolm Turnbull attacked the ABC, Australia's national broadcaster.

They were quite clearly provoked by some of the more unhinged elements of their backbench, and some of the parties such as those in Victoria that simply want to privatise the entity altogether. The voices that shrieked the loudest in February and March of this year when media-reform proposals, actually rather feeble and mild, in the opinion of the Australian Greens, were brought before this parliament, and when those media reforms were made public about the importance of press freedom underlying a democracy—arguments which were completely baseless in terms of the legislation that was brought before this parliament in those few chaotic weeks—are now the ones lining up to kick the ABC and the media organisations that have put this material in the public domain the hardest.

I was a little amused a short while ago to discover on Twitter that the National Security Agency Central Security Service releases Christmas talking points to its employees. The document says: 'NSA CSS employees are authorised to share the following points with family and close friends.' It is dated 22 November 2013. It is just amusing. I do not know whether Senator Brandis got a copy of the NSA's Christmas talking points for his speech this morning or whether he saw them on Twitter as well, but maybe he should have read all the way to the bottom. The second and third dot points, at point 5, say: 'The President and senior administration officials are reviewing NSA's programs and we stand ready to execute their policy guidance with our full support.' These programs are being reviewed, I should say, because of the revelations that were put into the public domain by TheGuardian and its media allies, including TheWashington Post, TheNew York Times and Australia's ABC. The NSA in its Christmas talking points goes on to say: 'We encourage the American public to work with us to define the way ahead in balancing transparency and national security. We embrace public dialogue.' If public dialogue is good enough for the US NSA, why is it not good enough for the Liberal Party and the Labor Party, who refuse to support mild terms of reference for an inquiry into the activities of these agencies and their affiliates here in Australia? Instead, they attack the messenger. Mr Abbott says the ABC is guilty of very poor judgement. Malcolm Turnbull dog-whistles. Some of the stranger inhabitants of the Liberal Party backbench, in saying that the Liberal Party has made an error of judgement—

Ursula Stephens (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Order! Senator Ludlam, your time has expired.

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

That is such a great shame.

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

Sometimes expiry of time on some speakers is a very good thing. I appreciate the fact that Senator Ludlam feels very strongly about these issues but I do take exception to a number of the remarks he has made and the inferences he has made about the Australian government—in fact, not only the Australian government but also the Australian opposition, in this case, on how we view matters of national security.

Senator Ludlam talked about the human right for privacy. The human right for privacy? What about the human right to be safe? What about the human right to be able to live your life, whether it be in your family circumstances or in your workplace, secure in knowing that you are not about to be attacked by somebody who fundamentally disagrees with the basis of our community? What about the human right to live your life free of the fear that on holiday somewhere, whether it be in Australia or, as we have seen in the Bali bombings, your life or your wellbeing is going to be cut short by the actions of others? There is a balance and another side to every concept and, when it comes to human rights, I have to say the right to privacy, whilst important, must be held in balance, must be held in tension with the other rights that Australians expect and should deserve to have protected by their government. Security, safety and freedom from injury and fear are pretty powerful motivators to make sure that that balance is right.

In terms of the comments made about the Attorney-General and his labelling of Mr Snowden as a traitor, it may come as a surprise to Senator Ludlam that there are in fact many people in the Australian community—not the fringes, as he would identify, but in the mainstream Australian community—who do not view the actions of Mr Snowden or, indeed, the actions of the ABC, as positive things. Yes, we believe in the freedom of speech. Yes, we believe in the freedom of the media. But they also need to recognise their responsibilities when it comes to Australia's security and national interests. There is a balance there, like most things in life, and the actions in this case were not wise actions. I had over two decades in Australia's Defence Force, and one of the things we were shown on almost day 1 when we signed up was the Australian Crimes Act section 79, which talked about anything that was classified, restricted, secret or top secret and the limitations on what we could do with that information.

For the ABC, at the end of the day a taxpayer funded organisation, to receive documentation marked with classification levels that indicated that it should not be freely circulated, it is instructive to go look at the Crimes Act and see the kinds of penalties that are awarded to people who mishandle classified information: up to seven years imprisonment for a person who receives a sketch, a plan, a photograph, a model, a cipher, a note or a document is guilty of an indictable offence if they mishandle that or give that away inappropriately. It goes right through to people who have not had proper regard or care for a sketch: imprisonment for six months. To willingly and knowingly put into the public space something that is classified and would be detrimental to Australia's interests and national security is in fact an unwise act. For Mr Snowden to have been an instigator of that and seeing the damage that will cause to his nation, I think the term that Senator Brandis, the Attorney-General, placed upon him as being a traitor is by no means unwise or inappropriate.

Is the human right, desire and obligation of the government to provide safety and security for its people a real concern here in Australia? Clearly, yes. We have seen in Bali the fact that there are people who intend to do us harm. We have seen just recently in the appeal by the three men from Melbourne who had been convicted of terror charges about the planned bombing at the Holsworthy Barracks that the DPP has now come back and appealed the sentences that they were given. Whilst the men lost their appeal, the DPP is now coming back and saying that the 18 years that they were give are actually inadequate for the crime that they committed. These three men were part of an Islamist terror cell that planned to enter the Army barracks armed with military weapons and shoot as many people as possible before they were killed or ran out of ammunition. When you have a real and present threat like that in a community, there is a reason for Australia to have an intelligence service and capabilities to make sure the Australian community is safe.

The wording of this MPI talks about 'indiscriminate data collection'. I say that there is nothing further from the truth in terms of whether this information was in fact indiscriminate. Senators would be aware that this matter of data and who collects things was closely considered in a report of the Parliamentary Joint Committee on Intelligence and Security which was tabled just this year. There are a number of measures that make sure that the intelligence that is collected is not indiscriminate. In fact, there are good protections in place that require the approval of the Attorney-General if specific information is to be required.

The committee considered many submissions. In fact there were more than 5,300 submissions made to that inquiry. But one of the interesting parts—I see Senator Ludlam nodding his head—is that many of them were form letters. That is an indication of the fact that you do get lobby groups within a community who will try to get people to raise a concern on the basis of the story that has been pitched to them. Those are still valid contributions, but what they do not do is accurately reflect the level of concern in the Australian community of people who have the balanced understanding. That is why it was instructive to see that the committee in its report did not come out and say it was black and white. The committee recognised that there were issues pro and con. They recognised that privacy was a concern, but they also recognised that on balance it was important for the Commonwealth to have security agencies and the ability to collect information. So I think it is important that, despite the diversity of views within the committee, they recognised that access to data is a critical tool that allows Australia's law enforcement and security agencies to investigate serious crimes and threats to national security.

The wording in this MPI is really quite inappropriate. The message that would trigger so many of those form letters are words like 'indiscriminate data collection', because it implies that we have rogue agencies out of control and doing whatever they like, whereas in fact, as this Senate inquiry showed—having reported in June this year—there is actually considerable oversight, considerable control and considerable constraint on what they are allowed to do. That the Greens may not like the fact that it exists does not undermine or take away the very valid justification for the existence of our intelligence agencies and the processes that they so diligently undertake.

Ursula Stephens (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I thank Senator Fawcett for addressing the issue of the parliamentary inquiry that was undertaken by the Joint Standing Committee on Intelligence and Security last year, because that is exactly the perspective that I want to come from today, having served on that committee during the period of that investigation. I recognise that many Australians have a deep and ongoing interest in the issue of covert surveillance and telecommunications interception. I know that it is something that Senator Ludlam has been prosecuting in all the time that he has been here in the Senate. What we need to be really mindful of is that issues like these need to be dealt with through appropriate parliamentary processes. In the Australian parliamentary system the process for dealing with them is through that Joint Standing Committee on Intelligence and Security. I expect that the committee will certainly be receiving a briefing on the issues that have been revealed in the last few weeks.

In terms of the issue before us today, I certainly believe that indiscriminate data collection should be of concern to all Australians. It was absolutely borne out by the number of submissions made to the parliamentary inquiry. It is a double-edged sword, though, for our intelligence agencies. They are under fire if they do their work and we hear about it through a leak, and, if they do not do their work and something happens, the public demands to know why they were not able to prevent it. In reference to the information that was leaked by Edward Snowden in relation to Indonesia, Andrew Porter, a former adviser to former Minister Smith, wrote recently—and he really captured it:

Our intelligence agencies, like our Defence Force, deal with long-lead issues like emerging threats and changing government and economic situations in countries over years and decades. Indonesia is our most important neighbour, and we have an increasingly dynamic relationship with it; it hasn't always been so …

However highly we regard Indonesia's government and its people, for those wondering why we might have such a strong intelligence focus in our near north, it's worth remembering that the overwhelming majority of our compatriots who have fallen victim to the scourge of terror have done so in Indonesia.

So, for all the suggestions about a lack of accountability, in fact, as Senator Fawcett so rightly pointed out, our intelligence agencies are well governed under the Intelligence Services Act. They are subject to the oversight of the independent Inspector-General of Intelligence and Security and they report to the parliament's joint standing committee on intelligence as well as to the individual agencies' respective ministers.

It might irk people to be told that privacy is not an absolute right and that a balance must be struck between privacy and other rights, including exactly the issue of the public interest in protecting the safety and security of all Australians. As we know, that is the expectation that the public have of us. That is the double-edged sword. That balancing act is a central tenet to the privacy legislation that exists both here and around the world. Where the state seeks to encroach on the privacy and other civil liberties through the exercise of intrusive powers, every legislation in every state jurisdiction suggests those powers should be exercised for legitimate purposes and not for improper reasons, should only be used when necessarily and not arbitrarily or without reasonable cause, be carried out in a way that is proportionate to their needs and not in a way that is excessively intrusive or to an extent that is overly broad, and should be shown to be effective in achieving their legitimate aims. There is a requirement to demonstrate that the intrusion has actually delivered on its purposes.

Preserving freedom under law is part of what it means to guard the national security of a democracy. To diminish freedoms unnecessarily or to disproportionately do that makes the nation insecure. I totally agree that secret policing, covert searches, surveillance, information that cannot be tested for accuracy, closed decision making and the absence of independent security of government agencies are all hallmarks of a system of government that democratic nations tend to want to secure themselves against, that is what Australia does very effectively.

There is no doubt that national security is in the public interest. However, it is very important that people understand that most security operations, such as searches and interceptions or warrants, are by their very nature invasive. That is why any proposal to consider an extension of those invasions requires such careful scrutiny and deliberation. The evidence to the public inquiry demonstrated how widely applicable data intervention is, preventing, as Senator Fawcett reminded us, several terrorist incidents, breaking up multimillion-dollar serious and organised drug, corporate crime and people-trafficking rackets—the very things that we as Australians want our intelligence agencies to do. That is why the intelligence committee took a cautious approach in its final recommendations, always seeking to balance the issues of national security and privacy. It was a unanimous report that sought to provide common-sense advice for any future government about changes to telecommunications interception, because intrusive powers must always be balanced by appropriate safeguards for the privacy of individuals and the community, recognising that Australia is a democratic nation which values personal freedom and places limits on the power of the state.

In relation to the issue of data retention and metadata, which has had so much interest and coverage, the committee determined:

If the Government is persuaded that a mandatory data retention regime should proceed, the Committee recommends that the Government publish an exposure draft of any legislation and refer it to the Parliamentary Joint Committee on Intelligence and Security for examination.

And do so in a very open and transparent way. It identified:

Any draft legislation should include the following features:

That is currently the case. It went on:

So we need to think more wisely about the issues that have been talked through today, particularly in the light of the discussion of what has gone on in the last few weeks. We need to know, and we need to reassure Australians, that we do have a very robust data surveillance scheme. It is not one that intrudes into the lives of people in the way that Senator Ludlam would like to suggest and it is one that is working for Australia.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

I think it was Senator Fawcett who suggested that this is a question of getting the balance right. We agree with Senator Fawcett. This is a question of getting the balance right. We need to assess the need for privacy against the need to ensure that we keep our citizens safe. The reason that we are having this debate today is that we have got the balance wrong. We are not talking now about the activities of our intelligence agencies protecting Australian citizens; we are talking about our intelligence agencies being involved in activities with some of our poorest neighbours and trying to ensure that we get maximum financial advantage in negotiations with a nation that is—let us be clear about this—one of the poorest nations on earth, East Timor.

I was fortunate enough to be in East Timor only recently. Young children there cannot afford to get nets to prevent malaria. There is a huge incidence of malaria. They have an epidemic of HIV and an epidemic of TB in that nation. And here we are using the full force of our intelligence agencies to try and deprive them of an income to which they are absolutely entitled. In the bitter dispute that we had with them about the ownership of the gas reserves between our two nations, we employed our security agencies to try and get maximum financial advantage for the people of Australia. That is not what our intelligence agencies were set up to do. We have the balance very, very wrong.

In other parts of the world we have a situation where the issue of not just national intelligence agencies but a range of corporations being involved in surveillance of citizens has sparked outrage. In the US the National Security Agency was using the PRISM program to spy on customers using Microsoft, Yahoo, Google, Facebook et cetera, and it caused outrage, not just from the usual suspects, not just from people who are concerned about civil liberties, but from parliamentarians and leaders of nations, who called in US ambassadors to explain what was happening.

Here in Australia the response has been stony silence. We have seen almost a conspiracy of silence between the Labor Party and the Liberal Party on this issue. I wonder how much of this stems from the relationship that we have with the US. I think the sign of a mature relationship is when you can stand up on your own two feet and voice your own view of these important international issues. We do not want decisions that were once made for us in London to be made for us in Washington. We have a situation where the response to the debate has been: 'We don't comment on international security matters.' That is despite the fact that the NSA itself admits that there have been 15,000 violations of US law.

We know what happened about three weeks ago with the Guardian and the ABC, who broke the story about our government hacking the Indonesian President's phone and the phones of his wife and ministers. There were a number of commentators—and many members of this place—who challenged the legitimacy of those media outlets to raise what were very serious issues, not just serious moral issues but illegal activities under article 41 of the Vienna Convention on Diplomatic Relations, which says very clearly:

Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.

And yet here in this place people are challenging the legitimacy of the organisations who have reported this.

Thankfully, we have newspapers like the Guardian which are now doing the job that our parliamentarians should be doing. We have got, for example, the director of Big Brother Watch, Nick Pickles, who says that newspapers around the world, from the Guardian to the Washington Post and Der Spiegel, have done what our own parliamentary oversight committee and other oversight bodies failed to do. They have exposed unprecedented surveillance being undertaken without the knowledge or approval of our elected representatives. It is also important to note here that our own parliamentary oversight committee has not yet been established for this parliament. So while that is being offered here as a justification for how these matters should be dealt with, we do not yet have a parliamentary oversight committee.

A lot of the focus here has been on the role of the media. I note that in one exchange Mr Rusbridger, the editor of the Guardian, was questioned by an MP, Mark Reckless. Mr Rusbridger was asked if he loved his country. I think a true patriot is one who defends the principles on which our nations are founded, the principles that mean that we live in a democratic country where individuals are free to communicate with each other without the fear of the overreach of the state. I think it is the definition of patriotism to stand up to state power, to stand up for the rights of the individual to express a view without fear of retribution from the powerful. In fact, it is absolutely an act of true patriotism to have done what those media outlets have been doing.

But this is not just about the impact it is having on the leadership of those nations; it is also about what it does to the relationships between governments and their citizens. The Greens have got some very constructive ways of dealing with this issue. The first thing I would like to draw the attention of this place to is the fact that, while briefings have been offered to the Leader of the Opposition as well as obviously the Prime Minister, the Greens have been denied a briefing from ASIO. Senator Scott Ludlam, who has been one of the most important voices in this national debate, has been denied a briefing from ASIO. At the very least, if both sides of politics want voices like the Greens to be satisfied that what is being done is being done in the national interest then surely the Greens should be entitled to a briefing from our foremost intelligence agency.

There are many other things that we can do. We can bring security agencies within the ambit of our Freedom of Information Act. Even the CIA and FBI do not enjoy the blanket protections that our intelligence agencies here enjoy. We should ensure security agencies are in the reporting requirements of the TIA Act. We think that the Greens 'get a warrant' bill should apply in the telecommunications space. I heard Senator Ludlam ask a question about the need to access data from some of our telecommunications companies. He was asked, 'Isn't it inconvenient that we should require a warrant to access telecommunication data?' Senator Ludlam said, in the way that only he can, 'That is the only thing that separates us from a police state.' That small inconvenience is what separates us from being a police state.

We can also make sure that we promptly make data breach notifications mandatory and make sure we can also require Australian companies and IT providers to advise customers if they have agreements with foreign or domestic governments. There are many other things. But what we need to do is to ensure that this issue is now seen not just through the prism of national security but the huge infringement on the liberties of individuals in this country.

Zed Seselja (ACT, Liberal Party) Share this | Link to this | Hansard source

Before I get to the substantive part of my speech, I would like to respond to some of what has been put on the record by the Greens. Firstly, I reject the implicit premise of this matter of public importance, which is that effectively we are seeing indiscriminate data collection right now, that somehow we have security agencies out of control. That is the impression that the Greens are trying to create. It is an impression that I reject and I think most right-thinking Australians would reject it. I agree with Senator Stephens and with Senator Fawcett that we have robust systems in place in order to protect Australian citizens and to ensure that, in balancing Australians' right to privacy and to go about their daily business without undue interference from the state, the importance of our intelligence agencies doing their jobs is also recognised. That is the apparatus that has been set up by successive governments and has been refined over time by this parliament.

If the Greens' argument is that somehow that is a broken system, I have not heard them make their case in any substantive way. In fact, what we have heard is just a bunch of conspiracy theories from Senator Di Natale and others. He says we are not getting the balance right and makes all sorts of allegations without evidence. He talks about a conspiracy of silence between the major parties. No, what we have had is cooperation. What we have had over a long period of time, to Australia's credit, is that both sides of politics in the main have worked to ensure that we get the balance right, to ensure that our intelligence agencies can do their jobs. Let us not underestimate how important this work is. This can be the difference between a terrorist attack occurring or not occurring. Good intelligence is critical to the security of our nation and I think the Greens' view of the world seems to be to undermine that at every turn. It is the Greens' view of the world that treats the Edward Snowdens of the world as heroes rather than traitors to their country. I will go to some of the issues in the Joint Committee on Intelligence and Security report and I will expand on some of what Senator Fawcett had to say on that, and Senator Stephens touched on some of that as well.

We should also put on record that there are a number of laws protecting the privacy of Australians. We have not just the Privacy Act but also the Telecommunications (Interception and Access) Act and the Telecommunications Act. These relate to the collection of data and access to that data. As other senators have noted, we also have oversight. We have the Inspector-General of Intelligence and Security and we have the joint standing committee. These are the processes that we have put in place: robust legal requirements to ensure that our intelligence agencies can do their jobs.

The report of the Joint Committee on Intelligence and Security, which has been mentioned, made 43 recommendations—obviously, there was a range of views—and I want to touch on some of the conclusions of that committee. The committee was asked to apply:

The committee devoted an entire chapter of the report to its analysis on data retention. There was a diversity of views within the committee as to whether there should be a mandatory data retention regime. This is ultimately a decision for government. The committee recommended that the government publish an exposure draft of any legislation and refer it to the committee for examination. The committee recognised that access to telecommunications data is a critical tool that allows Australia's law enforcement and security agencies to investigate serious crime and threats to national security. The committee's report states:

There is no doubt that the enactment of a mandatory data retention regime would be of significant utility to the national security agencies in the performance of their intelligence, counter-terrorism and law enforcement functions.

The report also states:

… the utility of such a regime is not the only consideration. A mandatory data retention regime raises fundamental privacy issues.

This has been acknowledged. The committee correctly noted that reconciling the fundamental public values of public safety and privacy is a decision for government.

The committee provided guidance on how a data retention regime could be implemented by including, among others, the following features:

…

…

…

The committee further recommended that:

If … a mandatory data retention regime should proceed:

The committee made detailed recommendations about the type of safeguards, oversight and accountability mechanisms that should be put in place if the government were to decide to implement a data retention scheme. The committee recommended against any regime which included content data or internet browsing data. It offered specific guidance on the oversight, review and reporting arrangements.

It is fundamentally important to our national security that our intelligence agencies be allowed to do their jobs. There are numerous restrictions and numerous aspects of oversight when they are doing those jobs.

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

How about East Timor?

Zed Seselja (ACT, Liberal Party) Share this | Link to this | Hansard source

We hear heckling from the Greens. They have made all sorts of wild claims. They are claiming a broken system when the system is not broken. I think that this extreme view of the world, as espoused by the Greens and as we are hearing here across the chamber, is something that the vast bulk of Australians reject. They do not accept the conspiracy theories. They do not believe you on the conspiracy theories. This claimed conspiracy of silence that we heard from Senator Di Natale just does not exist. What exists is a robust mechanism and a robust regime for ensuring that we do get that balance. The Greens seem intent on disrupting that. They seem intent on calling that into question. They seem intent on doing so without the evidence and with all sorts of half-truths and spurious claims. It is the Greens' view of the world that the Edward Snowdens of the world are in fact heroes; they are not and they should not be upheld as heroes in this place.

The coalition believes fundamentally in this robust scheme. It needs to be continually improved, but it is not improved by the hysterical claims that we hear from the Greens consistently in the media or by some of the hysterical claims we have heard from the Greens in this place today.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

This is an important issue, but I want to give a different perspective in relation to the matters raised. I do not question the need for surveillance to prevent terrorist acts and criminal activity and to assist in those responsible for those acts and activities being caught. There is no question about that. I hear very clearly what Senator Fawcett said earlier in his contribution and I do not disagree with him. But it is appropriate to question the level of surveillance and whether there are appropriate safeguards and checks and balances, and I do not believe that there are.

In relation to metadata surveillance, there is something like 300,000 metadata searches each year in this nation. The bodies that have authority for such metadata surveillance include city councils—for instance, the Bankstown City Council—the RSPCA and even the Victorian Taxi Directorate, because they can obtain your phone and email records in the context of their statutory powers under the legislative framework. I think we need to look very closely at the safeguards in the Telecommunications (Interception and Access) Act 1979. It needs to be reviewed.

The other issue that I have great concern about is the ability of journalists and members of parliament to do their job in the context of dealing with whistleblowers, members of the public and public servants that may have information of malfeasance, of maladministration, of corruption in government or of, simply and importantly, taxpayers' money being wasted. These are issues that need to be dealt with. What we have now is a situation where there are inadequate safeguards. I have been pursuing this for a number of months, and on 18 November Australian Federal Police Commissioner Tony Negus conceded, after a series of questions I put to him in Senate estimates, that there are a number of members of parliament—less than five; presumably four—who have had their records intercepted in the context of investigations under sections 70 and 79 of the Crimes Act. Those are the sections that relate to whistleblowers coming forward to members of parliament. We need to have safeguards in place so members of parliament and journalists can do their work without fear of their sources—whistleblowers—being uncovered through metadata surveillance.

Let us look at what the US Department of Justice has done. I will be moving a series of measures next week based not on what a totalitarian government is doing, but on what the Department of Justice of the United States government is doing. I urge senators and members in the other place to read the guidelines issued on 12 July 2013 by the US Department of Justice, the Report on review of news media policies. This is what they are doing. There are presumptions to ensure that notice is given to media outlets, in all but the most exceptional circumstances, of metadata surveillance. There is advance notice given to members of news media of the opportunity to engage with the department regarding the possible use of this. There are enhanced approvals and heightened standards. These are very important matters. That is what we should be doing here, and the level of judicial overview they have in the United States is much greater.

I want to turn finally and, I believe, very importantly to the matters raised by the Attorney-General today about the raid carried out by ASIO on the offices of solicitor Bernard Collaery, who is currently in the Hague on an arbitration between Timor-Leste, which he represents, and the Australian government. I pay tribute to the Attorney-General and welcome his ministerial statement today. It is a very useful statement and I accept the Attorney-General acted appropriately on the advice of ASIO in approving the raid. I also accept without equivocation that he has conducted his role with integrity; he is a person of integrity. However, I query whether the collateral consequence—the cancellation of the passport of the star witness in the arbitration for Timor-Leste—has, in fact, prejudiced Timor-Leste in relation to the arbitration. That is a legitimate issue. This is not a criticism of Mr Irvine, who I believe has served his country very well over many years. He is now the director-general of ASIO. He initiated the warrants which deal with matters he allegedly dealt with as director-general of ASIS back in 2004. I am not suggesting he has done anything wrong, but I think there is a perception of safeguards, checks and balances that ought to be considered in any review.

We need to review this. We need to have issues of security first and foremost but we also need to have, parallel to that, members of parliament and journalists able to do their jobs in the public interest. Right now, our level of surveillance, our laws, and our checks and balances fall way behind those of the United States of America. That is something we really need to consider. We could do a lot worse than use the guidelines of the US Department of Justice, which have given great comfort to news organisations. We need to do something similar in order to do our work as members of parliament.

Lisa Singh (Tasmania, Australian Labor Party, Shadow Parliamentary Secretary to the Shadow Attorney General) Share this | Link to this | Hansard source

In speaking to this MPI today I would like to first acknowledge and recognise Senator Ludlam and the work he has done in prosecuting this issue for some time now, and also recognise the work of Senator Stephens, who was on that parliamentary Joint Committee on Intelligence and Security and the particular inquiry in question into the potential reform of national security legislation. Senator Stephens alluded to that particular inquiry earlier today and went into some detail as to the work that was carried out over an extensive period. It was broad-ranging in its look at the issues which pertain particularly to this MPI—that is, in relation to indiscriminate data collection.

Indiscriminate data collection is of concern to all Australians and rightly so, because at the end of the day we have to get the balance right when we are talking about privacy and security. That is what is really at the heart of this. That is what the Australian people want to know. They want to know that their civil liberties are maintained while at the same time they are protected by those security agencies that uphold our national interest in this country.

That is where it comes back to the importance of the integrity of the rule of law. If the rule of law is upheld no-one really has anything to worry about, but that is what it really comes down to. We are a democratic nation. We operate under the rule of law in this country. We as parliamentarians legislate to protect the Australian people, but in doing so we have to ensure that the rule of law is upheld while striking the right balance between the privacy and the safety of the Australian public. Therein lies the challenge.

Labor has a long history of establishing privacy legislation, introducing the Privacy Act in 1988, and we stand very much by our commitment to protect the privacy of Australians. We stand by our commitment to do that, which started to be further broadened when the then Attorney-General Nicola Roxon made a commitment to send some of this work to that parliamentary inquiry—the parliamentary Joint Committee on Intelligence and Security—to look at that inquiry into potential forms of national secretary legislation.

It did look at a wide range of areas in relation to changes to the Telecommunications (Interception and Access) Act, including the interception of metadata. I have been looking at some of the recommendations. There are some 43 recommendations that came out of that joint committee but some of them particularly—and Senator Stephens alluded to some of them earlier—talked about the proportionality of the investigative need and the privacy intrusion. That is where it comes back to—that balance of ensuring privacy and security—and finding an equal path in our rule of law.

Of course, as a democracy, Australia participates in data collection. We all know that. We have all known that for a long time. It happens through our network of intelligence agencies. In relation to that kind of national security framework of networks—which of course encompass all the security agencies as well as federal, state and territory governments—it has very well defined responsibilities and authority within the rule of law in Australia. What is critical is for the agencies to work within their authority to ensure that civil rights are not encroached upon and, with our proud history in Australia of freedoms, the importance of maintaining those boundaries can never be underestimated.

But if there is to be investigation or deliberation about an inquiry into that national framework, then we need to ensure that it would balance privacy and national security. That is a discussion that Labor would be happy to have, as my colleague the shadow Attorney-General Mark Dreyfus has said, and I do not think that debate really has occurred yet. It is a debate that is worth having. And that is what is really at the heart of all of this—striking that right balance. It is what is important to the Australian public. People want to be reassured that the work carried out by our intelligence agencies is done according to the rule of law and is done in accordance with the national interest. That is what governments need now to provide to the Australian people.

Among other things there is, as I said, a report with 43 recommendations on the table for Senator Brandis to take up now as Attorney-General, now in government, and to do something with. A lot of the work in this area has already been done so it really is up to the new government to work out what it is going to do and to provide that reassurance to the Senate and to the Australian people. The sooner that happens the better. In the meantime, let us have the debate, let us have that discussion about our national security framework and about some of the areas that this particular MPI has discussed—one of those being metadata access.

We know that metadata access is there. We have our privacy of communications protected by the Telecommunications (Interception and Access) Act, which prohibits the listening to, copying or recording of a communication as it passes over an Australian telecommunications system. As Senator Xenophon says, that act needs to be looked at. Yes, that act does need to be looked at and that is exactly what that joint committee did. It looked at it to ensure that the adequate safeguards are in place. Again, that is where I draw back to the work that was done by that committee.

Of course, we know that metadata is collected. That has been out there well and truly for a while now, maybe even before what has been highlighted in the media in recent days. But in doing that, national security agencies as well as police will know that to go further they must obtain an independently issued warrant for the investigation of really serious offences. Why is that the case? Because it is an invasive activity. It is invasive of privacy. But, if it is a serious offence, a warrant is issued and the outcome can be for the national interest.

An obvious example is what happened in relation to the metadata that was collected by such agencies to track down the murderer of Jill Meagher. It was a good example—a horrible example—of where metadata has been used in the public interest and to ensure such serious offences are dealt with. There are probably many other examples of metadata in Australia but we need to get back to what this is really all about, and that is striking that right balance—the right to privacy and the right of public interest to be protected. It is about striking a balance between those two key things and for the government to act on the outcomes of the inquiry.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The time for the debate has now expired.