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

I present the interim report of the Legal and Constitutional Affairs References Committee on the comprehensive revision of the Telecommunications (Interception and Access) Act 1979 and I move:

That the time for the presentation of the final report of the Legal and Constitutional Affairs References Committee be extended to 29 October 2014.

I took up one of these issues with the Attorney-General during question time earlier this afternoon. Senators will be aware that this is an area that I have had a strong degree of interest in for quite some time. With the support the Labor Party and the crossbenchers last December, we moved a referral to the Legal and Constitutional Affairs References Committee on the comprehensive revision of telecommunications interception legislation in Australia—principally the Telecommunications (Interception and Access) Act 1979.

We are not the first ones to have traversed this ground. The Australian Law Reform Commission and, indeed, the Parliamentary Joint Committee on Intelligence and Security—which canvassed issues that go very strongly to the surveillance regime that prevails in Australia—canvassed the issue in quite detailed studies by people with specialised interest and expertise and recommended that the TIA Act be effectively burnt down and rebuilt from scratch—that it not be amended or tinkered with as it has been on so many occasions since 1979.

In tabling this interim report I want to thank the committee secretariat for their work and I thank all senators who have taken the time to participate. I particularly want to thank the witnesses from ASIO, the Australian Federal Police and the Australian Crime Commission—who gave detailed evidence and some private briefings to committee members that we all found immensely valuable. I also thank those from civil society: the Media, Entertainment and Arts Alliance and others who brought some very different perspectives to the issue of the difficult balance that Australians are having to strike. There are conversations and debates going on right around the world at the moment about exactly where you find the balance between the ability for law enforcement agencies, intelligence agencies and anticorruption agencies to do their job—which on some occasions involves interception and really extreme breaches of privacy of particular people for good reason—and, on the other hand, protecting the privacy of ordinary citizens.

In democracies we are, I think, entitled to expect that we will not be arbitrarily surveilled by government agencies speaking for national security, law enforcement or anything else. The way that this balance has been struck in the past in democracies—in a model that has prevailed for decades and is moderately uncontroversial to this day—is that you go to a judicial authority and get a warrant that you were chasing serious criminal activity or genuine national security threats, and you are targeting individual suspects or devices. In other words, it is not discriminate; it is discriminating, it is necessary and it is proportionate. There is that check and balance that is provided in the Australian context by the judiciary or by certain authorised members of the AAT.

I think we have discovered, in particular in evidence that we have taken from the law enforcement and intelligence community, that—to mangle a metaphor—the hurdles are high. The procedural hurdles to get a warrant are moderately high. There is paperwork involved, there is back and forth involved, and there is also transparency involved. The system allows for reporting once a year in the Telecommunications (Interception and Access) Act annual report that is tabled by the Attorney-General. We can go back and see in aggregate—not in a way that compromises investigations—exactly how many of these things are being applied for, the purpose, and the agencies that are doing it. I have some sympathy with those agencies who presented the evidence to us. It is a system that does need streamlining and refining, and that is part of the ongoing work of the committee.

One of the chapters of the annual report—as senators would be well aware because I have spoken on it at great length—covers those intercepts that are not based on a warrant, that have no judicial oversight, that do not necessarily need to target individual people and that do not necessarily have to involve resolution of serious crime or national security threats. That, of course, is the warrantless metadata access.

This is an issue that blew up pretty severely when the National Security Agency contractor Edward Snowden took a cache of these documents to Hong Kong and disclosed them to journalists from The Guardian, The Washington Post, The New York Times and others. That effectively blew the lid off the fact that the US NSA was harvesting vast amounts of metadata on US citizens—in what, it has been argued, is an effective breach of the US Constitution by way of illegal search and seizure—and was stockpiling and warehousing massive amounts of this material for access by analysts from an unknown number of agencies, and not only that. In fact, the NSA was scooping up, under a doctrine that has been spoken of in abbreviated form as 'collect it all', content, non-content, everything: financial records, all forms of data and personal material. Everything is just being dumped into these massive data centres in case it happens to be useful later. It is the precise reversal of that balance that has been struck in democracies: discriminate, proportionate and lawful. It is the reverse of that.

In Australia we have a very serious problem, because the T(IA) Act annual report states—and there have been massive increases year on year—that in the last financial year for which there is data there were nearly 320,000 warrantless requests for metadata, not just by ASIO, the AFP, the Crime Commission and those who do such valuable work but by literally dozens of other agencies. When you ask for a list of how many agencies can access this material on a warrantless basis, no-one can tell you, because no-one even knows how many agencies can get it. If we were designing the T(IA) Act now or if these categories of metadata had existed in 1979—categories that allow you to track a mobile phone handset around the landscape; precisely map people's social networks, everyone you have been in contact with and your financial transactions; and build these incredibly invasive pictures of social networks and people's lives—of course that would have been included in the warranted regime. That is the balance that now is before Australia and that we need to try to strike.

This issue has been sharpened, obviously, by the introduction of what I believe is the quite dangerous concept of mandatory data retention: that not only should it all be available on a warrantless basis but we should collect it all—the so-called envelopes that our Attorney-General so famously referred to in a memorable interview of a couple of weeks ago. Nothing could be further from the truth. If you have enough metadata, you have content.

I would like to thank my Senate colleagues from all sides of the chamber. I reiterate that one of the aspects of this work that I enjoy the most is when you leave your politics at the door in a committee inquiry, you bring the best evidence forward from right across the spectrum of views, and you actually think hard about how to solve some of these difficult problems. It has been a privilege for me to chair this committee thus far and also to work with Senate colleagues, including people who I have had plenty of dust-ups with in my time in here thus far but who have applied their intelligence and their expertise to asking the right questions and getting the right evidence on the table.

So I thank the Senate for the indulgence. I will table this interim report, which is very brief. I think, on the basis of how fast moving these events are and the fact that we are told the Australian government intends within weeks or perhaps months to put legislation into this place, that the work of the inquiry has probably never been more important than now. The actions of this government and some of its apparent intentions, I think, have sharpened the importance of this work. So I look forward to continuing it. I look forward to continuing the work that the secretary has been doing and that witnesses have been doing to bring the best collective intelligence to bear on these issues. Hopefully, we can come up with some recommendations that may even be cross-party and start to build consensus about how to strike that balance that I think has gone so severely astray in recent years. I thank the chamber.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

Ever so briefly, I want to support Senator Ludlam's motion and the committee's request to extend the date for the consideration of this reference until a time later in the year when the committee is better able to assess some of the issues. As Senator Brandis has spoken about publicly, and indeed in question time today, this is a pretty complex sort of issue relating to telecommunications interception and access. As Senator Brandis has said, the government's intention is to legislate in this general area. Therefore, the committee thought that it was probably a good idea not to table its final report until we actually saw where the government was going and what it intended to do. A lot of the evidence given to the committee did indicate that the government needed to consult further and to explain further, and that appears to be what Senator Brandis is talking about in his public comments and again at question time today.

This committee was chaired by Senator Ludlam, who, as Senator Brandis acknowledged in question time today, has an expertise in this area that I would suggest few other senators share and that I certainly do not share personally. I will not speak for the majority of the committee, but certainly I think there is a general understanding that something needs to be done to protect all Australians from the sorts of criminal and terrorism activities that are around us in the world we live in at the present time. The committee had some discussions with both ASIO and the Australian Crime Commission. I understand,—and I think most of the committee understand—that there is an essential need to make sure that our law enforcement agencies are well provisioned to do the task that they are given, which is to protect all Australians. I often make the point that the criminals against whom the Crime Commission and ASIO are fighting do not abide by any rules at all. They have no accountability; they can do what they like. Whereas in our society, perhaps appropriately, the Crime Commission and ASIO are constrained by an enormous number of regulations, laws and accountability provisions that they have to follow to the letter of the law. If they step outside that jurisdiction they get front-page headlines criticising them. They are there to try to protect us and they do it, at times, with one hand tied behind their back. They have constraints that the criminals, the terrorists, never have to bother with. Maybe that is essential in a democracy, but it does mean that we do have to make sure that, within the constraints of accountability, privacy and human rights, we give our agencies the absolute maximum ability to do their job which is, as I say, to protect all Australians.

The collection of metadata, which was referred to during question time today, and which Senator Ludlam has probably referenced in his contribution earlier—I apologise as I did not hear all of it—is something that is a little onerous. Some believe that it does infringe on human rights. Of course, I am not commenting on what the committee might report but simply on this interim report. My understanding is that one of the telecommunication companies that gave evidence—and this is all on the public record—indicated, as Senator Brandis mentioned this morning, that they do collect the metadata and that it is currently available. It really comes down to the question of who pays for the cost of, not so much the collection, but the storage and the retention of this metadata. As I understand it, in the evidence that was given to us, there are huge warehouses solely to store the enormous amount of metadata that is collected right around the world and even, currently, in Australia. That is a question that the government will have to assess. I think there was a plea by some of the witnesses for the government to consult with them, to take them into their confidence, so that the constraints which those at the coalface may be aware of, which perhaps the public servants who are drafting the legislation may not be, is fully understood by the government as it proceeds with this legislation.

This report, as I understand it, will now be tabled later in the year. If, as has been indicated by Senator Brandis, there is some legislation coming forward, then no doubt that would be referred to the same committee so as to assess the finer details. I would hope that the government and the Attorney-General, in reading the evidence that has been taken so far by this committee, will get a good understanding of some of the issues involved, some of the issues that are of concern, and will take notice of that in drafting the legislation into the future.

I commend to the house Senator Ludlam's motion to adopt this interim report which, in effect, is simply indicating that we will be reporting fully later in the year.

Question agreed to.