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

I believe the amendment should be agreed to, so I commend it to the chamber. For the benefit of senators, when the debate was interrupted before question time we were discussing the issue of whether it should be a two-year mandatory data retention period, if it is mandatory at all, or, in conflicting proposals, three months or six months. We had spoken of diminishing returns and the fact that most data is nowhere near two years old in the jurisdictions for which we have information and that we do not have information in Australia; and thus, like so much of the rest of this policy, we are proceeding on the basis of anecdote rather than evidence. I do not propose to repeat myself because we still have a long way to go, so I commend Australian Greens amendment (5) on sheet 7669 to the chamber.

Question negatived.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I withdraw LDP amendments (5) and (6) on sheet 7661. I move amendment (7) on sheet 7661:

(7) Schedule 1, item 1, page 11 (after line 5), after section 187C, insert:

187CA Information or documents must be kept in Australia

     A service provider must take all reasonable steps to ensure that information or a document that the provider must keep under section 187A is:

  (a) kept in Australia; and

  (b) kept by a body incorporated, owned and operated in Australia.

The rationale for this amendment is widespread industry disquiet that sensitive, personal information will be stored offshore in jurisdictions with more flexible approaches to privacy and security. My party, the Liberal Democrats, dislikes protectionism of any sort, and it is a sign of how bad this bill is that I have even considered an amendment of this kind. But it probably is in the national interest not to have all our personal data bundled up and stored somewhere else overseas, very likely in China because that is where it is cheaper. It would be a honeypot for not just our own intrusive snoops and bullies but everyone else's as well.

Of course, I recognise that corporate ownership can be quite complicated and very difficult to ascertain, and companies will often subcontract out. That is why I have included a requirement that the service provider 'take all reasonable steps'. This will go some way towards mitigating some of these issues. For example, it would ensure that, if a service provider's contracted data storage provider were to subcontract to a provider outside of Australia without the service provider's consent or knowledge, the service provider could not be penalised for it.

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

I will speak briefly to this because it does traverse an area that we addressed earlier, to a degree. It does require a bit of careful drafting, and I will just also foreshadow that the Australian Greens have an amendment to similar effect, worded slightly differently from the way that Senator Leyonhjelm has tried to handle it—and it is difficult.

We heard, I think, a variety of views on this matter when Senator Xenophon, Senator Leyonhjelm and I convened a forum of interested parties from across the political spectrum and from industry, digital rights organisations and advocates late last year. One of the guests we had was the then iiNet Chief Regulatory Officer Steve Dalby, and he put forward quite forcefully the fact that ISPs were trying to find the lowest cost option for storing the required data which, in his words, 'at the moment is in China'.

I recognise that not all the costs of the data retention scheme are in storage; in fact, storage gets cheaper by the year. But of course data volume is increasing, and it is a bit difficult to tell whether in the future these things are going to keep pace, because, as fast as technologists work out cleverer ways of storing ever-larger quantities of material in smaller and cheaper spaces, we generate more of the staff. So storage is only part of the cost. I suspect Senator Brandis, if I asked him, could not provide us with a break-up of the roughly $390 million—how much of that estimated cost is storage, how much is retrieval systems, how much of it is compliance administration. I suspect, if those numbers exist, they may well be beyond the reach of the Senate, although I would be delighted to be proven wrong.

The point Mr Dalby was making was not so much that iiNet would take up that option of the lowest cost hosting provider but that perhaps others, with fewer resources than an entity the size of iiNet, might have to do just that. We heard estimates from industry earlier this year that, potentially, half of the smaller end of the spectrum of service providers might go to the wall as a result of this. I think it is spectacular reversal of policies of regulation that, just for a change, you have actually been supported by all sides of politics, and the disaggregation of Telstra from NBN was a part of that—taking the wholesale business out of private hands and bringing that back into public hands, and then letting the private sector let it rip at the retail end. That has actually created what I would argue is a wonderful fragmentation in the RSP end of the market, but it is those smaller and newer players that we will potentially put to the wall. They are going to be seeking the lowest costs. They will not have the legal clout and they may not have the technical clout to embed the kind of security provisions that are going to be required. They do not necessarily have high-powered legal counsel and they are not necessarily going to be able to run sophisticated demands of this government to recover their costs. That end of industry, in particular, who already operate on pretty fine margins, are going to be looking to cut costs wherever they can. Some of that obviously is going to be in storage.

A former ASIO chief whose name has popped up a couple of times, Mr Irvine, who Senator Brandis quite correctly pointed is pro data retention—nothing that I quote of his words is intended to dispute that—was at a defence and national security roundtable jointly held by The Australian Financial Review and KPMG not that long ago, and he said that while the cloud was a 'wonderfully efficient thing' and it was where everyone was going, 'I would rather the cloud hovered over Sydney or Melbourne rather than Shanghai or Bangalore, where it was governed by someone else's sovereign legislative system.' He said he would feel much more comfortable with the data governed by Australian law than by law in some other country. He said:

These days every bit of data is sensitive and I know Telstra stores its data in 13 different places

That is not necessarily 13 different countries or jurisdictions, but Telstra, as a result of its very long history and the huge variety of services that it offers, hosts material on quite different kinds of platforms and systems, and obviously the cloud, almost by definition, is transnational.

This is the speech in which I believe Mr Irvine declared himself a 'cyber nationalist', which is an interesting concept to fold into a medium as borderless as the internet. The reason he put that view is that, although Senator Brandis was at some pains to inform us earlier that Australian material hosted in other countries is still obliged to treated under Australian privacy law, it is difficult in advance to establish whether the protection from data breaches is as robust as we would find here in Australia, and is it is going to be easier to establish, I would argue, that the protections are up to scratch? This is people's personal private material. It is not the personal private material of just criminals and terrorists but necessarily, by the breadth of this bill, of everybody else—people who are not suspected of anything.

There was a remarkable report produced by Mandiant about two years ago, and it is very rare that documents such as this would get put into the public domain. They spent months and months tracking an entity that they referred to as APT1—advanced persistent threat 1—operating out of an office block in Shanghai that they argued was a unit of the Chinese military, and it appeared that its entire sole purpose of existence was industrial espionage on a massive scale. This entity appeared to be entering corporate data systems and government databases around the world using a mix of technical and social engineering techniques to gain access to systems to set up small encampments inside people's databases and then systematically loop and withdraw material, some of it quite sensitive, for purposes that I suppose we can only guess at. This kind of stuff happens on an extraordinary scale, and it is obviously not just the records of ordinary Australians that are going to be stored but everybody all the way up to CEOs of blue-chip corporations and their families will be caught up in this legislation—personal records; private and confidential communications of a presumably very sensitive nature from a business perspective. We are proposing that all that material be hosted and preserved for the first time in a really systematic way, and we are also forcing the providers to make it much easier to access and withdraw and bring it out. I suspect that is where Mr Irvine was heading with his cyber nationalism. It is his view that telcos should be forced to create this data, and obviously that is where we part ways. His view is that, if it is going to be created, we had better make sure we look after it as well as we can and a server somewhere else in the world, goodness knows where, subject to goodness knows what kind of technical protection measures, may not be the best place for it.

The Australian Greens will be supporting Senator Leyonhjelm's amendment. Senator Brandis acknowledged before that the government does not have a closed mind on this issue and that it may be something that is revisited in the course of the review that you alluded to before. In supporting this amendment, and that of the Australian Greens that is to follow, I would also acknowledge that it is likely to increase costs. It is likely to be more expensive; that is precisely the reason that some of the ISPs may well want to outsource this elsewhere. They would be doing that because of cost. That means that if we require them to host this material in Australia that may well have a material financial impact on the bill. I would like to hear from Senator Brandis how costs are being factored in and how he can proclaim confidence about material hosted elsewhere that may well be subject to Australian privacy law but is subject to a much lower standard of technical protection, and whether this would be dealt with in that six-month period where ISPs and telcos are going to be required to submit their implementation plans, whether data security of where they are proposing to host these new categories of material will be a material fact and whether the government is aware that this may indeed increase costs if it is held locally.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

I am not sure why Senator Ludlam was necessarily waiting for the opposition to contribute at this stage, but I will put our position on the record and correct some of his misunderstandings about how some matters are to proceed. I am sure Senator Brandis will follow with respect to the remainder of his questions. As I said in my speech on the second reading, Labor holds concerns about offshore storage of data retained under this scheme. However, the appropriate avenue for resolving these concerns is, as the joint committee noted, through the broader telecommunications sector security reform process—a process that Labor established and that the government has agreed is the appropriate avenue to address these concerns. There is sufficient time within the implementation period for this to occur, and that is where Labor will be focusing our efforts.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The government also opposes this amendment, for reasons that I largely explained yesterday so I will not detain the Senate by speaking for too long. The comments of Mr David Irvine, the former Director-General of Security, have been referred to several times in this debate. It is not merely the case, Senator Ludlam, that Mr Irvine is a supporter of mandatory data retention, which of course he is. Mr Irvine is a supporter of this particular bill. He considers this particular bill meets all of his objectives; in fact, he, probably more than any other witness to the first PJCIS inquiry during the last parliament, was the principal advocate of a mandatory data retention regime. Indeed so frustrated was Mr Irvine by the misrepresentation of remarks attributed to him by a journalist that he contacted my office last week and authorised me to convey that it was his wish that this bill in this form should be passed. Nothing that he said at that seminar and nothing in the words attributed to him by a journalist should be understood to derogate from his view that this bill in the form in which the government presents it to the chamber was the appropriate bill for the chamber to pass.

In relation to cost, you are right, Senator Ludlam: of course companies will look for the lowest-cost option as they always do—that is the way capitalism works. They should do that and they will do that. That is why we must have an appropriately robust framework of laws to ensure that the search for the least-cost option in fulfilling the statutory obligation does not compromise data security.

The telecommunications providers, the internet service providers, which are subject to the obligation created by this bill, are subject to Australian law not just to the obligations created by this bill but to other relevant Australian laws, including the provisions of the Privacy Act to which I referred the chamber last night in the context of the discussion of this issue—and which I will not repeat but with which I am sure, Senator Ludlam, you are familiar. And, as I foreshadowed in my contribution last night, the telecommunications sector security reform—which the government has been working with great effort to develop and which we expect to introduce into the parliament in the second half of this year—the TSSR legislation, is specifically designed to create a very robust, very reliable, framework for the protection and the security of data and of networks.

The suggestion that seems to come from you, Senator Ludlam, that there is a zero-sum game in which every incremental reduction in cost is associated, invariantly, with an incremental reduction in the security of data is wrong. As long as the relevant companies are observant of their legal obligations and as long as the legal framework is sufficiently robust, then we would expect players in a marketplace to gravitate to the least-cost option consistent with their legal obligations. That is the way in which this has been structured.

I do not really think I need to say anything more about the matter. This is, as you said yourself, Senator Ludlam, a borderless environment, so it is, if I may say so, a little simple-minded to suggest that in a borderless environment we should be as conscious of national borders as you seem to be. But what we should be conscious of is the robustness of the legal framework which we have and which the legislation, which I foreshadowed, will further augment.

The CHAIRMAN: The question is that the amendment be agreed to.

Question negatived.

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

I think in light of the debate and the arguments that we have heard thus far, I will put my strong disagreement on the record and note that the Australian Greens amendment (6) is slightly at odds with the way in which Senator Leyonhjelm sought to do this. Nonetheless, I think we will just withdraw the amendment and move onto the next one. I move amendment (7) on sheet 7669:

(7) Schedule 1, item 1, page 11 (before line 6), at the end of Division 1, after proposed section 187CA, add:

187CB Destruction of records

     If:

  (a) information, or a document, is kept, or caused to be kept, by a service provider in accordance with section 187A; and

  (b) the period for which the service provider must keep, or cause to be kept, the information or document has ended; and

(c) the information or document is no longer required in relation to billing by the service provider;

the service provider must cause the information or document, including any copies of the information or document, to be destroyed as soon as practicable.

Note: If a preservation notice is in force under Part 3-1A this section does not apply to require the destruction of any information or documents that are the subject of the preservation notice.

Australian Greens amendment (7) relates to the introduction of data after the retention period. This is an amendment that requires telcos to destroy retained data after the mandatory retention period, unless that data is explicitly required for building purposes. What it effectively does is set the two-year minimum threshold that the Australian government is proposing to establish for new material, recognising, as I think a number of speakers have pointed out, that some service providers keep some categories of material for much longer than that.

An overall data destruction amendment would not make much sense. I have got personal email records—and I am sure most of us have—going back much longer than two years. I am certainly not interested in the service provider wiping them, but categories of material that have been brought into being for the sole purpose of the objects of this bill should be subject to an explicit data destruction policy. So materials that are recorded for longer than two years for billing purposes and materials that are recorded for longer than two years for all sorts of legitimate reasons, obviously, would not be subject to this amendment. Material that is only being brought into being to satisfy the government and the opposition's objectives should not hang around forever.

I might be so bold as to anticipate an objection that Senator Brandis might raise: why would service providers hang onto it, if we are making these arguments that it is so immensely costly? But, of course, most of the costs are in the set-up, creating the space for it in the first place. I suspect keeping it for longer would be of marginally much lower cost. What we would like to do is ensure that material that was forced into being solely for the purpose of a mandatory data retention scheme, which we do not believe is necessary, is not then hanging around in the ether for longer than that.

Without an explicit data destruction policy, the default would be that many telcos would be likely to retain data beyond the two-year mandatory data retention period. We do not want to see that two-year period become indefinite, even though some records, as I have identified, would be indefinite. I would like to get a read from the Attorney-General of what his understanding is of the way that the bill is presently structured. Is my suspicion correct that there would be no obligation as the bill is currently drafted for material to be destroyed or deleted if it has been brought into purpose solely for the legal obligation as set out in this bill?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Yes, you are correct, Senator Ludlam: the bill does not provide for or create a destruction obligation after the expiry of the two-year retention period. Although you say that your proposed amendment relies upon a sole purpose test, it does not. If you wanted to change your amendment by altering the words in subclause (a) by inserting the words, 'solely for the purpose of compliance with' rather than 'in accordance with' then we would still vote against your amendment, but that would be a sole purpose test. This is not your fault, Senator Ludlam; it is drafting error, I suspect. However, your amendment does not do what you think it does. That being said, I feel the force of the argument; it was considered, as well, by the PJCIS.

For reasons that I expounded upon earlier in the day, it is unlikely that telcos and ISPs would want to retain data for longer than the statutory minimum period; their case is that that is a burdensome obligation. But it remains the case—were telcos and ISPs to choose, counterintuitively, to do so—that that is not against Australian law as it currently stands. In fact, when I had the discussion earlier today with Senator Leyonhjelm about variable retention periods, I pointed out that in some cases at the moment metadata is stored for up to seven years. That is not against the law. In any event, although this bill does not deal with the handling obligation; that is dealt with, in particular, by the Privacy Act, which requires entities to take reasonable steps to notify customers if their information will be disclosed to an overseas recipient, of the countries where the information will be held, and to ensure that any overseas recipient of personal information does not breach the Australian privacy principles.

Lastly, might I point out, as I have done in another context, that it is by no means unusual for Australian law to mandate the retention of business records for more than two years. Under the Taxation Administration Act, the Australian Taxation Office requires business records that are relevant to a taxpayer's tax affairs to be retained for five years. Our law has not adopted a destruction obligation; what it has adopted is a handling obligation so as to protect the security of data that is retained.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

I might supplement that as well and highlight changes, related to this point, that have been made to the explanatory memorandum. Labor's view is this amendment is now unnecessary. We were alive to the suggestion that data which is retained only for the purposes of this scheme should be destroyed once the retention period expires. The Parliamentary Joint Committee on Intelligence and Security addressed this matter, recommending that the explanatory memorandum to the bill be amended to clarify the obligations of telcos in this regard. The revised explanatory memorandum clarifies that, as the Australian privacy principles apply to the scheme, telcos are obliged to destroy or de-identify data at the end of the retention period if there is no other acceptable purpose under privacy law for retaining it.

Question negatived.

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

by leave—I move Australian Greens amendments (8) and (9) on sheet 7669:

(8) Schedule 1, item 1, page 13 (after line 19), after subsection 187G(1), insert:

Copy of any comments must be given to service provider

  (1A) If the Communications Access Co-ordinator receives a comment from an enforcement agency or security authority on a data retention implementation plan, the Co-ordinator must give the service provider a copy of the comment as soon as practicable.

(9) Schedule 1, item 1, page 13 (lines 20 to 31), omit subsection 187G(2), substitute:

Request for amendment of original plan

(2) If:

  (a) the Communications Access Co-ordinator receives a comment from an enforcement agency or security authority requesting an amendment of the original plan; and

  (b) the Co-ordinator considers the request to be a reasonable one;

the Co-ordinator must request that the service provider make the amendment within 30 days (the response period) after receiving the comment or summary.

Note:    The Communications Access Co-ordinator must give the service provider a copy of the comment as soon as practicable, see subsection (1).

The bill sets up a new office of the Communications Access Coordinator, which will be responsible for accepting the plans which telcos make to implement the data retention legislation, and the ACMA works with it on adjudication. I think that is the only role, really, that the ACMA plays—that is, compliance. Plans submitted by telcos for implementing the legislation would be sent to law enforcement agencies for comment, meaning that law enforcement would have a direct say in how these plans were implemented and a certain degree of subsequent control over how they operate. The feedback would not be made public and it would not even necessarily be made available to the service providers, meaning that the law enforcement agencies would have a behind-closed-doors feedback loop on how the data retention legislation would be implemented.

This amendment would resolve that situation. It does not require publication. I kind of buy the argument, if the Attorney-General is prepared to run it, that the publication of these things would probably be quite risky. But at the very least, give the telcos copies of the feedback that has been provided by the law enforcement agencies. Otherwise, you effectively have ASIO and a suite of other agencies—albeit a narrower range of agencies that can access this material now—being able to reach into the back office operations of every telecommunications service provider in the country and tell them how to run their affairs. For a government obsessed with deregulation, it is a remarkable reregulation of the telecommunications sector that particular companies could find themselves and their implementation plans effectively vetoed and forced to make certain changes without getting to see exactly what it is that is wrong with the proposals that they have put forward. In order to assist compliance with a bill like this, which many of these operators reject and have campaigned against quite strenuously, for reasons that are pretty obvious to everybody, it is remarkable that the government does not propose that those plans are at least returned to the telcos. I commend the amendment to the chamber.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The Communications Access Co-ordinator is of course a pre-existing role, not a role newly created by this bill. The provision which the bill introduces which is relevant to the metadata retention scheme, includes proposed section 187G(2):

(2) If:

(a) the Communications Access Co-ordinator receives a comment from an enforcement agency or security authority requesting an amendment of the original plan; and

(b) the Co-ordinator considers the request to be a reasonable one;

the Co-ordinator:

(c) must request that the service provider make the amendment within 30 days … after receiving the comment or summary; and

(d) may give the service provider a copy of the comment or a summary of the comment.

There are two points to be made about the provision in its current form. First, the request must be, in the judgement of the Communications Access Co-ordinator, a reasonable comment or request. Second, the coordinator may give the service provider a copy of the comment or summary. It is permissive, not mandatory, and the effect of your amendment, would be, as I read it, to change it from being permissive to mandatory. There is no prohibition on doing this. Ordinarily, I would expect that that is what would happen, because, as I have been at pains to say, this is an industry scheme that is going to work only if there is good collaboration and cooperation between the regulatory authorities and industry. However, there are circumstances in which it may not be appropriate for the Communications Access Co-ordinator to provide that material to a telco. The obvious circumstance is where the provision of that material might disclose information of a security character which it is not appropriate be disclosed or put into the public domain.

Proposed section 187G then sets out quite a detailed schema for balancing and governing the rights of the respective parties in the event that such a request was made, to which you did not refer. In particular, proposed subsection (4) of that section provides:

(4) If the service provider indicates that it does not accept a request for an amendment of the original plan, the Communications Access Co-ordinator must:

  (a) refer the request and the service provider’s response to the ACMA—

the Australian Communications and Media authority; and—

  (b) request the ACMA to determine whether any amendment of the original plan is required.

(5)The ACMA must then:

  (a) determine in writing that no amendment of the original plan is required in response to the request for the amendment; or

  (b) if, in the opinion of the ACMA:

  (i) the request for the amendment is a reasonable one; and

  (ii) the service provider’s response to the request for the amendment is not reasonable;

  determine in writing that the original plan should be amended in a specified manner and give a copy of the determination to the service provider.

So there is a right of appeal, in effect, to the ACMA. It is not as if the Communications Access Co-ordinator may merely dictate to a service provider on the basis of an agency comment or request. If it makes a determination which the service provider objects to or considers not to be reasonable then there is an arbitration or determination at arm's length from the Communications Access Co-ordinator by the ACMA, and the ACMA must give reasons and give a copy of the determination to the service provider. I think I am right in saying, but I will check for you and confirm, that a determination by the ACMA under proposed section 187G would itself be a judicially reviewable decision. Yes, I am told that that is right. That would be a judicially reviewable decision, so one could then go to the Administrative Appeals Tribunal and one ultimately has recourse on points of law to the federal courts. So it is not as you say it is. In fact there is quite a detailed schema, as I have said, to protect the rights of the service provider in the event that such a request is given by the Communications Access Co-ordinator.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

I should indicate that Labor will be opposing these amendments because we accept that, as Senator Brandis outlined, in some cases it will not be appropriate to do so. As he highlighted, it is certainly permissive, but there are some circumstances, including where the comment relates to sensitive law enforcement or national security matters, where it may not be appropriate. We accept that what has been structured here is in the appropriate form.

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

I will not press the argument, because it appears that, again, the numbers are against us. I thank the Attorney-General for clarifying the flow chart. It is useful to know exactly how he envisages it working in practice. I still find it remarkable that the only example—or counter-example, I guess—that you could give us as to why the agency feedback would not be passed on to the telecommunications providers as a matter of course is security. I would think that if the agencies had a problem relating to security about how service providers were proposing to implement their obligations, albeit unwillingly, that would somehow still be withheld from the service providers. We are not talking about publishing this material and putting it into the public domain; we are talking about the technicians and the people who are now suffering a legal obligation to do something they would rather not do to be able to receive directly feedback that the agencies were providing. It is remarkable, again, that a government that proposes deregulation in every other sphere be imposing such an enormously intrusive obligation. I understand and acknowledge Senator Brandis's outlining of the rights of appeal and so on, but, nonetheless, it must be observed that industry is doing this under duress. They have been fighting this proposal since—as far as I am aware—2008. So it is, at the very least, a measure of transparency between the intermediary within the ACMA and industry. It would seem to me to be an issue of good faith, if nothing else. Unless other senators have comments, I will commend Australian Greens amendments (8) and (9) on sheet 7669 to the chamber.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I do not want to delay this, but I am advised that, in fact, industry supports the creation of the Communications Access Co-ordinator. You do have a very negative view of this I know, Senator Ludlam, but the reality is—as I keep trying to explain to you—this is an industry scheme, the efficacy of which depends to a very high degree on cooperation and indeed collaboration. And although it is theoretically possible, of course, that an occasion might arise where that spirit of collaboration or cooperation is absent, ordinarily we would not expect that to be the case. Ordinarily, we would expect the regulator and the service providers to be working together to ensure that the scheme works as well as it can be reasonably made to work. But, in those circumstances where they may be at odds with each other, and the service provider is of the view that an unreasonable view has been taken by the Communications Access Co-ordinator, then there is that right of appeal to the ACMA and beyond that to the Administrative Appeals Tribunal, and beyond that to the Federal Court, as I have explained.

Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

The question is that the amendments be agreed to.

Question negatived.

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

by leave—I move amendments (10) to (19) on sheet 7669 together:

(10) Schedule 1, item 1, page 16 (lines 18 and 19), omit "a specified service provider from the obligations imposed on the service provider", substitute "a specified class of service provider from the obligations imposed on the class of service provider".

(11) Schedule 1, item 1, page 16 (line 22), omit "a specified service provider", substitute "a specified class of service provider".

(12) Schedule 1, item 1, page 16 (line 25), omit "a specified service provider", substitute "a specified class of service provider".

(13) Schedule 1, item 1, page 17 (line 8), omit "relating to the service provider", substitute "relating to the class of service provider of which the service provider is a member".

(14) Schedule 1, item 1, page 17 (lines 23 to 27), omit subsection 187K(6), substitute:

(6) A decision that is taken under paragraph (5)(b) to have been made in relation to a class of service of providers has effect only until the Communications Access Co-ordinator makes, and communicates to the service provider that made the application, a decision on the application.

(15) Schedule 1, item 1, page 17 (after line 27), after subsection 187K(6), insert:

Decision to be published

  (6A) If a decision is made under subsection (1), or taken to have been made under subsection (5)(b), as soon as practicable:

  (a) the decision must be published on the Department's website; and

  (b) the Communications Access Co-ordinator must take all reasonable steps to notify service providers in the relevant class of service providers.

(16) Schedule 1, item 1, page 17 (lines 29 and 30), omit "a service provider", substitute "a class of service providers".

(17) Schedule 1, item 1, page 18 (line 1), omit "the service provider's", substitute "the class of service providers'".

(18) Schedule 1, item 1, page 18 (line 3), omit "the service provider's", substitute "the class of service providers'".

(19) Schedule 1, item 1, page 18 (line 6), omit "the service provider has identified", substitute "have been identified by service providers in the relevant class".

I will speak to this reasonably briefly, and it will probably seem reasonably technical. These amendments ensure that exemptions which are sought—and I think Senator Brandis has mentioned in an earlier stage of the debate the ability of exemptions to be sought and received—should be uniform. For example, if one provider has IPTV services exempted, then this exemption would apply across the industry. Whatever else we might say about our security agencies, or those intermediaries within the ACMA who are undertaking the implementation of this proposal, they are not necessarily specialists in competition in this very complex, fast-moving sector. The last thing that we want to do is inadvertently tilt the competitive playing field against one carrier over another because of an arbitrary decision such as this that creates a carve-out for one company which then is not applied fairly and competitively across the rest of the sector.

The intention here is deliberately to protect smaller players in the industry who may not have the funding to engage significantly with this new regulatory burden that is being placed over them. While I acknowledge that Senator Brandis has gone into a bit of detail around how this is going to work, this does overlay a new regulatory blanket over the industry, one that the government has been at pains—and the former government, for that matter, to give them their due—to deregulate. And so we do not want to see perverse outcomes, where exemptions sought by one player can convey a competitive advantage over others or where companies, through no fault of their own, find themselves disadvantaged by an exemption carved out by somebody else. So I would be very interested in the Attorney-General's views on why that is not a great idea—unless, of course, he thinks it is a great idea.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

There is a very clear reason for proposed section 187K of the bill being structured in the way that it is, and that is because it provides the flexibility to grant exemptions on a class basis or on a case-by-case basis. Exceptions can either be provided by category or on a case-by-case basis to individual service providers. And I am a little taken aback, frankly, Senator Ludlam, by your critique, because I thought one of the points you were at pains to agitate in this debate was that there should be particular concern for the interests of the small ISPs—which the government agrees with. But the nature of the needs and the persuasiveness of the case put by an individual ISP for an exemption will depend upon that ISP's particular characteristics. I think it is quite wrong—I think it is from a methodological or even a logical point of view wrong—to say that, where one is considering whether exemptions ought to be granted, one ought to be limited only to granting exemptions to an entire class, although that class may contain quite a degree of variability within it; rather than to look at each individual, where appropriate, on a case-by-case basis. Proposed section 187K, as currently drafted, does both. Where there is a sufficient degree of uniformity among a particular class of like ISPs or service providers, then a class exemption can be granted of which all of them may be the beneficiary. But where there is a particular ISP which has unique features, so that it is appropriate to look at it and to look at its profile on an individuated basis, than the draft allows for that to happen too. And your amendment, Senator Ludlam, were it to be carried, would entirely remove the capacity to deal with an individual ISP with an individual or unique profile on an individuated basis. For that reason, the government frankly does not see the utility, even from the point of view of the argument you advance, Senator Ludlam, of your amendments and we do not support them.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

I will follow Senator Brandis by indicating that Labor believes that these amendments are unnecessary and that the current provisions are the most appropriate to the circumstances.

Question negatived.

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

I move Australian Greens amendment (20) on sheet 7669:

(20) Schedule 1, item 1, page 19 (lines 11 to 20), omit section 187KB, substitute:

187KB Commonwealth must make a grant of financial assistance to service providers

(1) The Commonwealth must make a grant of financial assistance to a service provider for the purpose of assisting the service provider to comply with the additional costs that service provider's incur in complying with the service provider's obligations under this Part.

(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the service provider.

(3) An agreement under subsection (2) may be entered into on behalf of the Commonwealth by the Minister.

This amends the governments grants provisions to state that the government must make a grant to telcos covering the additional costs to implement the data retention legislation as recommended by the PJCIS. This is a very serious amendment. It goes to some of the issues we traversed last night and a bit earlier today about the costs. I recognise that Senator Brandis is presumably bound up in an Expenditure Review Committee skirmish at the moment under fairly tight budget constraints. That is one of the reasons why we have no information as to how much the government's contribution is going to be. I would have thought that was an argument for delaying passage of the bill rather than progressing it, but that argument does not seem to have persuaded either the government or the opposition.

This is tremendously important to the question that nearly everybody who has been following this debate at any distance wants to know—'Is the taxpayer picking up the tab or are we picking up the tab through increased data charges?' There are arguments for and against.

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

It is going to be both.

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

It is going to be both, as Senator Xenophon interjects quite correctly. But I think everybody has a reasonable expectation of being told before it passes into law rather than after what that balance is going to be—no-one more so than the same telecommunications providers who are going to have this impact on their bottom line. That is going to have, without doubt, an asymmetrical impact on the industry, because there are companies out there with hundreds of millions of dollars on their balance sheets competing against start-ups that might be only a couple of weeks old. That will also impact on the way companies make their argument when they come after the government to recover costs. I suspect that if you can afford some of the best QCs in the country to put together your cost submission you are likely to run a better argument and get a better hearing than somebody running a company from their garage.

Communications Alliance CEO John Stanton put it the following way. He said:

… it was unreasonable for the Government to push for the legislation to be passed into law before providing detail on its commitment to contribute to up-front capital costs that consultants estimate could cost more than $319 million.

"We are not asking Senators to block the Bill, but simply to delay its passage until Government provides some detail about the contribution it has promised to make—given that telecommunication users will inevitably shoulder much of the burden of any Government shortfall," Mr Stanton said.

…   …   …

Mr Stanton said the Government should spell out the dollar value of its contribution, or at the very least the percentage of the total cost that it will contribute.

So, Senator Brandis, maybe rather than continuing on I will ask you now whether the government has reconsidered its view that we ought to blindly pass this bill without having the faintest idea of how much of taxpayers' money the government will contribute. Or, if you are not willing to do that, could you at least put to us a rough proportion or percentage of the total cost that the government will contribute? Keep in mind that a lot of people—not 100 per cent, but a lot of the Australian population—strongly object to being forced to have their taxes go into being spied on. That is why it has come to be known as the surveillance tax. But at the very least let's find out the quantum or proportion of the surveillance tax. Any information that the Attorney-General is able to provide will contribute to and greatly assist the course of this public debate because the sum total of information you have put into the public domain thus far is approximately zero.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Ludlam, just when I was beginning to respect your forensic analysis of these provisions you have launched into a rhetorical flight of fancy. But I will not follow you there. This is a very oddly drafted amendment because—and, again, this is probably a drafting issue rather than anything I can blame you for, Senator Ludlam—although it provides that proposed section 187KB of the bill be omitted and the following words substituted, in fact between what you propose and what is in the original bill there is a difference of only one word—and that is that the bill says 'may' and your proposed amendment says 'must'.

Senator Ludlam, the reason this entire discussion is otiose is that the government has already committed to doing so. Neither the provision in its original form nor your amendment quantifies the amount or identifies what proportion it ought to be. There is no quantification or allocation in the amendment that you propound, Senator Ludlam. You merely say that rather than it being permissive, that the government may make a contribution, the government must make a contribution. But the government is making a contribution. That has already been announced. It has already been agreed. It is well understood in the industry. Therefore, the amendment that you urge does nothing but require the government to do something that it has already undertaken to do. That is why I say your amendment is otiose.

As to the quantum, there are a range of estimates. You choose for the purpose of advancing your argument, understandably, a figure at the top of the range—$319 million. The PricewaterhouseCoopers report to which I referred to last night suggests a credible range between $188 million and $390 million. That is not imprecise; it is not at all uncommon for people who place a value on economic activity to describe it by reference to a range. The Commonwealth government has committed to making a substantial contribution to those costs. Within that range, it will make a substantial contribution. What a 'substantial contribution' is is obviously a matter for discussion between government and industry. It is also a matter for internal decision within government. You yourself, Senator Ludlam, observed shrewdly that this is a matter that is at the moment part of the budget process. The government will make a judgement informed by the discussions that it has had with industry as to what proportion fairly represents a substantial contribution within that range.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

Senator Brandis, you are forever helping my vocabulary! But, to stay on the point here, I can indicate that Labor accepts that the government has accepted the recommendation of the joint committee in its report, where it called on government to make a substantial contribution to the costs of telcos in meeting their obligations under the scheme. That being said, I think the points that I made in my second reading contribution about how this case could have better been managed applies here. If I recall correctly, there is an outstanding motion in the Senate in relation to the report regarding costs in this matter.

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

This is not a trick question to the Attorney, but I just wanted to ask whether there have been any representations or whether any consideration has been given as to whether the provisions of section 51(xxxi) of the Constitution in respect of acquisition of property on just terms could potentially be a legal argument that could be used by some of the telco providers in terms of the metadata regime that is being proposed. I am hoping that the answer is no.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Xenophon, you can be reassured that all relevant considerations have been had regard to by the government. The learning and case law on section 51(xxxi), which is about the acquisition of property, is, as the High Court has said—actually quite recently, again—premised upon the notion of a transfer of title, not merely the imposition of an obligation. There must be some transfer of ownership, and that is not the case here.

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

This goes to the Australian Greens second reading amendment. In my experience in this sector—and there are certainly people in this place who have been around the block for longer than I—I can never recall seeing a letter such as the one that was signed by the combined CEOs of practically the entire telecommunications industry in this country. I am going to read a small section of it now, because I think the urgency of industry, who has been forced into this plan against their will—Senator Brandis before said that implementation relies on consensus—

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

No, I said collaboration.

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

Yes, 'collaboration' I think was the term that you used. These are unwilling collaborators, Senator Brandis, and I hope you will at least acknowledge that. These are collaborators who have been forced to collaborate. There is probably a more diplomatic choice of words than 'collaborators' when you have effectively forced people by law to do so. The CEOs of the telcos of Telstra, Optus, Vodafone, iiNet and so on, all the way down to the start-up end of the spectrum—two pages of signatures—state:

We write as the Chief Executive Officers/Senior Executives of a broad spectrum of Australian telecommunications carriers and carriage service providers (C/CSPs) to seek clarity as to the Government’s stated intention to provide a contribution to the upfront capital expenses that may fall on our industry sector following the anticipated debate and potential passage of the … Bill …

…   …   …

Our request to you is, we believe, relatively simple and reasonable.

It is that the Government provide to industry, the Parliament and the wider community a degree of certainty as to the size of the Government's planned contribution (and the planned methodology for apportioning those funds between C/CSPs of differing types and market shares) in advance of the Bill being debated and potentially passed into law.

My question and their question to you is: under a tight budget circumstance—and I cannot remember a budget cycle in which the budget was not tight, for one reason or another; it is just the way that these things are—what if the minister does not come away with anything like $319 million? What if, in fact, you come away with $50 million, for example, that would go in no way far enough to meet the basic need that was set out by PwC? And we just have to take you on your word that those are the figures. How is this scheme going to work then? On budget day in early May, are we going to be looking back on tonight's debate, with an amount of money that is patently inadequate, and should we not therefore heed the call of the entire telecommunications industry, bar one or two— TPG, interestingly enough, being one of the ones not represented on that list—and pause this debate until you know how you are going to pay for it?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Ludlam, if I may say so, your memory is too short. When I first sat in the Senate during the Howard government, it was not the case that budgets were very tight. In fact, in all but one of the budgets delivered by my former colleague Mr Peter Costello there was a very substantial surplus. I remember the late, great Matt Price making an observation about one of the last Costello budgets that budgets were like birthdays those days; the public so looked forward to them. In those happy days of the Howard government, when the economic affairs of the nation were conducted competently, there was a rolling surplus budget for more than a decade. But that is a political point, I unashamedly concede. Senator Ludlam, you need to get out more if you think that letter is the most extraordinary letter you have ever read. I get more extraordinary letters than that on a daily basis, I can promise you.

Being a little more serious, Senator Ludlam, because I am teasing you, I know, industry will have certainty—of course industry will have certainty—because, at the appropriate time, the government will announce the proportionate contribution that it will make. In his second reading speech on 30 October 2014, Mr Turnbull, in the other place, committed the government to making a substantial contribution to the capital costs. The determination of what the capital costs are will be informed, among other things, by the range estimated by the PwC report of between $188 and $319 million. The government will make a substantial contribution to an appropriate figure within that range.

What that substantial contribution will be has not yet been determined. It has not yet been determined, but I can tell you that it is close to being determined. That determination has been informed by long discussion with industry. It is, as you yourself have shrewdly observed, part of the budget process. The budget is being delivered on 12 May. It does not create uncertainty for industry merely to say to them: 'We will be announcing at a date in the near future the precise proportionate contribution that the government will be making to help meet the obligation provided for by proposed section 187KB.'

The TEMPORARY CHAIRMAN: The committee is considering Australian Greens amendment (20) on sheet 7669. The question is that the amendment be agreed to.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I move Liberal Democratic Party amendment (8) on sheet 7661:

(8) Schedule 1, item 1, page 21 (after line 31), after section 187N, insert:

187NA Sunset provision

     This Part (other than section 187N) ceases to be in force at the end of the third anniversary of the implementation phase for this Part.

The rationale for this amendment is to provide the opportunity for more widespread and more public debate and review, particularly in light of the fact that the PJCIS includes no members of the crossbench or Greens. To that end, this amendment carves out from the sunset the bill's review of operation provision section 187(9) by the PJCIS but ensures that if the bill sunsets and comes to be re-enacted, it will be debated by all of us in this place. It is also Liberal Democratic Party policy that, if draconian laws are to be enacted, they be sunsetted. It is part of the liberal tradition that fewer, better-drafted laws be enacted. Forcing parliaments to revisit earlier bad law goes some way towards achieving this, if only by reminding parliament not to produce rubbish laws in the first place.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The government opposes this amendment. Proposed section 187N provides for quite a detailed scheme for the review of the operation of the relevant part of the act. The review was to be conducted by the Parliamentary Joint Committee on Intelligence and Security. The period by which the review must commence and by which it must be concluded, which are both in the near future, are specified. It is routinely the role of the PJCIS to review the operation of legislation of a national security character, which is what this legislation is. It would be unusual—I am not sure if it would be unprecedented, but it would certainly be unusual—for the review of legislation of this kind to be conducted by any other organ of the parliament other than the PJCIS. Its reports, of course, are public and will be able to be debated in this chamber at the appropriate time. The government sees no persuasive reason for departing from the orthodox position that when one is dealing with the review of operation of new elements of national security legislation, the PJCIS is the appropriate organ to conduct that review.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

For the same reasons, we will be opposing this amendment.

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

I indicate that I will be supporting this amendment. I think it is fair to say that the PJCIS does not have the same sorts of powers as the United States committees on intelligence have in the House of Representatives or the Senate. I think that this is a warranted safeguard in the circumstances, so I will be supporting this amendment.

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

On behalf of the Australian Greens, I indicate that we support Senator Leyonhjelm's amendment for the reasons that he has expressed quite eloquently for a while. The PJCIS was quite literally a boys' club when Mr Clare and Mr Dreyfus substituted on it to more closely observe the bill that they had carriage of on behalf of the opposition. It was a committee comprised entirely of middle-aged white men.

The government, having eliminated the crossbench spot, I would at least pay tribute—and I think Senator Brandis was part of this committee when he was there—to the role that Mr Andrew Wilkie played as somebody who had spent some considerable years as a member of the intelligence community as the crossbench member of the PJCIS. That crossbench spot, which has never been held by the Greens, was eliminated by this government when they came to power. Since then it has operated as something of a closed shop.

I think this parliament, as Senator Leyonhjelm has identified in this amendment, is by far a more appropriate place to hold the debate on the sunsetting of a bill with the gravity of this. Unwinding data retention provisions of a future parliament if one moved to do so, I think, this is a serious conversation that should be held in this parliament. It is certainly going to be, technically and procedurally, potentially quite difficult to do. The PJCIS is not at all the appropriate place to do so. Too frequently it has acted as a captive. I have seen any number of interviews that the present chair of the committee has conducted where he is asked for a rationale of why he has come to one view or another, and he just says, 'Because ASIO said so,' or 'Because the Federal Police want it.'

It is not the role of an oversight committee to simply act as some kind of relay service for demands of the intelligence community or the police. No matter how hard they work or how diligently they carry out their duties, it is the role of that committee principally and of this parliament in general to balance the demands of agencies seeking more powers to conduct their responsibilities and the expectations of the citizenry as a whole, so we do not end up living in a police state. Quite frankly, the PJCIS, in my view, has not always upheld that extraordinarily important responsibility, and I would argue that the shape this bill has arrived in tonight is precisely an example of how that committee has let us down.

Obviously it is a matter of record, but I do not believe this bill should pass into law at all. If we are going to be debating sunset provisions and the fact that at some stage we might expect that this thing is withdrawn from the statute books, the place for that debate to happen is this parliament. We will be supporting the amendment. (Time expired)

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

I could not let Senator Ludlam's reference to the gender issue go by without some comment. We do have one other female senator participating to some extent in this debate. It would be remiss of me not to highlight that the two Labor participants on the joint committee vacated their positions so that the relevant frontbenchers could ensure that Labor applied diligent consideration to this bill. Those committee members were Senator Wong and Ms Plibersek.

From my observations of the debate today I am really quite confused about what Senator Ludlam thinks might be the gender issues that are relevant. I would also have to disagree significantly with his characterisation of the committee's considerations. The recommendations, and the 74 consequent amendments that the government has accepted, highlight the detailed consideration and the good work done by this committee.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I join with Senator Collins's observations on this rare occasion. Senator Ludlam, speaking as a middle-aged white man to you, another middle-aged white man, I do not think the gender or the age demographic or the ethnicity of the members of the Parliamentary Joint Committee on Intelligence and Security has any bearing at all on their capacity to deliberate wisely in the interests of the Australian people. The remark was quite a silly one, I am bound to say.

The Parliamentary Joint Committee on Intelligence and Security is arguably the most respected committee of the parliament, and always has been. It is usually, or in general, comprises the most senior members drawn from both sides of politics. And at the time this proposal was developed, Senator Ludlam, it also contained an Independent, Mr Andrew Wilkie—by the way, another middle-aged white man—whose views you seem not to find as offensive, notwithstanding his exotic gender, age demographic and ethnicity.

People like Senator John Faulkner from the Labor Party and Mr Phillip Ruddock from the Liberal Party—people who had seen long experience in portfolios related to matters of national security and intelligence—have always been the gravamen or weight of this committee. And it is very poor form of you, Senator, to reflect upon the committee.

Senator Xenophon, I know you are enamoured of American models. The PJCIS does not have the same powers as the American senate intelligence committee—that is true—but this Senate does not have the same powers as the US senate, for that matter. We have different systems, and I would encourage you not to be so enamoured of the American system merely because it is the American system. Not that I equate you with the subject of this song, but I remind you of the quatrain of the Lord High Executioner in The Mikado, who speaks of 'the idiot who praises, with enthusiastic tone, all centuries but this, and every country but his own'. You should not assume that just because it is American it is better than what we have in Australia.

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

I am not sure whether I should be offended or complimented! At least when the Attorney-General calls me an idiot he does so quoting The Mikado. I think I might need to quote something from the Sex Pistols—or the Dead Kennedys, perhaps; another punk band—but I think I would get in trouble with Hansard. I am more punk than opera when it comes to dealing with these matters.

I do not want my position in respect of the American system to be misrepresented. There are many things about the American system that I have real concerns about, but I do give credit to the Americans that in so far as there appears to be a greater level of scrutiny—including a court, albeit sitting in secret—in terms of intelligence matters. I do not think I am verballing the Attorney-General by saying that he is nodding. It is a different system but the principles are the same: our intelligence services ought to be subject to a decent level of scrutiny. And I do not think that is idiotic, whether you are quoting The Mikado or not.

In relation to the issue of the membership of the PJCIS, I am also a middle-aged—maybe late middle-aged, at 56—white man. I am of Southern European descent, so I may have olive-tinged skin. But I want to make this point: the PJCIS does not include any representation from any of the 18 crossbenchers in this place. There are nine separate groupings—10 Greens and eight separate members representing different groups or different independent perspectives. And it worries me that they are not represented.

I would ask the Attorney-General, having graced us with a quote from The Mikado, whether he concedes that there is a restrictiveness in the membership of the PJCIS. Would he consider, from the government's point of view, giving an opportunity for crossbenchers to be participating members on certain inquiries from time to time if there is a resolution of this place in order to allow that participation.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

It is not really my place to reflect upon the composition of the PJCIS other than to make the point that it comprises, generally, senior and respected members from both sides of politics. When Mr Wilkie was a member of the PJCIS in the last parliament I thought he made a useful and well-informed contribution to its deliberations, for which I thank him. As I said, the genesis of the bill we are debating tonight was the inquiry in which Mr Wilkie was a participant. The report which was the genesis of this bill was a unanimous report. I would be the last person, Senator, to depreciate the value of Independent crossbench members of parliament.

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

Is that why you knocked him off the committee? I am perplexed as to the point you are trying to make. I would agree that he did make a valuable contribution to the committee. I therefore wonder—maybe this is seen as a bit of a digression—why you knocked him off the committee.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I did not knock anyone off any committees. The committee was reconstituted. I left the committee at the same time as Mr Wilkie, Senator Ludlam. Committees can be constituted in different ways.

The committee at the moment comprises—so far as I can see—very respected members from both of the major parties. Whether an independent or a crossbench member or a minor-party member should have a permanent spot is a debate that one could have, as one often debates the composition of committees. The composition of the committee, at the moment, is as it is and I think it has done a very good job.

If I may say so, notwithstanding your rather slighting and ungenerous remarks about him, I think the member for Wannon, Mr Tehan, is an exemplary chairman with whom I have worked very closely. Mr Tehan is a former foreign-service official and a former trade representative of this country and he knows a great deal more about these matters than some other people I can readily think of, Senator Ludlam.

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

I cannot let go of The Mikado! I am very grateful to my senior adviser who, fortunately, happens to be a relatively young female—she happens to be white though—and my retort on The Mikado is Britney Spears: 'Hit me, baby, one more time!'

I do want to ask the Attorney if he will rule out, as a matter of principle, the 18 members of the crossbench of this place having, from time to time, representation on the PJCIS as a participating member.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Xenophon, your cultural references are opaque to me. It is not for me to rule in or rule out what ought to be the appropriate composition of a joint committee of both houses of this parliament.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

The question is that the amendment standing in the name of Senator Leyonhjelm be agreed to.

The committee divided.

(Temporary Chairman—Senator Bernardi)

Question negatived

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I move LDP amendment (9) on sheet 7661:

(9) Schedule 1, page 22 (after line 15), after Part 1, insert:

Part 1A—Amendments relating to authorisations

Telecommunications (Interception and Access) Act 1979

1AA Section 178 (heading)

  Repeal the heading, substitute:

178 Authorisations for access to existing information or documents

1AB Subsection 178(3)

  Repeal the subsection, substitute:

(3) The authorised officer must not make the authorisation unless he or she is satisfied that the disclosure is reasonably necessary for the enforcement of a serious contravention.

1AC Section 179

  Repeal the section.

1AD Paragraph 186(1)(b)

  Repeal the paragraph.

This amendment is designed to ensure that access to privacy-intrusive telecommunications data is permitted only for serious crimes. The bill was clearly intended with a national security remit: serious crimes. Any extension beyond terrorism and national security should only be to crimes that are in the upper range of seriousness in all Australian jurisdictions, such as child pornography offences. I do not wish to see metadata used to pursue trivialities. That is what happened in the UK, with the RIPA law. The thought of spying on people for their unpaid rates or the heinous crime of comparing petrol prices is ridiculous. That is very likely the main use to which this metadata will be put, unless this amendment is passed.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

We had this debate last night in the early committee stages, and I fundamentally disagree with what Senator Leyonhjelm has said. Senator Leyonhjelm is fearful that the authorities will devote their resources to pursuing relatively trivial or inconsequential offences or regulatory breaches. It is not conceivable, as a matter of common sense, that they would do so.

The purpose of this legislation is to enable the capacity of the law enforcement, the national security agencies and, in addition, the principal economic regulators—the ACCC and ASIC—to investigate and apprehend serious crime. That is what they are going to do. You say, Senator Leyonhjelm, 'What if they pursue a trivial matter?' As a matter of common sense, that is unlikely. But, equally, it is bad legislative practice to prescribe in legislation thresholds above or below which law enforcement agencies should exercise their investigative powers. That is just bad practice.

The issue was looked at by the second PJCIS report, the one that reported on 27 March. Let me read into the record the conclusions of the committee at paragraph 6.187 and the following two:

The Committee has considered very carefully the views expressed that telecommunications access should be limited to sufficiently serious matters, such as serious contraventions of the law or serious national security issues.

… The Committee notes that the level of intrusion into privacy incurred by accessing telecommunications data will vary depending on the particular circumstances, including the nature and volume of the telecommunications data accessed. The Committee also notes the complexities in balancing the competing public interests of individual privacy with enforcement of the law and protection of national security.

… On balance, the Committee considers that the requirement in section 180F should be replaced with a more stringent requirement for the authorising officer to be satisfied on reasonable grounds that the particular disclosure or use of telecommunications data being proposed is proportionate to the intrusion into privacy.

That amendment has been made. That is the one in which the issue has been dealt with, Senator Leyonhjelm. The government opposes your amendment.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

Following on from Senator Brandis's comments, let me add that the amendment would standardise the threshold for access to retain data with the threshold under the Telecommunications (Interception and Access) Act for access to stored communications under warrant. As Senator Brandis highlighted, the Parliamentary Joint Committee on Intelligence and Security did consider this issue but did not come to a conclusion that the threshold for access should be altered in the way proposed here. But it did recommend, as it recommended in 2013, that there be a further examination of whether and how the various thresholds in the T(IA) Act might be standardised.

This goes to the point that I made in my second reading contribution—that in some respects we have the cart before the horse. Had the government proceeded with the recommendations around the T(IA) Act, our considerations here might have been facilitated. So, unfortunately, this amendment is premature without that consideration by the parliamentary joint committee. For that reason, Labor will not be supporting it.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I ask whether the Attorney-General is aware of the 20th report of the Parliamentary Joint Committee on Human Rights, another of the parliament's joint committees which are of high standing. The report says:

… the committee's major concern was that there appear to be no significant limits on the type of investigation to which a valid disclosure authorisation for existing data may apply.

That is at paragraph 1.196 of its 20th report, in this parliament. It goes on:

The committee notes that the government has not accepted the committee's recommendation that, to ensure a proportionate limitation on the right to privacy—

under human rights law—

an appropriate threshold should be established to restrict access to retained data to investigations of specified threatened or actual crimes that are serious, or to categories of serious crimes such as major indictable offences.

Were you aware of that, Attorney-General; and what is your response?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Yes I am, and I do not agree with it.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

Perhaps I could clarify why the Human Rights Committee is so concerned and then perhaps ask the Attorney to expand on why he does not agree with it. The committee's recommendation that retained data be accessed only for the purposes of investigating complex or serious offences is not reasonably characterised as imposing an arbitrary threshold on access to retained data; rather, such a requirement would ensure that the scheme in fact did not represent an arbitrary and disproportionate limitation on the right to privacy. The concern that I have and that the committee has, as expressed in its report, is that while the Attorney-General seeks to reassure us that, although there are very wide and potential broad uses of the retained data under this bill, we are not to worry about it because the agencies would not waste their time accessing that data for trivial reasons, the trouble is that there is nothing to prevent that in the act, as far as my understanding goes. If I am wrong on that then I would like to know.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

Attorney, I am somewhat bewildered. You have told us that the metadata retention regime is only to be used for investigation or enforcement of serious offences. The PJCIS says that is what it is intended to be used for. My amendment says nothing more than a disclosure is reasonably necessary for the enforcement—not even the investigation, but the enforcement—of a serious contravention, and I understand 'serious contravention' is understood, of the law. What exactly is the problem?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I am sorry, what exactly is the question?

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

You want to ensure the retained metadata is only used for the investigation or enforcement of serious offences. The PJCIS says the same thing. The bill as it is written does not say that is what must occur. My amendment will say that is what must occur. Why are you opposed to the amendment?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I think I dealt with that, if I may say so, when I tried to answer your question the first time. It is a question of proportionality, you are right. The purpose of these amendments is to deal with serious crime, that is true. The principle of proportionality is enshrined in the bill. This was looked at by the PJCIS and I read to you the PJCIS's considerations that led them to conclude that the way in which the matter had been dealt with by the bill was appropriate. I agree with the process of reasoning of the PJCIS. I do not think your amendment is necessary, and I do not really think I can take it any further.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

Attorney-General, you refer frequently and understandably to the recommendations of the PJCIS. Did the PJCIS assess the bill in the context of the conventions under international law to which Australia has signed up?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator, as you know, the conventions to which Australia has acceded are not, without specific enactment, part of Australian domestic law. That being said, Australia is observant of its international human rights obligations. There is nothing in the International Covenant on Civil and Political Rights, which is the instrument with which I am familiar and which would seem to bear most directly on issues of privacy, that comes readily to my mind that is inconsistent with a scheme of mandatory metadata retention. Indeed, there has been some loose talk about a decision of the European Court of Justice in April of last year concerning the European Data Protection Directive, where the European Data Protection Directive was struck down. But people who marshal that event as some kind of rhetorical proof of the validity of their argument that a data retention scheme violates human rights standards always omit to mention that the European Court of Human Rights held, in striking down the European data directive, that it did so on the ground of proportionality. It held that if the data retention schemes of member nations of the EU were crafted conformably to the matters set out in its reasons for judgement then it would not have struck them down.

In other words, what the European Human Rights Court held was that it was possible to have a mandatory data retention scheme that was compliant with human rights standards, including European human rights laws. Most member states—not all, but most—including the United Kingdom, I might say, with whose Attorney-General I have discussed this matter, have subsequently enacted complying data retention schemes. The point I make is that the issue is one of proportionality, as the European Court of Human Rights recognised, and an appropriately crafted mandatory metadata retention scheme can be, and in the European case is, human rights compliant. Proportionality is one of the values that underlie this bill and the way in which the bill will be given effect to by the agencies, and I am quite satisfied, by parody of reasoning with the European Human Rights Court in the case of the European data directive, that this bill is also compliant.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I am actually really intrigued by the way in which you say, Attorney, that the principle of proportionality is enshrined in this bill. We know that metadata can reveal very significant information about a person's life, associations, habits and preferences and therefore significantly limits the right to privacy. But this proposed scheme would allow access to metadata for two years for the investigation of minor offences, including offences attracting only monetary penalties. Am I right, or is that wrong?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

When you say only monetary penalties, there are some very, very serious breaches of the law that attract only monetary penalties. In my own field of professional experience in trade practices law, until very recently, there were only monetary civil penalties available under the Trade Practices Act, as it then was, for the most egregious market fixing and cartelisation conduct. I think in anyone's language conduct like that is a very, very serious breach of the law, but the penalties were only monetary. So the fact that the penalties may only be monetary does not indicate at all that the conduct being investigated is not grave.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

Attorney-General, as it is currently drafted, if the amendment that is being put by Senator Leyonhjelm—and a similar amendment being put by Senator Ludlam—is not agreed to, am I right in thinking that there is nothing in this bill to prevent the proposed scheme allowing access to a person's metadata for up to two years for the investigation of minor offences, including minor traffic offences or copyright infringements?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

For a start, we are not concerned with civil liabilities so, as you should know, Senator, copyright infringement is a civil wrong. This scheme only gives the criminal law enforcement agencies and the principal economic regulators the power to access metadata. So that is the first point.

The second point: you really trivialise the argument, with all due respect, Senator Wright, when you imagine that people like the Australian Federal Police, the Australian Crime Commission, the state and state and territory police forces and anticorruption authorities are going to use this very complex investigative tool to chase traffic fines. Honestly and truly, Senator Wright, please bring a bit of common sense to this debate.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

That is not the question that I asked; I asked: is there anything in this bill to prevent that from occurring? It is you who referred to the principle of proportionality. What we have here is actually a bill which allows far greater powers and possibilities, irrespective of how agencies choose to utilise it, than is arguably necessary for the objective for which the bill is ostensibly designed to achieve.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Wright, first of all, you said, wrongly in the contribution you just made that the bill contains new powers; the bill contains no new powers. The bill contains an obligation and it limits by three-quarters the number of agencies which can have access to metadata and it limits in various ways, which are not part of the present law, the capacity of those agencies to access that metadata. It contains new oversight measures and protections, which we debated last night, and it is a little tedious to have to repeat the point I made to you ad nauseam last night.

I should also direct your attention to proposed section 180F of the bill, which requires officers to be satisfied that access to data is proportionate, having regard to the gravity of the matter that is the subject of the investigation. I explained before that proportionality is one of the values enshrined in the act. I did not give you the section reference: there it is.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

So you have again invoked the notion of proportionality, which of course is intrinsic to the way international law applies in terms of the analysis of domestic law like this. What do you say then to the fact that the Parliamentary Joint Committee on Human Rights states that the committee considers that the response that you provided to that committee in response to requests for information that was made about this very issue of proportionality has not established that these kinds of minor crimes warrant the extent and degree of interference with the right to privacy that the scheme imposes.

The report goes on to say:

That is, they do not appear to be sufficiently serious to justify such an interference as being proportionate to the stated legitimate objective of the scheme. Indeed while the response focuses on the need for mandatory data retention—

and that is the new aspect to the bill, of course—

in relation to complex investigations, serious crime and national security, access to retained data under the scheme will not be restricted to such investigations.

Attorney-General, if that is the legitimate objective for which this bill is being proposed, why is it that you will not agree to have those proportional limitations actually enacted by way of the amendment that is being proposed here?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Because it is done in another way, Senator, which I have been trying to explain to you. With all due respect, it advances the argument not one iota for you to quote a report to me that expresses a view which is a contested view. We know that some people have that view and we know that others have a different view. The point is not to make the trite observation that there are different points of view here. The point, surely, is to explain the rationale of your critique and for me to explain to you the rationale for why the bill has been prepared the way it has.

Remember, Senator, that what this bill does is amend the Telecommunications (Interception and Access) Act. The Telecommunications (Interception and Access) Act already has a provision, section 180F, which, as it is currently written, reads:

180F Authorised officers to consider privacy

Before making an authorisation … in relation to the disclosure or use of information or documents, the authorised officer considering making the authorisation must have regard to whether any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable, having regard to the following matters:

(a) the likely relevance and usefulness of the information or documents;

(b) the reason why the disclosure or use concerned is proposed to be authorised.

This bill inserts, as well, a number of other criteria to which regard must be had by proposed subparagraph (aa):

(aa) the gravity of any conduct in relation to which the authorisation is sought, including:

(i) the seriousness of any offence in relation to which the authorisation is sought; and

(ii) the seriousness of any pecuniary penalty in relation to which the authorisation is sought; and

(iii) the seriousness of any protection of the public revenue in relation to which the authorisation is sought; and

(iv) whether the authorisation is sought for the purposes of finding a missing person;

So that is your answer, Senator. We are inserting a range of new considerations to which regard is to be had but, most particularly for the purposes of your inquiry and, indeed, Senator Leyonhjelm's inquiry, the new criterion specified in (i) is:

(i) the seriousness of any offence in relation to which the authorisation is sought;

So the concept of proportionality that I have mentioned to you is captured and explained in section 180F.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I have one more question on this. It is really, I suppose, to make sure that it is clearly on the record that the joint committee of this parliament which was established to assess legislation as against Australia's international law obligations has recommended that to avoid the disproportionate limitation on the right to privacy that would result from disclosing telecommunications data for the investigation of any offence, the bill be amended to limit disclosure authorisation for existing data to instances where it is reasonably necessary for the investigation of specified serious crimes; categories of serious crimes; or the investigation of serious matters by the Australian Securities and Investment Commission, the Australian Taxation Office and the Australian Competition and Consumer Commission. That was a unanimous recommendation of the committee. Why are you not prepared to place weight on that recommendation, Attorney?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Because I agree with the PJCIS and I do not agree with the contrary conclusion of the human rights committee, for the reason that I have explained: different committees look at different issues from different perspectives. This is a piece of legislation which has a law enforcement and national security purpose. It has been examined by the PJCIS. That is a committee with the expertise in this particular field, and it is a bipartisan committee which has twice now unanimously reported on this. On the first occasion, the committee included Mr Wilkie, who you might recall is an independent member of the House of Representatives and who was once an analyst with the Office of National Assessments. On both occasions, the committee unanimously came to a view that the balances, the criteria, the architecture and the oversight mechanisms contained in this bill were appropriate.

You have referred to the issue of proportionality. I have pointed out to you how the issue of proportionality and the requirement, the actual statutory mandate, to have regard to the seriousness of the offence under investigation is actually included in the TIA act by this bill.

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

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I will try and reply to the points you have made, Senator Ludlam. I hope not to be condescending to you; I will just try and express myself accurately and carefully. I am very familiar with the European Court of Justice's decision on 8 April 2014, because I actually introduced reference to it into this debate. I am familiar with the press release from which you have quoted and I will quote you some other passages that you chose to omit. I find, Senator Ludlam, forgive me for being fussy about this, that I prefer when considering the decisions of courts to read the judgements rather than press releases, and I have read the judgements as well.

The point I was making to your colleague Senator Wright, which I thought was a straightforward point but which I will make again lest it not be understood, is that although the European Court of Justice struck down the European data retention directive, it did so on specified grounds relating to proportionality. It did not decide, in fact it specifically said that it was not deciding, that a mandatory data retention regime, properly designed, was contrary to European human rights standards. So it struck down that particular mandatory data retention regime embodied in the European data directive on the ground that, to use the vernacular, it went too far—it violated the test of proportionality. But, at the same time, it held that states could develop mandatory metadata retention regimes that would not violate the test of proportionality or otherwise violate the European human rights charter. Instructively, you did not read these passages from the press release in the contribution you just made. From page 2:

It states—

that is, the court's judgment, because this is a precis of the judgment:

It states that the retention of data required by the directive is not such as to adversely affect the essence of the fundamental rights to respect for private life and to the protection of personal data. The directive does not permit the acquisition of knowledge of the content of the electronic communications as such and provides that service or network providers must respect certain principles of data protection and data security—

as this bill does. The press release goes on to say:

Furthermore, the retention of data for the purpose of their possible transmission to the competent national authorities genuinely satisfies an objective of general interest, namely the fight against serious crime and, ultimately, public security.

And then it goes on to say:

However, the Court is of the opinion that, by adopting the Data Retention Directive, the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality.

I do not want to accuse you of intellectual dishonesty, Senator, but I find it remarkable that you would assert the proposition you just asserted, reading from the document from which you just read, omitting the most important qualification, which makes my point and entirely answers yours.

Furthermore, Senator Ludlam, and Senator Wright, who also addressed this issue, the European data retention directive was judged by the European Court of Human Rights against the European human rights charter. We do not have an Australian bill of rights. We do not have that instrument as part of our domestic law. We do not.

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

Let's get one. Let's get on with it. Let's fix that.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

At least you acknowledge that we do not. By the way, having read the judgement, not merely the press release, I can inform you, Senator Ludlam, that to a very large degree the determination of the European Court of Human Rights in that particular case turned upon the application of particular provisions of the European human rights charter. That European data directive would not have suffered the same fate had it been subject to review by an Australian court.

Lastly, if one is concerned about the application of Australian human rights law, I know we have had much discussion—perhaps a little too much discussion—in this chamber recently about Professor Gillian Triggs, President of the Australian Human Rights Commission. You may or may not—

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

Why are you bringing that up?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I will tell you why I am bringing up Professor Triggs, Senator Ludlam—because Professor Triggs was a witness before the second PJCIS hearing and she, in fact, addressed herself to this very issue. This is what Professor Triggs thought—from a human rights point of view, speaking as the President of the Australian Human Rights Commission—about this bill. It is summarised in paragraph 2.148 of the committee's report. It says:

Emeritus Professor Gillian Triggs, President of the Australian Human Rights Commission, drew a distinction between the magnitude of the privacy intrusion associated with access to telecommunications data by law enforcement and national security agencies, which she characterised as ‘powerful’, compared to the mandatory collection and retention of telecommunications data by a third-party service provider, which she characterised as ‘small’.

This legislation creates a collection and retention obligation, which in the view of the sainted Professor Gillian Triggs has small—small; her word, not mine—human rights implications.

Sam Dastyari (NSW, Australian Labor Party) Share this | Link to this | Hansard source

The question is that amendment (9) on sheet 7661 moved by Senator Leyonhjelm be agreed to.

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

I am going to withdraw Australian Greens amendment (21) on sheet 7669. It is not identical to the amendment that was just disposed of, but if the Labor Party has pre-emptively decided to fold and the Attorney-General has pre-emptively decided to ignore the evidence then I do not think it is worth persisting with it. Our amendment substantially traverses the same matters that we have just been debating at length in Senator Leyonhjelm's amendment, so we will withdraw amendment (21).

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

by leave—I move Liberal Democratic Party amendments (10), (11), (14), (15), and (17) to (25) on sheet 7661 together:

(10) Schedule 1, item 1C, page 23 (line 26), omit "journalist information warrants", substitute "protected class warrants".

(11) Schedule 1, item 1C, page 23 (line 28), omit "journalist information warrants", substitute "protected class warrants".

(14) Schedule 1, item 5, page 29 (lines 9 and 10), omit the definition of journalist information warrant.

(15) Schedule 1, item 5, page 29 (after line 12), after the definition of Part4-1 issuing authority, insert:

  protected class: each of the following is a protected class of persons:

  (a) Australian legal practitioners (within the meaning of the Evidence Act 1995);

  (b) journalists (within the meaning of section 126G of the Evidence Act 1995);

  (c) health practitioners (within the meaning of the Health Practitioner Regulation National Law);

  (d) any other class of professional determined by the Minister under subsection (7).

  protected class warrant means a warrant issued under Division 4C of Part 4-1.

(16) Schedule 1, item 5, page 29 (lines 26 to 29) omit paragraphs (a) and (b) of the definition of source, substitute:

  (a) to another journalist; and

  (b) in the normal course of the other person's work as a journalist; and

(17) Schedule 1, page 30 (after line 2), after item 5, insert:

5A At the end of section 5

  Add:

(7) The Minister may, by legislative instrument, determine a class of professional for the purposes of paragraph (d) of the definition of protected class.

(18) Schedule 1, item 6E, page 31 (lines 27 and 28), omit "journalist information warrant", substitute "protected class warrant".

(19) Schedule 1, item 6F, page 32 (lines 7 and 8), omit "journalist information warrant", substitute "protected class warrant".

(20) Schedule 1, item 6G, page 32 (lines 21 and 22), omit "journalist information warrant", substitute "protected class warrant".

(21) Schedule 1, item 6H, page 33 (lines 1 and 2), omit "journalist information warrant", substitute "protected class warrant".

(22) Schedule 1, item 6L, page 33 (line 23) to page 43 (line 28), omit the item, substitute:

6L After Division 4B of Part 4 -1

  Insert:

Division 4C—Protected class warrants

Subdivision A—The requirement for protected class warrant

180G The Organisation

(1) An eligible person (within the meaning of subsection 175(2) or 176(2), as the case requires) must not make an authorisation under Division 3 that would authorise the disclosure of information or documents relating to a particular person if the eligible person knows or reasonably believes that particular person to be:

  (a) a member of a protected class; or

  (b) an employer of such a person;

unless a protected class warrant is in force in relation to that particular person.

(2) Nothing in this section affects by implication the kind of person in relation to whom a warrant (other than a protected class warrant) may be issued under this Act.

180H Enforcement agencies

(1) An authorised officer of an enforcement agency must not make an authorisation under section 178, 178A or 180 that would authorise the disclosure of information or documents relating to a particular person if the authorised officer knows or reasonably believes that particular person to be:

  (a) a member of a protected class; or

  (b) an employer of such a person;

unless a protected class warrant is in force, in relation to that particular person, under which authorised officers of the agency may make authorisations under that section.

(2) An authorised officer of the Australian Federal Police must not make an authorisation under Division 4A that would authorise the disclosure of information or documents relating to a particular person if the authorised officer knows or reasonably believes that particular person to be:

  (a) a member of a protected class; or

  (b) an employer of such a person.

(3) Nothing in this section affects by implication the kind of person in relation to whom a warrant (other than a protected class warrant) may be issued under this Act.

Subdivision B—Issuing protected class warrants to the Organisation

180J Requesting a protected class warrant

(1) The Director-General of Security may request the Minister to issue a protected class warrant in relation to a particular person.

(2) The request must specify the facts and other grounds on which the Director-General considers it necessary that the warrant be issued.

180K Further information

(1) The Minister may require the Director-General of Security to give to the Minister, within the period specified in the requirement, further information in connection with a request under this Subdivision.

(2) If the Director-General breaches the requirement, the Minister may:

  (a) refuse to consider the request; or

  (b) refuse to take any action, or any further action, in relation to the request.

180L Issuing a protected class warrant

(1) After considering a request under section 180J, the Minister must:

  (a) issue a protected class warrant that authorises the making of authorisations under Division 3 in relation to the particular person to which the request relates; or

  (b) refuse to issue a protected class warrant.

(2) The Minister must not issue a protected class warrant unless the Minister is satisfied that:

  (a) the Organisation's functions would extend to the making of authorisations under Division 3 in relation to the particular person; and

  (b) the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality that relates to the protected class of which the person is a member, having regard to:

     (i) the extent to which the privacy of any person or persons, or any duties of confidentiality, would be likely to be interfered with by the disclosure of information or documents under authorisations that are likely to be made under the authority of the warrant; and

     (ii) the gravity of the matter in relation to which the warrant is sought; and

     (iii) the extent to which that information or those documents would be likely to assist in the performance of the Organisation's functions; and

     (iv) whether reasonable attempts have been made to obtain the information or documents by other means; and

     (v) any submissions made by a Public Interest Advocate under section 180X; and

     (vi) any other matters the Minister considers relevant.

(3) A protected class warrant issued under this section may specify conditions or restrictions relating to making authorisations under the authority of the warrant.

180N Duration of a protected class warrant

     A protected class warrant issued under section 180L must specify the period (not exceeding 6 months) for which it is to remain in force. The Minister may revoke the warrant at any time before the end of the specified period.

180P Discontinuance of authorisations before expiry of a protected class warrant

     If, before a protected class warrant issued under this Subdivision ceases to be in force, the Director-General of Security is satisfied that the grounds on which the warrant was issued have ceased to exist, he or she must:

  (a) forthwith inform the Minister accordingly; and

  (b) takes such steps as are necessary to ensure that the making of authorisations under the authority of the warrant is discontinued.

Subdivision C—Issuing protected class warrants to enforcement agencies

180Q Enforcement agency may apply for a protected class warrant

(1) An enforcement agency may apply to a Part 4-1 issuing authority for a protected class warrant in relation to a particular person.

(2) The application must be made on the agency's behalf by:

  (a) if the agency is referred to in subsection 39(2)—a person referred to in that subsection in relation to that agency; or

  (b) otherwise:

     (i) the chief officer of the agency; or

     (ii) an officer of the agency (by whatever name called) who holds, or is acting in, an office or position in the agency nominated under subsection (3).

(3) The chief officer of the agency may, in writing, nominate for the purposes of subparagraph (2)(b)(ii) an office or position in the agency that is involved in the management of the agency.

(4) A nomination under subsection (3) is not a legislative instrument.

(5) The application may be made in writing or in any other form.

Note: The Electronic Transactions Act 1999 deals with giving information in writing by means of an electronic communication.

180R Further information

(1) The Part 4-1 issuing authority may require:

  (a) in any case—the chief officer of the agency; or

  (b) if the application is made, on the agency's behalf, by a person other than the chief officer—that other person;

to give to the Part 4-1 issuing authority, within the period and in the form specified in the requirement, further information in connection with the application.

(2) If the chief officer or other person breaches the requirement, the Part 4-1 issuing authority may:

  (a) refuse to consider the application; or

  (b) refuse to take any action, or any further action, in relation to the application.

180S Oaths and affirmations

(1) Information given to the Part 4-1 issuing authority in connection with the application must be verified on oath or affirmation.

(2) For the purposes of this section, the Part 4-1 issuing authority may:

  (a) administer an oath or affirmation; or

  (b) authorise another person to administer an oath or affirmation.

The oath or affirmation may be administered in person, or by telephone, video call, video link or audio link.

180T Issuing a protected class warrant

(1) After considering an application under section 180Q, the Part 4-1 issuing authority must:

  (a) issue a protected class warrant that authorises the making of authorisations under one or more of sections 178, 178A and 180 in relation to the particular person to which the application relates; or

  (b) refuse to issue a protected class warrant.

(2) The Part 4-1 issuing authority must not issue a protected class warrant unless the Part 4-1 issuing authority is satisfied that:

  (a) the warrant is reasonably necessary for whichever of the following purposes are applicable:

     (i) if the warrant would authorise the making of authorisations under section 178—for the enforcement of a serious contravention;

     (ii) if the warrant would authorise the making of authorisations under section 178A—finding a person who the Australian Federal Police, or a Police Force of a State, has been notified is missing;

     (iii) if the warrant would authorise the making of authorisations under section 180—the investigation of an offence of a kind referred to in subsection 180(4); and

(b) the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality that relates to the protected class of which the person is a member, having regard to:

     (i) the extent to which the privacy of any person or persons, or any duties of confidentiality, would be likely to be interfered with by the disclosure of information or documents under authorisations that are likely to be made under the authority of the warrant; and

     (ii) the gravity of the matter in relation to which the warrant is sought; and

     (iii) the extent to which that information or those documents would be likely to assist in relation to that matter; and

     (iv) whether reasonable attempts have been made to obtain the information or documents by other means; and

     (v) any submissions made by a Public Interest Advocate under section 180X; and

     (vi) any other matters the Part 4-1 issuing authority considers relevant.

180U Form and content of a protected class warrant

(1) A protected class warrant issued under this Subdivision must be in accordance with the prescribed form and must be signed by the Part 4-1 issuing authority who issues it.

(2) A protected class warrant issued under this Subdivision may specify conditions or restrictions relating to making authorisations under the authority of the warrant.

(3) A protected class warrant issued under this Subdivision must specify, as the period for which it is to be in force, a period of up to 90 days.

(4) A Part 4-1 issuing authority must not vary a protected class warrant issued under this Subdivision by extending the period for which it is to be in force.

(5) Neither of subsections (3) and (4) prevents the issue of a further warrant under this Act in relation to a person, in relation to which a warrant under this Act has, or warrants under this Act have, previously been issued.

180V Entry into force of a protected class warrant

  A protected class warrant issued under this Subdivision comes into force when it is issued.

180W Revocation of a protected class warrant by chief officer

(1) The chief officer of an enforcement agency:

  (a) may, at any time, by signed writing, revoke a protected class warrant issued under this Subdivision to the agency; and

  (b) must do so, if he or she is satisfied that the grounds on which the warrant was issued to the agency have ceased to exist.

(2) The chief officer of an enforcement agency may delegate his or her power under paragraph (1)(a) to a certifying officer of the agency.

Subdivision D—Miscellaneous

180X Public Interest Advocates

(1) The Prime Minister shall declare, in writing, one or more persons to be Public Interest Advocates.

(2) A Public Interest Advocate may make submissions:

  (a) to the Minister about matters relevant to:

     (i) a decision to issue, or refuse to issue, a protected class warrant under section 180L; or

     (ii) a decision about the conditions or restrictions (if any) that are to be specified in such a warrant; or

  (b) to a Part 4-1 issuing authority about matters relevant to:

     (i) a decision to issue, or refuse to issue, the warrant under section 180T; or

     (ii) a decision about the conditions or restrictions (if any) that are to be specified in such a warrant; or

(3) The regulations may prescribe matters relating to the performance of the role of a Public Interest Advocate.

(4) A declaration under subsection (1) is not a legislative instrument.

(23) Schedule 1, item 6V, page 46 (line 11) to page 47 (line 29), omit the item, substitute:

6V At the end of Division 6 of Part 4 -1

  Add:

182A Disclosure/use offences: protected class warrants

(1) A person commits an offence if:

  (a) the person discloses or uses information; and

  (b) the information is about any of the following:

     (i) whether a protected class warrant (other than such a warrant that relates only to section 178A) has been, or is being, requested or applied for;

     (ii) the making of such a warrant;

     (iii) the existence or non-existence of such a warrant;

     (iv) the revocation of such a warrant.

Penalty:   15 penalty units.

(2) A person commits an offence if:

  (a) the person discloses or uses a document; and

  (b) the document consists (wholly or partly) of any of the following:

     (i) a protected class warrant (other than such a warrant that relates only to section 178A);

     (ii) the revocation of such a warrant.

Penalty:   15 penalty units.

182B Permitted disclosure or use: protected class warrants

     Paragraphs 182A(1)(a) and (2)(a) do not apply to a disclosure or use of information or a document if:

  (a) the disclosure or use is for the purposes of the warrant, revocation or notification concerned; or

  (b) the disclosure or use is reasonably necessary:

     (i) to enable the making of submissions under section 180X; or

     (ii) to enable a person to comply with his or her obligations under section 185D or 185E; or

     (iii) to enable the Organisation to perform its functions; or

     (iv) to enforce the criminal law; or

     (v) to enforce a law imposing a pecuniary penalty; or

     (vi) to protect the public revenue; or

  (c) in the case of a disclosure—the disclosure is:

     (i) to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising powers, or performing functions or duties, under the Inspector-General of Intelligence and Security Act 1986; or

     (ii) by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under that Act; or

  (d) in the case of a use—the use is by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under the Inspector-General of Intelligence and Security Act 1986; or

  (e) the disclosure or use is with the consent of the person to whom the warrant relates; or

  (f) the disclosure or use is in the public interest.

Note: A defendant bears an evidential burden in relation to the matter in this section (see subsection 13.3(3) of the Criminal Code).

(24) Schedule 1, item 6X, page 48 (line 1) to page 49 (line 36), omit section 185D, substitute:

185D Notification etc. of authorisations

The Organisation

(1) If a protected class warrant is issued under Subdivision B of Division 4C of Part 4-1:

  (a) the Director-General of Security must, as soon as practicable, give a copy of the warrant to the Inspector-General of Intelligence and Security; and

  (b) the Minister must, as soon as practicable, cause the Parliamentary Joint Committee on Intelligence and Security to be notified of the issuing of the warrant.

(2) If an authorisation under Division 3 of Part 4-1 is made under the authority of the warrant, the Director-General of Security must, as soon as practicable after the expiry of the warrant, give a copy of the authorisation to the Inspector-General of Intelligence and Security.

(3) If:

  (a) the Inspector-General gives to the Minister a report under section 22 or 25A of the Inspector-General of Intelligence and Security Act 1986; and

  (b) the report relates (wholly or partly) to one or both of the following:

     (i) a protected class warrant issued to the Organisation;

     (ii) one or more authorisations referred to in subsection (2) of this section;

the Minister must, as soon as practicable, cause a copy of the report to be given to the Parliamentary Joint Committee on Intelligence and Security.

(4) The Parliamentary Joint Committee on Intelligence and Security may request a briefing from the Inspector-General on:

  (a) a protected class warrant; or

  (b) an authorisation or authorisations;

to which a report referred to in paragraph (3)(b) of this section relates.

Enforcement agencies

(5) If a protected class warrant is issued to an enforcement agency:

  (a) if the agency was the Australian Federal Police:

     (i) the Commissioner of Police must, as soon as practicable, give copies of the warrant to the Minister and the Ombudsman; and

     (ii) the Minister must, as soon as practicable after receiving a copy, cause the Parliamentary Joint Committee on Intelligence and Security to be notified of the issuing of the warrant; and

  (b) otherwise—the chief officer of the agency must, as soon as practicable, give a copy of the warrant to the Ombudsman.

(6) If an authorisation under Division 4 of Part 4-1 is made under the authority of the warrant, the chief officer of the agency must, as soon as practicable after the expiry of the warrant, give a copy of the authorisation to the Ombudsman.

(7) If:

  (a) the Ombudsman gives to the Minister a report under section 186J of this Act; and

  (b) the report relates (wholly or partly) to one or both of the following:

     (i) a protected class warrant issued to the Australian Federal Police;

     (ii) one or more authorisations, referred to in subsection (6) of this section, that were made by one or more authorised officers of the Australian Federal Police;

the Minister must, as soon as practicable, cause a copy of the report to be given to the Parliamentary Joint Committee on Intelligence and Security.

(8) The Parliamentary Joint Committee on Intelligence and Security may request a briefing from the Ombudsman on:

  (a) a protected class warrant; or

  (b) an authorisation or authorisations;

to which a report referred to in paragraph (7)(b) of this section relates.

(25) Schedule 1, item 6Y, page 51 (lines 16 to 21), omit paragraphs 186(1)(i) and (j), substitute:

  (i) the number of authorisations, referred to in paragraph (e) of this subsection, that were made under protected class warrants issued to the agency under Subdivision C of Division 4C of Part 4-1; and

  (j) the number of protected class warrants issued to the agency under that Subdivision during the period; and

This is a group of amendments which has the rationale of establishing a warrants regime which not only protects journalists and their sources but is also to protect other persons who normally handle confidential information and whose communications, therefore, attract privilege under the ordinary laws of evidence. That is why I have called them in these amendments 'protected class warrants', as in protected under the ordinary laws of evidence. To that end, I have imported the definition of 'journalist' used in the Evidence Act 1995 and which is used in other legislation in shield laws.

The Evidence Act's definition of 'journalist' ensures that freelancers are covered. The definition in the bill is so narrow that a journalist who hops between blogging and writing articles for, say, The Drum and The Australian does not enjoy warrant protection. I am aware that the Australian Media, Entertainment and Arts Alliance is unhappy with the complete exclusion of bloggers. Even my warrants regime would not address all that organisations concerns; however, as I have said repeatedly, even if all my amendments were passed this would still be bad law. I have done my best within the constraints of the bill before us today.

Of greater import, the warrants regime I have developed defends the important principle of legal professional privilege. Law societies throughout the country have pointed out that retained metadata could allow inferences that undermine legal professional privilege to be drawn—when a given lawyer has been contacted, the identity and location of clients and witnesses, the number and type of communications and so on. The scenario repeatedly presented—and highly likely, in my view—is that, when a whistleblower seeks legal advice before contacting a journalist, as the bill currently stands the journalist's communication may be confidential but the lawyer is exposed. The information obtained, of course, could be used in the interviewing of a suspect as evidence tending to indicate guilt.

All my protected class definitions are taken from the Commonwealth Evidence Act 1995. Although they have not represented themselves to me as strongly as lawyers and journalists, I have also included health practitioners as defined in Commonwealth law. Doctors know the most intimate details of their patients' personal lives, so it seems bizarre that they not be protected by a warrants regime as well. I should note in particular that amendment (17) allows the class of protected persons to be added to. This bill is extremely intrusive and I could well imagine an addition to the class becoming necessary at some point in the future.

I will just explain some of the details of the amendments. Amendment (10) is a name change. Amendment (11) is a name change. Amendment (13), which we will be dealing with subsequently, inserts the definition of 'journalist' from the Evidence Act 1995. Amendment (14) is a name change. Amendment (15) inserts the definition of 'protected class' from the Evidence Act. Amendment (16) inserts a definition of 'source' from existing shield laws. Amendment (17) allows the class of protected persons to be added to. Amendments (18), (19), (20) and (21) are name changes.

This running sheet also includes (17) to (25). Amendment (22) marks the commencement of a detailed instruction of my proposed protected class warrants regime. The steps to be undertaken are clearly set out in the document circulated in my name. However, I will provide some background to what I am proposing. I do add the caveat that the system I propose is far from ideal—the government gets to choose the public interest advocates, for example—but it does represent a genuine improvement.

I wrestled for some time with how best to treat ASIO legislation like this. I recognise that an intelligence agency has a different, albeit sometimes overlapping, role from the police and other law enforcement agencies. To that end, proposed sections 180G, 180K and 180L adapt the system of ministerial authorisations already in the bill but introduce further safeguards, including an enhanced role for the public interest advocates and a stronger public interest test. I have also been particularly concerned to ensure that the buck always stops with an elected person—in this case, the relevant minister. It is quite improper for an unelected civil servant to be making decisions of this nature. Proposed sections 180H, 180Q and 180R, by contrast, apply to enforcement bodies other than ASIO and take a more familiar form. Once again I have introduced more safeguards and oversight, enhanced the role of the public interest advocates and developed a strong public interest test.

Amendment (23): one of the most draconian provisions in the bill is the offence attaching to unauthorised disclosure of the issuance of a journalist information warrant. As it stands, the penalty is two years and there is no public interest defence. This is clearly meant to prevent journalists from talking to each other and, in certain respects, to participate in their own surveillance. However, I recognise that the offence protects those whose information is being accessed from having that fact disclosed to the world, the disclosure which, in itself, could be prejudicial to the person concerned. Once the warrants scheme is expanded, as I propose, then there are legitimate reasons why the existence of a warrant should not be disclosed—that is, prejudicing the investigation or reputational damage to the targeted person. In order to balance these legitimate public interests against public debate about the operation of the data retention scheme, I have also amended 182B to include a further exception, namely, an exception where the disclosure i

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The government opposes these amendments. At an earlier stage in the committee debate, all of the issues raised by these amendments were addressed, and I do not want to detain the Senate by rehearsing at length arguments that we canvassed for more than an hour last night. But let me briefly summarise why the government does not support these amendments.

The bill in the form in which it ultimately came to the Senate contained in division 4C a very thorough system of protections for journalists and their sources. Senator Leyonhjelm's amendments would go further, but it is the view of the government that the legislation in its current form fully protects those interests. It does so in several ways. Firstly, unlike access to the metadata of any other citizen, access to the metadata of a journalist has to be by warrant. Secondly, there is a special procedure specified or mandated for accessing the metadata of a journalist that does not apply to any other citizen. First of all, authorisation to seek a warrant to access the metadata has to be made by the minister. That does not apply to any other citizen. Then an application has to be made to a court.

When a decision is made by ministerial authorisation for the issuance of a warrant for access to a journalist's metadata, a long series of tests that apply to no other citizen apply in the case of a journalist. The test, for example, which the minister must have regard to before authorising an application for a warrant against a journalist, which is set out in proposed section 180L(2), deals extensively with the public interest. So you say you are proposing a public interest test, Senator Leyonhjelm, but a public interest test—a very thorough public interest test—is already in the legislation. Lastly, by proposed section 180X, there is uniquely created the role of a public interest advocate.

In no other area of the law, where information is accessible upon the issuance of a warrant, is there provision for a public interest advocate to enter the argument and maintain why a warrant ought to be issued. This is unique; it is unique to this legislation and it is unique to journalists. Those four respects—the requirement for a warrant in the first place, the requirement of a double application to the minister and the courts, the public interest test and the unique office of public interest advocate—are protections that exist nowhere else in the laws governing access to metadata that apply to journalists, which the government has introduced.

Senator Leyonhjelm, you ask rhetorically whether the public interest advocate is going to be appointed by the government, as if that is a shocking thing. Who else is it going to be appointed by? The executive government appoints statutory officers. For those reasons, we do not agree with the additional provisions that you would have us adopt in relation to journalists. The thing that your amendment does, and it lacks any rational basis, is the introduction of the so-called protected class warrant to extend beyond journalists to lawyers and doctors and their respective clients and patients. I explained this last night, Senator Leyonhjelm; let me have another go. Although the government did not initially think it was necessary to have these provisions about journalists, I understand the point that access to metadata could reveal a journalist's source. It could, because metadata includes, for example, telephone numbers so that if a particular journalist telephoned a particular source—although the content of that conversation could not be accessed because of the prohibition against accessing conduct in section 187A—nevertheless it would be enough to reveal or expose the journalist's source, if the fact of the communication between the journalist and the source were able to be established.

In relation to the lawyer-client privilege, the thing that is protected is what passes between the lawyer and client. What information the client gives lawyer for the purposes of seeking advice and what advice the lawyer gives the client are not secrets. Which lawyer acts for which client is not governed by legal professional privilege. That is usually a matter of public record; certainly in a court case it is. The interest that is protected by the lawyer-client privilege is content, not identity; and, as I have explained to you ad nauseam, Senator Leyonhjelm, this bill contains an explicit prohibition on access to content, so there is absolutely no prejudice to the principles of lawyer-client privilege or legal professional privilege, as it used to be known, by this legislation because that which those principles seek to protect are already protected by the prohibition on access to content. By the way, lawyer-client privilege operates primarily as an exclusionary rule of the law of evidence. So, even if in some manner that I cannot conceive of, this were able to be obtained, it could never be admitted into evidence in proceedings because it is an exclusionary rule.

The third category of information you seek to include is doctors and their patients. That has never been regarded by the law as being on the same footing with the relationship between lawyers and their clients as a class of information which the law will protect. It is revealing that you are not able to refer to any statute which enshrines that principle in your draft amendment. I thought perhaps there may be such statutory provision in some Australian state or Territory—I am not aware of any, but it is certainly not the general law. Senator Leyonhjelm, the reasons we would protect journalists' sources—that is, to conceal their identity—are already served by the government's amendments in part 4C. The reason we do not support extending the amendment to the relationship between lawyers and clients is because the interest that protects, content, is already categorically prohibited from being accessed under the bill.

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

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Ludlam, your reference to an article by a Mr Duncan I assume is an intended reference to an article by a Mr Duncan McConnel, the president of the Law Council of Australia, whom I know. The article appeared in The Australian newspaper last week.

If you read Mr McConnel's article with care you will see that Mr McConnel does not purport to state the law of legal professional privilege. Nor does he purport to say that the provisions of this bill are at variance with the principles of legal professional privilege. What he basically says—as does the president of the Law Institute of Victoria, whom you have quoted—is what lawyers would like.

Being a lawyer of some 30 years standing, I want to share with Senator Ludlam what might be a penetrating glimpse of the obvious. Every now and again, lawyers make claims in their own interests. Because we are but human, every now and again lawyers say self-serving things. I know this might come as a shock to you, Senator Ludlam, but it is true! I am sorry, Mr Chairman, it is true. I have known lawyers to say self-serving things—I have! I do not want to attack your innocence, Mr Chairman, at your great age and at this hour of the night, but it is true: I have known lawyers to say self-serving things!

The reason Mr McConnel cannot be taken to be stating the application of the laws and rules governing legal professional privilege or lawyer-client privilege is that if he were doing so he would have referred to the Full Federal Court's decision in Carmody v McKellar. Carmody v McKellar dealt with the issue of whether interception under section 45 of the T(IA) Act violated the principles of legal professional privilege. The court held that those principles could not be construed so that merely the authorisation of an interception was a violation of the principle of legal professional privilege. So, a fortiori, Senator Ludlam, if an interception under the T(IA) Act has been held by the court not to violate the principles of legal professional privilege, then how can access to metadata—merely details of the communication, which specifically prohibits access to the content—be regarded as doing so?

As I pointed out to Senator Leyonhjelm, those principles protect that which passes between the lawyer and the client. That is what they do. And, as I also pointed out to Senator Leyonhjelm, these are exclusionary rules. So even if, in the inconceivable circumstance that access to metadata somehow, by inference, disclosed content, that could not be admissible against the interests of a party seeking to exclude it from evidence, in any event. It could not happen.

So, Senator Ludlam, I could direct you to the relevant chapter of Cross on Evidence, which sets these principles out very clearly. Perhaps you could take a couple of hours to read it for yourself. However, rest assured that the amendment that Senator Leyonhjelm propounds and that you contend for, is entirely unnecessary, because there is no set of circumstances in which the content of a communication between a lawyer and their client could be accessed under this regime.

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

I can tell the Attorney-General that my copy of Cross on Evidence is 36 years old, so I presume there have been other editions since that time. I think I did evidence in 1980 at the Adelaide Law School. I would like to make an observation—and it is by no means a criticism of Senator Leyonhjelm, because he has done some terrific work in relation to this, and I am grateful to him and Senator Ludlam for the work they have done. In the Law Council's submission to this bill, under the heading 'Client legal privilege and confidentiality', there are paragraphs 97 to 106, and it makes two recommendations. The submission talks about the importance of client legal privilege. It says:

Client legal privilege is a right for a client of a lawyer not to have their communications associated with legal advice or impending litigation disclosed without their consent.

That is the axiomatic principle. It notes at paragraph 98:

The Law Council’s Client Legal Privilege Committee has noted that although telecommunications data alone may not reveal the content or substance of lawyer/client communications, it would, at the very least, be able to provide an indication of whether:

• a lawyer has been contacted;

• the identity and location of the lawyer;

• the identity and location of 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 of Australia also makes the point—this is important, so that Senator Leyonhjelm's amendment is not in anyway misrepresented—at paragraph 99 of its submission:

… client legal privilege does not attach to legal advice which furthers the commission of a crime.

I do not want there to be any suggestion out there, or people thinking, that this is, in some way, encouraging nefarious activity.

I am not sure whether I am still a member of the Law Council of Australia but I am sure they will contact me if I have misunderstood their submission. It does not seem that what they are saying is suggesting that metadata retention would facilitate a breach of legal professional privilege. They are indicating some 'nervousness'—for want of a better word—about whether it is appropriate to have that information about whether a lawyer has been contacted, the identity and location of a lawyer, or the identity and location of witnesses. It is not actually about the content of the communication, which cannot be disclosed; it is about related matters. I assume that that is what Senator Leyonhjelm's concerns are about. It is not about the content of the communications. I just want to put that in context, because it seems that the Law Council is not saying that this will breach legal professional privilege, but it is saying that it will lead to the identification of whether legal advice has been sought and the identity of witnesses. I am expressing my nuanced concerns on this. What protection will there be of the identification and location of witnesses and the lawyer, and the number of communications between the lawyer and the client or witnesses and the duration of these communications—in what circumstances would that be used in the context of this data retention bill?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I think what you meant to say, Senator Xenophon, is: in what circumstances could it be used? Let me just make the fundamental point that that is what this bill is about. This bill is about criminal investigation of serious crime: terrorism, paedophilia, transnational and organised crime. That is what the bill is about. As I said in a radio interview last week, I do not know any journalists who are terrorists or paedophiles or transnational organised criminals, and I am pleased to say I do not know any lawyers who are either. As you rightly say, there is a crime-fraud exception to the rules of legal professional privilege and, as you rightly say, the Law Council does not appear to be saying that the bill violates those criminals. Because of the reasons I have explained, you have understood this, Senator Xenophon. They do not.

In the event that in the course of a criminal investigation there were access to metadata—let us say, of a lawyer—the fact that the lawyer had been in communication with a client could conceivably be disclosed, because the fact of a communication as opposed to the content of a communication may be revealed by the metadata which is the subject of the retention obligation. The duration of that communication could also be disclosed, but those things are not—for all the reasons I have explained more than once now—within the ambit of the protected confidential relationship between the lawyer and the client.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

When I was explaining my concerns in this respect, explaining why I think the protected class warrants are justified, I did not say that legal professional privilege would be invaded. I recognise that content comprises that element of legal professional privilege and it would not be retained. What I said was: law societies have pointed out that retained metadata could allow inferences that undermine legal professional privilege to be drawn, arising from whether a given lawyer has been contacted, the identity and location of clients and witnesses, the number and types of communications and so on.

As you quite rightly say—and I understand you have said it twice; I do not think that justifies ad nauseam—I understand what you are saying. The point about it is that it is not only journalists' sources that need to be protected. There are undoubtedly instances where clients contacting lawyers without the content of that communication being revealed could undermine legal professional privilege.

Just while I am on my feet, as we are nearly out of time, I would point out that you were somewhat scathing of my suggestion of the public interest advocate not being appointed by the government, and who else could it be appointed by—parliament is the alternative.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Statutory officers are not appointed by parliament. Tell me one statutory officer who was appointed by parliament? That is elemental to the separation of the functions of the three branches of government that these are appointees of the executive government. To cut to the chase, those who represent the interests of the legal profession—and I am a member of the Law Council of Australia myself—would like there to be a protection which is broader in scope than the current principles of legal professional privilege provide for.

I can understand why lawyers might like that but you are, in fact, embracing a view that the scope of legal professional privilege is, as it has been understood and explained by the courts for years—indeed, literally centuries—should, by this bill, be significantly extended. I do not accept that.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

I might use the remaining time to indicate that Labor believes the current warrants regime protecting journalists is sufficient. I would like to note at this stage in the discussion that the journalist-source relationship is distinct from other professional relationships protected at law in that the very fact of contact between a source and a journalist is at the core of the protected confidence.

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

This is further to the Attorney's contribution a couple of moments ago on the issue of the circumstances in which the communications, the metadata, of a lawyer and a lawyer's client or witnesses could be used. Can the Attorney assure us that the inferences the Law Institute of Victoria is concerned about would lead to an erosion of the general principle of legal professional privilege?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The disclosure of content, which is what legal professional privilege protects, would be a violation of the principle. That is why what this bill categorically does is prohibit the collection of content. I have not read actually the submission by the Law Institute of Victoria, so I find it hard to comment on it specifically. I did read the Mr Duncan McConnell's op ed. But it is enough, I think, to bear in mind that if content were captured then that could be a violation.

Progress reported.