Data Retention Bill speech 18 March 2015 - Terri Butler MP, Labor for Griffith

Data Retention Bill speech 18 March 2015

Useful links

Terri's submission to the data retention bill enquiry:

The parliamentary advisory report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014:

Terri's speech to Parliament on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014.

You can watch this speech on Youtube:

Ms BUTLER (Griffith) (13:09): The Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 demonstrates, to my mind, just how disorganised and hopeless this government has been, in its first year particularly, as the government. The Attorney-General was a member of the Parliamentary Joint Committee on Intelligence and Security in June 2013 when it published its report into national security, which considered in some detail whether there should be a mandatory data retention regime. What we have had in this country for a very long time is a situation where telecommunications companies store telecommunications data, like the phone numbers you call, the location you were in when you made the call, the location that the recipient was in when you made the call and how long you spoke for.

In 2012-13, there was 330,000 warrantless accesses of that data. In 2013-14, that had grown to 500,000 warrantless accesses of that data. Yet, did the Attorney-General see fit to act on the idea of looking at better regulation for data retention when he was elected? He spent more than a year before even getting a bill into a position where it could be brought into the House. What was he doing in that year? Was there some other issue that was so important that we could not possibly be talking about data retention? I know what he did in his first year as the Attorney-General. He decided to tinker with hate speech laws. He decided to try to take away protections for people from hate speech. For some reason, the Attorney-General thought that that was more important than working on the regulation of data retention in a situation where we have had massive amounts on warrantless accesses to people's telecommunications data with very limited regulation. The state that this bill was in when it was first introduced suggests to me that he spent no time at all in that first year worrying about data retention, because the bill itself, when he finally got around to thinking, 'We should do something about data retention,' and rushed it into the House, was in a completely ridiculous state that could not have been supported.

It took the Labor Party to insist on a time frame for appropriate consideration, for appropriate review and for appropriate consultation. It was our insistence that got that time, that allowed for the many organisations to have the proper opportunity to make submissions, to review the legislation and to lobby their members of parliament. What level of revision was needed? To the extent that we have pages of amendments, we have further amendments to come and we had 38 recommendations from the Parliamentary Joint Committee on Intelligence and Security required just to get this bill into a state where it could be supported, I have to say that when I first read the bill I had a number of concerns, and why not? This is a very complicated issue.

There are so many competing considerations for us to take into account, considerations like the importance of law enforcement in this country and the availability of a tool for law enforcement to crack crimes such as murders, kidnappings—those serious offences—and the availability of telecommunications data to assist in those investigations. On the other hand, there is also an importance in people being able to use this data themselves to help them with their own legal rights. For example, if you need to prove that you were in a particular place, then this might be very helpful in legal proceedings. So people need to have access to that if it is available as well. On the other hand, again, there are cost considerations. This government has been finally dragged kicking and screaming into telling Australians what the costs of this legislation will be, but it took Labor to force them to do that. It took Labor to force them to even undertake the costings in the first place, which had not even been done when this bill was tabled. It was in the months since the bill was tabled that there was some costing work done. The human rights aspects of this bill and of the existing data retention scheme are vastly important. The existing data retention scheme has been around for many years and under it there are many warrantless accesses —in fact, there are hundreds of thousands—every year. Those human rights issues, like privacy, are of fundamental importance to this nation and to any nation that claims to be a modern, democratic nation where people have appropriate respect for human rights.

There are a range of other competing considerations. There is the consideration of the effect on competition when smaller ISPs have to scale up their operations in order to meet the proposed data set. In fact, the data set itself was not even settled when this bill was introduced. It was not even in the bill. There was an idea that it would just be done by regulation. The ridiculousness of that speaks for itself. To say 'we're going to have a mandatory regime where everyone has to do retain the same data but we can't tell you what data that is going to be' suggests to me that this government is yet again being shambolic, disorganised, chaotic. And what have we seen this year? They are too busy fighting amongst themselves, too busy fighting over the leadership. Luckily for this government—and, more to the point, luckily for the people of this nation—the Australian Labor Party has reviewed this bill and has forced this government to take appropriate steps to make improvements to this bill, which I will touch on.

Before I do that, I want to join with others in this place and express my thanks to the Parliamentary Joint Committee on Intelligence and Security. I acknowledge the chair of the committee, who has spoken in this debate previously, and also the four Labor members of the committee—members Byrne, Dreyfus and Clare, and Senator Conroy. Each of those four has made a phenomenal contribution to moving this bill from being shambolic and unpassable to being a bill that will now seek to improve the regulation of the existing data retention scheme in the interests of Australians.

Those of us on this side, who are being thoughtful and considered about this bill, have raised issues about cost and privacy and the appropriateness of use for law enforcement purposes and about oversight and about data security. It is our advocacy that has forced the improvements in this bill. Despite the impression that some people have been trying to give, the parliament is not considering a choice between introducing or not introducing data retention. Data retention has been happening for many, many years. The choice is not whether we should have data retention, but whether we should better regulate data retention in the interests of human rights and other issues I have already mentioned. In addition to recording my thanks to the committee, I want to record my thanks to Bill Shorten, the Leader of the Opposition. It is his advocacy, his interventions, that has forced the Prime Minister and the government to give further time for consideration and to agree to further improvements. Most recently it was the Leader of the Opposition who procured from a very reluctant and begrudging Prime Minister a commitment to introduce protections for journalists. We think it is very important that the Prime Minister and the government provide their amendments so that, once they are considered in the Senate, we can properly scrutinise whether that commitment is being met in a way that appropriately meets the needs of journalist.

The Leader of the Opposition has strongly recommended to the government that they consult with media organisations about those amendments and about the content of those amendments. I know that is a new idea for this government—to actually consult with stakeholders—but we would like to see appropriate consultation with media organisations when it comes to how best to protect journalists and ensure that we do not see the chilling effects that journalists and the Media, Entertainment and Arts Alliance have raised in respect of their concerns about this bill. We also have other concerns that we continue to raise. One is a concern that Labor shares with the former head of ASIO, David Irvine. David Irvine was recently in the media talking about where the data is to be physically stored. This is something that we continue to raise and advocate for. Like Mr Irvine, we are 'cyber-nationalists' in that we believe Australian's metadata ought to be stored on Australian soil—and we will continue to advocate for that.

A very significant matter on which we continue to advocate is the Faulkner reforms, which are named after Senator John Faulkner. As the shadow Attorney-General said in his contribution in this debate, it was Senator Faulkner's view that the parliament is the body to which security agencies are accountable and, therefore, the parliament should have a formal oversight role in respect of those agencies. If you read the amendments to this bill, you will see that one of the changes we have procured is to increase parliamentary oversight of national security agencies and the use of telecommunications data. If you look at the reports that are made under the TIA Act every year in respect of the interception powers that currently exist and the data storage powers which relate to the storage of data, including content, and the telecommunications data retention powers, you will see that, while there is a significant level of detail for interception and storage use, there is much less detail in respect of the way telecommunications data accessed without a warrant is used.

When you have got agencies from the RSPCA, to local councils and all the way up to ASIO accessing that data without much scrutiny, you know that something needs to change. That is what Labor believes and that is why we support greater regulation. For example, one of the great improvements we have procured in this bill is to ensure that only a very limited range of agencies can access data without a warrant. The original draft left out a couple of very important white-collar crime agencies—ASIC and the ACCC—which we have required to be re-included in the bill. The existing law allows any agency with responsibility for investigating serious offences or protecting the revenue or enforcing civil pecuniary penalty provisions to access metadata. That is why we have the RSPCA and local councils being able to access metadata. Having such a broad definition of the agencies that can authorise themselves to access your metadata, my metadata, the member for Aston's metadata and the member for Canberra's metadata is a problem with the existing law. This bill will deal with that problem by articulating the agencies that can access metadata without a warrant. Should the need arise, it will also allow for further agencies to be added in a way that can be disallowed by the parliament and can only be done temporarily unless legislation is moved to amend it for a more permanent reason.

That in and of itself is an important reform in the legislation that we are now considering, but I want to mention a few others. One of the very important reforms in this legislation is to apply the Privacy Act to telecommunications data. At the moment, there is no express provision applying the Privacy Act to telecommunications data, and there is a difference of views and opinions about whether telecommunications data is always covered by the Privacy Act. Importantly—and those who are opposing this bill might want to think about this—you are opposing a bill that will apply the Privacy Act to the telecommunications data of every person. I think that is an extremely important provision of this bill, because the Privacy Act, as members here would know, has in it the Australian Privacy Principles, one of which requires destruction of personal data. It is quite useful to think that we are going to have for the first time an express provision applying that Privacy Act, including those principles, to the telecommunications data that is already being kept by telecommunications companies.

Those who are opposing this bill ought to think about this: this bill, as amended by Labor's hard work, will include a provision to actually require encryption and secure storage of the telecommunications data. Why would you oppose a provision to require encryption and secure storage? It is irresponsible to allow the status quo to continue. It is irresponsible to allow the current, very limited regulation to continue when it comes to the amount of metadata that is being kept and the way in which it is presently being accessed.

I would also say that the bill would require more detailed reporting, there are more opportunities for the parliamentary joint committee to have oversight and, importantly, there is much more oversight because the Ombudsman will have oversight of the telecommunications data regime for the first time. As the previous speaker said, we have also procured from this government an obligation, a commitment, to provide further funding to the Ombudsman to allow the Ombudsman to discharge that obligation to have that oversight.

It has also been noted by a number of speakers that at the moment the agency authorises itself to get metadata without a warrant. The threshold for that authorisation is being lifted so, by supporting this bill, we are introducing into the telecommunications data regime a threshold of proportionality and justifiability, and that there has to be reasonable grounds. That increase in the threshold and the introduction of proportionality, in and of itself, is a vast improvement to the existing regime that has too much access without warrants with too little regulation by too many agencies. We want to see a much more appropriate and detailed regulation of those opportunities for access.

The point has been made that this bill would also put limits on the use of telecommunications data in civil proceedings, including, importantly, for a number of people, the enforcement of copyright rights. I commend the bill to the House.

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