Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014

Mr HAWKE (Mitchell) (17:45): I rise to speak on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, which is before the House. In doing so I want to commend the work of the Parliamentary Joint Committee on Intelligence and Security for preparing what is a set of necessary and excellent recommendations that I am pleased to say the government will be adopting in full. Indeed, all 39 of the recommendations have been accepted by the government. I think that is an important point to start my contribution with. There is a bipartisan spirit in relation to this bill, and that is more than welcome because of the significance of the matters we are considering.

As I listen very carefully to the debate by members on all sides about the merits of each of the provisions of this bill, I note there is concern amongst members opposite about various elements that the government put forward in its original legislation, including, of course, from the members for Gellibrand, Scullin, Griffith, Chifley and Charlton, who have some valid bases for concern and objection, as do many people in my own electorate and from around the country who have contacted me in relation to this.

Members here will remember that the previous government had a very authoritarian approach towards the internet. The communications minister who predominated in last Labor government was Senator Stephen Conroy, and he of course famously proposed to filter the internet. One internet service provider believed this would go so far as recording each URL a customer visited and all emails, and that the regime could see the Australian government retain data for much longer than has been proposed in the mandatory data retention bill. I was pleased the coalition opposed the mandatory internet filter. I was certainly an advocate against that. Subsequently, I have made contact with a lot of younger people, particularly people who have now had access to the internet for most of their lives, who have an enhanced concern about the retention of data and the use of data by government, and the legislation that governs that data. I think that is a worthwhile thing for people to do.

It is important that we hold governments to account and that legislation be refined and put forward in the best way possible. This process that some Labor members have been critical of is actually a worthwhile process in this parliament. We have actually had a bipartisan committee go through this legislation severely to improve the quality of it to the point where most of us in this place, even those with reservations about some elements and components of the legislation, can now support the bill in its form, enabling the security services to do their job and get on with the work they need to do in fighting crime and targeting extremism and terrorism. That is not anything that anyone in this place would have an objection to. We do want to see our security agencies have access to the data they need to clear crime and to defeat crime and extremism.

We know from some of the mandatory data regimes that the evidence is still unclear about them. In Germany crime clearance rates have increased by a miniscule 0.00016 as a result of mandatory data retention. Is it not yet the case that we can say with any justifiable evidence that mandatory data retention will lead to more crime clearance, although it will certainly help the security services and the police to do their jobs and to continue to clear crime at the rates that they are. Of itself, that is very important. It is why the joint parliamentary committee also reported that this particular piece of legislation, of itself, may not help to prevent a Man Monis situation, which we saw in Sydney recently. Although it is important to note that all of the security agencies are seeking this access and the retention of this data so that it is there and there is no degradation in the investigative capabilities of national security agencies, or an acceleration of the degradation of data.

I think we in this place need to recognise the fact that as we move forward as a society and technology moves forward we need to be flexible with our laws and our regulatory frameworks. This bill no doubt will require amendments in the future. It will require amendments to keep pace with technological change, and it will require amendments to keep pace with the demands of society—that is, the right to privacy, which I think is becoming an increasing concern for generations of people in the Western World in particular, especially with those having internet access almost from the age of birth until the day they die. Issues like the right to delete data are now in the frame of the concerns of emerging generations, as are digital liberty, the right to access your own content and your own internet and browsing histories—all of your metadata content. I think these issues are going to become more vital as we move forward in Australia.

I am one of the people who will acknowledge the member for Chifley for his valid concerns. Even figures like Senator Scott Ludlam, who I do not normally have a kind word for in relation to his politics or his policies, I think approaches this from a position of principle. Some unkind things have been said about him here in this debate, but I would stand up for him on this particular issue, saying that he is approaching it from the right angle and concern, but perhaps not reaching the right conclusion—that there is a form of law that needs to be passed by this parliament and by the Senate in the immediate future. I think he would do well to consider that and to help be more constructive in promoting the principles and the points that he is.

I also welcome the group, the members for Gellibrand, Scullin, Griffith, Chifley and Charlton—I do not know if they call themselves the 'ginger group' or if they describe themselves as 'factions without borders' or something like that—as their concerns are, I think, coming from a good place. I welcome that from all members on all sides here today.

I want to specifically speak about the recommendations of the joint committee because in them we find the reasons why the House should accept this legislation at this time. The recommendations have given us all a level of comfort as members of parliament that we now have a framework within the bill and the legislation that will ensure the right level of oversight, the right level monitoring, and the right ability of the parliament to continue to have oversight over each of the provisions.

I want to speak briefly about some of these recommendations and how they will affect the different elements of the bill. In particular, let's start with recommendation 6 and the authority to access stored communications and telecommunications data. This is particularly important because the Attorney-General will now be able to declare an authority or body as a criminal law enforcement agency subject to conditions. Those conditions include: the declaration ceasing to have effect after 40 sitting days of either house; amendments to specify authorities or bodies as criminal law enforcement agencies in legislation will be brought before the parliament before that expiry period of 40 sitting days; and the amendments will be referred to the Parliamentary Joint Committee on Intelligence and Security within a minimum of 15 sitting days for review and report.

I think it is important to go through those qualifications because these are the kinds of mechanisms that are now in place that will ensure the public can have confidence that there are strong protections and safeguards within this bill before us on their privacy and on the nature of the data. Parliament will have that strong level of oversight—either by the amendment expiring if the parliament does not consider it or the parliament will have to consider it through the Joint Committee on Intelligence and Security.

This is typical of the recommendations in full, although I do not have the time to go through the recommendations in full. This has been well thought out, in my opinion. There will be stronger safeguards and oversight. While some members of the opposition have waxed lyrical about how it was all Labor's idea and Labor have done it, they have short memories about the previous government. There has been this ongoing discussion between parliamentarians in this country about these issues of privacy in relation to technology legislation and communications legislation. It is an ongoing conversation that we need to continue to have. As I have said, we need to be alive to amendments, flexibility in the law and moving with the times in relation to the expectations of the community and users of the internet and owners of content.

In particular, I also want to speak about some of the other recommendations before we are out of time. Recommendation 33 will require an annual report to be prepared, including: the costs of the scheme; the use of the implementation plans; the categories of purpose for accessing the data, including a breakdown of the types of offences; the age of the data sought; the number of requests for traffic data; and the number of requests for subscriber data. This goes to the issue of transparency. I think Australians rightly have the expectation that this parliament will consider the issue of transparency in relation to legislation of this type. There will be great transparency about access and the access to the mandatory retained data. That is a very good recommendation which is absolutely accepted by the government.

Recommendation 37 will ensure this bill is amended to require service providers to encrypt telecommunications data. I welcome that. I think that is a great development. It is a great positive. I think it is something that is supported on all sides of the House, including the committee developing a data retention implementation working group. It is a sensible mechanism. Australians can have security that both sides of the House will have a working group to implement the entire data retention regime—recognising that this is a difficult area of law; this is a new area of law; it is an emerging area of technology and law; and the intersection of technology and law. We need to get it right, and we need to have flexibility. The data retention working group will enable the parliament to have that flexibility and the ability to move and change as necessary within the confines of the legislation.

A mandatory data breach notification scheme is also a very welcome recommendation, as is some more definition around the civil litigation, civil litigants and how the operation of this bill will intersect with access for civil litigants. The recommendations that the minister and the Attorney-General review this measure, and report to parliament on the findings of that review by the end of the implementation phase of the bill, is a step forward. I look forward to seeing the findings of that review of the implementation phase of the bill myself.

Moving back to the actual content of the bill, I believe that this legislation needs to pass the House. While I have had my own concerns about aspects of this legislation, I certainly share the approach of the member for Chifley, in some regards, that we do need to keep an eye on how we legislate in relation to these areas.

We also need to be very aware of the threat posed to Australia by extremist organisations and those of our citizenry among us who have no respect or regard for the law. We now know they exist within our society. They exist in more numbers than any of us would like to see—that is, people who have absolutely no regard. We live in a world where people do not even acknowledge that the law exists or that they obey it, or that they as a citizen have responsibilities under it. It is very dangerous when we have those people in our midst who have no regard or no respect, or no belief that they have to obey or respect the laws of our land. We also know that those people are so fanaticised and poisoned in their mind that they are willing to destroy their own lives to destroy others. They are willing to take their own lives to hurt others; to do damage to others; to destroy our society. When you have a group like that among us, you have to be willing to concede certain amounts of liberty to ensure that we are protected and safe.

Of course there should be a debate around how much of that is given up, under what circumstances, for how long and under what limits. I think this bill has come to a point where we can support it in this House and in the Senate to ensure that our national security agencies and our police agencies—who are in a very good zone of fighting crime and fighting extremism—can have the powers and the technological capability they need to do their jobs well, and to fight those extremists and target that serious category of crime.

Where we need to be vigilant as a parliament and where we need to be vigilant in the future is in ensuring that there is no breaching of this legislation by individuals, criminal agencies or government agencies. In particular, we need to make sure there are the right limits here. I want to commend the Attorney-General for ensuring himself, before this bill was drafted, that there were restrictions placed on the number of agencies that could access people's data. I think that is a big step forward. We need to see more of those restrictions. We need to see tighter access to data in the future and only on the basis that it is absolutely necessary for national security or policing. We need to make sure that, in the future, we do our job both through the parliament and through the Parliamentary Joint Committee on Intelligence and Security in making sure that the provisions of this bill are adhered to at all levels and respected by future attorneys-general and future governments.

I commend in particular the Attorney-General. I commend in particular the member for Wannon, the chair of the committee. I think he has done an outstanding job in preparing these recommendations. I commend those members of the opposition who, in that bipartisan spirit, understand that this is necessary legislation and are giving up some of their views to ensure it is passed.