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Speech: Data Retention Bill 2015 Second Reading

Senator RHIANNON (New South Wales) (19:13): The Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015 should not be passed. My colleagues Greens senators Scott Ludlam, Christine Milne and Penny Wright have set out a very clear case as to why this bill should not be passed. The way in which the Liberal, National and Labor parties have colluded to rush through parliament this bill, which creates the government's mass surveillance regime, is a disgrace. It is a result of an ugly backroom deal between these parties.

By the government's own admission, mandatory data retention alters the balance between government and individuals when it comes to their right to privacy. The best the Prime Minister and the Leader of the Opposition have come up with to justify their antidemocratic deal on internet and smartphone surveillance laws is to say, 'Just trust us.' They want us to trust a government which has broken election promise after election promise. They want us to trust a government which has shouted down any attempt to hold it to account and which has publicly savaged statutory bodies and human rights watchdogs for simply doing their job. We have to ask: why do Labor want us to trust this Liberal-National government? Our colleagues in the House of Representatives were contemptuously given just 30 minutes to debate 74 amendments, denying the public and parliament a chance to scrutinise this backroom deal between Prime Minister Tony Abbott and opposition leader Bill Shorten.

The bill now before this chamber should hold the government to account, but, no, instead it effectively waves through mass surveillance of Australian citizens. We know that because we have heard the opposition and the government saying, 'It'll be right. Just trust us.' There are a number of questions that remain unanswered as the government tries to ram these changes through.

There has been a lot of hyperventilating and hyperbole from the Prime Minister, who has all but claimed that law enforcement will halt without warrantless access to metadata and mass surveillance of our citizens. That is clearly ridiculous. It is just a new form of the law-and-order campaign that we have seen wheeled out by conservative governments, particularly at a state level but increasingly at a federal level, on national security. They are now using metadata in a similar way.

It is clear that the amendments agreed to by the Prime Minister and the opposition leader do not implement the recommendations of the Parliamentary Joint Committee on Intelligence and Security or address the concerns that have been raised. Labor rolled over. Why? We still have not got to the bottom of that. On an issue as serious as giving security agencies additional rights and powers over people's smartphones and internet records, the Labor, Liberal and National parties, as I said before, are saying, 'Just trust us.' But that raises a number of key questions. Where will the data be stored? Will it be subject to foreign laws? How does the government define a journalist and a journalist's source? Will the data be deleted after the mandatory period? If so, how? Will the data be secure from cyberattacks? But the answer we are getting is, 'Just trust us.'

We have already seen how this sort of metadata can be abused. The existing Telecommunications (Interception and Access) Act allows law enforcement authorities in Australia to access some categories of metadata from certain ISPs and telcos. However, a laundry list of other organisations have gained access to the metadata for undisclosed purposes, including Centrelink, the Western Australian Department of Fisheries, Racing Queensland, the New South Wales Health Care Complaints Commission, the Victorian taxi directorate, various local councils, the RSPCA and the Office of Environment and Heritage. I will come to the issue to do with the ABCC shortly.

It is open season on metadata already. Already under the current law there is the ability to do so much of what the government says that it needs to achieve. Three hundred and forty thousand warrantless accesses took place in the 2012-13 financial year, and that was before a mandatory data retention regime was in place. My colleague Senator Scott Ludlam set out very clearly the issue about the number of warrants that are out there. The evidence about metadata requests under the current regime shows that a massive number have nothing to do with solving serious crime but instead relate to petty requests by agencies, including the Australian Taxation Office and Centrelink, to track what ordinary Australians not suspected of any serious crime are doing. Again, this highlights the dangerous territory the Labor, Liberal and National parties are taking us into.

The Attorney-General has pointed out that this bill does not change the existing arrangements, and that is precisely the problem. It welds on two years worth of additional data which can be indiscriminately accessed by agencies. This is despite the fact that evidence shows that most law enforcement metadata requests are for short-term data, meaning within three months rather than two years. Now, under the new legislation, the Attorney-General will also be able to add to the list of agencies with access to our data. Senator Ludlam called this 'scope creep', and that is what you see all over this legislation.

Very relevant to the debate is to note that the now-defunct Australian Building and Construction Commission received a total of 77 authorisations for data through the T(IA) Act between 2007 and 2012. The Fair Work Building and Construction agency, which replaced the ABCC following a successful union campaign, received one authorisation in the 2012-13 financial year. We know the Abbott government is trying to reinstate the ABCC. That is one of the issues right at the top of its agenda. It also flagged in November 2014 that it is considering another agency with similar powers to ASIC dedicated to monitoring unions. Both of these organisations, like the ABCC before them, may be able to access the metadata of union officials and union members. This is a very frightening aspect of the bill. Again, what Labor have signed off on, considering they say they are so deeply against the ABCC, is very troubling. We need to look at these bills together and what this government is up to. As I said, it is a frightening aspect of this bill that the government will supercharge its anti-union attack legislation with these anti-democratic measures that we are making tonight. Again, that has to be emphasised so strongly-that Labor are hand in hand with this government in bringing forward legislation that, as we look into it more and more, we can see is like a twin of the ABCC legislation.

The Media, Entertainment and Arts Alliance has voiced concerns on behalf of its members on the chilling effect that the Abbott-Shorten deal will have on journalism in this country. While the Labor Party has claimed it wants to protect journalists and their sources, its deal with the government fails to deliver on this. As the MEAA has said, the requirement to get a warrant to access data of journalists still ignores the key ethical obligation of journalists to not allow their confidential sources to be revealed. While journalists worldwide have faced jail in upholding this obligation, mandatory data retention means it is no longer their decision. Journalists in Australia can no longer guarantee their sources and whistleblowers that they will be protected. Journalists, understandably, are concerned that this law is anti investigative journalism and anti whistleblowers.

I think we need to take a pause here. We need to consider what this means for investigative journalism and a free and open media in this country. So often we hear people in this place espousing the importance of a free media, but this bill puts that at threat. Again, this is a key consideration that should be at the top of this debate. We do not need to wait until we see whistleblowers hauled before courts for exposing dishonesty, fraud, waste or corruption to know that this bill is wrong. Investigations will not go ahead. Whistleblowers will hesitate. Courageous public servants will wonder if they should speak out. Reporters will decide that they do not want to put the people they depend on for their stories at risk. That is how we expect this to play out.

The public-interest advocate, which is to be set up to oversee metadata searches on journalists' data, is no solution. For example, there are no rules requiring the Attorney-General to seek the views of the PIA or for the PIA to argue against warrants being issued for journalists' metadata. In addition, it is an offence involving two years jail for anyone to disclose that a warrant for metadata has been requested or applied. This is compounded by the fact that, in today's environment, we see a fragmentation of journalism and the greater need of protection for acts of journalism-acts by the likes of Edward Snowden and Chelsea Manning. In fact, the protections-such as they are-may not apply to many of the new players in the media landscape, such as bloggers.

This prompts the question: who is really protected by mandatory data retention? In the rush to pass data retention, the government has failed to demonstrate how it will achieve even its own stated goals. The Attorney-General's Department could provide no evidence from anywhere in the world that mandatory data retention improves community safety or helps reduce crime. There you have it: no proof that it will improve our safety or reduce crime. Why is this being done? That is why you have to go back and look at the organisations that will access this.

The government still has not defined the metadata it wants industry to store, and it wants to change the definition on a whim. Law-enforcement agencies have consistently claimed that the extra powers are needed, without providing concrete examples of why they are needed. For example, why is it that we need to retain data for two years, when evidence shows that most law-enforcement metadata requests are for much shorter-term data, usually within three months? Evasion of the scheme is easy for anyone with ill intent. Virtual private networks are easy to set up and use, while something as simple as using a Gmail account can put one outside of the scheme jurisdiction. However, while those who may wish harm can easily bypass the scheme, all Australians will be subject to surveillance. It is wrong to assume that only those engaged in criminal activity will be affected by this surveillance.

The recent New South Wales parliamentary inquiry into police surveillance of other police officers underlines how irresponsible this legislation is. We cannot rely on police to determine issues to do with the surveillance of the public, with no external oversight. The New South Wales inquiry has revealed extensive abuses of how surveillance warrants have been issued and abuses by police using their resources to spy on other police and journalists. The inquiry found that TV reporter Steve Barrett was targeted by crime agencies, with dozens of improperly obtained covert surveillance warrants, between 1999 and 2000.

The inquiry uncovered a series of warrants rubber-stamped by the Supreme Court. In one case, there was zero supporting evidence for 46 of the 114 targets on a single covert surveillance warrant. A former judge admitted that that there was no way to properly check that the warrants were in order. He resorted to checking for obvious errors, like inclusion of the names 'M Mouse' or 'D Duck' before he signed off. That is serious; that is what he said. Despite an inundation of warrants, he could not remember refusing a single one. I set that out in detail because this is from an inquiry about police surveillance, where they could not get it right and where there was no accountability, standards or external involvement. It shows what we are walking into. Those abuses by police officers have been revealed, but did the Attorney-General take any notice or learn any lessons? Clearly, that has not occurred. The Attorney-General is ready to give police and security forces unprecedented access to endless quantities of data, to intensify surveillance in such an extreme way.

Then there is the still unresolved issue of who will actually pay for this surveillance. Senator Ludlam set out this out very clearly. He detailed the important letter, which came just last week, from a number of telecommunication companies, setting out how much this is going to cost. That is a very relevant part of the debate. The Australian government will not say who will be paying this surveillance tax. What we do know is that the public will end up paying, either with higher data changes or through higher taxes.

The New South Wales Council for Civil Liberties is one of the many groups that have provided in-depth analysis on the dangers of this bill. They have stated in some of their material:

It is not acceptable for ASIO, the AFP, police forces and other agencies to be able to access the extensive metadata of citizens on their own internal authorisation. The bill allows them to do just this-albeit within some parameters. Legal experts and organisations, civil liberties, privacy and human rights groups among others, argued the need for a warrant system-a longstanding safeguard within our legal system. The intelligence and security agencies argued-successfully it seems-that any form of warrant system would impose too great a logistical and bureaucratic operational constraint.
It would seem the self-serve system is to continue and long standing safeguards to be sacrificed.
This is a mistake and will lead to misuse, abuse and overuse of this data. The post-hoc safeguards proposed will not be adequate to protect against these outcomes.
I do urge senators to look up, in full, the material on this issue from the New South Wales Council for Civil Liberties.

Big Brother has become 'Big George' in this situation, and 'Big George' works hard to keep a straight face as he spouts his justification for these extreme laws, saying, 'Those who have nothing to hide, have nothing to fear.'

Senator O'Sullivan: Mr Acting Deputy President, on a point of order: if 'Big George' refers to Senator Brandis, the senator should withdraw the remark, call the senator by his correct title and, if she feels so inclined, apologise.

The ACTING DEPUTY PRESIDENT ( Senator Gallacher ): Senator Rhiannon, if you have been referring to the Attorney-General, I would invite you to refer to him by his correct title.

Senator RHIANNON: Thank you for the advice, Mr Acting Deputy President. With regard to the issue of collecting metadata, what the Attorney-General is doing to his own office is very concerning. The standing of the Attorney-General is very important to the whole nation in terms of the upholding of justice. We have already seen abuses of metadata. When the Australian intelligence agencies were interested in the phones of the former Indonesian President and his wife-leading figures in Indonesia-it was an issue of metadata. Again, that shows how these services have been abusing the use of that data.

Ever since the terrorist attack of September 2001, crime, spy and security agencies have been demanding more and more powers to reach into our private individual lives. This incursion for mandatory metadata retention will not make us safer or more secure. Mandatory data retention strikes at the very heart of the relationship between governments and the public. This bill, which is set to be passed on the combined vote of the Liberal, National and Labor parties, is an enormous setback as it delivers an increase in the power of the state over private individuals for indiscriminate surveillance. The campaign to stop this level of surveillance and to have this bill repealed is I believe set to become one of the most important issues in Australia.

 

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