Subject: Prime Minister backdown on press freedom.
RAFAEL EPSTEIN: Mark Dreyfus joins us. He’s a member of Bill Shorten’s opposition shadow cabinet, he is of course the Shadow Attorney-General and regular on Fight Club. With us, Mark Dreyfus, good afternoon.
MARK DREYFUS, SHADOW ATTORNEY-GENERAL: Good to be with you Raf.
EPSTEIN: Mark, I just want to get into a bit of the detail in a moment, but have you agreed on the exemptions around journalists yet with the Government? Is that all signed and sealed?
DREYFUS: No, we obviously welcome that the Prime Minister has seen sense on this issue of protection for journalists and their sources. It’s been frustrating that it’s taken so long for the Government to agree to support a warrant process, but the Government has now agreed. There was an exchange of correspondence between the Prime Minister and the Leader of the Opposition yesterday. We’re waiting to examine the amendments that the Government are going to put forward, but at least we’ve got to agreement in principle.
EPSTEIN: Can I ask you about some of the detail. My understanding of what the Committee wants, it’s this group of Parliamentarians, they have a look at this, one of the things they wanted, and the Attorney-General says he’s backing their report, was for real time notification to that Committee. So if there’s a request for journalists’ data that request would go to a few of the watchdogs, but also to the Parliamentary Committee. Is that something that the Government backs, or that you’re seeking?
DREYFUS: We called for that, as very much a stop gap.
EPSTEIN: But is the Government open to that?
DREYFUS: And that’s going to be included already, because the Government’s accepted that particular reform. Where we could not reach agreement at the time of the Intelligence Committee report being finalised was this area of how to protect journalists and their sources. The Government wasn’t prepared to extend any direct protection, we argued that there should be a warrant regime; the Government’s now come round to that idea.
EPSTEIN: What sort of court, would I know, or would it simply be like, I mean if there’s a listening device sought for my phone I don’t get to argue that in court. Is it going to be that sort of warrant, or would it be a sort of process where I could argue against it?
DREYFUS: Well, again, we’re waiting to see the detail of the Government’s amendments, but you’re right, Raf, that warrants have been in use for a couple of hundred years, well predating telephones, telecommunications, they started with search warrants and they’re part of the investigative process used by Police. The idea of having a warrant with judicial oversight was to put a bit of a check, so that it wasn’t just a matter of the Police going and breaking down your door, they had to go off and tell a judge why they needed that particular step to be taken as part of an investigation. And for hundreds of years we’ve had that check in our legal system.
EPSTEIN: Are you seeking for the journalist to know, or not?
DREYFUS: I want to see what they Government’s going to come up with, but it would not ordinarily be part of a warrant regime that the subject of the warrant would be informed ahead of time.
EPSTEIN: It’s a fair question, isn’t it? Shouldn’t the ALP be able to say if you want the journalist to know their metadata is being sought?
DREYFUS: Well, it might be that you say after the event, which is what occurs with some warrants now.
EPSTEIN: How soon after might that be? Weeks or years?
DREYFUS: Not years, but some time afterwards.
EPSTEIN: The other issue that I am, I suppose, is far more significant and this essentially this is metadata retention for everyone is OK and journalists as a special case. Considering all of the metadata retention, I’m not sure that I’ve heard a great answer from the AFP or from people like George Brandis, the Attorney-General, about the need for evidence to show that we need metadata. I don’t want to get into too much detail, but there’s studies, Parliamentary studies in places like Holland, Germany, Denmark, in the US, that have shown that metadata doesn’t increase crime clearance rates, hasn’t prevented terrorism attacks. The only response we get to that when I’ve asked the question, and it’s been the same in the Committee process is well, we’re told that the AFP and ASIO want it. Is there evidence, have you seen evidence that metadata retention works?
DREYFUS: We’ve seen a massive amount of evidence of the of telecommunications data in ordinary police work in Australia. I think the Government hasn’t done a very – I agree with you – the Government hasn’t done a very good job of explaining this. In particular they’ve focussed on the use of telecommunications data in counter-terrorism, counter-espionage, child pornography cases, which are obviously all very serious criminal or national security matters, but they are a very small fraction of the overall use of telecommunications data. Overwhelmingly it’s used by State and Territory police forces in ordinary police work.
Telecommunications data has been used for decades, as an absolutely essential tool of investigation.
EPSTEIN: That’s enough for you. You don’t want someone to present any more evidence than that?
DREYFUS: Then you go to the next question, which is the data retention scheme. So I’m trying to distinguish between what has been happening for a long time and is going to continue to happen, with hundreds of thousands of request having been made for many years each year, by police forces, as well as by ASIO, for telecommunications data that’s already kept by telecommunications companies.
And what we’re going to a different or additional scheme, where the telecommunications companies will be required to keep a specified set of telecommunications data for a two year period. So there will be consistency across the telecommunications companies, it will be a known resource, if you like, for police forces and for security agencies. And what some of those European studies had shown is that it’s been difficult to measure the impact of the requirement to retain, as distinct from the usefulness of telecommunications data. No one’s doubting the usefulness of telecommunications data.
EPSTEIN: But isn’t that the point, Mark Dreyfus, because, and no one is disputing that it’s been used a lot in the past. My metadata’s been pulled by both Victoria Police and those who maintain security in the Defence Force, I don’t doubt that it happens. This is different though, isn’t it, because you are legislating for companies to keep a new treasure trove? You’re effectively mandating a law that will give authorities access to a broad range of data in the future that we still don’t really understand the implication of and if you want make that step, which Labor is essentially signing up to, don’t we need to see something more than ‘listen, we’re already using this’? Don’t we need to see some evidence that it’s necessary?
DREYFUS: I can go to a number of the steps that we’ve taken to improve what was very much an inadequate bill that the Government brought to the Parliament, Malcolm Turnbull brought to the Parliament last year.
EPSTEIN: I’m happy for you to point out the inadequacies, but I-
DREYFUS: -Well, no, it goes to one of those big points, that we didn’t think it was appropriate that the set of data that companies are going to be required to keep by this law be left to regulation at a later date. We said it was essential that it be put in the legislation itself, the Government’s accepted that and we will now see the exact data set that companies are going to be required to maintain in the legislation itself. That’s very important.
EPSTEIN: So have we seen all of that evidence, like would you be able to tell me someday if my Twitter stream, how much of that content is retained by my telco?
DREYFUS: You’ll be able to see what your telecommunications company is required to retain. It certainly won’t be retaining the content of your Twitter stream. And you’ll be able to say that by looking at the list of types of telecommunications data, because it’s set out directly in the legislation.
EPSTEIN: Mark Dreyfus is with us, the Shadow Attorney-General. Interested to know what you make of metadata retention, essentially forcing the telcos to keep your data, your digital footprint in case the security agencies need it. Mark Dreyfus, there was clearly a lot of consternation in the Labor Party Caucus today, lots of reports of people like Ed Husic raising concerns. Is there a significant body who would like to actually oppose this and are upset that their concerns are taking, I guess, second place to Bill Shorten’s small target strategy?
DREYFUS: Oh no, the concerns in Caucus were really about, a lot of it, see that’s why I said earlier that we are not happy with the way the Government’s taken to explaining this bill. A lot of the concerns were about that.
EPSTEIN: Not a lot of Labor people preferring to take a Green position?
DREYFUS: There’s a very – no, not at all – there’s a very big task for the Government and we’ll take one some of that task too, because we’re, by default, I’m going to have to explain some of it, as to why this is needed. And it is an appropriate measure, we think, at this time. We’ve accepted the evidence publicly put to the Committee by the police, senior police officers and our intelligence agencies, as to why this data retention measure should be introduced.
But what we’ve done is to greatly improve the bill, by using it as an opportunity to put safeguards and oversight around the whole scheme of telecommunications interception. And I’d say again to you, Raf, what I don’t think has been grappled with is that telecommunications data has been accessed for decades-
EPSTEIN: -I understand that-
DREYFUS: -Without a warrant, without much in the way of oversight or safeguards. We’ve said yes there should be this data retention requirement imposed, but at the same time, starting now, all access is to be restricted to a much smaller group of agencies and police forces. It’s not going to be open to the Government to change the data set without legislation. It’s not going to be open to the Government to add to those agencies without legislation. In future there’s going to be a much greater audit-type oversight by the Ombudsman, who is going to be properly resourced and we’re now coming to grips with this protection of journalists as well.
EPSTEIN: OK. Mark Dreyfus, thanks for your time.
DREYFUS: Thanks very much, Raf.