Speech on Telecommunications (Interception And Access) Amendment (Data Retention) Bill 2014 Speech.
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The Federal Opposition is determined to ensure that our national security and law enforcement agencies have the powers that are necessary to keep Australians safe. And as well as defending our nation’s security, Labor also strongly believes in the importance of upholding the rights and freedoms that define us as a democratic nation, living under the rule of law. It is essential that in passing laws designed to protect the Australian community we do not compromise the very freedoms our nation proudly seeks to defend.
Keeping Australians safe is an objective Labor shares with other Australian political parties, which means approaching questions of national security in a bipartisan spirit. But bipartisanship does not mean that Labor will simply agree with every measure the government proposes. Rather, bipartisanship means that Labor will engage constructively on the proposals put forward by the Government with a view to testing and, where possible, improving those measures. It was in this spirit of constructive bipartisanship that last year we in Labor worked hard to improve the three national security Bills that the Abbott Government introduced.
While Labor ultimately supported the National Security Legislation Amendment (No 1) Bill 2014, the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 and the Counter-Terrorism Legislation Amendment (No 1) Bill 2014, to meet what the Government stated were pressing national security concerns, Labor also insisted that these Bills be referred for scrutiny to the Parliamentary Joint Committee on Intelligence and Security (the Intelligence Committee). And in the Intelligence Committee Labor members argued for and obtained a number of significant improvements to these laws.
However, the Bill that is now being debated, the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, differs in several important respects from the national security laws that were supported by Labor last year. To begin with, this Bill is not primarily concerned with national security. I sat on the Intelligence Committee for the purposes of the inquiry into this Bill, and evidence presented to that Committee made clear that telecommunications data is used in law enforcement of all kinds, and that counter-espionage and counter-terrorism makes up only a very small proportion of this data use in Australia.
The majority of requests for access to telecommunications data are made by state and federal police for general law enforcement purposes. This means that the data retention regime set out in this Bill is not specifically directed toward current national security concerns, such as threats arising from Australians being radicalised by overseas terrorist organisations such as Daesh. Rather, the proposed scheme provides for the retention of certain telecommunications data generated by all Australians who use the internet or a mobile phone.
It is also important to understand the context of this Bill. As the Committee heard in evidence, the retention of very large volumes of telecommunications data has been occurring in a largely unregulated manner by private companies in Australia for many years, and this data has been accessed under the current legislation, the Telecommunications (Interception and Access) Act 1979, by a large number of agencies, hundreds of thousands of times a year. The concern expressed to the Committee by law enforcement and security agencies is that while access to this data is often vital to their operations, technological changes and changing business practices of telecommunications providers mean that less data will be retained by some companies in future.
Given this context, Labor has approached this Bill as an opportunity to regulate and improve the efficacy of data retention for law enforcement and counter-terrorism purposes, while at the same time introducing safeguards that will greatly improve the transparency and accountability of both telecommunications data, and access to that data.
Labor recognises that crime and threats to our national security are always evolving as global, regional and domestic circumstances change, and as technologies rapidly advance. It is essential that our police and security agencies are also able to adapt their investigative capacities to keep pace with the changing threats that we face, and particularly, to the rapid changes in technology. Labor recognises that our laws must evolve to ensure that our law enforcement and national security agencies have the powers they need to keep Australians safe.
However, the fact that our enforcement and security laws must be regularly reviewed does not mean that these laws must constantly be expanded. It is my view that extraordinary powers, introduced to meet an extraordinary threat, should be periodically reviewed, and repealed if it is clear those powers are no longer needed.
There is no doubt that Australians could always be made safer by stricter security and stricter laws. But Australia is a democracy, and we value our freedoms as well as our security.
It is Labor’s view that finding the right balance between our security and our rights and freedoms is a critical ongoing task that all parliamentarians must engage in. And because new threats to our national security may suddenly arise – or diminish – as a consequence of events unfolding overseas, it is particularly important that our national security laws and capabilities are, to some extent at least, never taken for granted as a ‘set and forget’ proposition. It was in recognition of the need for ongoing review of our national security laws that Labor established the office of the Independent National Security Legislation Monitor. And it was in recognition of the ongoing nature of this function that Labor fought hard for the retention of the Monitor, even as the Abbott Government announced last year that the office would be abolished in the misguided belief that its purpose was somehow complete. I am pleased that the Government backed down on its proposal to abolish the Monitor.
To return to the Data Retention Bill. Labor acknowledges that while the proposed data retention scheme is a reform that will undoubtedly be useful to our police and security agencies, the scheme will also have significant implications for the rights and the privacy of all Australians. That is why Labor has been clear since the Bill was introduced by the Minister for Communications last year that if the Government is to create a data retention regime it needs to ensure that that regime is counter-balanced by appropriately strengthened safeguards and oversight mechanisms.
In examining the Government’s proposed scheme, Labor was well aware of the legitimate concerns expressed by many Australians that the scheme could unjustifiably compromise their privacy. In this regard I want to emphasise that the data to be retained under the scheme is essentially information about communications. In particular, information is to be retained that identifies who a communication was made by and to, and when and where that communication was made. The scheme does not mandate the retention of the content of those communications.
For example, under the scheme data will be retained that records the phone numbers of people talking to each other and the duration of the call, but not what was said. In relation to email, information about email addresses and timing will be retained but not the subject line or content of those emails. And to clear up any uncertainty that may have arisen following confused statements from the Government late last year, while the scheme will record IP addresses allocated by internet service providers to devices because of the importance of that information to police in investigations of serious crime, the scheme will not require the retention of data that would reveal a person’s web-browsing history.
Concerned about a number of aspects of the proposed data retention regime, which the Government chose not to introduce with an exposure draft of legislation, Labor pressed the Prime Minister to allow time for proper consideration of the Government’s Bill by the Parliamentary Joint Committee on Intelligence and Security (‘the Intelligence Committee’). Labor was insistent that this inquiry include adequate time for the public, legal bodies and key stakeholders to make submissions, and for public hearings to be held.
In scrutinising the Data Retention Bill, Labor members of the Intelligence Committee worked to improve the efficacy of the proposed regime, while at the same time introducing significant improvements to the data security, oversight and accountability mechanisms under which the proposed regime would operate.
I believe that these improved safeguards are essential to protecting the privacy of Australians, and to giving the Australian community confidence that their personal data will not be compromised or misused. These measures will help to maintain and strengthen public confidence in our law enforcement and security agencies; a confidence that underpins the effectiveness of these agencies by ensuring a close working relationship with the community they protect.
The Intelligence Committee’s report on the Data Retention Bill, released on 27 February this year, vindicates Labor’s view that this Bill required careful consideration. The Intelligence Committee unanimously concluded that very substantial changes to the Bill were required, and made 38 recommendations for improvements to the Bill.
A number of general and specific concerns regarding the Bill were raised with the Intelligence Committee through the hundreds of submissions received, and at the public hearings of the Committee. Labor carefully considered these concerns and worked through the Committee to develop recommendations to respond to them.
Labor members secured recommendations for a number of significant improvements to the way in which the proposed data retention scheme will operate, with a particular emphasis on improved oversight and accountability measures. I am pleased that the Abbott Government has acknowledged the many shortcomings of the Bill introduced by the Minister for Communications introduced last year, and that the Government has now accepted all of the Intelligence Committee’s recommendations.
There were several key improvements to the Bill that were supported by Labor and that are the subject of bipartisan recommendations of the Intelligence Committee. All of these recommendations to improve the Bill have been accepted by the Government.
Labor argued for the Data Retention Bill to be amended so that the ‘data set’, that defines what data is to be retained under the new regime, is set out in the legislation. This is a substantial change from the Abbott Government’s proposal, which was for the data set to be defined in regulations only, and that could therefore be altered by the Government without parliamentary scrutiny. In driving this change, Labor has made sure that the Parliament and the Australian people are able to properly consider the scheme being proposed, and that any attempt by the government to change the scope of the scheme is made in a transparent and accountable manner. This means that no government will be able to expand this scheme without returning to the Parliament. This change will also ensure that business has greater certainty, and that Australians know which parts of their private information is being retained.
To provide for situations where changes to the data set may be urgent, the Bill will also be amended to give the Attorney-General the power to add items to the data set by declaration. However, a declaration will cease to have effect within 40 sitting days, which means that permanent change to the data set is controlled by Parliament.
Retained data is presently available to any agency which enforces criminal or civil law. This means that at present many dozens of organisations are able to access retained telecommunications data, including, for example, local councils. The Bill as introduced by the Government would have limited access to a much smaller number of agencies, essentially law enforcement and national security agencies. (Specifically ASIO, the Australian Federal Police , state police forces, the Australian Crime Commission, Australian Customs and Border Protection Service, the Australian Commission for Law Enforcement Integrity, and state-based anti-corruption commissions.)
While reducing the number of agencies with access to telecommunications data is a positive step, the Government’s decision to exclude the Australian Competition and Consumer Commission and the Australian Securities and Investment Commission from the list of authorised agencies would have significantly reduced the capacity of those agencies to fight white collar criminals. Labor argued for these agencies to be authorised to access telecommunications data, and the Government has accepted this change.
The Bill as introduced also gave the Attorney-General a very broad discretion to add further agencies to the list by regulation. Labor was concerned to ensure that new agencies only be added to the list through a transparent parliamentary process, and a recommendation to that effect was made by the Intelligence Committee. To provide for emergency situations, the Intelligence Committee also recommended that the Bill be amended to give the Attorney-General the power to add agencies by declaration. However, as with changes to the data set by declaration, a declaration to add agencies will cease to have effect within 40 sitting days, which means that any permanent change to the list must be made by legislation, and referred to the Intelligence Committee for its consideration.
The Bill as introduced by the Government would have allowed access in ordinary civil proceedings to private information retained under the regime for the purpose of national security and criminal law enforcement. This could have led to serious intrusions into the privacy of individuals by civil litigants for purposes entirely unrelated to the reasons for the which the data retention regime is being established. To respond to this problem Labor argued for, and the Intelligence Committee recommended, amendments to ensure that retained telecommunications data cannot be used for civil litigation purposes, including enforcement of copyright claims. Exceptions to this prohibition will be able to be made by regulation. The Government has proposed amendments to give effect to this recommendation.
The Bill as introduced by the Government did not expressly provide for individuals to seek access to their own retained data. Once again, Labor argued for the Bill to be amended to make it clear that individuals have a right to access their retained data. This right upholds an important principle of privacy law, by ensuring that Australians are always be able to access personal data that companies keep about them. Indeed, just as the authorities should be able to access data needed for prosecutions and national security, so individuals should be able to access data for any personal purpose.
The Intelligence Committee recommended amending the Bill to give effect to this right, and the Government has agreed to introduce this amendment.
In its 2013 Report to the Parliament, the Intelligence Committee recommended that a system for mandatory data breach notifications accompany any data retention scheme. Labor agrees that Australians have a right to know when the security of their data has been compromised, but unfortunately the Data Retention Bill did not follow this recommendation by including such a scheme. Labor argued that a scheme imposing mandatory data breach notification (sometimes called ‘privacy alerts’) gives individuals peace of mind about the security of their data, and when there is a breach, allows them to protect against identity theft and take appropriate action such as changing passwords. Labor has consistently supported mandatory data breach notification but the Government has until now refused to pass Labor’s Privacy Alerts Bill.
Accepting Labor’s arguments, the Intelligence Committee recommended that a mandatory data breach notification scheme be legislated by the end of 2015. The Government has accepted this recommendation.
The Bill introduced by the Government did not provide for mandatory encryption of retained data. This was recommended by the Intelligence Committee in its 2013 Report, and Labor was very concerned by this omission. Labor believes that encryption will help ensure that Australians’ data is kept secure and private under the scheme, and the Intelligence Committee accepted these arguments, recommending that the Bill be amended to require encryption. The Government has also accepted this important recommendation.
Under the current legislation through which telecommunications data is accessed, the Telecommunications (Interception and Access) Act an agency need only ‘have regard’ to whether interference with privacy is justified in light of the likely usefulness of data and the purpose for which it is sought.
Labor believes that the rights of Australians to privacy should also be respected, and that the powers conferred on agencies by the proposed data retention scheme should not be exercised other than for purposes related to national security and serious law enforcement.
Labor argued for, and the Intelligence Committee has recommended, amending the Bill so that in order to authorise access, an agency must be ‘satisfied on reasonable grounds’ that any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable and proportionate. The Intelligence Committee recommended that in making this determination, the agency is to have regard to:
the gravity of the conduct being investigated, including whether the investigation relates to a serious criminal offence, the enforcement of a serious pecuniary penalty, the protection of the public revenue at a sufficiently serious level or the location of missing persons;
the reason why the disclosure is proposed to be authorised; and
the likely relevance and usefulness of the information or documents to the investigation.
The Government has proposed amendments to give effect to these significant restraints on the use of retained data.
Labor also argued for improved oversight of the scheme by two independent Commonwealth agencies: the Inspector-General of Intelligence and Security and the Commonwealth Ombudsman. Labor argued for the Ombudsman to be properly resourced to carry out its increased oversight role. Recommendations to give effect to these improved safeguards were recommended by the Intelligence Committee and have now been accepted by the Government.
Labor further argued that the Bill should provide for the Intelligence Committee to itself have operational oversight of security agencies under the data retention scheme. This is also the subject of a recommendation that the Government has accepted. This is a significant reform, and a first step toward the implementation of a broader scheme of improved transparency and accountability measures proposed by the recently retired Senator Faulkner. I will say more about Senator Faulkner’s proposed measures shortly
The data retention regime proposed by the Bill will also impose significant regulatory burdens on over 600 telecommunications companies in Australia, at considerable cost to the Australian taxpayers and consumers. The capital costs alone are estimated to be in the vicinity of $400 million, but the Government has been inconsistent in its statements regarding who will bear the brunt of these very substantial costs. Labor will continue to press the Government for clarity on this issue, and will oppose any attempt by the Government to pass the substantial costs of the scheme onto telecommunications providers and their customers, as to do so would effectively impose a new ‘internet tax’ on Australian consumers
Labor also sought and the Government has now agreed to a change to the Bill to require the Intelligence Committee to conduct a review of the entire scheme two years after Implementation Phase, a year earlier than the Bill had proposed. This review will provide an important opportunity to consider matters including:
the effectiveness of the scheme;
the appropriateness of the dataset and retention period;
any potential improvements to oversight;
regulations an determinations made;
the number of complaints about the scheme to relevant bodies; and
any other appropriate matters.
Importantly, this statutory review will be informed by statistical details collected by the agencies over two years of the operation of the scheme.
There are three other particular matters that I want to note.
Enhanced protection of journalists and freedom of the press
One very significant matter on which the Government would not give way was the manner and extent to which journalists, and by extension, freedom of the press, should be protected from the potentially adverse impacts of the proposed data retention regime. It is a matter of regret to me that I and my Labor colleagues on the Committee were unable to convince the Government members of the need to address this by recommending the creation of a warrant regime to protect journalists and their sources.
While Labor members of the Committee were willing to reach a compromise on some matters in the Bill to achieve an acceptable, if not ideal, outcome, we in Labor believe that a free press is a cornerstone of all healthy democracies, including ours here in Australia. While freedom of the press is not an absolute right, and is necessarily curtailed to some extent to uphold other rights, every effort should be made to ensure that freedom of the press is maintained and defended.
It is Labor’s view that a warrant should be required for access to the telecommunications data of journalists. No compelling evidence was presented to the Committee as to why a warrant should not be sought for access to the telecommunications data of journalists. Some witnesses argued that because journalists have only rarely been the subject of data access requests, such a measure is not needed to protect freedom of the press. However, Labor believes that the chilling effect on freedom of the press that could arise from the very existence of data retention laws is very difficult to measure.
In addition, Labor’s view is that because requests for access to the telecommunications of journalists are rare, requiring police and security agencies to obtain warrants for access to journalists’ data would not impose a significant administrative burden. Conversely, requiring a warrant in these circumstances would significantly strengthen freedom of the press by making clear that judicial oversight is mandatory where journalists are the subject of a telecommunications data access request.
Unable to reach agreement on this matter, the Committee recommended that an additional and comprehensive inquiry be held into appropriate measures for the protection of journalists and their sources under the data retention regime.
The additional inquiry by the Committee is to enable the important issues relating to press freedom to be thoroughly canvassed in a transparent manner, with the Committee to report within 3 months – well before the scheme would come into effect late in 2016. The Committee recommended that in undertaking this inquiry, the Committee consult with media representatives, law enforcement and security agencies and the Independent National Security Legislation Monitor, while also considering international best practice, including data retention regulation in the United Kingdom.
The first hearing of this additional inquiry is scheduled to be held this Friday, 20 March. The Leader of the Opposition, Bill Shorten, has written to the Prime Minister again pressing the need for the proposed Bill to include a warrant regime to protect freedom of the press. Yesterday the Prime Minister indicated that he had changed his mind, and would now support amendments to create such a regime. I certainly welcome the Prime Minister’s change of heart, and look forward to the Government’s proposed amendments to give effect to a warrant regime for journalists.
Storage of retained data on-shore
An important concern raised in evidence before the Intelligence Committee was how to maintain the security of retained data. It was suggested by some that this data would be a ‘honey pot’ for hackers and potentially for unfriendly governments. Labor agrees that all practical steps must be taken to ensure this data is never compromised.
As I’ve discussed, Labor argued for the Bill to be amended to impose stringent standards for data security. These arguments were accepted by the Committee, which recommended a requirement for stored data to be encrypted. Labor members also pressed for a recommendation that legislation imposing a mandatory data breach notification scheme be introduced so that anyone who has had their data compromised is informed of this breach, and can take appropriate measures to respond.
However, one outstanding matter related to data security relates to whether an obligation will be imposed on companies to store telecommunications data within Australia. Former Director-General of ASIO, David Irvine, said at a recent Defence and National Security roundtable that he would be concerned about the security of retained data if it was stored overseas because it would be “governed by someone else's sovereign legislative system". This matter is currently being examined as part of the Telecommunications Sector Security Reform (TSSR), a process commenced by Labor while in government, and which the Abbott Government has stated will be completed well before the end of the data retention scheme implementation period. When completed, any TSSR legislation will come before the Intelligence Committee. Consistent with the comments of the former head of ASIO, during the review of any TSSR legislation Labor will insist on a requirement that retained telecommunications data be stored on-shore.
Senator John Faulkner, who retired from the Parliament in February this year, was a fierce advocate for improved governmental transparency and accountability in our nation. He argued that in recent years Australia has benefited from professional and well run intelligence and security agencies that have respected the Parliament, the government of the day and our laws. But Senator Faulkner also argued that effective safeguards against the abuse of security powers cannot depend on the personal integrity and quality of the leaders of our agencies. Rather, it is the responsibility of the federal Parliament to prescribe safeguards that keep pace with the expansion of security powers. I agree entirely: while I personally have great respect for the law enforcement and national security officers who are currently serving our nation, it is the laws of the nation that must safeguard our rights and freedoms. And it is these laws that we are now debating.
Members of the federal Labor Party recognise that in Australia, as in many other similar democracies, the powers of intelligence and security agencies have been strengthened significantly in recent years as a consequence of the increasingly complex and unpredictable security environment. Labor agrees that the maintenance of public safety in the current security environment requires enhanced powers for the agencies charged with this critical responsibility. However, with legislative changes extending the powers of police and security agencies, the requirement for reliable, effective external oversight and other safeguards become critical to maintaining an essential level of trust in the community about agency operations.
It was Senator Faulkner’s view that it is the Parliament to which the agencies are accountable, and it is the Parliament’s responsibility to oversee their priorities and effectiveness, and to ensure agencies meet the requirements and standards it sets. I agree.
Senator Faulkner developed a set of reforms designed to ensure that the effectiveness of Parliamentary oversight of intelligence and security agencies keeps pace with any enhanced powers being given to the agencies. Labor will bring forward legislation this year to give effect to these important reforms.
One key reform was for the Intelligence Committee to have oversight of some operational matters of the security agencies. Labor pressed for this significant change to the role of the Intelligence Committee to occur with respect to oversight of the data retention regime. And as I have noted, the Government has accepted the recommendation of the Intelligence Committee to give effect to this change, and has drafted amendments to the Bill for this important expansion of the Intelligence Committee’s role.
Labor will always work to keep Australians safe, and at the same time, to uphold the rights and freedoms enjoyed by all Australians. Getting this balance right can be a challenging task, but with the addition of the numerous amendments to the Data Retention Bill that Labor has fought for, and with the Government’s agreement to further amendments to protect freedom of the press, we believe that the Data Retention Bill strikes the right balance.