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

March 19, 2015

Mr TURNBULL (Wentworth—Minister for Communications) (10:38): I thank all honourable members for their contributions to this debate. Access to metadata plays a central role in almost every counter-terrorism, counterespionage, cyber security and organised crime investigation. It is used in almost all serious criminal investigations, including investigations into murder, serious sexual assaults, drug trafficking and kidnapping.

The use of this kind of metadata, therefore, is not new. I would like to reconfirm, for the benefit of honourable members and anyone watching this at home or at work, what we are talking about when we talk about metadata. We are talking about the traditional information about telephone calls that we used to get on our telephone bills. We are all familiar with it. It shows the caller, the A-party; the B-party, the called number; the time of the call; the length of the call; and, in a mobile network operator's situation, the location of the call—the nearest base station to which it was connected.

That information has been available—it has been kept by telcos often for very long periods, well in excess of two years—and it has been accessed from time immemorial. In terms of the IP world, the internet world, we are talking about what we can call the customer IP address. When a device is connected to the internet its internet service provider will allocate it an IP address, which is a unique number.

That IP address is connected, obviously, to the account holder. That IP address may become apparent in some other context where it is important for law enforcement to know which account holder that IP address was allocated to. Again, those records have been kept, in some cases, for a very long time. They have been accessed for a long time by law enforcement, but, as I will describe a little later in these remarks, there is now the risk that they will not be kept at all or will be kept for very brief periods—and there are consequences for that.

What we are talking about here is not storing what people are doing online—what they are saying and what websites that are visiting. This is about retaining classes of data for two years that are being retained now, and where there is a concern that, because business practices have changed, they will not need to be retained in the future. This is very important.

This is not a question of the government requiring telcos to retain a record of what websites you visit or the content of your emails—let alone your telephone calls—and so forth. The deficiency and inconsistency of current data records was highlighted in June last year when the AFP received information from Interpol about a suspect who had made a statement online that they intended to sexually assault a baby. Interpol provided IP address details belonging to an Australian carrier. As the Australian carrier only retained data—that is to say, customer IP address data—for a maximum of seven days, no results were available and the suspect was unable to be identified. That example is not isolated. The police advise us they have dozens of examples.

The bill, as I said a moment ago, will establish a common industry standard for data retention practices that will assist agencies to protect the Australian public. Importantly, it will prevent the further degradation of the investigative capacities of Australia's law enforcement and national security agencies. I note that the measures in the bill have been formulated, and will be further refined, with the benefit of two bipartisan inquiries undertaken by the Parliamentary Joint Committee on Intelligence and Security.

The committee's first inquiry was completed in 2013 under the chairmanship of the member for Holt, the Hon. Anthony Byrne MP. It recommended a number of reforms to Australia's national security legislation, including how a data retention scheme should be shaped, should the government of the day decide to introduce such a scheme. This bill represents the government's response to chapter 5 of that report.

Following my introduction of the bill on 30 October, the Attorney-General referred it to the committee, now under the chairmanship of the member for Wannon, Mr Dan Tehan. The committee recommended the passage of the bill in its advisory report. The committee's support was subject to 38 recommendations. Twenty-six of these recommendations relate to amendments to the bill or the explanatory memorandum. A further 11 recommendations relate to additional administrative measures, including additional resourcing for the committee, the Commonwealth Ombudsman and reviews. The committee also recommended the proposed two-year retention period be retained. We accepted the recommendations of the committee and will move amendments, where required, to implement them.

The government will be tabling a replacement explanatory memorandum elaborating on the justification for various measures in the bill in line with the committee's recommendations. I note that many honourable members have expressed their support for the implementation of the committee's recommendations, and we look forward to working constructively with members of this committee on the relevant amendments to the bill when we reach the committee stage.

Now, in addition, the government has announced that it will move amendments to require a warrant to access data for the purpose of identifying a journalist's confidential source. It will also establish a public interest advocate, who will have a role in making submissions in respect of those warrants. This is a very important protection. I see that the honourable member for Isaacs, the shadow Attorney-General, is now in the chamber. I want to note the cooperation that he and his colleague the member for Blaxland, the shadow communications minister, has given me in the course of this week in settling the terms of these amendments and reaching agreement on them. I will deal with some aspects of the debate.

The member for Melbourne, who has an amendment, has suggested that this bill is being rushed. My response to the honourable member is simply that the committee has conducted not one but two inquiries on this. Data retention has been the subject of a public inquiry by the Senate Legal and Constitutional Affairs References Committee since December 2013. This is not a new issue by any means.

As far as the opposition's contribution is concerned I want to thank those opposite for their expression of support for both the bill and the government's proposed amendments, which will be moved shortly. There have been many important issues raised in the debate but in the time available—and given the central focus of discussion in recent days on this—I want to focus on the question of the treatment of journalists.

This raises very important and legitimate questions around the power of law enforcement agencies to investigate journalists' sources. All of us understand that the work that journalists do is just as important in our democracy as the work that we do as legislators—or, indeed, the work that the Public Service does in undertaking and executing the policies of government. I think it was Jefferson who said that if he was given a choice of a government without newspapers or newspapers without government he would choose the latter. Fortunately, we do not have to make that choice, but our democracy depends absolutely, fundamentally on a free press and journalists being able to do their work.

But journalists are subject to the law, like everybody else. There was a concern that the bill, by introducing an ability, so it was argued, for law enforcement and security agencies to obtain journalists' metadata to investigate sources suspected of illegally disclosing information—for example, checking which telephone numbers had called a journalist's number or vice versa—this ability might have a chilling effect on sources cooperating with journalists, who would be fearful of investigation or prosecution.

Those concerns are misguided, in our submission. The bill does not grant law enforcement or security agencies any new powers in the way they access metadata of journalists or anyone else. In fact, agencies have been able to access this type of data for more than 20 years. What it does, as I said earlier, is simply ensure that the types of data that are currently being retained will be retained for a consistent period. In a number of cases, particularly with telephony metadata, some of the larger carriers now retain metadata for very long periods—for seven years in one case.

There is nothing in the bill, therefore, that should concern journalists about their right to do their jobs—their duty to do their jobs—and to deal confidentially with their sources. Obviously, journalists should take care to protect their sources. Like the Prime Minister, I am a former journalist. Both of us have had a rake's progress. We started off as honest journalists, and here we are as politicians—'What's next?' you may think; 'It can only get worse!'—so we understand the importance of this work.

The bill provides several new and strengthened safeguard and oversight measures—all of which are directly relevant to journalists and their sources. It reduces the number of agencies which automatically qualify for access to metadata from about 80 down to 20. It introduces, for the first time, comprehensive oversight by the Commonwealth Ombudsman for any Commonwealth, state or territory law enforcement agency accessing metadata.

The bill sets up a new oversight mechanism, where any request by an agency to access data to identify a journalist's source must be provided to the Inspector-General of Intelligences and Security in the case of ASIO, and the Ombudsman in the case of the AFP. Further, the Attorney-General will also notify a parliamentary committee of each authorisation to identify a journalist's source. In addition, and very significantly, we are proposing additional amendments to require agencies to obtain independent pre-approval in the form of an new journalist information warrant to access a professional journalist's metadata, or that of their employer, for the purpose of identifying a confidential source.

These warrants will be issued by judges and members of the AAT—the Administrative Appeals Tribunal—in the case of law enforcement agencies, or by the Attorney-General in the case of ASIO. The warrant would relate to a single journalist named on the face of the warrant. It would require the issuing authority to consider, among other things, the public interest in protecting the confidentiality of the particular source in question.

To assist in this last point the amendments will also see the establishment of a public interest advocate—or persons who will be public interest advocates—who will be able to make submissions in response to the application for a warrant on the matters of public interest that the warrant-issuing authority should consider. These are the amendments that have been negotiated with the opposition—and, again, I thank them for their cooperation in that.

I also thank the media companies and journalist organisations for their contributions to this debate. This has been a very good legislative process, with the combination of public discussion, engagement between government and opposition and, above all, the work of the committee. I want to thank the committee for its work—under the chair, the member for Wannon, and the deputy chair, the member for Holt—and for its thorough, constructive and bipartisan review of the measures in the bill.

The work of the committee and the constructive, thoughtful contributions of honourable members to this debate is a reflection on the very high quality of parliamentary scrutiny that is applied to Australia's national security legislation. We should always be approaching these matters of national security in a thoroughly bipartisan way and, where there are differences of opinion and differences of approach, we should be able to resolve them in the very constructive way we have here. Naturally I want to thank my colleague the Attorney-General and his team both in his office and in his department for all of their hard work on this bill.

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