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Responding to the National Security Inquiry report on Data Retention

Senator LUDLAM (Western Australia) (17:38): I rise on behalf of the Australian Greens to add some comments on the tabling of this report. With the crossbench position on this committee held by Mr Wilkie, the Greens were not represented on the committee, but nonetheless this is a policy area I have followed very closely since it was referred to the committee in the first place. It is actually something I have been pursuing since 2009. This is the second turn of the wheel on this policy.

This data retention proposal has been pursued by the Attorney-General's Department through successive ministers. It bobs up every couple of years, and I know this will not be the last time it does. It provokes the kind of outrage that this committee has quite ably documented and then goes back below the surface again in search of an Attorney-General who is willing to try to pull it off. This is the second time we have seen this occur just in the short period of time I have been in this chamber.

The Australian Greens welcome a number of the elements in this report and I want to congratulate the committee secretariat and those who have done the work across the very broad range of the terms of reference. The committee was quite right to push back on the demand to decide for the government on its vague, amorphous data retention proposal. The committee also quite rightly calls for the Telecommunications (Interception and Access) Act to be overhauled from the ground up. That is something the Greens would strongly support.

However, there are other areas of recommendation here that we do not support. As usual, ASIO has been given nearly everything it was after in terms of expansion of powers. Also, the criminalising of encryption is, I think, a dangerous escalation of the encryption and decryption arms race. It is an area we would want to think very carefully about before we pursue this. Making it unlawful for a service provider or a private citizen not to hand over encryption keys I think takes us somewhere we need to be very careful about before we go there.

I look forward to hearing some of the reactions from the telecommunications providers, who were dragged into secret meetings, which would not have been disclosed were it not for a whistleblower, who, in 2009, went to the Sydney Morning Herald, which then disclosed that the Attorney-General had called these closed meetings demanding that industry tell the Attorney-General's Department what it would cost and what kind of protocols would be required for a two-year data retention proposal.

I want to acknowledge former Attorney-General Nicola Roxon, who copped a lot of heat for this proposal, for at least having the good sense to flip it to a committee, where it could be examined in daylight. Also, I acknowledge the extremely strong language, unanimously on behalf of the committee, rebutting the Attorney-General's Department's vague proposal for a data retention scheme, and the fact that they had to extract the nature of the scheme itself, because the Attorney-General's Department was so reluctant to admit exactly how much work had been done behind the scenes.

This report sets down on paper a partial and conditional victory, but one that we should acknowledge nonetheless, for the many thousands of people who participated in the process, and those in the wider community who expressed their dissent, one way or another-people who care about the maintenance of their human rights, online and offline, and people charged with protecting those rights, whether it be through law enforcement, as civil libertarians or as plain old-fashioned libertarians.

I also acknowledge the Law Society, Liberty Victoria, the Human Rights Law Centre and the Castan Centre, those custodians of legal custom and practice whom we hope would spring to the defence of the rights that were proposed to be abolished. There were also some unusual allies. It is rare for the Australian Greens to line up shoulder to shoulder with the Institute of Public Affairs-rare does not do it justice, actually.

Nonetheless, in this instance the Australian Taxpayers Alliance and the IPA are strident in their condemnation-their highly articulate and consistent condemnation-of the proposals here.

Then there are the online digital libertarian activists, researchers and campaigners, including Electronic Frontiers Australia and our colleagues in the Pirate Party, who in many ways have led the debate behind the scenes and in public-for example, in a series of detailed freedom of information requests, which was the only way we were able to discover the long-running series of meetings, which were denied in an extraordinarily evasive series of estimates exchanges that I had with the secretary of the Attorney-General's Department in here only a few weeks ago. From this we know for a fact that this proposal was well underway. The committee was not told; it had to go and discover this for itself.

I had a somewhat disconcerting conversation with Mr Wilkins, Secretary of the Attorney-General's Department, during estimates. I was told there were some rather vague draft positions and that a few chats and a few conversations had been had and it was nothing to do with data retention and at no stage was legislation in the process of being drafted.

I have since put in a freedom of information request to actually try to get clarity on this, because information released under the FOI act to Mr Brendan Molloy of the Pirate Party included a number of documents relating to the Attorney-General's Department's secret consultations with telecommunications and internet industries, between 2009 and 2012.

In October 2012, Logan Tudor, a legal officer with the department, wrote that he had decided the draft national security legislation was exempted from being released under FOI because it contained material that was being deliberated on inside the department.

The documents available on the excellent Right to Know website reveal that the Attorney-General's Department was well advised in preparing a regulatory impact statement on the proposal, and in fact had begun preparing one as far back as 2009.

The preparation of an RIS, which must be signed off by what we now know as the Office of Best Practice Regulation, which includes a best estimate of the likely and very significant financial impacts described by the telcos, is a key step before a proposal goes to cabinet.

These documents indicate that the government knew all along that the AGD was engaged in developing detailed proposals for data retention, workshopping it with industry, and had in fact initiated the formal process of drafting legislation. That is the detail to which I go in the Freedom of Information Act.

So, this proposed culture of transparency, which was heralded with some fanfare, has never really materialised, and it is like extracting teeth trying to find out what the Attorney-General's Department is actually up to. Strong language in this report quotes the Victorian Privacy Commissioner, Dr Anthony Bendall, who submitted that data retention was characteristic of a police state-extraordinarily strong language from the Victorian Privacy Commissioner. And a number of advocates right across the board, from industry and the other organisations identified there, have gone through asking exactly why these powers are required in the first place. In the context of the various campaigners and concerned citizens who put up their opposition to this proposal, I would not say it has been condemned outright, because the committee tries to be even-handed in pursuit of tabling and anonymous report. But it certainly does not, as Senator Faulkner has indicated, recommend that such a scheme passes. The report has identified a number of caveats, cut-outs, carve-outs, conditions and procedures that it considers would need to be minimum requirements if any such scheme were to be legislated. It is not exactly a glowing endorsement.

I understand that the Attorney-General, in the other place earlier today, stood and said, 'We will not be legislating for data retention at this time'. This has been set to rest and neutralised as an election issue, which is precisely what Minister Conroy did in an earlier form of the internet filter before the 2010 election, and has been neutralised as a political issue. I predict that if there is a new Attorney-General post-election, or even if there is not, this proposal will come back; I have absolutely no doubt about that whatsoever. It will be exhumed in a different form, with a few of the committee's recommendations attached, and it will be back. And it is a proposal I suspect will have to be fought and contested, potentially, again and again.

We need to pay very careful attention to what has happened in the United States. The only issue I have with Senator Faulkner's contribution-when he said that the regime under which metadata and warranted content data are accessed is different in Australia compared with the United States-is that US legislators by and large had no idea what the National Security Agency was doing under the Patriot Act on the orders of this secret court, which had absolutely no obligations to report to the public at all. I wonder how much Australian legislators, in hindsight, will be able to say they knew about how these powers were being applied in Australia, either warrantless accessing of data by agencies like ASIO and DSD or the wholesale importing of content and non-content data from colleagues in the US national security establishment-sideways and basically bypassing such due processes as identified in here.

I seek leave to continue my remarks at a later time.
Leave granted.

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