Back to All News

Data retention regime already expanding

Video & Multimedia
Scott Ludlam 14 May 2015

Scott speaks about the scope creep of data retention contained in the Australian Border Force Bill 2015, which sees the regime expanding just weeks after originally being passed through Parliament.

Senator LUDLAM (Western Australia—Co-Deputy Leader of the Australian Greens) (13:43):  I just want to add some brief comments—I am well aware that time is fairly short—in addition to those put on the record by my colleague Senator Hanson-Young. As she spoke of the penalties introduced in this bill for speaking out about some of the horrors that occur in our immigration detention centres she spoke of two-year jail terms for disclosing some of the human rights abuses that are being perpetrated in our name.

The question that occurs to me is: how would they track down who is talking to journalists? It is extraordinary to discover that this is happening six weeks after this parliament debated mandatory data retention legislation, which basically scoops up all of the material generated by any device connected to the internet and telecommunications devices of every Australian, whether they are assumed to be doing anything wrong or not. 

Senator Brandis made a great show of narrowing the range of agencies that would be able to access this collected material. And here we are in parliament, on the very next sitting week after that mandatory data retention bill passed, and the first example of scope creep lies on the table today. Of course, the Australian Border Force wants to be able to scrape people's home and email records and find out who they have been talking to and where they were.

This is the first instance of scope creep. It gives me absolutely no pleasure to say 'we told you so', but we did; we said at the time of the data retention debate that the bill has scope creep written into it.

There is another kink, though. The normal way in which the range of agencies who would be able to access this material would be expanded is that it would be declared by the Attorney-General and the new agency is then able to collect that material. Of course, it has to be subjected to eventual approval by the Parliamentary Joint Committee on Intelligence and Security and then this parliament. But something very different is happening here. The Border Force legislation that is before us today sidesteps even this feeble check and balance by simply amending the Telecommunications (Interception and Access) Act to change the classification of the Border Force agency to allow it to access extra classes of telecommunications data. That is done by the turn of a switch: we will call them a criminal law enforcement agency and now they are added to the list of agencies that can go through our phone and email records—not just those of employees, not just asylum seekers, but anybody in the country. It is absolutely remarkable and it is precisely what we said would happen when the Labor Party, which is in the process of waving this bill through as non-controversial, also rubberstamped the government's controversial data retention legislation. We are going to need to keep a very careful watch on any machinery-of-government change that adds or subtracts or merges or demerges government departments to see if these kinds of riders are going to be contained in it.

The Border Force's access to private information is particularly troubling given its terrible history of securing its own data. The Senate will recall that the immigration department last year accidentally disclosed the personal details of nearly 10,000 asylum seekers in one of the largest data breaches in Australian history. It attracted more than 1,600 complaints. These are people for whom the release of their names, their locations, where they have been and other personal records could be a matter of life and death. As Senator Hanson Young has explained in detail persistently over a number of years, these are people fleeing, in some cases, murderous regimes. You say if they have nothing to hide they have nothing to fear. But people do have things to fear from the Iranian secret police, or the Sri Lankan government or the Taliban. That is why that data breach was such a disgrace—and now the successor agency to the one that let that material walk out the door and remain on a public website for days is asking to be able to access all Australians' private records as well.

There are also moves by the government, which again Senator Hanson-Young has outlined at length, to refer leaks involving asylum seekers to the Australian Federal Police for investigation. When you hear evidence of sexual abuse and violence inside our detention camps, do you move in there to try and sort things out or to get people out of these places of horror? No, you do not. You refer to the Federal Police the journalists who wrote the reports to try and find out who they have been talking to. How will the Federal Police find out? How will Border Force find out? They will be vacuuming up people's data—people who have not committed any crimes but are trying to disclose crimes. That is why the debate around immigration detention has become so corrupt.

For anybody who is wondering just how dangerous these powers of telecommunications access can be, here is an example sitting on the table before us today. It is entirely plausible to imagine the Border Force tracking down sources through their contacts with journalists and attempting to prosecute them for leaking information about asylum-seeker issues to journals. They will have access—and anyone who is contemplating employment in this agency needs to be aware of this—to the personal private records of everyone of their employees, their families, everyone they come into contact with and everyone they talk to. Whether they are accused of committing a crime or not, they can access that material by rubberstamping a single piece of A4 paper and submitting it to the telecommunications provider—no warrants needing to be entered into. That bill had scope creep written into it. It is extremely distressing to discover, particularly with the task before the Australian Border Force, that even the narrow checks and balances that were incorporated into the data retention bill are entirely circumvented by the legislation we see before us today.

Every time an agency sticks its hand up, either overtly or covertly, to be able to access the private records of ordinary people I am going to make an absolute point of pointing it out and putting it on the record so that maybe the government, once they are safely back in opposition, or the Australian Labor Party might want to rethink what they did to all Australian citizens when they waved through the data retention legislation upon all of us.

Bill read a second time.

Back to All News