Data retention is an unprecedented invasion of the privacy of all Australians
Senator WRIGHT (South Australia) (13:13): I rise to speak against the passage of the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014. As my colleague Senator Ludlam has so eloquently and persistently demonstrated, this bill poses an unprecedented invasion of the privacy of all Australians, and it comes at an unjustified and horrendously large financial cost. By shepherding in a new age of mass surveillance, this bill looks set to go down in history as the moment when Australia lost sight of some its most fundamental values and freedoms-and it greatly regrets me to have to say that.
As the Australian Greens spokesperson for legal affairs, and a lawyer myself, I want to use this opportunity to talk about the broader impact this bill will have on the legal rights and freedoms that, until now, Australians have largely taken for granted. To borrow the words of refugee advocate David Manne, this bill takes 'the law out of the law'. It sets up a framework that requires telcos to keep everyone's personal data and authorises law enforcement and intelligence bodies to collect, use and share this data without us knowing and without seeking approval from any court or independent authority.
The Attorney, with his opaque descriptions of metadata, has tried in vain to convince the community that this bill is about the collection of benign, depersonalised computer-speak. But make no mistake: this bill will require the storage of personal, private information about where you are and who you communicate with. As the Parliamentary Joint Committee on Human Rights describes the effects of this bill, metadata can reveal quite personal information about an individual even without the content of the data being made available by revealing who a person is in contact with, how often and where. This in turn could reveal, for example, the person's political opinions, sexual habits, religion or medical concerns. As my colleague Senator Ludlam has said, it is a map of your social life-who you are close to, who you are fond of and who you contact a lot. And it is a map of your physical movements-everywhere you take your phone.
The implications of this scheme for individual rights are truly disturbing, and not just in terms of the disproportionate impact on our recognised right to privacy-a right that is recognised in domestic law and international law. For example, the right to be presumed innocent is a basic principle of common law and an internationally recognised human right. But by requiring telcos to store everyone's data for possible access by law enforcement and intelligence agencies, regardless of whether or not a person is suspected of any criminal offence at all or is a risk to national security, the bill undermines this fundamental notion of the presumption of innocence. Instead of presuming innocence, this sets up a system where everyone is a potential suspect.
This is an issue which has also been of grave concern to other countries around the world. We need look only at the very substantial body of law in Europe, where courts have consistently said that treating everyone as a suspect is profoundly disproportionate to the needs of law enforcement and national security, to see that. This concern has also given rise to the recommendation of the Parliamentary Joint Committee on Human Rights of this parliament that access to data should only be available if it can be shown to be necessary for the investigation of a serious criminal offence. Unfortunately, this recommendation has not been adopted by the government.
As a result, under this bill, everyone's data will be retained for two years. This data will be able to be accessed by a range of law enforcement agencies where it is 'reasonably necessary' for a legitimate investigation-very broad terms, indeed. Although privacy concerns and the seriousness of the offence can be taken into account, there is no requirement that such access be limited. In fact, the bill allows the minister to add new agencies to the list of those who can access data, which makes it difficult to predict where the boundaries on access will be drawn in the future. There is a need to ensure the bill limits access, and this is reflected in amendments which will be moved by my Greens colleague Senator Ludlam.
This bill also extends the system of authorisation for data access in a way that offends traditional notions of the separation of powers. In Australia we have a concept enshrined in the Australian Constitution of three separate branches of government-the courts, the parliament and the executive. This is designed to provide important checks on the use of government power and the concentration of power in any one institution. This system guards against the unjustified intrusion into the rights of individuals-something that we have previously long held dear in Australia. This is called 'the separation of powers' and is fundamental to a legal system that respects the rule of law. Over recent times, there has been a very disturbing trend away from these rule-of-law principles. This has been evident in many other recent government reforms. This bill is an example of that trend.
The power given to the executive government-the Prime Minister and his or her ministers and their agencies-to interfere with the rights of individuals should be subject to oversight by the second arm of government, the courts. But this bill allows law enforcement and intelligence agencies to effectively authorise themselves to have secret access to our highly sensitive personal information. The frightening and risky result is a system at constant risk of overuse, misuse or arbitrary use by the executive branch of government and its agencies. There is absolutely no independent check that happens before data is accessed under this bill, and this should be of grave concern to all of us. It certainly was of concern to the Parliamentary Joint Committee on Human Rights. In its recent report, which included an examination of this bill, the committee made it clear that the human right of privacy is seriously at risk here and that this bill will limit that right significantly
People might be asking, 'Why is privacy so important?' Clearly, for some people, the right to privacy-to not have your movements, your contacts, your associations and your communications tracked by someone else, someone potentially in government and in a position of great power-is hugely important on its own. But it is important to understand, too, that privacy actually underpins other extremely important human rights, such as the right to freedom of religion, the right to freedom of association-the people you mix with, meet with and associate with of your own choosing-and the right to freedom of political expression. These fundamental human rights are so much more easily undermined or threatened if the state is able to breach our privacy and potentially know about these aspects of our lives. It does not take much imagination or paranoia, given world history, to understand that totalitarian states elsewhere have benefited or would benefit hugely from regimes like this.
The Australian Greens agree with many others who understand the implications of data surveillance that this bill should be amended so that access to retained data can be granted when there is a warrant approved by a court or independent administrative tribunal. In other words, it should be required that a judge or tribunal member has to give the okay before data is accessed by law enforcement or intelligence bodies. This requirement is also reflected in an Australian Greens amendment to the bill.
It is astonishing that both the old parties agree that this type of rule-of-law protection should be available to journalists under the bill but would deny the same protection to ordinary Australians or anyone else, even members in this place.
That means that my data and the data of all my colleagues-and all of us, potentially-will be stored and accessed without a warrant, except in circumstances where doing so would impact on the work of a journalist. Even where a journalist is involved, the protections offered by this bill are hollow. For example, in a case where ASIO has access to data, the protection is limited to the granting of a warrant being made by the minister rather than by an independent court or tribunal. This gives rise to ongoing concerns about a lack of independent oversight of this access.
In addition, under this new part of the bill, the journalists themselves will not be informed of, or be able to challenge, the warrant application. Instead, the issuing authority will be left to make a decision on the basis of information provided by the very agency seeking access and by public-interest advocates who have been chosen by the Prime Minister. The result is a bill that not only fails to adequately protect whistleblowers and journalists' sources but also openly acknowledges that the conventional safeguards for this kind of intrusive invasion into individual rights are only available to a very limited category of people.
That is not the end of the incongruent amendments made to this bill by the government and the opposition, however. By seeking-largely unsuccessfully-to appease journalists, it has become even more clear just how these amendments fail to include other confidential communications that should be protected from the data retention and access scheme contemplated by this bill: those sorts of confidential communications that have been traditionally highly protected under our common law and legislative systems in Australia. Communications between doctor and patient, or lawyer and client, also fall within a category that has historically attracted the protection of the law-protections that have been wholesale abandoned under this bill.
As the Law Council of Australia has explained, under this law, data will be retained under this scheme even if it relates to communications that are protected from use. This is a grave concern because of the special relationship between lawyers and their clients, which is protected by legal professional privilege. It is a relationship which is rightly regarded as a critical protection of the rule of law and which must not be put in any way at risk.
We have had a last-minute deal struck between the old parties to amend this bill. Responding to news of the deal, the Law Council's president, Mr Duncan McConnel, noted:
There is no apparent public policy basis for recognising the need to safeguard confidential journalists' sources, while not also protecting confidential and privileged information between lawyers and their clients.
Indeed, the selective protection of a journalist's interests gives rise to a range of concerning questions, such as these questions posed by Mr McConnel:
... what would happen if a whistle-blower seeks legal advice prior to, or during communication with a journalist? Under the proposed amendments, the journalist's communication may be confidential, but what of the communications between a journalist or the journalist's source and the lawyer?
Data could allow inferences to be drawn from whether a lawyer has been contacted; the identity and location of the client, lawyer and witnesses; the number of communications and type of communications between a lawyer and a client, witnesses and the duration of these communications.
That was set out in the Law Council's media release of 20 March this year, clearly delineating their grave concerns about the effect on legal professional privilege of this bill.
Like the Law Council, the Australian Greens recognise the confidentiality of client-lawyer communication as a long held common law right and a right recognised under international human rights law. This was also recognised by the Parliamentary Joint Committee on Human Rights-a committee of this parliament. While views differed on how this right should be protected in the bill, it is my view that the protection of legal professional privilege can only be assured if the bill is amended to ensure that all content of communications that may be subject to legal professional privilege is excluded from the proposed data retention scheme.
When it comes to privileged communications, it is critically important that the community can have confidence that they will remain confidential. It is not enough to cross our fingers and hope that this is not the type of thing that the Attorney means when he talks about data. As we know, the Attorney-General has been infamously confused about the meaning of metadata in the past. No amount of assurance that legal professional privilege will be protected in the bill is sufficient to alleviate these concerns. The law must clearly and explicitly protect these communications and, as currently drafted, this bill fails to do this. There is no excuse for that. These concerns are reflected in the amendments that will be moved by the Australian Greens.
As well as being the Australian Greens' spokesperson for legal affairs, I am also the spokesperson for mental health. This bill also gives rise to serious concerns in that portfolio area. More and more people around Australia are accessing health services, including mental-health services, online. The benefits of online support and information are very well known: it enables access for people in rural, regional and remote areas who do not have access to face-to-face services; it also allows access to those wanting confidential support and assistance; and it is often free. There is increasing evidence of the number of young people who access online mental-health services from the privacy of their own bedroom late at night when they do not feel able to reach out to other people at that time. With that increasing use of online services for mental health, there is a serious risk that this bill will undermine people's trust in these online services, with a flow-on risk to access to mental-health services and to mental health generally.
Under this bill, people cannot have confidence that where they go, what they say and who they talk to online will remain private. It may be that content of communications is intended to be excluded from retention under this bill. But, unless and until this term is comprehensively defined in the act, the community cannot have confidence about precisely what it is that authorities in Australia will be storing and collecting. Indeed, regardless of the definitions of 'content' and 'data', the fact that data can tell so much about a person's online activity means that this bill will have a chilling effect on whether and how people access confidential services online.
Of course, these concerns are not just confined to mental health services; they relate to any online activity that a person engages in that needs to be kept private. This could include any activity that people listening to or reading this debate can imagine being involved in. It could involve accessing information or joining in discussions about sex, sexual identity, gender diversity or getting advice about how to escape domestic violence. It is too early to see what impact this Bill will have on Australians' online activity and on their interaction with online services, but in my view any measure that risks turning those most in need away from potentially lifesaving services should not be pursued.
These are just a few of the very serious problems the Australian Greens have identified with this bill. Like my colleague, Senator Ludlam, I lament the deal done between the old parties that has truncated parliamentary debate on this bill. It has also ignored the concerns based on evidence which have been expressed by a broad cross-section of the community.
When future generations look back to see how and why mass surveillance became legal in Australia, I believe the Australian Greens will stand out as the only party that was prepared to fight for the privacy and legal rights of ordinary Australians. I urge the Senate not to pass this bill and, if this course of action is rejected, to at least adopt the amendments to make the bill safer proposed by the Australian Greens.