Below is an open letter sent today to the Secretary of the Parliamentary Joint Committee on Intelligence and Security (PJCIS) requesting an extension of time to submit on the National Security Legislation Amendment Bill (No 1) 2014. The Attorney-General has proposed the new legislation based on earlier recommendations of the PJCIS which were made in 2013. It is an extensive bill, as the letter explains, and deviates from the 2012 recommendations significantly in some places. The Pirate Party has requested a two week extension for all submissions given the enormity of both the bill and its explanatory memorandum. The outcome of this request will be published here once an answer is received.

UPDATE: An extension has been granted to all persons and organisations intending to make a submission. The new date is 6 August 2014 (shorter than the two week extension requested) according to a media release issued on 29 July 2014 by the Committee.

Dear Secretary of the Parliamentary Joint Committee on Intelligence and Security,

Pirate Party Australia believes in considered, deliberative and consultative policy development. Our internal procedures are perfectly in line with these ideals, and our policy development is open to all members, and even interested outsiders. Our policies, as they are developed, are open for discussion typically for months before they are considered to be enacted.

It is with this in mind that we are disheartened by the extreme swiftness with which some very serious legislation that potentially affects all Australians is being rushed through the review process.

The time given to respond to the National Security Legislation Amendment Bill (No 1) 2014 is insufficient given the serious and substantial nature of the proposed amendments. It was referred to the Committee on 16 July 2014, with a deadline of 1 August 2014 for submissions on a bill that is 124 pages in length accompanied by an explanatory memorandum of 167 pages.

Although based on prior recommendations the Committee made in its 2013 Inquiry into potential reforms of National Security Legislation, the bill exceeds those recommendations significantly in places. More time is necessary to sufficiently analyse and put forward a measured and reasonable position on these matters.

For example, in a densely worded change to section 18(2) of the Australian Security Intelligence Act 1979, there is a small amendment that could result in far-reaching implications for how far political communication would be restricted.

Without adequate time to analyse all the elements of this extremely long and dense documentation, and to formulate coherent feedback, the process of consultation that is being undertaken would be ineffective, and would result in the process being seen to be a mockery.

We request that, at the very least, a further fourteen (14) days are granted to all persons and organisations who intend to submit to this committee. To not allow this would be an affront to democracy.


Regards,

Mozart Olbrycht-Palmer
Deputy Secretary
Pirate Party Australia

The Pirate Party renews its calls for the Government to abandon the pursuit of mandatory data retention following comments from the Attorney-General that data retention is under “active consideration”[1]. The Attorney-General also stated that data retention is “the way western nations are going.”

Pirate Party President Simon Frew commented: “What the Attorney-General has essentially said here is that everyone else is doing it, therefore Australia should too. This is abysmal reasoning in light of the thorough criticism provided by the Court of Justice of the European Union earlier this year, in a judgment that overturned the EU’s Data Retention Directive. The Court overturned the Directive precisely because it violated fundamental rights. That was not an invitation for law makers to find a different way of implementing a similar regime. The failure of the Data Retention Directive should serve to deter governments from implementing mandatory data retention: that level of indiscriminate intrusion into people’s privacy is unacceptable.

“The Attorney-General has also stated that privacy intrusions for the purposes of law enforcement should not be disproportionate[2]. We put it to the Attorney-General that data retention is disproportionate. How on earth could it be considered proportionate to store all information about who is contacting who, when they are speaking, for how long, and where they are? A society under constant surveillance is not an appropriate goal.

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Pirate Party Australia is alarmed over reports that the Federal Cabinet has approved sweeping new surveillance powers for ASIO[1][2]. The Cabinet cited concerns that Australians in Syria are being radicalised by the conflict raging in that country, putting Australia at risk, but the proportionality of the response is not backed up by rigorous evidence. Pirate Party Australia is concerned that the new powers will put ordinary Australians under even greater surveillance without providing any greater ability to monitor actual threats.

Pirate Party Australia President Simon Frew commented: “While we have yet to see the new surveillance powers being proposed for Australian intelligence agencies, the previous government’s National Security Inquiry conducted in late 2012[3] provides us with a good indication of what they want. Of most concern is the push for more intrusive surveillance with insufficient oversight. Australians are sick and tired of the continual ramping up of surveillance we are being subjected to. Some surveillance is justified but it needs to be targeted and warrants must be obtained.”

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Pirate Party Australia has stated that ‘metadata’ is the most dangerous form of data[1], but apart from Senator Scott Ludlam, no one else got the message. Representatives from the Attorney-General’s Department and other government agencies have continued drawing misleading distinctions between ‘metadata’ or ‘telecommunications data’ and ‘content data’ at public hearings on telecommunications legislation, though Senator Ludlam has been quick to call them out on this[2].

Pirate Party Australia’s President Simon Frew commented: “Drawing a divide between ‘telecommunications data’ and ‘content data’ is an attempt to make us think that telecommunications data is only the information that gets collected for billing. This is absolutely false. The debate needs to go beyond this artificial distinction. It needs to be reframed around the reality that although content data reveals what you said, telecommunications data can reveal who you talk to, who your friends are, who their friends are, which establishments you frequent, and even the times you are asleep.”

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In an enormous victory for privacy, the Court of Justice of the European Union has ruled that the EU’s Data Retention Directive is invalid. Under Directive 2006/24/EC, member states of the European Union were required to store telecommunications data for at least six months, and for as long as 24 months. The press release announcing the judgment states that “the directive interferes in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data.”[1]

Pirate Party Australia cautioned against introducing data retention into Australia in its submission to the comprehensive revision of the Telecommunications (Interception and Access) Act 1979 in February[2]. Earlier, in 2012, the Attorney-General’s Department proposed the introduction of a six-month data retention regime among other reforms to national security legislation[3]. The Pirate Party believes that the ruling by the Court of Justice of the European Union validates its opposition to data retention.

“We have raised every concern regarding data retention that the Court of Justice of the European Union has in this judgment,” said Mozart Olbrycht-Palmer, Deputy Secretary of Pirate Party Australia and co-author of the Pirate Party’s submission. “This ruling is a comprehensive criticism of data retention, and a validation of our long-held position. The Court has recognised that telecommunications data poses an enormous threat to privacy if retained. Telecommunications data reveals who you spoke to, when you spoke to them, and where you were. It is a means of tracking the entire population.”

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