: Data retention inquiry

Data retention inquiry

Katie Miller

Spare a thought for the contributors to the latest inquiry by the Parliamentary Joint Committee on Intelligence and Security. While most of us were at the beach this summer, lawyers, privacy advocates, the communications industry and individuals were preparing their submissions to the Committee’s inquiry into the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014.

The Bill will require telecommunications and internet service providers to maintain for two years data about our telephone and internet communications. If these businesses do not keep that sort of data (because, for example, they have no business need for it), they will have to create it.

This data will then be available to intelligence agencies (eg ASIO and ASIS) and ‘criminal law enforcement agencies’. Currently, this list includes police forces and anti-corruption bodies (eg the AFP, state police, ICAC, etc). The Attorney-General will have power to add more agencies to the list, including those that administer laws imposing a pecuniary penalty or relating to the protection of the public revenue (eg ATO, ASIC, Centrelink).

The agencies can access the data without a warrant, even though data about a communication can reveal more about a person than the content of the communication itself.

The Committee’s task has been particularly difficult because the government hasn’t told the public what data will be created and retained. This information is not included in the Bill itself. Instead, the Attorney-General has a broad power to make regulations prescribing what data must be retained. The Attorney-General has released a draft ‘data set’; however, we won’t know for sure what data must be retained until after the Bill passes and the Attorney-General makes regulations.

Without knowing what data must be retained, the Committee faces the difficult, if not impossible, task of assessing whether the Bill is necessary and proportionate to its stated aim. It is unclear how this can be done in the absence of basic information about the scheme, eg what will it cost?

In its submission to the Committee, the Law Institute of Victoria identified over 30 unanswered questions and concerns.

What we do know is that this scheme will affect everyone in Australia who uses a phone or the internet. The Bill is indiscriminate in its reach. It is not limited to specific communications — it will apply to communications about your health, your kids, your work. It is not limited to data that telecommunication and internet service providers retain for their own business purposes. It is not limited to persons who are suspected of committing crimes or breaching laws. It is not limited to respect professional obligations of confidence, including legal professional privilege and journalists’ obligation to protect their sources.

This is a significant change to our laws. Government is entitled to investigate us if it has grounds to suspect we have breached a law. The government is not entitled to compel third parties to create databases on us just in case we one day breach a law.

The Committee has three months to assess this significant change, which has been developed by government after six years of private consultations with select industry participants. Submissions have now closed and, by the time it delivers its report on 27 February 2015, the Committee will have held only three days of public hearings. This short time frame is concerning, given the significance of the Bill, the many unanswered questions and the lack of urgency — even if the Bill is passed, it will not be implemented for at least 18 months. The Committee deserves more time and more information before it is asked to report on this Bill.

The LIV’s submission is available at — http://www.liv.asn.au/data-retention.

KATIE MILLER is President of the Law Institute of Victoria.

(2015) 40(1) AltLJ 60
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