Phone and web data plan under fire for interfering with privacy


The federal government’s plans to retain phone and web data for two years will unreasonably interfere with privacy and could having a “chilling effect” on journalists, a bipartisan parliamentary human rights committee has found.

The federal parliament’s human rights committee has highlighted a series of human rights concerns with the bill and recommended that access to telecommunications data should be subject to a warrant system, to avoid “arbitrary interferences” in Australians’ private lives.

The federal government has put forward a proposal to retain Australians’ phone and web data for two years, which police and other law enforcement agencies will be able to access without a warrant.

But the committee has issued a series of recommendations after highlighting potential interferences with Australians’ right to privacy and freedom of expression.

The committee’s findings are particularly significant because it has four Labor members, three Liberal members, two Nationals members and one Greens member.

The government had previously gained bipartisan support with the Labor party for their first two packages of national security legislation.

The committee recommended that the bill be subject to a range of amendments, including:

  • Requiring government agencies to gain a warrant for accessing telecommunications from either a court or independent authority before access.
  • Limiting the purposes for accessing telecommunications data to when it is “necessary” for the investigation of a specified offence or type of serious offences.
  • Ensuring Australians are notified when their telecommunications data is requested by a government agency, in some circumstances allowing for a delayed period of notification and a mechanism to allow individuals to challenge the access of their telecommunications data.
  • Requesting advice from the attorney general on how accessed data could impact on legal privilege and whether two years for retaining data sets is necessary and proportionate.

The suggested changes are aimed not only at the proposed mandatory data retention bill, but also at the current telecommunications interception laws that the new bill will exist within. Under this framework, government agencies can seek access to details of who a person called or emailed, where they were located and what kind of device they were using.

The recommendation to impose a warrant system before disclosing telecommunications data would be a significant change. In the last year there were over 500,000 disclosures made by telecommunications companies, and there is no prior oversight to these disclosures by any independent body.

The committee recommended “the establishment of a mechanism to provide close prior oversight of the recommended warrant process for access to retained metadata under the scheme”.

The recommendation of a notification scheme would also substantially change the current regime if it were adopted. Guardian Australia has previously lodged freedom of information requests with the Australian Federal Police to determine whether telecommunications data has been accessed by law enforcement agencies for different services of journalists.

The AFP has refused to confirm or deny the existence of any documents relating to these requests, citing the broad secrecy provisions in the telecommunications interception regime to justify their refusal.

The telecommunications access regime can be used to trace sources because call and email records can be accessed using the regime.

The committee explicitly referred to this possibility in their report and said: “The proposed scheme may have an inhibiting or ‘chilling’ effect on people’s freedom and willingness to communicate via telecommunications services.

“The committee notes that the proposed provisions may have a particular inhibiting or ‘chilling’ effect on journalists who may be concerned about the protection of their sources.”

Greens senator Scott Ludlam called on the government to abandon the push for data retention laws.

“The Australian Greens call for all sides of politics to acknowledge that the data retention legislation is too flawed to proceed with and must be abandoned,” he said. “Australia’s law enforcement agencies are already filing 500,000 requests a year for warrantless access to metadata, and are more than capable of tackling serious crime with their existing powers.

“Treating all Australians as suspects by retaining all of our data will not make us safer and will open the floodgates to the invasion of privacy on a massive scale.”

The data retention bill has been referred to the joint parliamentary committee on intelligence and security, but it is not clear whether there will be hearings before the parliamentary sitting year ends.