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‘More work needed on data retention legislation’
The release of the new parliamentary report of the mandatory data retention regime clears the way for the immediate implementation of the 22 recommendations contained in the report, says the Law Council of Australia.
Tony Zhang
The parliamentary joint committee on intelligence and security review into Australia’s mandatory data retention regime has called for a number of changes to increase transparency and to prevent non-law enforcement agencies from accessing the metadata of individuals.
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Law Council president, Pauline Wright, said the bipartisan report, tabled in Federal Parliament, is evidence the committee shares the Law Council’s view that improvement is required to ensure the scheme’s proportionality.
“The Report specifically recommends that the Law Council should be consulted in (a) the development of national guidelines on the operation of the scheme; and (b) defining the term ‘content or substance of a communication’, and we are ready and willing to assist in that regard,” Ms Wright said.
“Notably, it is clear that the mandatory data retention scheme as currently contained in Part 5-1A of the Telecommunications (Interception and Access) Act 1979 (Cth), has the potential to intrude on the privacy of all Australians, not just suspected criminals or people of national security interest.”
In its report tabled in Parliament on Wednesday, the intelligence and security committee made 22 recommendations to the government that, if implemented, would increase transparency, raise the threshold for when data can be accessed, and reduce the broad access to telecommunications data under the Telecommunications Act, according to committee chair Andrew Hastie.
“Our recommendations are aimed at improving mandatory data retention in a way that does not have a great effect on law enforcement and ASIO’s ability to do their very important work,” Mr Hastie said.
Under the mandatory data retention regime, carriers, carriage service providers and internet service providers must retain telecommunications data for two years to ensure it can be accessed during law enforcement and national security investigations.
The committee has decided the existing two-year period of data retention should not be changed.
The Law Council maintains that access to telecommunications data must only be permitted when the public interest in detecting serious criminal activity or threats to national security outweighs intrusion into the private lives of Australians by the state.
“The Committee’s 22 recommendations that address deficiencies in the current framework, should be implemented as soon as possible,” Ms Wright said.
“This includes repealing s 280(1)(b) of the Telecommunications Act 1997 (Cth) which creates a ‘backdoor’ for a wide variety of public and private bodies to access telecommunications data, where they would otherwise be excluded by the framework under the Telecommunications (Interception and Access) Act 1979 (Cth).
“Steps must be taken to ensure that the current lack of proportionality is addressed.”
The Law Council has also supported the committee’s recommendations to increase the threshold for accessing existing information or documents by law enforcement agencies, and to make ASIO’s authority to disclose telecommunications data consistent with the threshold enabling ASIO to intercept telecommunications or access stored communications under a telecommunications service warrant.
