Chair's Minority Additional Comments
Access to telecommunications data
In addition to a regime that allows for warranted access to
telecommunications content (as discussed in Chapter 3), the Telecommunications
(Interception and Access) Act 1979 (TIA Act) also provides for agencies to
access telecommunications data (metadata). A key difference between the regimes
is that access to this data does not require a warrant; instead an 'authorised
officer' (defined below) within an 'enforcement agency' can authorise access.
In considering whether or not to grant an authorisation, an 'authorised
officer' is required by law to give consideration to privacy.
These additional comments discuss the ability of 'enforcement agencies'
to access telecommunications data via authorisation and considers whether there
is a need for change. The terms 'telecommunications data' and 'metadata' are
An overview of the telecommunications data access regime
Part 13 of the Telecommunications Act 1997 (Telecommunications
Act) imposes obligations on 'eligible persons' to protect the confidentiality
of information relating to the contents of communications and the affairs and
personal particulars of other persons.
The term 'eligible person' is defined in section 271 of the
Telecommunications Act. 'Eligible person' for the purposes of Part 13 of the
Telecommunications Act is: a carrier; or a carriage service provider; or an
employee of a carrier; or an employee of a carriage service provider; or a
telecommunications contractor; or an employee of a telecommunications
If these provisions are breached, the 'eligible person' is guilty of an
offence. However, the TIA Act sets out circumstances where the relevant
sections in Part 13 of the Telecommunications Act
will not prohibit the disclosure of information or a document.
These circumstances are set out in Division 3 (in relation to ASIO), Division 4
(in relation to 'enforcement agencies') and Division 4A (in relation to foreign
law enforcement) of Chapter 4 of the TIA Act.
The Division 4 provisions specify that 'enforcement agencies' can access
telecommunications data by prescribing that an 'authorised officer' of an
'enforcement agency' may authorise disclosure of specified information if the
disclosure of the information would be 'reasonably necessary' for:
enforcement of a criminal law;
enforcement of a law imposing a pecuniary penalty or for the
protection of public revenue.
Before making an authorisation under Division 4, the authorised officer
is required, by section 180F of the TIA Act, to have regard to:
[W]hether any interference with the privacy of any person or
persons that may result from the disclosure or use is justifiable, having
regard to the following matters: (a) the likely relevance and usefulness of the
information or documents; (b) the reason why the disclosure or use concerned is
proposed to be authorised.
As set out in Chapter 3, submitters raised concerns in relation to the
standardisation of the proportionality tests used across the TIA Act given that
the proportionality test applied in authorising access to telecommunications
data is significantly lower than the proportionality test involved in seeking
to intercept live communications or access stored content. In the case of content,
the proportionality test relates back to serious offence and serious
contravention respectively. In the case of authorising access to
telecommunications data, a much lower threshold can be established by linking
necessity of accessing the information with 'enforcement of a law imposing a
pecuniary penalty or for the protection of public revenue'.
What is telecommunications data?
The term 'telecommunications data', also referred to as metadata,
communications data and communications associated data, is not defined in the
TIA Act. However, the term is generally accepted as being 'information
about the process of a communication, as distinct from its content'.
The department explained that although 'telecommunications data' is not
defined in the Act, the term has 'come to encompass a broad range of different
types of information' and that the department uses a working definition.
The working definition is: information or documents that are not the content of
a communication, and includes the following types of information, which fall
into the following two categories and relate to communications for telephones
(both fixed and mobile) and the internet:
Information that allows a communication to occur:
the internet identifier (information that uniquely identifies a
person on the internet) assigned to the user by the provider;
for mobile service: the number called or texted;
the service identifier used to send a communication, for example
the customer’s email address, phone number or VoIP number;
the time and date of a communication;
general location information, that is, cell tower; and
the duration of the communication.
Information about the parties to the communications is
information about the person who owns the service. This would include:
name of the customer;
address of the customer;
postal address of the customer (if different);
billing address of the customer (if different);
contact details, mobile number, email address and landline phone number;
same information on recipient party if known by the service
Section 172 of the TIA Act makes it clear that access to
telecommunications data is not intended to allow access to the content or
substance of a communication. The committee heard, however, that what is now
captured as telecommunications data is a far broader subset of information than
was captured in 1979. Appendix 4 sets out an example, provided by iiNet
Limited, of the telecommunications data that is generated by a website, a
Facebook page and a tweet.
Electronic Frontiers Australia argued that this technological change has
altered the nature of metadata to the extent that telecommunications metadata,
in many circumstances, is more sensitive than the content of a communication:
In terms of looking at the current context of where we are
compared to when this Act was written in 1979, obviously there have been a few
changes in the way people communicate...In line with that, we reject pretty
strongly the assertion that taking the powers of this Act from 1979, a context
where mobile phones did not exist and the internet was still a pipedream, and
extending those powers into a context of ubiquitous mobile devices and internet
usage is not in any way a logical extension of the law to, as it were, keep up
with technology on a like-for-like basis. We strongly believe that in fact this
represents a very dramatic escalation of surveillance deep into all aspects of
people's lives and goes far beyond anything originally envisaged when this act
Electronic Frontiers Australia provided the following example of the
extent to which the volume of metadata had changed since 1979:
[W]hen this Act was originally drafted, the information that
you would get would be the fact that a phone call was made from No. A to No. B
at a certain time and lasted a certain duration. That is four pieces of
information. As soon as you widen that into a mobile phone context, all of a
sudden you have got a location at each point, which is an entirely new thing,
where literally people's locations can be tracked. Then, if you go beyond that
into non-telephonic communications, all of a sudden the amount of information
that has been collected starts to explode. You start to have potentially
dozens, if not hundreds, of different points of data that can tell all sorts of
things about what is going on. It is really quite a different scale, a
different scope, a different context, and it needs to have very different
The Internet Society of Australia (ISOC-AU) was of a similar view and stated
that it could not agree with the argument that metadata is not content:
Over recent times much discussion has also taken place on
metadata, with assertions that metadata does not include the content of
communication. We contend that, without appropriate technological standards
defined by an independent standards body, this claim is inherently untrue.
Information gathered by existing mechanisms about the material that transits
across an internet network—for example, by using the web page addresses visited
by a user—inherently contains specific addresses for many, many elements within
the page, even third-party elements in turn requested by the page, such as
Thus, the amount revealed about an individual, their family,
workmates and broader community is potentially very large. In many cases also
this data is dynamic and changes from moment to moment, and often today even
depends on the types of other sites visited by users, with the advent of cookie
correlation—none of which is under any control by the individual users. This is
further complicated by the emergence of apps, where users have extremely little
knowledge of the level of security or the pervasiveness and the types of
actions going on in the background.
The department acknowledged that changes in technology did have
implications for identifying the distinction between telecommunications data
At times, the distinction between 'telecommunications data'
and 'content of a communication' may become less clear. This is particularly
the case for information that, while not obviously the 'substance' of a
communication, could contain or reveal substantive information, such as:
email subject lines—subject lines can be used to convey the substance of
a communication, and
Uniform Resource Locators (URLs)—the details of which web page a person
visited can reveal the content that a person accessed.
The department informed the committee that in situations where it is
unclear, its advice to agencies, industry participants and the public, has been
[A]ny information that contains or reveals the content of a
communication is protected by the prohibitions on interception and access to
content under sections 7 and 108 of the TIA Act.
Using telecommunications data
As set out in Division 4 of Chapter 4 of the TIA Act, access to
telecommunications data by authorisation is intended to be used when disclosure
is considered reasonably necessary for the enforcement of a criminal law or a
law imposing a pecuniary penalty, or for the protection of the public revenue.
Throughout its inquiry, the committee heard that the use of
telecommunications data by law enforcement agencies is often vital in subsequently
establishing the grounds for obtaining access to the content of a
communication, via warrant, pursuant to Chapter 2 or 3 of the TIA Act. For
example, the Australian Commission for Law Enforcement Integrity (ACLEI),
explained the usefulness of metadata in the early stages of an investigation:
I would like to emphasise the importance of access to data at
the preliminary stages of an investigation. Investigations such as Operation
Heritage seek to uncover the full extent of a corrupt network, but often start
with only snippets of information or credible allegations. Data about who a
person of interest is talking to is often a critical first step that provides a
foundation for further investigation including, at a much later stage, seeking
a warrant for interception. It also allows us to rule out at an early stage
people who are unlikely to be complicit, thereby preventing the need for
unnecessary investigation and deeper intrusion of privacy.
Queensland Police expressed a similar view regarding the utility of
The warrantless data we capture regularly is used to in order
to assist you reaching the threshold to obtain the warrant, so in nearly all
cases you would be using the warrantless information to assist you to gather
the information which aided you to reach the threshold you needed to obtain the
warrant for telephone interception. That is one of its most common uses.
Obtaining data from your phone that is able to tell us about connections
between people at different times, aids in painting the picture which, added
with other intelligence and evidence, raises you to the threshold of being able
to obtain a warrant. That is one of those distinctions I think we need to make
between the warrantless and warrant based processes.
The Board of the ACC similarly described to the committee how, in its
view, accessing telecommunications data without a warrant enables law
enforcement agencies to only seek access to content (via a warrant) where
[W]hat [telecommunications data] often does is confirm
someone's involvement in crime. After that confirmation we often go to the next
level, which is obtaining a warrant et cetera for content. So at a fundamental
level what it often does for us is confirm that a person is involved with a
group of people who are committing, for example, organised crime. Then we build
on that as far as obtaining a warrant for content down the track. Fundamentally
what it is used for is that confirmation of involvement. I think it was
mentioned by one of my colleagues that it should not be underestimated how many
citizens are excluded from ongoing intrusive law enforcement interests because
of that fundamental check. It [is] still sensitive information—there is no
question about that—but we do exclude a considerable number of people in that
The Board of the ACC emphasised that it understood the need to protect
metadata and expressed its view that this data, although not content, is by no
We do not believe that this is innocuous. We accept that you
can build a picture. What we are saying is that it is a building block in many
ways for further, more intrusive powers which are, quite appropriately,
warranted. It is not open for us to access that information without thresholds
having been crossed. They are not inconsiderable thresholds that we have to
A similar view was expressed by Mr Alastair MacGibbon, Director of the
Centre for Internet Safety at the University of Canberra. Mr MacGibbon, a
former federal agent with the AFP:
...impress[ed] upon the committee the extreme and extraordinary
importance of metadata to assist law enforcement investigations. However,
anyone who accesses metadata from a law enforcement point of view understands
the gravity and the granularity of the information that is provided.
The department explained to the committee that telecommunications data
has a 'set of irreplaceable characteristics that often make it the most
appropriate tool for agencies'. The department identified these characteristics
it is low risk—unlike the use of undercover officers, informants or
physical surveillance, agencies can obtain valuable information without placing
their officers, agents or operations at risk
it is less resource intensive—many other investigative techniques would
require agencies to deploy teams of specialist officers to obtain basic information
about a target and their associates; lawful access to telecommunications data
allows agencies to prioritise the use of these scarce resources for the most
critical investigations, and
it is less privacy intrusive—telecommunications data allows agencies to
obtain factual information about communications, such as with whom, when and
where a person was communicating, which is useful at the early stages of an
investigation. However, as telecommunications data does not include the content
of a communication it does not disclose more sensitive information about a
person’s motivations or intentions, such as what a person was talking about or
why they were communicating.
Growth in access to
Throughout the inquiry, the committee received evidence from submitters
critical of the growing number of authorisations being issued to 'enforcement
agencies' for access to telecommunications data. Illustrating the extent of the
use of authorisations, for the 2012-13 financial year the department reported
law enforcement agencies
authorised access to telecommunications data in 312,929 cases;
Commonwealth enforcement agencies
made 6,254 authorisations for access to telecommunications data; and
state and territory enforcement agencies
authorised access to telecommunications data on 691 occasions.
Given the growth in access to metadata the view that all
telecommunications data should be accessed by warrant, making access subject to
independent judicial oversight (for example, a judge or nominated Administrative
Appeals Tribunal (AAT) member), was considered throughout the inquiry.
In response to this suggestion the department stated it considered:
...that a more holistic approach, including limiting the range
of agencies permitted to access traffic data and requiring such access to be
subject to independent oversight...would enable Parliament to strengthen the
existing regime without degrading agencies' capabilities or imposing a
disproportionate burden on agencies and issuing authorities.
The department's suggestion that the threshold for access to
telecommunications data be reviewed and some form of independent oversight be
introduced into the regime was similar in some respects to recommendation 5 of
the PJCIS's June 2013 report.
The need to review the threshold for access to telecommunications data
In its June 2013 report, the PJCIS recommended that the threshold for
access to telecommunications data be reviewed with a 'focus on reducing the
number of agencies able to access telecommunications data by using gravity of
conduct which may be investigated' as the threshold on which access is allowed.
The Corruption and Crime Commission of Western Australia supported this
The Commission fully supports Recommendation 5 and further
supports a stronger threshold for access to traffic data as opposed to a lower
threshold for access to subscriber data. The Commission considers this will
strengthen the privacy protections within the TIA Act.
Electronic Frontiers Australia suggested that thresholds for access to
telecommunications data 'should be set taking into account the principle of
...ensure that access is only available in relation to a
reasonably serious offence—for example, a criminal offence attracting a certain
maximum term of imprisonment or a civil offence attracting a predetermined
minimum penalty—and where there is a reasonable suspicion of the people
involved in such an offence.
ThoughtWorks Australia similarly argued that 'the number of agencies
that can access this data needs to be confined to only those truly undertaking
law enforcement and national security activities'.
In its submission to the inquiry, the department expressed concern with
the recommendation of the PJCIS to use 'gravity of conduct' as a threshold for
access on the basis that to do so would be inconsistent with Australia's
international legal obligations under the Council of Europe's Convention on Cybercrime.
The department explained that instead of this approach it would prefer the 'imposition
of safeguards, including restricting the range of agencies permitted to access
and that options be explored to:
create certainty about which agencies are permitted to access
account-holder data or traffic data
ensure that agencies accessing any type of telecommunications data have
a demonstrated need to do so, and
ensure that all agencies with data-access powers are subject to
The Australian Privacy Commissioner, Mr Timothy Pilgrim, however, in his
evidence in respect of the mandatory data retention Bill currently before Parliament
noted that if proportionality considerations are not considered in reviewing
the threshold for access to telecommunications data, additional safeguards may
be required in the legislation:
In my submission, I did not advocate for the imposition of
warrants. I took this position on the proviso that the bill be amended to limit
the purposes for which telecommunications data can be used and disclosed to the
investigation of serious crime and threats to national security. However, since
lodging that submission, I note that the Attorney-General's Department has
suggested that to meet Australia's obligations under the Council of Europe's
cybercrime convention access to telecommunications data cannot be limited in
this way. If that is the case then I consider that further thought needs to be
given to what additional safeguards might be put in place when access is for
the purpose of investigation of minor offences.
Similar concerns were raised by the Parliamentary Joint Committee on
Human Rights (PJCHR) during its examination of the Bill and led that committee
to recommend that the Bill be amended:
...so as to avoid the disproportionate limitation on the right
to privacy that would result from disclosing telecommunications data for the
investigation of any offence...to limit disclosure authorisation for existing
data to where it is 'necessary' for the investigation of specific serious
crimes, or categories of serious crimes.
The committee heard from other stakeholders that were supportive of
reviewing the threshold for access to telecommunications data as suggested by
the PJCIS. For example, Blueprint for Free Speech expressed its support for a
...there must be proper public consultation about the detail
around which agencies should have continued access to telecommunications data,
and...[the] proper description of the basis for this access and the threshold for
same. This information should not be concealed from the broader Australian
community, and Australians must have a say in this decision process.
In addition to calls for a review of the proportionality test involved
in authorising access to telecommunications data, submitters also voiced
support for refining the definition of 'enforcement agency' to reduce the
number of agencies that could access the data without a warrant. For example, the
Office of the Public Interest Monitor of Victoria supported calls for a
reduction in the number of agencies accessing telecommunications data without a
There has been recent media attention and significant
criticism of the ability of agencies to obtain telecommunications data and the
consequential implications on the privacy of those who utilise telecommunications
services. Local councils can access telecommunications data under the TIA Act
on the basis that disclosure of the said data is reasonably necessary for the
enforcement of a law imposing a pecuniary penalty. The matters in respect of
which telecommunications data is obtained by some agencies does not appear
commensurate with the invasion of privacy occasioned by the disclosure of such
data. A reduction in the number of agencies able to access telecommunications
data by using the gravity of the conduct which may be investigated utilising
telecommunications data as a threshold on which access is allowed is supported.
The Australian Mobile Telecommunications Association (AMTA) and the
Communications Alliance advised the committee that there was a need for
'clarity around which agencies are eligible to have access to
telecommunications data' and that this could result in cost efficiencies for
The Internet Society of Australia (ISOC-AU) was of a similar view:
The existing provisions do not make clear which agencies have
the right to gain access to metadata. Should metadata be defined then there
must be a clear understanding of which agencies are eligible to access
communications information, and the proportionality of [the] suspected crime
must also be correspondingly high.
Electronic Frontiers Australia also suggested that the highly invasive
nature of this information warranted tighter restrictions to access:
...and, ideally, a clearly defined list of agencies that are
able to request access to data. As mentioned, there may be cases where agencies
outside that list can apply via an approved agency, as it were, to do that, but
we think that there do need to be some very tight restrictions around that. We
also agree that there should be very tight, very stringent and very clearly
defined thresholds for access to data.
It is noted that the Telecommunications (Interception and Access)
Amendment (Data Retention) Bill 2014 which is currently before Parliament,
seeks to limit the number of agencies that can access telecommunications data
by redefining 'enforcement agency'. The Bill, however, does not address the
need to review the proportionality test in respect of accessing
Introduction of oversight for telecommunications data
In addition to calls for a review of the threshold for access to
telecommunications data, the committee repeatedly heard concerns raised by
stakeholders about the lack of oversight and transparency in the
telecommunications data access regime.
Under the existing legislative framework, telecommunications data can be
accessed by any agency that meets the definition of 'enforcement agency',
(which includes 'a body whose functions include: (i) administering a law
imposing a pecuniary penalty; or (ii) administering a law relating to the
protection of public revenue'),
where the disclosure is considered reasonably necessary for the enforcement of
the law or the protection of public revenue and the authorised officer has had
regard to the privacy implications of the disclosure.
Unlike the warrant regimes of Chapters 2 and 3 of the TIA Act, Chapter 4
of the TIA Act does not contain any legislative framework for direct oversight of
the authorisation process. Similarly, the legislation does not require that
information accessed must be destroyed when it is no longer necessary, unlike
the Act's requirements for content
and as is required by Australian Privacy Principle (APP) 11.
There are reporting requirements for access to data. The TIA Act
requires the 'enforcement agency' to keep a record of authorisations and report
those to the Minister at the end of each year. Although the number of
authorisations is published in an annual report tabled by the Minister, no
further detail is provided. As the authorisation process occurs internally
within each enforcement agency, there is no external oversight of or
transparency about how agencies are complying with the obligations to balance
access with privacy.
The Commonwealth Ombudsman, who has a role in overseeing warranted
access to telecommunications content, commented on the lack of oversight of
access to telecommunications data. The Ombudsman explained that his office did
not have any inspection role in relation to metadata and agreed that the oversight
and reporting regime for telecommunications data could be improved. He
suggested that there may also be an educational role that his office could play.
The then Secretary of the
Attorney-General's Department also explained that in his view there was a need
for greater transparency in relation to the authorisation process for accessing
The figures outlined at paragraph 4.24 indicate that, if the
Commonwealth Ombudsman were to have a role in relation to inspecting access to
metadata, his office would face an enormous workload. However, the Ombudsman
suggested that the resourcing challenges presented by the number of
authorisations for access to metadata that would need inspection could be met
by an 'appropriate sampling program':
That would be the normal approach to a volume responsibility
along those lines. And then, if we form some views, they would need to be
couched in language which said we had done that which we could, in the
circumstances with which we are confronted.
An officer from the Commonwealth Ombudsman added that in addition to a
...we would have to look at the risks associated with that
inspection regime. It may well be that the most appropriate means would be
looking at processes rather than focusing on records per se, so looking at
high-level processes in combination with doing a sample may alleviate some of
the risks that would occur from not looking at a greater number.
Electronic Frontiers Australia expressed its support for the
introduction of a better oversight and reporting regime in relation to access
to telecommunications data:
We also support calls for more detailed reporting of access
to data...We also see no reason why access to communications data by intelligence
agencies should not be reported...at least on a statistical basis. We cannot see
any harm in doing that. We agree that there needs to be more effective external
and independent oversight of this process. We would also suggest that there
need to be very clear rules about what happens to data that has been accessed
through this process, how long it is retained by the agencies and how it is
disposed of and so forth.
The Chair notes that the government has proposed changes to the
oversight arrangements for accessing telecommunications data by authorisation
in the Bill currently before Parliament. This is discussed in more detail later.
Should access to 'telecommunications data' require a warrant?
It is widely considered that there is a need to review the threshold for
access to telecommunications data accessed without a warrant. Some witnesses
suggested to the committee that the need for such a review in the context of a
legislative framework mandating retention of defined data attributes has become
even more important. For example, the Australian Privacy Foundation explained:
In terms of metadata, I think it is easy, when we say 'All
metadata should be covered by warrants', for the law enforcement agencies to
come back and say, 'That's completely ridiculous; it's administratively
impossible for us to go for warrants for all of those 320,000 authorisations.'
I think one of the questions that needs to be asked is: how many of those are
just for customer name and address? I do not think any of us are suggesting
that you should have to go for a warrant just to say to a telco, 'Do you have a
customer Nigel Waters?' So, we could get rid of that sort of furphy and say
that maybe 50 or 60 per cent of requests are in that category and that it is no
different from any other business that the police might go to and ask for
customer information. But when you get into the details of their billing
records, their transactions and all the other associated metadata, then it is
our position that that should be subject to the warrant regime.
This view was supported by Electronic Frontiers Australia:
We support the implementation of a warrant process for access
to metadata in any substantive form...outside of simple customer information. We
do not think there is a need for wider access to that, but for anything
involving any substantive amount of metadata we would certainly support that.
The MEAA explained that it agreed with the extension of the warrant
regime to data which is 'information that allows a communication to occur',
on the basis that such an approach would provide valuable protections for
Clearly, being required to get a warrant-anything that raises
the bar to access this information is obviously very valuable. It also would
then require them [law enforcement agencies] to answer certain questions that a
judge would have to ask under the Evidence Act in terms of confidentiality of
sources. For example, if you are seeking a warrant to get metadata about a
particular journalist's phone, then they [the agency] would also have to jump
through the hoops under the shield laws.
Calls for requiring access to telecommunications data to be restricted
via warrant or changes to the definition of 'enforcement agency' are largely
the result of changes to metadata brought about by advancing technologies and
the view of stakeholders that in many circumstances, metadata should be
regarded as the equivalent of content.As
a result, it is in this context that the debate around accessing metadata via
an authorisation, rather than warrant needs to be had.
This section outlined the existing legislative framework that provides
for enforcement agencies to access telecommunications data by means of an
authorisation. It discussed evidence received which indicated that information
captured as telecommunications data today is far greater and more revealing
than the information which was available when the Act was first introduced
pointing to a need for reform. Reform of access to telecommunications data
becomes even more important in light of calls for mandatory data retention,
which is discussed in in the next section of these additional comments.
Chair's views and recommendations: existing regime for authorising access
to telecommunications data
The Chair's views and recommendations set out below are made in respect
of his findings on the current form of the Telecommunications (Interception
and Access) Act 1979 (TIA Act).
The Chair acknowledges the enormous complexity involved in updating
telecommunications interception legislation and recognises that the issues
involved are technical and challenging. In forming these recommendations, the Chair
has been guided by the underlying premise that the individual right to privacy
must be balanced with the need to ensure community safety and national
security. However, there are difficult compromises to be struck between these
competing rights, as well as a range of practical considerations affecting both
law enforcement agencies and telecommunications providers. Notwithstanding
these difficulties, the existing TIA Act is complex and difficult to
navigate; it should be re-written.
The need for reform has arisen as a result of piecemeal amendments over
a 35 year period. Although these legislative changes sought to respond to
the needs of law enforcement and anti-corruption bodies, they have not
sufficiently considered the impact of parallel advancements in technology.
Evidence to the committee clearly illustrated that ad-hoc reform in the
absence of consideration of changing technologies has resulted in a regime
characterised by complexity, duplication and, in some cases, inadequate
oversight and privacy protections. Moreover, it has led to an inexorable creep
in the range of agencies permitted to access intercepted material and the
purposes for which they are permitted to do so. As a result, the Chair
considers that comprehensive reform of the telecommunications legislation is
required, particularly so the legislation is
well-placed to deal with the continued evolution of telecommunications
technology and usage. Continued piecemeal amendment of the existing TIA Act is
The Chair sees merit in the introduction of a single attribute-based
warrant regime for content and metadata that is 'information that allows a
communication to occur', but notes that a carefully considered definition of
the attributes included and an appropriate proportionality test is required.
The introduction of a single attribute-based warrant regime should be
coupled with the introduction of a Commonwealth public interest monitor and a
review of the oversight regime governing both warranted and warrantless access.
The Law Council of Australia provided examples of specific legislative changes
that could be incorporated which the Chair considers would address the concerns
of stakeholders in respect of oversight of the warranted access regime.
The Chair recommends that consideration be given to the evidence taken during
this inquiry regarding the design of a single attribute-based warrant regime.
The Chair agrees with calls for an objects clause clearly articulating
the purpose of the Act and its dual objectives of providing access to
communications content and data to enable the investigation of serious crime
and threats to national security and protecting the privacy of communications.
The Chair was persuaded that the introduction of a Commonwealth Public
Interest Monitor, serving a similar role to that played in Queensland and
Victoria, would help ensure that the introduction of attribute-based warrants
does not reduce privacy protections under the existing regime.
The Chair recommends that the Telecommunication (Interception and
Access) Act 1979 be amended to include an objects clause modelled on
Article 17 of the International Convention on Civil and Political Rights
and the privacy principles contained in the Privacy Act 1988.
The Chair recommends that the Telecommunication (Interception and
Access) Act 1979 be comprehensively redrafted to enact a single
attribute-based warrant regime applying to content and data that is
'information that allows a communication to occur'. Warrants under that regime
should be limited to the investigation by law enforcement, anti-corruption or
national security agencies of:
serious criminal activity; or
activity that may have serious and immediate implications for
'Basic subscriber data' would continue to be accessed by enforcement
agencies via the authorisation regime.
The Chair recommends that the Telecommunication (Interception and
Access) Act 1979 should be amended to establish a Commonwealth Public
Interest Monitor to have oversight of the warrant regime under the Act.
Mandatory data retention
This section examines the policy of mandatory data retention in
the context of the government's proposed regime set out in the
Telecommunications (Interception and Access) Amendment (Data Retention) Bill
2014. The terms 'telecommunications data' and 'metadata' are used
In 2012, when requesting that the Parliamentary Joint Committee on
Intelligence and Security (PJCIS) undertake an inquiry into a package of
potential reforms to Australia's national security legislation, the then
Attorney-General directed the PJCIS to consider:
Applying tailored data retention periods for up to 2 years
for part of a data set, with specific timeframes taking into account agency
priorities and privacy and cost impacts.
In its June 2013 report, the PJCIS stated that it had 'grappled with the
issue of how best to reconcile the important national security interests...and on
the other hand...the very significant alteration of the relationship between the
state and the citizen, which the introduction of such a regime would arguably
That committee did not form a view on the need for the introduction of
mandatory data retention, but rather, stated that the matter should be left for
On 30 October 2014, the Abbott Government introduced the Telecommunications
(Interception and Access) Amendment (Data Retention) Bill 2014 (Bill) into the
House of Representatives.
On introducing the Bill, the Minister for Communications explained:
The bill contains a package of reforms to prevent the further
degradation of the investigative capabilities of Australia's law enforcement
and national security agencies. The bill will require companies providing
telecommunications services in Australia, carriers and internet service
providers to keep a limited, prescribed set of telecommunications data for two
years. The bill amends the Telecommunications Interception and Access Act
1979...and the Telecommunications Act 1997...
The proposed mandatory data retention regime set out in the Bill would
introduce a requirement that telecommunication service providers in Australia
retain telecommunications data (metadata) for a period of two years. Rather
than define 'telecommunications data', the Bill would 'allow regulations to
prescribe a consistent, minimum set of records that service providers who
provide services in Australia must keep for two years'.
Under the Bill, content and web browsing data would be specifically excluded
from the retention requirement.
The Bill also proposes a new definition of 'enforcement agency' and
'criminal law enforcement agency' for the purposes of existing Chapter 4
(accessing telecommunications data) and Chapter 3 (in relation to preservation
notices) of the TIA Act. The proposed definitions, which would seek to limit
the number of agencies that can access this data, include the introduction of a
ministerial discretion that would enable the Minister to declare an agency to
be an 'enforcement agency' or 'criminal law enforcement agency' for the
purposes of the Act.
In addition, the Bill proposes the introduction of a new oversight
regime for the Commonwealth Ombudsman where the Ombudsman would oversee the
authorisation regime, including an obligation to report annually on the regime
to the Minister and the Parliament.
Why is mandatory data retention being proposed?
Telecommunications data is generally collected as a matter of course by
carriers and carriage service providers in the provision of communication
services. This information has traditionally been used for billing purposes.
However, as technology and the way in which services are provided has changed,
this data is no longer always required for business purposes and in some
instances is not being retained at all. This has led to calls, primarily from
national security and law enforcement agencies, for the introduction of a
mandatory data retention regime. It also explains the view of those agencies
that, what would be required is not the introduction of a new obligation, but
rather the mandating of data to ensure consistency in the data set retained,
both in terms of data and the period of retention. This is reflected in the
Bill currently before Parliament.
In his second reading speech the Minister explained the government's
view of the vital role of metadata to public and national security:
Access to metadata plays a central role in almost every
counterterrorism, counterespionage, cybersecurity and organised crime
investigation. It is also used in almost all serious criminal investigations,
including investigations into murder, serious sexual assaults, drug trafficking
and kidnapping. The use of this kind of metadata, therefore, is not new.
However, as the business models of service providers are changing with
technology they are keeping fewer records. And they are keeping those records
for shorter periods of time because they do not need them any longer, in many
cases, for billing. Many of the records that are still kept are kept because of
legacy systems put in place years ago. In June 2013, the Parliamentary Joint
Committee on Intelligence and Security concluded that this diminution in the
retention of metadata is harming law enforcement and national security
capabilities, and that these changes are accelerating.
Throughout its inquiry the committee received much evidence from law
enforcement agencies indicating universal support for the introduction of
mandatory data retention for the reasons cited by the Minister. For example,
the Board of the Australian Crime Commission (ACC), in stating its support for
a regime that required data to be retained for a 'uniform length of time across
all telecommunication service providers', explained:
Telecommunications data is an effective and efficient tool
used by law enforcement to identify and investigate organised criminal activity
and serious crime and reveal the true extent of a criminal network which would
otherwise remain unknown.
Victoria Police, another advocate for mandatory data retention, voiced
strong support for the implementation of such a regime 'given the changes in
the patterns of community usage of mobile phones (being that many persons use
mobile phones daily and frequently for conversations or internet access) and
changes in industry business practices'. Victoria Police added:
...in many instances, carriers only retain data for commercial
purposes such as billing. Data which is of interest to law enforcement is often
not retained. Where data is retained, it is for varying periods of time. The
community expectation for criminal activity to be sufficiently investigated and
prosecuted justifies data retention to mitigate the risk that evidence will be
The Australian Commission for Law Enforcement Integrity (ACLEI) also
supported calls for mandatory data retention:
ACLEI sees merit in a legislated data retention requirement
on telecommunications service providers, which would provide clarity as to how
long a period of time service providers will retain telecommunications data,
and ensure that such data can be properly accessed for law enforcement
purposes. This data is already in the possession of service providers for their
usual business practices, such as billing, which is generally destroyed after a
short period of time.
ACLEI provided an example of how the lack of a mandatory data retention
regime had affected its ability to investigate corruption:
In a recent ACLEI corruption investigation, it appeared that
sensitive information about a law enforcement agency may have been unlawfully
disclosed to a third party by use of an anonymous website contact form.
ACLEI was able to identify the IP address of the computer
from which the alleged unlawful disclosure had been made, but when ACLEI sought
to match the IP address to a particular internet user, the relevant internet
service provider advised that—in accordance with usual business practices—the
information had been destroyed when it was no longer necessary.
There were no other means available to ACLEI to match the IP
address to a person. If the service provider had been under an obligation to
keep its telecommunications data for more than a few months, the data might
have been available to ACLEI for the purposes of the corruption investigation.
Despite widespread support among law enforcement and national security
agencies for the introduction of mandatory data retention, concerns have been
consistently raised since such a regime was first mooted, and again, following
the release of the government's proposed legislation in late October 2014.
Concerns are generally related to the following three themes:
the scope of the proposed mandatory data retention regime;
the cost involved; and
the privacy implications of implementing a two year retention
These matters are addressed below in the context of the government's
Scope of the proposed mandatory data retention regime
Part 1 of Schedule 1 of the Bill seeks to insert a new Part 5-1A into
Chapter 5 of the TIA Act.
Proposed Division 1 of Part 5-1A sets out the scope of the proposed mandatory
data retention regime.
Proposed new section 187A contains the obligation on service providers
to keep 'information of a kind prescribed by regulations, or documents
containing information of that kind'
for the period prescribed by proposed new section 187C and identifies that the
kinds of information that would be required to be retained by regulations must
relate to one or more of the following matters:
- characteristics of any of the following:
- the subscriber of a relevant
- an account relating to a
- a telecommunications device
relating to a relevant service;
- another relevant service
relating to a relevant service;
- the source of a communication;
- the destination of a communication;
- the date, time and duration of a communication, or of its
connection to a relevant service;
- the type of a communication, or a type of relevant
service used in connection with a communication;
- the location of equipment, or a line, used in connection
with a communication.
The Explanatory Memorandum (EM) to the Bill sets out that
telecommunications data would not be defined in the TIA Act so as to remain
technology-neutral and that a 'regulation-making power is required to ensure
that the legislative framework gives service providers sufficient technical
detail about their data retention obligations while remaining flexible enough
to adapt to future changes in communication technology'.
The EM further explains 'data retention will create a consistent obligation
for record-keeping across the telecommunications industry' and that although
'[s]ome service providers may initially need to modify their systems to ensure
they meet this minimum standard':
The minimum obligation imposed by this legislation is consistent
with the types of data and subscriber information currently held by service
providers for billing, quality assurance and other business purposes.
Proposed new section 187B identifies service providers that would be
exempt from the data retention obligations proposed under section 187A(1). The
purpose of proposed new section 187B:
...will be to ensure that entities such as governments,
universities and corporations will not be required to retain telecommunications
data in relation to their own internal networks (provided these services are
not offered to the general public), and that providers of communications
services in a single place, such as free Wi-Fi access in cafes and restaurants
are not required to retain telecommunications data in relation to those
services. However, the [Communications Access Co-ordinator] CAC can declare
that data from such services must nevertheless be retained.
The mandatory data retention regime being proposed by the government's
Bill has been criticised on the basis that the:
term 'telecommunications data' remains unclear;
costs of implementing such a regime remain unknown; and
retention period being proposed is arbitrary and further
There has, however, been widespread support for the inclusion in the
Bill of a revised definition of 'enforcement agency' (which would have the
effect of limiting the number of agencies who can access telecommunications
data via authorisation), and the proposed introduction of an oversight regime
in respect of telecommunications data.
What is telecommunications data?
Many submitters contended that due to changes in technology, metadata
(telecommunications data) should now be regarded as content. They contend that
the definition of 'telecommunications data' should take this into account. Mr
Steve Dalby, the Chief Regulatory Officer at internet service provider
iiNet Limited, explained how the analogy of the 'envelope and the letter'
no longer holds up:
The complex, voluminous, often sensitive and private nature
of the data sought under a mandatory data retention regime exposes the
hollowness of the claim that communications data or metadata is 'just like the
envelope without its contents'. The difficulty with such a poor analogy is that
it attempts to compare a piece of paper, the envelope, with a chain of events
and multiple links to myriad other data, meticulously described and recorded.
In the case of Twitter, this may include who wrote the tweet, their biography,
their location, when it was written, how many other tweets have been written on
that user's account, where the author was when the tweet was posted, what time
it was, whom it was sent to, where the author is normally based and,
surprisingly in the case of Twitter, the 140 characters of the content of the
tweet as well.
Mr Dalby further explained to the committee that as metadata 'underlies
It is fundamentally misleading to downplay the degree of
intrusion of data retention regimes such as those that operate at the European
directive level. A false assertion is that such regimes do not include the
actual content of what our customers might be communicating. These inaccurate
distinctions are dangerous and inappropriate. It is misleading to assert that
such data is 'only metadata' or 'just metadata'. Metadata reveals even more
about an individual than the content itself.
Blueprint for Free Speech raised similar concerns that it is:
...easy to try to triangulate information about a particular
person, or to imply particular activities or conduct, purely from metadata. If
you have enough of it you can build a story and then imply context, which is in
Electronic Frontiers Australia agreed with the view that 'metadata is
often a proxy for content':
We also strongly disagree with the assertion that metadata is
less invasive than providing access to content. As the Attorney-General's
Department itself admitted in its submission:...telecommunications data can
contain particularly sensitive personal information justifying special legal protection.
We completely and wholeheartedly agree with that. Clearly, it can be used to
build a picture of a target, their network of associates, where they shop,
where they eat, where they sleep...
Mr Lawrence also cited the following research by David Seidler who made
the following point about data retention:
Although on its face, metadata might appear anonymised and
trivial, the development of big data analysis techniques (for which metadata is
"perfect fodder") means that the insights it provides after
manipulation might well meet this definition—of being content, that is.
More dramatically, Ms Lindy Stephens, Global Director of People
Operations at ThoughtWorks, cited former Central Intelligence Agency (CIA) and
National Security Agency (NSA) Director General Michael Hayden as having said,
'We kill people based on metadata'.
Ms Stephens also referred the committee to statements made by former NSA
General Counsel Mr Stewart Baker that 'metadata absolutely tells you everything
you need to know about somebody's life. If you have enough metadata, you don't
really need content'.
Industry groups cautioned the committee in respect of the potential
privacy impacts on consumers of data retention. AMTA submitted that:
[A] data retention scheme will involve an increased risk to
the privacy of Australians and provide an incentive to hackers and criminals.
Data retention is at odds with the prevailing policy to maximise and protect
privacy and minimise the data held by organisations.
Industry believes it is generally preferable for consumers
that telecommunications service providers retain the least amount of data
necessary to provision, maintain and bill for services.
The Media, Entertainment and Arts Alliance (MEAA) also outlined its
opposition to mandatory data retention explaining that it was particularly
apprehensive as to how such a regime would affect the free press:
The inevitable impact of collection, storage and surveillance
through metadata is that it will be impossible for a journalist to liaise with
a source, for a source to connect with a journalist or for a journalist to
connect with a source without it being be able to be found and be identified,
without them going through quite extraordinary encryption processes—and, even
there, I think there is probably a question mark over how effective that would
The need for a definition of
'telecommunications data' in the primary legislation
Throughout the duration of the committee's 15 month inquiry,
stakeholders consistently raised the need for a clear definition of
'telecommunications data' to be legislated, particularly in the event of the
government seeking to implement mandatory data retention.
Dr Roger Clarke of the Australian Privacy Foundation identified the
complexity of defining metadata, explaining to the committee:
The term 'metadata'...derives from the library sphere. It is
data about data, and it has gradually been absorbed into discussions about the
internet, because obviously librarianship has moved on to the internet during
the last 20 years...It merely means data about data. That is the only
consolidated meaning that it has. With respect to any given communication, your
answer as to what is metadata and what is content will be different. There is
not one answer to: what is metadata? There are 40 or 50 answers and, in fact,
some of them can be disputed at length. That has been lost in this debate.
Everybody is assuming that metadata is a thing that can be legislated for. It
is not technologically neutral. It is absolutely unclear what metadata will
mean in each of these different contexts.
Other submitters also acknowledged the complexity of defining
'telecommunications data', and they too cited the importance of clearly
defining the term. Mr Alastair MacGibbon, Director of the Centre for Internet
Safety at the University of Canberra, explained:
...defining metadata is...clearly the critical thing. What
information do we consider to be metadata, in terms of the legislation, and
what do we not? Once that distinction is made it becomes a much clearer
picture, though it may not satisfy everyone. Metadata is anything and
everything that you are really gathering; it is information from the use of
Electronic Frontiers Australia was of a similar view:
It is clearly a pretty critical starting point that we get a
clear definition of metadata. In the telephonic context it is fairly
straightforward, but if we go beyond that into non-telephonic communications we
have some very serious concerns that it is even technically feasible to
effectively separate metadata from content, particularly in the case of email
Although stakeholders explained the need for a clear definition of
'telecommunications data' on the basis that clarity is required to ensure
certainty for industry, protect privacy, and enable the costs of mandatory data
retention to be accurately forecast, the Bill currently before the Parliament,
while identifying the categories of information that metadata might include,
relies on regulations to set out the specific details.
The Attorney-General's Department (department) explained that this
approach had been taken to ensure the legislation remains technology neutral:
The regulations provide an ability to update the dataset in
the event that it is required due to changes in telecommunications services and
the fundamental nature of those, and industry have told us consistently that
the industries are evolving at a rapid rate and there is considerable change on
the horizon. The inclusion of the dataset in regulations provides an ability to
update the dataset whilst ensuring it is limited to the six key categories
include on the face of the bill.
Despite the department's explanation, the approach of delegating the
substance of the Bill to subordinate legislation has been criticised by many
stakeholders, many reiterating the need for a definition to be included in the
The Law Council of Australia (Law Council) stated that in its view, the
delegation of the definition of telecommunications data to regulations was
The Law Council's Rule of Law Principles require that where
legislation allows for the Executive to issue subordinate legislation in the
form of regulations, the scope of that delegated authority should be carefully
confined and remain subject to Parliamentary supervision. Such a requirement
ensures that Executive powers are defined by law, such that it is not left to
the Executive to determine for itself what powers it has and when and how they
may be used. As a matter of good legislative practice, significant matters
should be specified in primary legislation which generally undergoes extensive
consultation, not potentially subject to change by Ministerial decision and
The Law Council further set out why it considered it inappropriate for
the data set to be defined in regulations:
The categories of information which should be captured by the
scheme will raise significant questions of policy and have very substantial
financial, as well as privacy, implications. The 'kinds of information' (within
defined categories) that might be required to be captured and kept are
uncertain. Although the Government has provided an initial proposal (in the
form of a draft Regulation) the data set is still in draft form and can be
changed at any time. Given that service providers can be subjected to civil
penalties for failing to comply with obligations under the scheme (see for
example section 187M) and the impact of the scheme on individuals, the Law
Council considers that it is inappropriate for the kind of telecommunications
data to be prescribed by regulations. Both the categories of the data to be
retained and the specific data set should be set out in the Bill itself.
In addition, the Law Council cited the report of the Scrutiny of Bills
Committee which stated that 'paragraph 187A(1)(a)...inappropriately delegate[d]
and accordingly, made the following recommendations:
The Bill should clearly define the types of telecommunications data and
the specific data set to be retained.
The power to prescribe by way of regulation the mandatory data set
should be removed from the Bill.
The Bill should define the distinction between the 'content and
substance' of a communication (referred to in clause 187(4)(a) of the Bill), as
opposed to 'telecommunications data'.
A similar concern was raised by the Australian Human Rights Commission
(AHRC) in its submission to the PJCIS inquiry. In its submission, the AHRC,
while acknowledging the rationale for using regulations, stated that:
...the definition of telecommunications data is a critical
feature of the Bill and should not be left to be described by Regulations. The
Commission considers that the telecommunications data required to be retained
by telecommunication services providers should be included in the legislation
The cost of data retention
Throughout its inquiry the committee sought to establish the costs that
would be involved should the government proceed with its plan to introduce
mandatory data retention. At the committee's final public hearing on 2 February
2015 and after the introduction of the Bill, the department was unable to
provide any indication to the committee of the possible cost of a mandatory
data retention regime to taxpayers. In fact, in response to questioning as to
whether or not the Parliament will know how much the scheme will cost before
the Bill is debated, the department advised:
That will ultimately be a matter for the Attorney and the
government...As with all budgetary matters, it is a matter for the budget process
and the government and the cabinet.
On introducing the Bill, the Minister stated:
There has also been a great deal of conjecture about how much
data retention may cost...the government is committed to ongoing, good faith
consultation with industry and expects to make a substantial contribution to
both the cost of implementation and the operation of this scheme.
On 18 February 2015, the Prime Minister, the Hon Tony Abbott MP, was
quoted as saying that 'keeping the data would cost less than $400 million a
In its report tabled on 27 February 2015, the PJCIS set out that '[i]ndicative
costing estimates for industry's implementation of the data retention scheme,
based on PricewaterhouseCoopers analysis, suggested that the upfront capital
cost of the regime would be between $188.8 million and $319.1 million'.
Throughout the course of its inquiry, the committee did however receive
evidence from industry participants of the predicted costs associated with the
implementation of such a regime. The committee heard that the lack of clarity
around what was being proposed, and therefore the costs that the imposition of
a mandatory data retention regime may have for industry participants, were of
great concern. The Australian Mobile Telecommunications Association (AMTA) and
Communications Alliance explained industry's apprehension and its views in
relation to these matters as follows:
...the cost of retaining data beyond any period it would be
retained in the normal course of business must be borne by the agencies that
require it. Similarly, any costs in relation to security, storage and ability
to search retained data must also be borne by the agencies that require it. The
Associations note that keeping more data or keeping data for longer periods,
may add to costs significantly whereas the added benefits may be incremental,
...The costs of acquiring and retaining particular items of
data will vary widely, as will the benefits to [law enforcement and national
security agencies] LENSAs.
iiNet Limited (iiNet) advised the committee that the cost of
implementing data retention to its organisation could be as high as '$100
million and growing over time as data grows':
[$60 million] was our first-year cost, which we calculated...18
months ago. We have done some maths since then and we have seen the
proliferation of metadata on websites and other places doubling every 18 months
to two years, so our costs would increase. I know the cost of storage is coming
down, but we believe that doubling every two years of the volume of data that
would need to be collected would mean that this would be an ongoing increase.
We are now talking more in the order of $100 million for that first two-year
period of data collection...and growing over time as that data grows. And then
there is another potential cost on top. If the suggestion is that content is
not required—that somebody will be required to process the metadata that is
collected to strip out the content—that would be petabytes of data a day for
our own organisation. You would need supercomputers to extract that data ...The
cost of storage might go down a fraction, but if we have to store it in the
first place and then redact it it is just costs upon costs.
AMTA explained that it had previously identified the potential costs of
data retention to industry as more than $500 million for 'a new scheme around
network infrastructure security and potentially high costs for industry around
online copyright enforcement':
...in this day and age information flows are not only huge but
increasing in some spaces exponentially. They are also borderless in the sense
that all of us on a daily basis I am sure traverse many websites and
destinations outside of Australia...To give you a picture: data volumes in the
mobile space alone are predicted to increase by a factor of 10 between 2013 and
2019. Should we have to build a system to retain data for a lengthy period, it
is not just as simple as pushing a button or tapping an existing resource; in
actual fact we would have to duplicate the data. That duplication would be
required because this data comes from a multitude of IT systems within
carriers. To be helpful to law enforcement agencies, it would need to be
duplicated and aggregated. Then we have to store it...Then we have to manage it and
be able to interrogate it. There are the privacy and security issues that go
with that. All of these things are very considerable issues to address.
iiNet suggested that these costs could end up being passed on to
customers, but added that until it is clear what the legislation would require
it would be difficult to calculate the ultimate cost:
We originally calculated the $60 million to be an increase of
about $5 per month per customer if we just passed the costs through...we are very
confused about what is required so it is very difficult for us to calculate
what the costs will be. If we are only required to keep routine metadata for
telephone calls we can probably pack up today and not speak again. If, however,
the confidential briefing paper that was provided by the Attorney-General's
Department is to be interpreted the way we have then yes, there will be massive
Mr Chris Althaus, Chief Executive Officer of AMTA made similar comments
in relation to consumers:
[T]he costs issue remains a very significant one for
industry. All of the matters that relate to interception, and the extension
perhaps into a data retention regime, come at significant cost. Industry has to
shoulder its burden in that respect, but so too will there be an impost through
to consumers, and, we believe, a necessary impost on government. Schemes
elsewhere around the world have frequently seen the role of government in
funding the establishment of schemes and the national security and
law-enforcement agencies paying to use those schemes. That is certainly an
issue for consideration in this current debate.
We are going to incur significant costs. Data gathering
through a range of currently disaggregated systems within service providers
will need to be serviced by a new system, a new capacity. And of course there
is significant and ongoing uncertainty around many aspects of that. A lot of
those aspects are what we will perhaps describe as a work in progress.
Industry submitters consistently explained to the committee that the
costs from the introduction of a mandatory data retention regime would not be
from storage of the data but rather the systems to extract the data and the
security that would need to be built to protect the data once stored. For
example, Mr James Shaw, Director of Government Relations at Telstra, explained:
...quite often the focus seems to be around the storage of the
data...but that is only a very small part of it. In fact, in terms of the costs
of the scheme, it is probably one of the lesser elements of it. There is the
whole process of extracting the data from the network, and the data that is
being looked at in the context of this regime comes from various network
elements. It is not located in one central server within the network. There is
a variety of platforms generating different types of data in different formats.
That has to be extracted. It then has to be managed and stored, and at the same
time it has to be secured. Then it has to be made available in a form that the
agencies can usefully use. Then, finally, and most importantly, at the end it
has to be disposed of in a way that satisfies the concerns of customers that
this data is not hanging around for any longer than is required. So they are
all steps in or elements of an overall data retention scheme. You cannot
divorce one from the other, but they are separate considerations in how you go
about building the scheme.
Mr Matthew Lobb, General Manager, Industry Strategy and Public Policy at
Vodafone Hutchison Australia, was of a similar view:
The storage component is relatively straightforward to
expand. Where the costs are is in the capability to retrieve the information
from a very large data set. That is where the costs will kick in as you
lengthen the amount of time.
However, Mr Alastair MacGibbon suggested to the committee that in his
experience, the 'cost argument is often overblown'. He explained:
Given the ability to compress information and the cost of the
actual devices for storing information, the cost of storage has gone down
exponentially and will continue to do so over the years. I think the biggest
cost is probably in architecting their systems to collect information. In many
respects they are compelled to at the moment anyway under the current
telecommunications interception act requirements.
...The reason why cost should not be an argument in compelling
some of these ISPs and telcos to store information is that, as I say, they are
currently obliged to have themselves architected in certain ways...
ThoughtWorks raised the concern that data retention could in fact have
more far-reaching impacts, directly affecting the bottom line of some
businesses as consumers seek out companies that provide greater privacy
As an Australian business we are concerned that we will see
this impact on our industry here in Australia that the US has seen.
Essentially, we are talking about customers choosing to store their information
in another country because they are concerned about the laws in the US and the
subversion of those laws in the US in order to access data.
We are also concerned that if we have stronger laws here that
we will lose business. In particular, for things like cloud
providers—organisations that store data for other companies—where there has
been the biggest impact. But there were all sorts of impacts across the board.
Cisco, who make routers and other things that direct internet traffic, saw a
decline in their top markets of between 18 and 30 per cent. So we are seeing
real impacts on business already, particularly in the US, and it comes from a
lack of trust by customers.
Privacy implications of the
proposed data retention period
In contrast to the calls by law enforcement agencies for the
implementation of a mandatory data retention regime, many stakeholders raised
concerns in respect of privacy and the proposed regime, particularly the
prescribed retention period of two years. It was suggested that the
introduction of such a regime ran directly counter to the application of
Australian Privacy Principle 3, which codifies the long-standing principle that
personal data should not be arbitrarily captured and stored:
The Australian privacy principles were updated and
implemented just six months ago, yet mandatory data retention is a policy that
would require the explicit rejection of these principles.
On introducing the Bill, the Minister explained that the two year
retention period set out in the Bill had been determined on advice from law
enforcement and security agencies, as well as by reference to the experiences
of a number of foreign jurisdictions.
In its submission to the PJCIS committee, the department identified that
'[m]ore than 35 Western countries worldwide have legislative data retention
schemes' and that the 'most widely implemented data retention scheme is the
former EU Data Retention Directive...which imposed an obligation on companies to
retain specified data for up to [two] years'.
The evidence provided by the department to the PJCIS identified that the
proposed two year period is in fact at the upper limit for retaining data
The proposed period attracted much criticism: stakeholders were
consistently of the view that the two-year period should be revised. In its
review of the Bill, the Parliamentary Joint Committee on Human Rights (PJCHR)
A data retention period of two years raises the question of
whether the period is disproportionate, and may go beyond the period necessary
to achieve the scheme's legitimate objective. This question is resolved by
reference to the purposes for which the data is accessed.
For example, despite the acknowledged low frequency of use of
data that is more than six months old, and the stated requirement for older
data for national security and complex criminal offences, the scheme does not
limit access to data which is older than six months to the investigation of
national security and complex criminal offences.
This conclusion led the PJCHR to request 'further advice of the
Attorney-General as to whether the two year retention period is necessary and
proportionate in pursuit of a legitimate objective'.
Similarly, the Australian Human Rights Commission (AHRC) raised concerns
in respect of the two year retention period noting that:
In the landmark decision of the Court of Justice of the
European Union [EU], which invalidated the EU Data Retention Directive, the
Court identified several characteristics of the Directive that rendered the
regime a disproportionate interference with the rights to privacy. Relevantly,
the Court considered that retention periods should be limited to that which is
'strictly necessary'. Further, retention schemes should distinguish between the
usefulness of different kinds of data and tailor retention periods to the
objective pursued or the persons concerned.
The AHRC drew attention to an evaluation report on the EU Data Retention
Directive in 2011 that 'only 2 per cent of requested data was over [one] year
old across the European Union' and noted that as the majority of EU countries
(including the United Kingdom) have a one year retention period 'an initial
retention period of [one] year would be a more proportionate interference with
the right to privacy'.
The Australian Privacy Commissioner stated that any data retention
scheme 'should only require service providers to retain telecommunications data
for the minimum amount of time necessary to meet those needs'.
The Law Council made a similar recommendation stating that the 'data retention
period should be reduced to no longer than the minimal period required by law
enforcement and security agencies'.
The Internet Society of Australia (ISOC-AU) outlined that in its view
unless there is 'appropriate technology standards metadata should not be
retained beyond strict business need':
Where metadata is retained there need to be the strictest
standards around retention and access. I cannot reinforce that enough. Should
access to metadata be granted, considerably higher standards of access and
oversight of these processes need to be implemented, including penalties for
the breaches of these sorts of standards...Certain things need to be built into
the equipment and the application so that we can do this in a clear and
consistent manner with appropriate levels of control.
The telecommunications industry was also of the opinion that the case for
a two year data retention period had not been made:
Industry is, however, far from convinced that a two year
retention period for IP related data is either necessary, justifiable,
cost-effective, or in the public interest...and 12 months. For internet-related
data there is only one country – Poland – that appears to be heading down the
path of a 2 year retention period – and that regime is under challenge.
We know that in UK, for example, over a recent 4 year period,
74%+ of disclosures to law enforcement agencies, where the age of data being
sought was known, related to data that was less than 3 months old....
[communication service providers] CSPs report that the vast
majority of warrantless requests they receive from Australian agencies relate
to data that is 6 months old or younger...
AMTA and the Communications Alliance suggested that rather than the two
year period proposed by the Bill, a '[six] month period would be an appropriate
minimum time to require the retention of internet-related data' and:
It might be useful to incorporate within the Bill a
requirement for agencies to periodically report to Parliament the number of
requests (including distinguishing between a request relating to an individual
and requests relating to groups of people) that have been placed with CSPs for
retained data that was generated in the preceding 3 month period, 3-6 month
period, 6-12 month period, 12-18 month period and 18-24 month period.
No destruction requirement
Concerns were also raised in relation to the absence of a legislative
requirement for data captured by the proposed regime to be destroyed.
On 12 March 2014, the updated Australian Privacy Principles (APP's) came
into force, binding government agencies and other organisations to uphold
high-level privacy practices.
Notably, for the purposes of data retention, APP 3 states, in part, that
[E]ntity must not collect personal information... unless the
information is reasonably necessary for, or directly related to, one or more of
the entity's functions or activities.
APP 11 prescribes that an entity must:
[T]ake such steps as are reasonable in the circumstances to
protect the [personal] information [it holds] from misuse, interference and
loss; and from unauthorised access, modification or disclosure [and that if an
entity holding personal information about an individual] no longer needs the
information for any purpose for which the information may be used or disclosed
by the entity...the entity must take such steps as are reasonable in the
circumstances to destroy the information or to ensure that the information is
Although the existing TIA Act contains a destruction requirement for
restricted records and telecommunications content
it does not contain a destruction requirement in respect of telecommunications
data. The department confirmed that there is no destruction requirement proposed
in the Bill currently before the Parliament:
...in relation to the two-year detention period is that there
is no obligation in the bill to destroy that information after two years.
Throughout its inquiry, this aspect of the existing legislation and the
proposed Bill was identified as an area needing reform.
The Law Council raised this gap in the Bill as a concern given the
obligations imposed by the APP's.
Telstra also drew attention to its obligations under the Privacy Act suggesting
that clarification was required:
[W]e also operate under a requirement in the Privacy Act to
de-identify data once no longer required for purposes for which they were
collected. This could be interpreted as meaning we are legally required to
immediately destroy or make amendments to the data retained under the Bill as
soon as the two year retention period has ended thereby creating a further
rolling obligation and additional cost on industry unrelated to commercial
purposes that we have not yet factored into our assessment of the Bill. To help
limit this impact, we believe that if there are to be different data retention
periods across technologies as part of this scheme, we would recommend that
telecommunication service providers be given the option of retaining data for
the longest permitted period without breaching the law.
This section examined the government's announcement to introduce
mandatory data retention and the main concerns that have been raised in
relation to the government's proposal. The next section looks briefly at the
international experience of those jurisdictions which have pursued mandatory
Australia is not the only jurisdiction considering data retention and
related privacy issues. However, several data retention regimes in other
countries have recently been wound back. This section reflects on the
international experience with mandatory data retention.
Is international practice moving away from mandatory data retention?
On 15 March 2006, the European Parliament and the Council of the
European Union issued Directive 2006/24/EC on the retention of data generated
or processed in connection with the provision of publicly available electronic
communications services or of public communications networks.
Directive 2006/24/EC also amended Directive 2002/58/EC.
In part, it required the European Union (EU) to:
retain certain categories of data
(Article 3) for a period of 'not less than six months and not more than two
years from the date of the communication' (Article 6);
ensure access to data is provided only 'to the competent national
authorities in specific cases and in accordance with national law' and that the
procedures and conditions followed to access the data accord with the
requirements of necessity and proportionality as defined in each Member State's
national law subject to EU law, public international law and 'in particular the
ECHR as interpreted by the European Court of Human rights' (Article 4); and
ensure the protection and security of the data, including
destroying the data at the end of the retention period (Article 7).
In an April 2014 ruling, the Court of Justice of the European Union (ECJ)
found that the European Data Retention Directive was invalid. The regime was
overturned by the ECJ on the grounds that it 'entails a wide-ranging and
particularly serious interference with the fundamental rights to respect for
private life and to the protection of personal data, without that interference
being limited to what is strictly necessary'.
In a statement advising of its decision, the ECJ stated that 'by
requiring the retention of those data and by allowing the competent national
authorities to access those data, the directive interfere[d] in a particularly
serious manner with the fundamental rights to respect for private life and to
the protection of personal data' and that 'the fact that data are retained and
subsequently used without the subscriber or registered user being informed is
likely to generate in the persons concerned a feeling that their private lives
are the subject of constant surveillance'.
The Court went on to explain that it was then for it to examine 'whether
such an interference with the fundamental rights at issue [was] justified' and
that it was of the opinion that:
...by adopting the Data Retention Directive, the EU legislature
has exceeded the limits imposed by compliance with the principle of
In that context, the Court observe[d] that, in view of the
important role played by the protection of personal data in the light of the
fundamental right to respect for private life and the extent and seriousness of
the interference with that right caused by the directive, the EU legislature’s
discretion is reduced, with the result that review of that discretion should be
The Court also set out that:
Although the retention of data required by the directive may
be considered to be appropriate for attaining the objective pursued by it, the
wide-ranging and particularly serious interference of the directive with the
fundamental rights at issue is not sufficiently circumscribed to ensure that
that interference is actually limited to what is strictly necessary.
Firstly, the directive covers, in a generalised manner, all
individuals, all means of electronic communication and all traffic data without
any differentiation, limitation or exception being made in the light of the
objective of fighting against serious crime.
Secondly, the directive fails to lay down any objective
criterion which would ensure that the competent national authorities have
access to the data and can use them only for the purposes of prevention,
detection or criminal prosecutions concerning offences that, in view of the
extent and seriousness of the interference with the fundamental rights in
question, may be considered to be sufficiently serious to justify such an
interference. On the contrary, the directive simply refers in a general manner
to 'serious crime' as defined by each Member State in its national law. In
addition, the directive does not lay down substantive and procedural conditions
under which the competent national authorities may have access to the data and
subsequently use them. In particular, the access to the data is not made
dependent on the prior review by a court or by an independent administrative
Thirdly, so far as concerns the data retention period, the
directive imposes a period of at least six months, without making any
distinction between the categories of data on the basis of the persons
concerned or the possible usefulness of the data in relation to the objective
pursued. Furthermore, that period is set at between a minimum of six months and
a maximum of 24 months, but the directive does not state the objective criteria
on the basis of which the period of retention must be determined in order to
ensure that it is limited to what is strictly necessary.
The Court also finds that the directive does not provide for
sufficient safeguards to ensure effective protection of the data against the
risk of abuse and against any unlawful access and use of the data. It notes,
inter alia, that the directive permits service providers to have regard to
economic considerations when determining the level of security which they apply
(particularly as regards the costs of implementing security measures) and that
it does not ensure the irreversible destruction of the data at the end of their
Lastly, the Court states that the directive does not require
that the data be retained within the EU. Therefore, the directive does not
fully ensure the control of compliance with the requirements of protection and
security by an independent authority, as is, however, explicitly required by
the Charter. Such a control, carried out on the basis of EU law, is an
essential component of the protection of individuals with regard to the
processing of personal data.
The Law Council explained that it shared the concerns of the ECJ and
highlighted similarities with the proposed Australian scheme:
I note with interest the decision of the Court of Justice of
the European Union this month that struck down the data retention directive and
did so really because of the sorts of concerns that exist in the legal
profession here in Australia. The directive there would be similar to a law
here that would require data to be kept for perhaps two years. One of the
reasons the directive was struck down was that there was no real
differentiation of what sort of data was to be kept. Data that was entirely
innocent needed to be kept, along with data that might be likely to impact on
national security issues or serious crime investigation issues. There was a
problem about the length of time that data was to be kept; the proposal in each
case considered by the court there was six months. The risk of abuse inherent
in that scheme seemed to be at the heart of the decision.
Despite the decision of the ECJ, the committee also received evidence
from Australian law enforcement agencies that in their view, the decision does
not necessarily have implications for Australia. The then Acting Chief
Executive Officer of the Australian Crime Commission (ACC) addressed some, but
not all the issues raised by the ECJ:
I am aware of the Court of Justice decision. I think what is
important is the basis of that decision. There were about four key points that
they referenced and my reading of it is that it does differentiate a little
from the environment we have here in Australia. I would argue that in a number
of those cases we already mitigate some of the risks that were identified. For
example, one of the bases that the Court of Justice identified was that there
was no protection against the risk of abuse. From my perspective, our oversight
regime does protect from the risk of abuse. Whilst I am aware of the Court of
Justice decision, I would equally argue that our oversight regime both from a
legislative perspective and even a policy perspective differentiates from what
the European Union appears to have discovered in their Court of Justice
The department argued, that '[t]he Court's finding was not because data
retention was inherently unconstitutional...Instead, the Court's judgment was
based on the lack of appropriate safeguards and limits within the Directive
and that although the invalidation of the Directive had resulted 'in the
annulment of a number of data retention laws in member States where the
Directive was implemented...many European countries [were] actively working to
address the issued identified by the Court. For example, the then
Director-General of ASIO told the committee:
Notwithstanding the decision of the [European Court of
Justice], Britain decided just a couple of weeks ago that they would implement
that regime. They made no bones about why they need it. The court said it did
not contain sufficient safeguards for implementation across EU member-states
and the way it was framed violated the principle of proportionality under EU
law. But it did acknowledge that data retention genuinely satisfies an
objective of general interest, mainly the fight against serious crime and
ultimately public security.
The then Director-General of ASIO added that:
I suspect the debate, discussion and, indeed, legal processes
in Europe are not yet completed. It would be wrong of us to jump to one
judgement of the European court in relation to one aspect of data retention to
rule it out as a gross violation of human rights across the board.
iiNet Limited (iiNet) explained that, in its view, the shift
internationally is away from mandatory data retention and provided examples of
how various European jurisdictions had responded to the decision of the ECJ.
The Attorney-General's Department (department) provided a concise summary of
the data retention regimes in the European Union as they currently stand: the
summary indicates those jurisdictions that have annulled mandatory data
retention since the decision of the EU Court of Justice:
Source: Attorney-General's Department, submission 27 to the PJCIS
inquiry, pp. 55–56.
The department was unable to point to any jurisdiction where the winding
back of data retention or the requiring a warrant to access metadata had caused
law enforcement activities to 'grind to a halt':
CHAIR: Ms Jones, are you aware that law enforcement has not
ground to a halt in Belgium, Bulgaria, Denmark, Greece, Latvia, the
Netherlands, Portugal, Romania and Serbia, which are all countries that,
according to your very helpful appendix to your submission, have some form of
judicial oversight of telecommunications authorisations? Why do you think it
would grind to a halt in Australia? What evidence do you have to back that up?
Ms Jones: We have obviously been discussing this with
agencies in terms of their operational experience of the importance of being
able to access data information as quickly as possible early in the process.
I note that you have listed a number of countries, but we
have also looked at the experience in the United Kingdom, where they have
recently had to look at the regime that they had in relation to warrants
because essentially their operational experience was that it became virtually
unworkable and that the number of successful authorisations was significantly
reduced. There was a report to the UK Parliament by the Interception of
Communications Commissioner that noted that it was causing significant delay in
the progress of many investigations.
CHAIR: Do you have any evidence that in any of the countries
I just listed law enforcement has ground to a halt or that there has actually
been any impact at all on the efficiency of law enforcement?
Ms Jones: We have not discussed the specifics with those
countries. Is there anything further you can add?
Ms Harmer: No, we have not engaged directly.
CHAIR: It is a pretty big deal to come in here and make
sweeping statements like, 'Law enforcement will grind to a halt unless we are
allowed to continue vast, warrantless access to telecommunications data.' It is
a pretty big call and you have no evidence that in any of those countries that
has been the case.
Ms Jones: We are focused on the experience in the Australian
context, on talking with agencies in Australia, and this is an issue that we
have discussed before the Parliamentary Joint Committee on Intelligence and
CHAIR: Yes, but you are here now with us. What evidence do
you have either in the countries that have a standing data retention regime or
in those in Europe that had one that was then annulled—Germany being one
example—of improvements in the rate of clearance of crimes? Is there any
evidence from any country at all that you could point to where data retention
has led to an improvement in the rate of crime clearance?
Ms Harmer: I think one of the challenges in that regard is
the extent to which data as a single investigative resource can be said by
itself to improve clearance rates. I expect you may have in mind a German
report which suggests that there was a limited improvement or what has perhaps
been characterised as negligible improvement in clearance rates as a result of
the introduction of data retention there. What the clearance rate reflects, of
course, is the number of crimes solved as opposed to the number of crimes on
hand. What access to data does is to provide the starting point for
investigations and allow them to proceed further, or indeed to commence at all.
In that regard, while there is that German report, I think it was only a
fortnight ago that German Chancellor Merkel indicated her intention to lobby
the EU for a new data retention directive, noting the very significant
importance of data retention from her perspective to German investigations.
CHAIR: You have still managed to avoid the question. Do you
have any evidence from any jurisdiction at all that mandatory data retention
either reduces crime or improves the rate at which crimes are solved? You may
not have it at the table, but is there anything at all that you could point me
Ms Harmer: The evidence in support of data retention is not
cast in terms of clearance rates; it is cast in terms of—
CHAIR: Or crime rate? I will take any metric you care to
Ms Harmer: Perhaps in that regard I could refer you to some
of the evidence of the law enforcement agencies who appeared last Friday. From
an investigative perspective, it is the case that it is extremely difficult to
point to data as one investigative tool having a direct and quantifiable impact
on the number of prosecutions and convictions. The way in which law enforcement
agencies apply metrics to assess their effectiveness and their prosecutions and
convictions is not able to hinge back to a single data point. Accordingly—
CHAIR: I am not talking about a single data point but the
whole category of data retention or metadata access in general. It is the
opposite of evidence based policy; it is anecdote based policy.
Ms Jones: It is policy based on very strong advice from the
agencies who have responsibilities in relation to law enforcement and national
CHAIR: Of course they want more power. It is your job and
ours to balance that power against proportionality and whether it is useful or
not. I am just asking for evidence as to whether it is useful. All right—we
will move on.
In fact, the committee heard that Germany has moved in the opposite
direction to mandatory data retention, implementing a policy known as
'datensparsamkeit' or 'data austerity' which places the onus on government
agencies, departments and business to 'collect only that data which is
necessary and proportionate'.
ThoughtWorks expressed the view that what is 'necessary and
proportionate' is a difficult concept to define and 'does depend on the
ThoughtWorks cautioned however that as 'technology moves at a pace that is
ahead of business and ahead of decisions and laws':
...people are doing things because they are technologically
possible, not because they are a good idea. So we are asking that
businesses—and this is what we do ourselves—actually stop and think and make a
decision: do they need that particular piece of data in order to serve their
customers, in order to provide the services they provide, or is it just
something they think they might need in the future?
It is really more about stopping and asking whether you are
collecting data just for the sake of it or whether you really need it to do
During its inquiry the committee also received evidence that in a 30 June 2014
report of the United Nations (UN) High Commissioner for Human Rights titled
'The right to privacy in the digital age', the High Commissioner 'strongly
emphasis[ed] the complicity of business in mass surveillance and in violating
the right to privacy'.
ThoughtWorks further explained the concerns of the UN High Commissioner:
The former high commissioner outlined a few key points in her
report...The first one is that she asserts that states have a positive obligation
under international law to protect citizens from surveillance by private or
state entities and that bulk collection and the very existence of mass
surveillance, whether the information is used or not, interferes with the right
to privacy. She also asserted that mandatory third-party retention is
surveillance and that it is neither necessary nor proportionate and insists
that a distinction between content and metadata is no longer persuasive. In
other words, there is no longer any real distinction between metadata and
content. The crucial finding applies the effective control doctrine under
international law to internet infrastructure. So, states are obliged to extend
human rights protections to whoever's privacy is interfered with by internet
infrastructure on their territory.
The Chair also noted the similarly titled June 2014 Report of the
Australian Law Reform Commission (ALRC) Serious Invasions of Privacy in the
Digital Era, in which the ALRC advised:
...privacy has been said to lie at the heart of liberty, and
will often support other fundamental rights and freedoms, sometimes it must be
balanced with other important interests... [however] privacy should not be
casually 'traded off' for the sake of other important interests.
Alternatives to mandatory data retention
Submitters to the inquiry also suggested that mandatory data retention
should not be pursued before alternatives are considered.
The Australian Privacy Foundation explained that, in its view, mandatory
data retention is not necessary as the existing preservation notice regime set
out in the TIA Act 'should be sufficient to provide agencies with what they
iiNet shared this view stating that '[t]argeted preservation notices
used together with stored communications warrants provide an alternative
framework to mass data retention that is designed to ensure that any retention
and access to private data is necessary and legitimate'.
The Institute of Public Affairs (IPA) was of a similar view. In evidence to the
committee, the IPA expressed that:
It is also worth noting that it has not been adequately shown
that preservation orders are not adequate to achieve the aims of the law
enforcement. Stored preservation orders are targeted, proportional data
retention schemes that offer a flexible and privacy-protecting mechanism to law
enforcement agencies. It is striking to us how rarely the existence of this
mechanism is discussed in the data retention debate when it would seem to
resolve all the problems with the TIA act that have been identified by law
This view however was specifically discounted in the Minister's second reading
speech when he explained that the '[e]xisting powers and laws are not adequate
to respond to this challenge'.
The department further explained the government's view that the often cited
alternative of the existing preservation regime was insufficient:
[T]he Department’s view, supported by international
experience, is that expanding the existing preservation notice regime would not
address the capability challenges faced by agencies.
Preservation and data retention are complementary tools, but
are aimed at different objectives. The purpose of preservation notices is to
‘quick freeze’ volatile or perishable electronic evidence that a provider
possesses for a short period of time, to allow agencies time to apply for and
obtain a warrant to access that information. Evidence cannot be preserved if it
was never retained, or if it has already been deleted. For example, a
preservation notice issued 9 months after a criminal event cannot assist an
investigation if the data sought was destroyed after just 1 month’s existence.
Preservation notices will not, therefore, address the fact
that service providers are not retaining critical types of telecommunications
data, or are retaining that data for shorter periods of time. In addition, as
the current data authorisation provisions in Chapter 4 of the TIA Act already
facilitate timely access to telecommunications data for legitimate
investigative purposes, the Australian Government did not need to include
preservation notices for telecommunications data in the Cybercrime Act.
By comparison, the purpose of data retention is to introduce
a consistent record-keeping requirement across industry to ensure that certain
telecommunications data are consistently available. As such, data retention is
in fact a prerequisite to preservation of data, rather than preservation
offering an alternative to retention.
This section has looked briefly at the European experience with data
retention. The final section sets out the Chair's view and recommendations in
respect of the proposed mandatory data retention regime.
Chair's views and recommendations: mandatory data retention
The Chair's views and recommendations set out below are made in respect
of the policy of mandatory data retention in the context of the government's
proposal set out in the Telecommunications (Interception and Access) Amendment
(Data Retention) Bill 2014 (Bill).
The Chair notes that, at the time of tabling its report, the
Parliamentary Joint Committee on Intelligence and Security (PJCIS) had
finalised its inquiry into the Bill and the government had issued a response.
The Chair is heartened by the government's announcement that it supports all 39
recommendations put forward by the PJCIS. However, although the Chair agrees
with some of the recommendations of the PJCIS, he considers that others must go
further and hopes that the government responds with similar speed and
timeliness to this report and recommendations.
Broader reform is required
The Chair takes the view that the government's announcement that it will
seek to implement mandatory data retention makes the need for the
rationalisation and updating of the Telecommunications (Interception and
Access) Act 1979 (TIA Act) to be considered holistically more pressing. The
Chair trusts that this inquiry will assist in moving towards a TIA Act which is
more adapted both to contemporary technology and to the public's more evolved
expectations in relation to privacy.
The Chair is opposed to the introduction of a mandatory data retention
regime and draws attention to the failed pursuit of such regimes
internationally. It is particularly concerning that the government is
considering requiring the retention of data even if it serves no business
purpose and would therefore only be retained as a result of this new regime.
The Chair references the international experience and suggests that the German
approach of retaining only that which is both necessary and proportionate,
'datensparsemkeit', should guide policy and law makers.
The Chair is critical of the Telecommunications (Interception and
Access) Amendment (Data Retention) Bill 2014 currently before Parliament. The
regime being proposed equates to mass surveillance. It should not proceed. The
grounds for implementing a policy of mandatory data retention have not been
established to the Chair's satisfaction.
The implications for the right to privacy and freedom of the press must
not be traded away without careful consideration or in the absence of adequate
Throughout its inquiry, the committee received evidence clearly
illustrating that what was collected as telecommunications data in 1979 was a small
fraction of what is collected as telecommunications data in 2015. The evidence
illustrated the difficulties of defining 'telecommunications data' yet clearly
showed that telecommunications data today provides a much fuller picture of a
person's social connections, values, personal preferences and habits. It is
clear to the Chair that the analogy of the envelope and the letter no longer
describes the distinction between content and metadata in the digital age.
The Chair recommends that the government not proceed with a mandatory
data retention regime and that the Telecommunications (Interception and Access)
Amendment (Data Retention) Bill 2014 be withdrawn.
The need for a definition
The Chair considers that a definition of 'telecommunications data' or
'metadata' must be settled and incorporated into a redrafted Telecommunications
(Interception and Access) Act 1979 (TIA Act). A definition should be
developed by industry, together with government and privacy advocates. Until a
definition is settled, the scope, cost and privacy implications of any proposed
data retention regime remain unquantifiable.
The Chair does not support the proposed definition of
'telecommunications data' set out in the Bill currently before the parliament.
The Chair agrees with Recommendation 2 of the PJCIS that the Bill should be
amended to include the proposed data set in primary legislation.
However, the Chair suggests that revisions to the definition of the data set go
further and identify those elements within the data set that constitute the
'information that allows a communication to occur'and
'basic subscriber data'
and identify that any change to the parameters of the data set must occur
through the legislative process.
The Chair considers that the evidence received by the PJCIS that
industry will find it 'very challenging' to separate the content from the
metadata for some types of data further supports its view that different
elements of the data set have greater privacy implications than others and adds
weight to calls for the introduction of a warranted access regime for data that
is 'information that allows a communication to occur'.
Access to telecommunications data
The Chair acknowledges that 'basic subscriber data'
should be able to be accessed without a warrant but maintains that access to
data that is 'information that allows a communication to occur'
should occur via warrant.
The Chair notes that evidence received by the PJCIS during its inquiry
into the proposed mandatory data retention regime was overwhelmingly supportive
of the introduction of warranted access to metadata yet the PJCIS dismissed
that evidence on the basis that it would 'impede the operational effectiveness
of agencies...to the detriment of the protection of the Australian community'.
The Chair disagrees with this assessment and suggests that differentiating
between 'basic subscriber data' and data that is 'information that allows a
communication to occur' and requiring the latter category of data to be
accessed only via warrant, would in fact better balance the important public
interests of privacy and security.
The Chair notes the government's proposal to amend the definition of
'enforcement agency' for the purposes of accessing telecommunications data and
supports the principle of restricting access to telecommunications data through
tightening the definition of 'enforcement agency' for the purposes of
Chapter 4 of the TIA Act. However, the Chair is opposed to proposed new
subsections 176A(3) and 176A(4) which would provide the Attorney-General with a
discretion to declare an authority or agency to be an 'enforcement agency' for
the purposes of accessing telecommunications data. Furthermore, the Chair
considers that access to metadata should also be limited through a revision of
the associated proportionality test. The Chair acknowledges Recommendation 25
of the PJCIS report
but maintains that it does not go far enough.
In the absence of a concurrent revision of the proportionality test to restrict
access to metadata to situations where it is 'necessary' for the investigation
of specified serious crimes or categories of serious crimes, reform will be
The Chair also notes that throughout this inquiry the government has
stated that calls for a revision of this proportionality test would be
inconsistent with Australia's obligations under the European Union Convention
on Cybercrime. The Chair does not agree with this position and is frustrated by
the government's willingness to preference a minor Council of Europe convention
over Australia's obligations under international human rights law and the
fundamental right to privacy of its citizens.
The proposed retention period
The Chair is concerned by the data retention period proposed in the Bill
of two years. The Chair disagrees with Recommendation 9 of the PJCIS report
which recommends that the two-year retention period specified in the Bill be
maintained and its finding that two years is 'the minimum amount of time that
would be acceptable from a national security and law enforcement perspective'.
The Chair believes that the proposed retention period of two years is out of
step with international jurisdictions, many of which are moving in the opposite
direction. The Chair notes the evidence that both this committee and the PJCIS
received, which identified that in the majority of cases where metadata is used
for law enforcement purposes, it is less than 12 months old.
A destruction requirement
The Chair is very concerned by the absence in the Bill of a destruction
requirement when data is no longer required. In the Chair's view the absence of
a destruction requirement directly contradicts the Australian Privacy
Principles (APP's), particularly APP 11. The Chair notes Recommendation 28 of
the PJCIS that the 'Attorney-General's Department oversee a review of the
adequacy of the existing destruction requirements that apply to documents or
information disclosed pursuant to an authorisation made under Chapter 4 of
the [TIA Act] and held by enforcement agencies and ASIO'.
The Chair believes that this recommendation does not go far enough and the Bill
should be amended to include an express requirement to destroy data after the
data retention period has expired or the information is no longer needed. The Chair
does, however, support Recommendation 35 of the PJCIS which calls for the APP's
to apply to all service providers regardless of their turnover.
The Chair supports the proposed new oversight and inspection regime set
out in Schedule 3 of the Bill. The Chair considers however, that Schedule 3 of
the Bill should be further strengthened by the inclusion of a requirement that
enforcement agencies also retain records in relation to:
the type and age of metadata requested;
the offences to which a request relates; and
any outcomes following the request.
This data should be included in the annual report of the
The Chair notes that the requirement for the Commonwealth Ombudsman to
inspect records in proposed Chapter 4A, does not identify a timeframe for
inspection. The Chair considers that this should be addressed through the
inclusion of a provision requiring the Commonwealth Ombudsman to examine the
records of each agency which has access to metadata every six months.
The Chair acknowledges that the introduction of a comprehensive
inspection and oversight regime will have significant resourcing implications
for the Commonwealth Ombudsman and therefore echoes Recommendation 29 of the
PJCIS which calls for additional financial resources for the Commonwealth
Ombudsman to ensure it can carry out a broader role of overseeing access to
telecommunications data. However, the Chair suggests that the resources sought
by the PJCIS in Recommendation 32 would be better allocated to assist the
Commonwealth Ombudsman and the Inspector General of Intelligence and Security
with the independent statutory oversight functions of those offices.
Protection of press freedom
In its report on the Bill, the PJCIS recommended that further inquiry is
needed before recognition of 'the principle of press freedom and the protection
of journalists' sources' in the Bill is finalised.
Although the Chair supports this recommendation, he is of the view that this
inquiry extend to other professions, for example, medical professionals and
lawyers, where the integrity of the profession depends upon privacy and
confidentiality. The Chair suggests that this issue be resolved and protections
for these classes of professions be included in the Bill before it is
considered by the Parliament.
Mandatory data breach notification scheme
The Chair expresses his support for the PJCIS's recommendation
(Recommendation 38) to implement a mandatory data breach notification scheme by
the end of 2015 and agrees with the PJCIS that 'there must be a [mandatory data
breach notification] scheme in place prior to the implementation of the Bill'
as it 'would provide a strong incentive for service providers to implement
robust security measures to protect data retained under the data retention
If the Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014 is not withdrawn the Chair recommends that the Bill be
include a definition of 'telecommunications data' in the primary
identify in the definition of 'telecommunications data' the
elements of the data set as either 'information that allows a communication to
occur' or 'basic subscriber information';
delete proposed subsections 176A(3) and 176A(4) which provide the
Minister with the ability to declare an authority or agency to be an
enforcement agency for the purposes of accessing metadata;
amend the proportionality test set out in existing sections 177,
178 and 179 of the Telecommunications (Interception and Access) Act 1979.
The Australian Privacy Commissioner, Law Council of Australia and the
Australian Human Rights Commission are to be consulted in amending the
proportionality test associated with accessing telecommunications data;
include a requirement for data that is 'information that allows a
communication to occur' to be accessed only via warrant;
reduce the mandatory data retention period from two years to
include a requirement that all data be stored in Australia;
include a requirement to destroy telecommunications data after
the mandatory retention period or when it is no longer needed;
include protections for sensitive classes of professionals
including journalists and their sources, medical professionals, and lawyers;
amend proposed section 186A to include a requirement that the
following information also be kept by an agency:
and include a requirement in
proposed section 187P that this information be reported in the
Attorney-General's annual report to the Parliament;
the type of metadata requested;
the age of the metadata requested;
the offence(s) which the request related to;
the outcome following the request;
- amend proposed section 186B to include a requirement that the
Commonwealth Ombudsman examine the records of each agency which has access to
metadata every six months;
- amend proposed section 187N (Review of operation of Part) to
require both the Parliamentary Joint Committee on Intelligence and Security and
the Independent National Security Legislation Monitor to review the data
retention regime on a triennial basis; and
introduce a mandatory data breach notification regime.
The Chair recommends that the government introduce a statutory right to
privacy, similar to that which exists in the United Kingdom, rather than
relying on international human rights instruments.
Divergent views on '5 Eyes' collaboration
The Chair notes that there is significant variance between the evidence
presented by Australian law enforcement agencies and oversight bodies, and the
revelations about international surveillance and information sharing provided
by whistleblowers and some elements of the media.
WikiLeaks publisher Mr Julian Assange, who has been instrumental in
publishing a large volume of information from within many governments, told the
committee in WikiLeaks' submission
that the nature of information-sharing among the so-called
"5 Eyes" countries (the United States, Canada, the UK, Australia
and New Zealand) had been 'fundamentally misrepresented'. Mr Assange said:
When asked about the information sharing practices of the 5
Eyes, the Committee heard on 23 April 2014 from Assistant Inspector General
Blight from the Office of the IGIS that "... data sharing about Australian
persons for ASD is regulated tightly by the Intelligence Services Act and the
privacy rules made under that act and that data about Australian persons is
subject to quite strict oversight .
In fact, the revelations of Edward Snowden have documented
shared and integrated 5 Eyes databases, and that untargeted, bulk interception,
collection and sharing of algorithmic analysis of private communications are
routine among the 5 Eyes intelligence agencies.
It is absurd that Australian government agencies continue to
misrepresent the nature of interception and their access to intercepted data
via 5 Eyes sharing arrangements when their equivalents in the UK have acknowledged
their role in mass surveillance, including through convenient interpretations
of domestic laws to absorb "external communications" which includes
all communications transiting Internet platforms and services such as Google,
Skype, Facebook, Yahoo not based in the UK.
Mr Assange particularly drew the committee's attention to documents
submitted to the UK Investigatory Powers Tribunal by Mr Charles Blandford Farr,
the Director-General of the UK Government’s Office for Security and
Counter-Terrorism. Mr Blandford Farr's attendance at the Tribunal attracted
attention in June 2014 particularly for his comments that UK intelligence
services could legally intercept communications through social media and
webmail services operated by companies such as Google and Facebook.
Mr Assange also drew the committee's attention to the US NSA XKEYSCORE
surveillance program, the UK Tempora program. He wrote:
This [XKEYSCORE] program includes a Five Eyes Defeat checkbox
that allows analysts to filter out data from one or more of the Five Eyes
countries. Such a check box makes sense only in the context of a default
sharing of information among the 5 Eyes that inevitably and necessarily
circumvents the [Telecommunications (Interception and Access) Act].
[IGIS] Dr. Thom confirmed that the "quite strict
oversight" also applied to Australian citizens abroad. The Tempora program
also revealed by Snowden refutes this simplistic assumption. Under that
program, all 5 Eyes nations access data and metadata resulting from British
tapping of fibre optic cable; there are no protections provided to Australians
under such indiscriminate collection and sharing arrangements.
Amendments made to the Intelligence Services Act in 2011,
including the "WikiLeaks Amendment" so dubbed by employees of the
Attorney General's Department, greatly reduced the scope or meaning of
protections for Australians overseas and greatly increased the surveillance of
their communications permitted.
By expanding the scope of surveillance overreach to anyone
that was "in the interest of Australia's national security, Australia's
foreign relations or Australia's economic wellbeing," almost anyone could
be caught, rendering the 'strict oversight' a gesture, a meaningless gesture in
the context of mass surveillance, collection and sharing of intelligence.
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