Additional Remarks from Government Senators
The government members of the committee acknowledge universal support
for reform of the legislative scheme governing telecommunications interception
Government members agree with the findings of the recent inquiry
conducted by the Parliamentary Joint Committee on Intelligence and Security
(PJCIS) into the Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014 ('Data Retention Bill'), and support the PJCIS inquiry's
recommendation that the Data Retention Bill be passed.
Government Senators acknowledge the tension that persists between the
interests of individual privacy, and national security and note that this
tension has been exacerbated by irresponsible public commentary and reporting
around the issue of reform of the scheme governing telecommunications
interception and access.
Government members of the committee prefer to view these so-called 'competing'
interests—personal/professional privacy, and national security—as inherently
complementary interests, and urge a consensus approach to reform.
The government members of the committee reject the Chair's Report on
data access and data retention as an over-simplification of the complex
relationship between the complementary interests of national security and
individual privacy. The Chair's report examines data retention from a highly
biased perspective, and irresponsibly recommends additional layers of
tax-payer-funded oversight that duplicate existing protective frameworks and
are of limited or no utility.
The Reform Agenda
The current scheme governing telecommunications interception and access
pre-dates mobile telephony and both mobile and fixed data services. It is no
longer practicable to rely upon successive amendments to the Telecommunications
(Interception and Access) Act 1979 (TIA Act) to accommodate the pace and
breadth of technological change.
The committee's inquiry revealed a wide range of views regarding the
preferable characteristics for reform of the TIA Act. These views
overwhelmingly focused on protecting national security, protecting individual
rights to privacy, and enhancing administrative efficiencies.
Any programme of reform must balance individual interests and national
interests with sensitivity, maturity and common sense. The need for balance was
clearly expressed by the Australian Law Reform Commission (ALRC) following its
2006-8 review of the Privacy Act 1988 (Cth):
As a recognised human right, privacy protection generally
should take precedence over a range of other countervailing interests, such as
cost and convenience. It is often the case, however, that privacy rights will
clash with a range of other individual rights and collective interests, such as
freedom of expression and national security. International instruments on human
rights and growing international and domestic jurisprudence in this field all
recognise that privacy protection is not an absolute.
Streamlining the Warrant Regime
Compelling evidence was received during the inquiry regarding the
complexity of the existing scheme governing warranted access to
telecommunications content and metadata. The administrative burden created by
intricate process requirements was described inter alia by the
Director-General of Security:
Over time, the many amendments to the TIA Act have resulted
in duplication and complexity making the Act difficult to understand and apply.
Government members of the committee support recommendations from
law-enforcement and national security agencies calling for the introduction of
a single attribute-based warrant scheme for content retrievals and
Government Senators are persuaded that the targeted nature of attribute-based
warrants will lend efficiency and expedience to investigative practices, as well
as protecting individual rights to privacy through the observance of
In supporting the introduction of a single attribute-based warrant
scheme ASIO and the ACC noted the need to maintain 'proportionality thresholds
and accountability requirements...to deliver public confidence and assurance
regarding the use of these powers'.
The Law Council of Australia (Law Council) explained:
...where a State seeks to restrict human rights, such as the
right to privacy, for legitimate and defined purposes, for example in the
context of telecommunications access and interception, the principles of
necessity and proportionality must be applied. The measures taken must be
appropriate and the least intrusive to achieve the objective. In the context of
telecommunications access and interception, this involves balancing the
intrusiveness of the interference, against operational needs.
The government members are satisfied that proportionality thresholds are
satisfactorily maintained by relevant agencies, through existing procedural and
oversight functions, to a standard that may reasonably be anticipated by the
The government members of the committee are strongly of the view that
the utility of a single attribute-based warrant scheme should not be
compromised through the imposition of cumbersome and unnecessary limitations or
The protections that are currently conferred upon citizens' in relation
to metadata will be substantially improved by the passage of the government's
Telecommunications (Interception and Access) Amendment (Data Retention)
Government members of the committee acknowledge the privacy implications
of changes to warranted access however they are reassured by the government's
unambiguous commitment to the preservation of individual privacy within the
imperatives of the contemporary risk environment.
Oversight and the Commonwealth Public Interest Monitor
There is a range of existing oversight mechanisms for access to data and
content, including in certain circumstances warrant regimes. These oversight
functions protect the public interest in the preservation of individual
privacy, as well as the public interest in the protection of national security.
The government members of the committee are satisfied that existing
oversight functions are sufficient and that the introduction of a Commonwealth
Public Interest Monitor would unnecessarily duplicate existing processes at the
tax-payers' expense. Government members of the committee do not consider that
this would reflect the public interest.
Metadata – Definition
The need for reform to the TIA Act is substantially due to the existing
scheme's inability to accommodate the pace and breadth of technological change.
The government members of the committee are mindful that inclusion of a
prescriptive definition of 'metadata' in the legislative scheme could limit
investigative scope in future, thus requiring amendments of the type and
frequency that have led to the complexity found in the existing scheme.
Government members encourage further consultation regarding the
technology-neutral definition of all terms across any proposed reform of the
Mandatory Data Retention
Government Senators fully support the mandatory data retention scheme
that is contemplated by the Data Retention Bill that is presently before the
Parliament as fundamental to Australia's national security and law enforcement
National security and law enforcement agencies have unanimously and
unambiguously identified the value derived from telecommunications data in the
conduct of investigative activities.
The Attorney-General's Department has stated that the increasing need
for data retention has resulted from technological developments and
consequential changes in the business practices of service providers:
Historically, service providers have generated and retained
telecommunications data for their business purposes. However, as providers
shift to modern, IP-based networks and services, they are tending to retain a
narrower range of data, and to retain that data for shorter periods.
The government members of the committee acknowledge evidence that
mandatory data retention has the potential to provide greater privacy to
individuals who may otherwise fall under the gaze of law enforcement
investigations where such investigations would be required to cast a wider net
in the absence of retained data. For example, the ACC submitted that accessing
retained data enabled it to conduct investigations without needing to intercept
or access the content of a wider range of communications.
The ACC noted however that the retention of telecommunications content
and data by service providers in Australia is variable and subject to the
storage capacity of the service provider in question. The resultant lack of a
consistent national standard:
...results in uncertainty for law enforcement and can
jeopardise the outcome of operations. These differences in retention periods
create difficulties for the ACC in its ability to undertake investigations into
federally relevant criminal activity, as valuable telecommunications data is
not always available when needed. When it comes to conducting ACC
investigations on long-term federally relevant criminal activity, access to
retrospective telecommunications data is critical for the ACC to understand the
scope and nature of the threat.
ASIO explained that it considered that a data retention period of 'at
least two years in some cases' is required for it to effectively discharge its
The Australian Federal Police also supported calls for a mandatory data
retention regime, explaining that this would ensure a 'national and systematic
approach is taken to safeguarding the ongoing availability of
telecommunications data for legitimate purposes'.
Government Senators are of the view that the privacy interests of
individual citizens are comprehensively protected by a range of existing
legislated and regulated oversight functions.
The protection of individual personal privacy is also implicit in the
operation of the TIA Act itself which was enacted to provide a scheme of
regulation for the interception of and access to the communications of private
individuals. Government Senators are mindful that a prescriptive statement of
objectives could have the same limiting effect on this scheme as a prescriptive
definition of 'metadata'.
The inclusion of an objects clause in the TIA Act as an additional
clarification of privacy protections would be of limited utility.
Government members of the committee are of the view that service
providers are likely to be sufficiently motivated by commercial considerations
to purge stored data once any statutory retention period has elapsed and do not
believe prescriptive destruction parameters would impact the frequency,
immediacy or completeness of the destruction of stored data.
In addition, the Privacy Act 1988 (Cth) provides a framework for
the destruction of personal information where the information is no longer
required under law or for a legitimate business purpose.
Conclusions and Recommendations
The government members of the committee acknowledge the sensitivity and
complexity of debate around the complementary interests of national security
and individual rights to privacy. Technological developments such as the
proliferation of data mobility have contributed to the intricacies of this
Any scheme of reform of the TIA Act must measure the individual interest
against the national interest as well as accommodating the interests of
commercial operators. The government members of the committee support a
considered approach that will focus on consultation in exploring all facets of
reform of the TIA Act.
Government Senators agree with the findings of the PJCIS inquiry into
the Data Retention Bill and acknowledge that the government has announced its
support for all 39 of the PJCIS report's recommendations. Government members of
the committee wholeheartedly support the passage of the Data Retention Bill,
and the implementation of a mandatory data retention scheme, as a matter of
The government members of the committee recommend the instigation of a
single attribute-based warrant scheme to apply to telecommunications content.
The government members of the committee recommend that the
Telecommunications (Interception and Access) Amendment (Data Retention)
Bill 2014 be passed by the Senate.
Senator the Hon
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