Joint Submission: Telecommunications (intercept and access) amendment (data retention) Bill 2014

Last year civil liberties and human rights groups resisted, with limited success, the worst elements of the veritable tsunami of new counter-terrorism laws the Abbot Government brought in swift succession to the Parliament.  Now we are fast approaching a decision point in the highly significant and contentious debate as to whether the Australian Parliament will legislate the mandatory collection and retention of mass telecommunications data for the bulk of the population to enable retrospective access by authorities.

It would be a major negative step for a democratic system. It will be a major intrusion on every citizen’s right to privacy - including those not suspected of any unlawful activity. This will have major flow-on implications for other freedoms and democratic values. In particular, it will undermine a robust and free press and constrain legitimate whistle-blowers by removing any confidentiality from all phone and internet communications.  

The combined CCLS consider it to be a step too far. We strongly oppose the policy concept and urge the Parliament to reject it. 

The bill is somewhat of a shambles. It is more a shell than a fully articulated legislative framework for such a significant and disturbing proposal. Much that is fundamental to the data retention regime is not actually specified in the bill but is deferred to later regulation or ministerial discretion. The CCLS find it extraordinary that after several years of preparation and debate the bill should be so under-developed.  

Why it is a bad idea

In summary, the CCLs reject the data-retention proposal because:

  • Contrary to what the Government says, meta-data is not akin to ‘what is on the outside of the envelope’.  It provides an unprecedented range of rich personal information from which it is possible to extract a comprehensive profile of all aspects of a person’s life.  It no longer makes sense to try and distinguish between ‘content’ and ‘meta-data’ in terms of  invasion of privacy
  • The proposed regime will result in a serious and unwarranted interference with the right to privacy for most of the community. Contrary to the Government’s justification, this intrusion is neither necessary nor proportionate for the objective of making the community safer.
  • Privacy is not a trivial matter. It matters and has significant implications for the nature and quality of personal life, family life and the wider society. Intrusions on it have effects. They harm the individuals whose privacy is invaded. But even more importantly, society suffers.
  • The data retention scheme will create a real threat to freedom of the press. It will make it extremely difficult for sensitive information to be provided to journalists as confidentiality for any kind of telecommunication cannot be guaranteed.
  • It will also threaten the capacity for legitimate whistle-blowers to bring important information about official or corporate misbehaviour or corruption to public notice and this does not augur well for any democratic society.
  • Contrary to the Governments assertions, there is no clear evidence this highly intrusive surveillance will make us any safer
  • Contrary to the Governments suggestions, there is no clear position on mass data retention globally. There is a profoundly important debate underway within democracies about the acceptable balance between privacy, freedom of the press, legitimate whistleblowers and the competing value of mass surveillance and data retention in the interests of security and safety. Our Parliament needs to be informed on these debates so they can give careful and informed consideration to where the line should be drawn in a democracy.

it is obviously possible the Parliament may accept the core data retention proposal.

If this unwise option is taken, it is imperative that major problems with key elements of the proposal as set out in the bill are addressed. While remaining adamantly opposed to the policy, the CCLS have reluctantly put forward  12 recommendations which would be essential to remedy some of the major gaps and weaknesses in the bill. 

For more detail read the CCLS submission. 


The CCLS submission