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Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014

Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014

By Leanne O'Donnell

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There are 31 serious, unanswered questions about the mandatory data retention scheme proposed in the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 (‘the Bill’). Given the uncertainty about fundamental aspects of the scheme, the LIV agrees with the Law Council of Australia’s (‘LCA’) policy position of opposing the currently proposed mandatory data retention scheme in the Bill. As the then LCA President, Mr Michael Colbran QC, has stated, there must be a proper analysis of the proposed provisions and:

any mandatory data retention scheme must be shown by the Government to be reasonable, necessary and proportionate to a legitimate purpose.

Preventing and enforcing serious crime is a legitimate purpose, however that does not of itself justify mass data retention. Even if the need for mass data retention could be demonstrated to be in the public interest, this Bill is profoundly flawed, as outlined in this submission.

This Bill is not limited to the stated objectives connected with making Australians safer from serious crime and threats to national security. Data retained under this Bill can be accessed for purposes far beyond serious crime.

The LIV is very concerned about the impact of the Bill on the fundamental human rights of all Australians, such as the rights to privacy, freedom of expression and freedom of association. Preserving these rights is essential to the functioning of a democratic society. The Bill fails to address these concerns.

In October 2014, a United Nations human rights expert concluded in a Report that mandatory data retention “amounts to a systematic interference with the right to respect for the privacy of communications”, and therefore “it is incompatible with existing concepts of privacy for states to collect all communications or metadata all the time indiscriminately.”

In this context, it is submitted that the Parliamentary Joint Committee on Intelligence and Security (‘PJCIS’) should recommend that:

  • The Bill not be passed;
  • There be a new Parliamentary Inquiry established to consider and consult on:
    • whether there is a need for mandatory data retention and if so, how this need can be translated into clear legislation that is reasonable, proportionate in not unduly restricting rights and freedoms and would be effective in meeting a legitimate purpose; and
    • a review of the Telecommunication (Interception and Access) Act 1979 (Cth) (‘TIA Act’) and Telecommunications Act 1997 (Cth) (‘Telecommunications Act’) as they relate to the law enforcement obligations of the communications industry and the related powers of law enforcement agencies.

In the event that the Committee does not agree with our primary position that the Bill not be passed, the LIV has made a number of recommendations concerning the Bill which may mitigate the Bill’s infringements of fundamental human rights and freedoms.

 

View submission

Contact

Karen Cheng, Senior Lawyer, Legal Policy

T: 03 9607 9365
E: submissions@liv.asn.au


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