The government's controversial data retention
legislation, under which telcos and ISPs will be required to store
a range of metadata in relation to customer activity for two years,
will become reality having passed Parliament on 26 March
The Telecommunications (Interception and Access) Amendment
(Data Retention) Bill 2014 has been heavily criticised for
failing to justify the high level of interference and intrusion
into the privacy of ordinary Australians it mandates, but is
defended as necessary on safety and security grounds.
The government has said the legislation is needed to make
Australians safer from serious crime and threats to national
TELCOS AND ISPS OBLIGED TO RETAIN CUSTOMER
The new law will oblige Australian telcos and ISPs to store a
broad range of customer 'metadata' for up to two years
including records of telephone calls, mobile phone messaging and
The stored data will include:
type of communication
who a customer communicated with
the source and destination of the communication
the date, time and duration of the communication
the location of the equipment used during the
Government agencies such as the Australian Federal Police and
ASIO will then have the right to access the data – on demand
and without a warrant.
As a counterbalance to this power, the Commonwealth Ombudsman
will have authority to review government agency records detailing
what data has been accessed and how it was used.
The Parliamentary Joint Committee on Intelligence and Security
will also have oversight of the use of metadata by the Australian
Federal Police and ASIO.
Specifically excluded from the data retention regime is the
content of any telecommunications and customers' internet
In response to concerns as to how the data retention regime will
impact upon freedom of expression and the media, government
agencies, other than ASIO, will require a warrant if they want to
access data for the purpose of identifying a journalist's
The government and the opposition rejected further amendments
proposed by the Greens and independents which would have, amongst
other things, mandated warrants for access to communications data
between lawyers and their clients, compelled the destruction of
stored metadata after the two year retention period and included a
full definition of metadata 'content' in the
The data retention regime has been criticised by privacy
experts, civil libertarians, leading telcos and the media who urged
a scrapping or dramatic rewrite of the legislation.
Arguments against the regime have focused on its potential to
seriously invade privacy, restrict freedom of expression and the
ability of journalists to maintain confidential sources, and be
vulnerable to data security breaches.
Data about all Australians will be collected and retained for
two years – even where there is no link to investigations of
serious crimes or threats to national security.
THE COST TO BUSINESS
The upfront capital cost to business of implementing the regime
is expected to be between $188 million and $319 million. The
Federal government has said it will contribute to the costs of
implementing the regime although this is undefined. The legislation
allows for grants of financial assistance to be made on a 'case
by case' basis to telcos and ISPs to assist in meeting
DOES THE LEGISLATION BREACH PRIVACY RIGHTS?
International courts and human rights bodies, including the UN
High Commissioner for Human Rights, have found that mandatory
blanket data retention regimes breach human rights, and
specifically, the right to privacy.
A recent judgment of the Court of Justice of the European Union
declared the European Data Retention Directive (largely analogous
to the Australian data retention legislation) invalid on the basis
it seriously interferes with the fundamental right to privacy and
the protection of personal data, without such interference being
limited to what is strictly necessary.
THE REGIME SHOULD BE MORE TARGETED
Under some circumstances, data retention will undoubtedly assist
in prosecutions, in criminal investigations, and perhaps even in
crime prevention. However, opponents of the reforms say there is no
substantive evidence to suggest that the blanket regime will
achieve its stated objectives of preventing terrorism and reducing
It remains to be seen whether the end result will justify the
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Those types of personal disclosure may still be permitted under the Privacy Act as long as your house is in order.
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