Data Retention Legislation Senate Committe's First Public Hearings

Friday 16 January 2015 @ 10.58 a.m. | Crime | IP & Media | Judiciary, Legal Profession & Procedure | Legal Research | Trade & Commerce

In the light of events in Sydney last December and with the Federal Attorney-General Mr Brandis using the recent terror attacks in Paris to justify the Federal Government’s range of new controversial counter-terrorism legislation and the proposed data retention measures that go with those measures, it is interesting to consider the first hearing of submissions on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 (the Data Retention Bill) and in particular the responses to questions about how useful this information has actually been and how old information used was.

Background to the Legislation

The Data Retention Bill was introduced in the House of Representatives on 30 October 2014 and followed on the National Security Legislation Amendment Bill (No.1) and the Counter- Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 as the Federal Government's third tranche of legislation intended to respond to the national security threats posed by alleged terrorist activity.

On 21 November 204 the Attorney-General, asked the Parliamentary Joint Committee on Intelligence and Security (the PJCIS) to inquire into and report on the Data Retention Bill 2014.

The Data Retention Bill builds on proposals to introduce a mandatory data retention scheme explored in depth in the PJCIS's 2013 Report of the Inquiry into Potential Reforms of Australia's National Security Legislation.

Key Features of the Proposed Law

Some of the key features of the proposed law:

  • Will require entities that supply telecommunications services in Australia to retain certain prescribed telecommunications data for 2 years, subject to appropriate exemptions;
  • Will introduce an implementation planning regime allowing individual service providers to negotiate a pathway to full compliance over a period of 24 months; and
  • Will limit the range of Commonwealth, State and Territory agencies permitted to access telecommunications data and stored communications to those with "a demonstrated need and robust internal procedures to protect privacy and ensure propriety" and "strengthen the safeguards and oversight regime for these powers".

Public Hearings and Inquiry Schedule

The first public hearings of the PJCIS to consider the proposed legislation were held on 17 December 2014. Further hearings are scheduled for 29 and 30 January 2015 in Canberra. The PJCIS is scheduled to report its findings by 27 February 2015.

From the First Hearing

At the first public hearing held on 17 December 2014, the PJCIS focused on the nature of the telecommunications data proposed to be retained under the proposed data retention regime, and the utility of that data for law enforcement and security agencies.

The Chair of the PJCIS, Mr Dan Tehan MP, is reported as saying:

“This first hearing of the Committee’s inquiry will be an important opportunity to explore with agencies the rationale behind the proposed data retention regime and the nature of the proposed data set.

We will be considering the appropriateness of the data retention regime proposed in this Bill and its application to the investigation and prosecution of serious criminal offences and to countering threats to national security. Safeguards and oversight will be a key focus for the Committee.”

Reporting on the first public hearing, The Guardian reports that many law enforcement agencies in response to questions from the PJCIS, were unable to ". . . provide accurate information about how they had used metadata in criminal investigations".

The questions asked of the agencies are reported as being specifically,

  • In how many cases over the past five years had metadata requests been used to prevent serious crimes;
  • How many times they were used to prevent a terrorist attack; and
  • How many convictions had occurred as a result of telecommunications data requests.

It is reported that the submissions of the police forces of  Western Australian, the Northern Territory and Victoria indicated they were not able to provide figures for their response to these questions while the Australian Federal Police (the AFP) indicated in its submission that it had used intercepted material to obtain 203 convictions, however, it could not answer the other questions and was not able to calculate some types of historical data requests. In their submission the South Australia police indicated 146 convictions from intercepted service information but also pointed out they did not collect information on how many requests had assisted in the prevention of a serious crime or terrorist attack. The AFP did provide specific examples of how metadata was used to assist the agency in preventing the 2009 attack on Holsworthy Army Barracks and two other planned attacks.

On the question of the age of the requested data it is reported that while the proposed scheme is asking for the data of Australians’ to be retained for a period of two years it is ". . . not clear how many criminal investigations require data this old".

The Guardian reports that most key law enforcement agencies (namely, the AFP, Victorian, Northern Territory and Western Australian police) were unable to answer on this question. The AFP is reported as saying its: “. . . systems are not configured to capture this information, and extraction of this information from historical records would require significant resources to manually review.”

The Guardian reports the South Australian police as able to supply some figures indicating that it recorded in 2012-13 that 61% of requests had been more than 12 months old, while 38% were less than three months old.

The Australian Security Intelligence Organisation (ASIO) and Australian Crime Commission (ACC) it should be noted have lodged submissions to the inquiry as well but the contents of their submissions have not been made public.

The Road Ahead

The above indicates that while conceptually  access to data by law enforcement is not much disputed, the how and the why,  looks like being something that will continue to occupy much of the PJCIS' remaining time before it reports.

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