By Keiran Hardy and Professor George Williams -
Snapshot
- The Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 (Cth) would establish a mandatory data retention regime requiring communications service providers to retain metadata for two years.
- Metadata is not defined in the Bill and the data to be collected under the regime will remain unspecified until regulations are made. However, the Bill does provide some guidance on the types of information that can be specified by the regulations – such as the source, destination, duration and location of a telephone call or email.
- Which agencies will have access to metadata will be subject to declarations made by the Attorney-General. Such agencies will be able to access metadata without a warrant where doing so is reasonably necessary for the purpose of investigating criminal offences, missing persons, or laws that impose pecuniary penalties or protect public revenue.
The Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 (Cth) (Metadata Bill) is the final of three tranches of national security legislation introduced by the Abbott Government in 2014. If passed, it will establish a mandatory data retention regime in which telecommunications service providers must retain for two years ‘metadata’ about communications that pass over their networks.
Currently, no legislation governs the collection of metadata by telecommunications service providers. Given that access to metadata can play an important role in investigating serious criminal offences, such as terrorism and child pornography, standardising the collection of metadata is a commendable goal.
However, the potential practical benefits of the regime need to be weighed against the impact that data retention has on privacy. Metadata can reveal very precise and potentially compromising personal details, such as who a person has contacted and where they have been at particular times. Indeed, the Court of Justice of the European Union struck down a similar regime in April 2014 on the grounds that it disproportionately interfered with fundamental rights.
The Abbott Government claims that the Metadata Bill is more carefully framed than the European regime, although it is clear that significant problems remain. The Metadata Bill is little more than a shell for a data retention regime, with many key details left to be determined in the regulations.
Below we consider the key issues surrounding the bill by focusing on three important questions: what is metadata? Who can access it? Under what circumstances can it be accessed?
