Lawyers sound warning over data retention regime

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The Law Council of Australia has recommended that mandatory data retention legislation be withdrawn in its current form, with serious concerns raised over the reach, impact and transparency of the proposed measures.
 
In a submission to the Parliamentary Joint Committee on Intelligence and Security, the Law Council recommended the data retention bill be withdrawn, amended and released as exposure draft legislation for public consultation.
 
Law Council president Duncan McConnel said the council supported modernisation of telecommunications interception and access legislation to protect the community from serious crime and threats to national security.
 
However, he said the response must be ‘necessary and proportionate’.

“The scheme is not sufficiently defined to allow people to know the extent of interference with their privacy and for service providers to know their legal obligations,” McConnel said.

“The Law Council also has concerns about the proportionality of the data retention regime, security of the retained data and the impact on privacy and confidential communications,” Mr McConnel said.

The Law Council’s submission contains alternative recommendations to address four key issues if the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 is to proceed. They include recommendations on the accessibility and precision of the legislation, its proportionality, the security of any retained telecommunications data, as well as what to do in the case of privileged and confidential communications - a mainstay of legal business.

McConnel said the data set and agencies which can access telecommunications data should be clearly defined and that this should be enshrined in legislation.

“Access to the data should be limited to agencies required to investigate serious indictable offences or specific threats to national security. A warrant obtained from an independent tribunal should also be required to access personal information to ensure it is only accessed where it is really necessary.”

McConnel said that in the case of emergencies involving immediate risk to public health and safety, a non-delegable Ministerial warrant as now occurs in other security-related legislation could be utilised.

The Law Council recommends specific protections for privileged and confidential information, as well as the retention of data for a ‘minimum time’ likely to assist with the investigation of significant criminal activity.

“Most jurisdictions around the world do not require data to be retained for as long as two years [as currently proposed in the Bill].”

The Law Council is due to appear before the PJCIS on the 30 January.
 

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