Former Supreme Court judge warns against Greens' metadata Bill

Former Supreme Court judge turned Police Integrity Commission (PIC) inspector for New South Wales, David Levine QC, has said that a Greens proposal to require law enforcement agencies to obtain warrants to access telecommunications metadata would be a disproportionate response to protecting individual privacy.

Currently, government agencies can obtain access to the so-called telecommunications metadata — the time, location, and call number — from telecommunications companies through internal authorisation, without requiring the agencies to get a judge to approve the handover.

Last month, in the wake of controversy in the US surrounding the National Security Agency surveillance program known as PRISM, the Greens introduced a Bill that would require agencies to get a warrant from a judge before that data could be accessed. Law enforcement agencies and Australian Attorney-General Mark Dreyfus have already said that such a Bill would see law enforcement in Australia grind to a halt.

Now, Levine, who was appointed to the PIC in 2012 after 20 years on the bench, has told an inquiry into the Bill that in his experience as a Supreme Court judge, it would obstruct law enforcement in Australia.

"I can state quite candidly that the practicalities of what the Bill seeks can be viewed as inimical to law enforcement, investigation, crime prevention and ultimately the security, and a well-founded sense of security, in the whole Australian community," he said in a written submission.

Levine said that the issue would be best dealt with by the government's consideration of the report into Australia's telecommunications interception and access laws, which specifically recommended against a two-year mandatory data retention scheme.

The inspector said that the consequences of implementing the Greens proposal would far outweigh the benefits.

"The consequences of implementing the proposed scheme in terms of both judicial and other operational resources would be quite disproportionate to the reasonable protection of relevant interests and rights," he said.

"I cannot offer any comment favourable to the enactment of the Bill under consideration."

The PIC itself has a stake in seeking to retain the existing metadata regime; it was established in 1996 in response to a Royal Commission that looked into corruption within the New South Wales Police Force. Its role is to investigate and prevent police misconduct. This requires the organisation to frequently access telecommunications metadata, and intercept communications. The latter requires a warrant; the PIC applied for and received 62 telecommunications intercept warrants in the 2011-12 financial year.

By comparison, the PIC was granted access to metadata on 1,470 occasions in the 2011-12 financial year — one of the largest of any government agency, but still a fraction of the total 293,501 requests made by government agencies in that year.