Commonwealth Ombudsman warns metadata warrants will strain resources

The Commonwealth Ombudsman has joined the chorus of Australian government agencies speaking out against a Greens proposal for government agencies to be required to obtain a warrant before gaining access to telecommunications customer metadata.

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.

In June, 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 this metadata 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.

A parliamentary committee has been tasked to investigate the proposal, and submissions to the inquiry closed yesterday. The New South Wales Police Integrity Commission and the Independent Broad-Based Anti-Corruption Commission have already spoken out against the proposal, stating that it would lead to higher administrative costs for the organisations going about their daily work.

In a submission posted today, the Commonwealth Ombudsman said that it is required to inspect the records of all agencies that access stored communications and telecommunications metadata. The agency said that in the 2011 financial year, it only had to review 483 warrants for stored communications, whereas there were 293,501 authorisations made to agencies in the same year for telecommunications metadata. If a warrant was required for the metadata, the Ombudsman said the office would need additional resources.

"In light of the number of authorisations made in 2011-2012, it is reasonable to suggest that the number of warrants issued to enforcement agencies would substantially increase. If the current oversight arrangements relating to access to stored communications extended to access to telecommunications data, then we would need to be appropriately resourced," the office said.

"We are currently not resourced to undertake this proposed function."

The proposal was rejected by the Independent Commission Against Corruption (ICAC). The commission yesterday found that former New South Wales Labor Minister Ian Macdonald and Eddie Obeid had engaged in corrupt conduct. The case that was made against the two former ministers frequently used telecommunications metadata in pinpointing who they were in contact with at critical points in time.

The ICAC's solicitor Roy Waldon said in the ICAC submission to the inquiry that the proposed Bill is "unnecessary" and would impose significant burdens on the ICAC's ability to conduct investigations.

The Corruption and Crime Commission of Western Australia argued in its submission that telecommunications content and metadata are "distinctly different", and argued that access to metadata is "less intrusive" and raises fewer privacy concerns. The proposal is "unnecessary" and would be impractical, according to the commission.

The Attorney-General's Department, which advocated requiring telecommunications providers to retain metadata for two years, said in its submission that all current authorisations from departments are only ever made when considered "reasonably necessary", and that should the Bill be passed, the agencies would recognise it as "reasonably necessary" to obtain a warrant to access the metadata of the person they are investigating. This would constrain resources within law enforcement, according to the department.

A total of 11 submissions to the inquiry have been posted online so far, with two remaining confidential. All of the government agencies spoke out against the proposal, while the remaining four from groups including Pirate Party Australia, the Law Council of Australia, and the Rule of Law Institute were generally in favour of the proposal.

Submissions to the inquiry closed yesterday. The committee is due to report back to parliament at the end of October.