Data-retention Bill passes Australian House of Reps

The Australian government's controversial mandatory data-retention legislation has passed the House of Representatives with the support of the Labor party.
Written by Leon Spencer, Contributor

The so-called third tranche of the government's anti-terrorism legislation, its proposed mandatory data-retention scheme, has passed the House of Representatives with just three votes against the Bill.

Among those who voted against the new legislation was Greens MP Adam Bandt, who had earlier called for more time to debate and review the Bill.

Communications Minister Malcolm Turnbull said that the legislation will receive ample debate when it reaches the Senate, where it is yet to be voted on before it can be passed into law.

If passed in both houses of parliament, the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, which was introduced into parliament by Communications Minister Malcolm Turnbull in October last year, would force Australian telcos and internet service providers to retain their customers' telecommunications metadata for a minimum of two years.

The legislation was passed in the Lower House after days of debate with bipartisan support from the Labor opposition on Thursday afternoon, with amendments including the requirement for law-enforcement agencies to obtain a warrant to access journalists' metadata, and the establishment of a public interest advocate to make submissions in response to such warrant requests.

"The government has announced that it will move amendments to require a warrant to access data for the purpose of identifying a journalist's confidential source. It will also establish a public interest advocate that will have a role in respect of making submissions in respect of those warrants," Communications Minister Malcolm Turnbull said in parliament on Thursday. "These are the amendments that have been negotiated with the opposition, and I thank them for that."

The amendments also show the "kinds of information to be kept" rather than a definitive explanation of the exact data set to be retained under the data-retention regime.

These include subscriber information; subscriber contact details; identifiers of the source and destination of a communication that the service provider has, or attempted to, sent, forwarded, routed, or transferred; the date and time of communications; the type of communication, such as voice, SMS, email, chat, forum, and social media; the service used, such as ADSL, Wi-Fi, VoIP, cable, GPRS, VoLTE, and LTE; and features on the service such as data volume usage and call waiting.

The amendments also stipulate that the location of equipment used during a communication, such as each of the cell towers used, or the location of the Wi-Fi hotspot used, will also be retained for two years.

The Bill's passing in the Lower House comes despite Opposition Leader Bill Shorten previously suggesting that he did not want the legislation to be "rushed in a manner that could compromise the Bill's successful implementation". In February, Shorten said that Abbott was politicising data retention by calling for the Labor party to support the scheme.

However, Labor members helped the Bill pass with a number of amendments, many of which were informed by the recommendations in an advisory report on the legislation from the Joint Parliamentary Committee on Intelligence and Security (JPCIS) on the Telecommunications Act -- all of which the government supported.

The recommendations include the establishment of a two-year period for metadata retention; the requirement for a telco to provide notification in the event of a security breach of its data stores, which will be mandated to be encrypted; and the government making a "substantial contribution" to the costs of creating the regime.

The committee also recommended that the Bill be amended so that the proposed data set to be retained by telcos, and the agencies permitted to access it, is set in the primary legislation. Initially, this would have been set by regulation, allowing changes to the data set to be made further down the track without parliamentary approval.

However, it also recommended that the attorney-general of the day have the ability to declare items for inclusion in the data set, with the declaration ceasing after 40 sitting days of parliament.

Likewise, the committee recommended that the attorney-general be able to declare additional classes of service providers under the condition that any such declaration ceases to have an effect after 40 sitting days of either house of parliament.

While the committee recommended further consideration as to whether journalists should receive special protections under the proposed scheme, the prime minister eventually agreed to introduce an amendment to the legislation requiring law-enforcement agencies to obtain a warrant for access to journalists' metadata, following demands by the opposition leader.

Labor's support for the Bill comes despite the criticisms of some of its members. In parliament on March 18, federal Labor MP Melissa Parke questioned the planned new measures.

"The sweeping scope of the data-retention regime presents very real risks for the rights and freedoms Australians expect," she said.

The Bill's passage in the House of Representatives has taken more than two weeks longer than Abbott had hoped. On March 3, Abbott told ABC Radio National's Michael Brissenden that he wanted the legislation passed in parliament by the end of that week.

"This week, I hope we'll get metadata-retention laws through the parliament," he said on the ABC's AM radio program.

During its efforts to pass the legislation, the government has received calls from the country's telecommunications industry to reveal how much it intends to contribute to the cost of the scheme's implementation.

Earlier this month, a letter signed by the CEOs of Telstra, Optus, Vodafone, iiNet, Macquarie Telecom, and M2, among others, demanded that the government provide certainty around how much it is willing to pay for the mandatory data-retention legislation.

The Attorney-General's Department has said on its website that the upfront capital cost to industry of the regime's implementation would be between AU$188.8 million and AU$319.1 million, according to PricewaterhouseCoopers' estimates.

The estimate, which varies somewhat from Abbott's previously stated figure of around AU$400 million, is less than 1 percent of the AU$43 billion in revenue generated by the telecommunications industry annually, according to the government.

The government had previously said that it would make a "substantial contribution" to the cost imposed on telcos for the scheme, but has yet to spell out exactly how much it will contribute.

The passage of the Bill follows the passing into law of the government's National Security Legislation Amendment Bill (No. 1) 2014, which gives the Australian Security Intelligence Organisation (ASIO) the power to monitor every device on the internet, and the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, offering ASIO greater powers to get metadata and computer access for national security purposes.

With AAP

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