Ditch data retention bill, lawyers argue

The federal government's mandatory data retention bill should be dumped, according to the Law Institute of Victoria (LIV).

A submission (PDF) from the group to the parliamentary inquiry into the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 argues that the proposed legislation is "profoundly flawed".

"The LIV is very concerned about the impact of the Bill on the fundamental human rights of all Australians, such as the rights to privacy, freedom of expression and freedom of association," the submission states.

"Preserving these rights is essential to the functioning of a democratic society. The Bill fails to address these concerns."

Instead a new parliamentary inquiry should be established to examine whether there is a need for mass data retention and "if so, how this need can be translated into clear legislation that is reasonable, proportionate in not unduly restricting rights and freedoms and would be effective in meeting a legitimate purpose". The inquiry should also review the Telecommunication (Interception and Access) Act 1979 and the Telecommunications Act 1997 "as they relate to the law enforcement obligations of the communications industry and the related powers of law enforcement agencies".

The LIV submission states that if the existing data retention bill is not scrapped it should be substantially modified, including setting out in legislation a definition of the data set that must be retained.

The government's decision to spell out in regulation the full data set has been a source of criticism from both the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights.

The LIV's seven secondary recommendations also include incorporating in the legislation the full list of government agencies that will be able to access data under the scheme, that communications providers not be required to create data, that access to data be limited to investigations related to serious crimes, the incorporation of judicial oversight into the scheme, protections for privileged and confidential information, and restricting retention periods to "what is strictly necessary and proportionate".

The Parliamentary Joint Committee on Intelligence and Security is scheduled to hold its second and third public hearings into the bill on 29 and 30 January.

"The bill as it stands fails to address the serious privacy, freedom and data security concerns that have been raised in relation to mandatory data retention both in Australia and overseas," LIV head Katie Miller said in a statement.

"I call on this parliamentary committee to hold the government to account for its failure to make a case for the bill," the LIV president said.

The PJCIS is expected to table its report on the legislation on 27 February.

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