Melissa Jane Petrak – YOU HAVE NO PRIVACY WITH DATA RETENTION

The new Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015, now requires all networks and telecommunications providers retain customer records and “metadata” for a minimum of two years. Retained data activity means an activity relating to information, or documents, in which a service provider is required to keep under Part 5-1A of the Telecommunications (Interception and Access) Act 1979, it also requires data to be retained for period of 24 months.

Meta data includes each aspect of a call; date time and location of call, text messages, the location of an email, GPS where a picture is taken. The meta data gives a ‘spy agency’ complete access to forums, blogs and the source of the IP address.
Australians are not provided privacy protections within the Commonwealth Constitution (Cth), allowing the government to collect our private information at whim. However, in the USA the government are unable to collect meta data to the extent this new Act allows, due to protections afforded to Americans via the Bill Of Rights.

The Act now insists the metadata is to be encrypted to protect actual content, text messages, emails, PIN numbers and passwords will not be accessible without a warrant.[1]

The new agencies which have been granted power to eaves-drop on ‘you’ include; the Australian Competition and Consumer Commission (ACCC) and the Australian Securities and Investments Commission (ASIC). Under the new law both the ACCC and ASIC do ‘not’ need to obtain a warrant to intercept ‘your’ personal meta data.

Although there are now provisions to gain a warrant for journalists; it is impossible for all of these agencies to know ‘all’ journalists. Section 184 of the Act deals with notification of authorisations for a warrant for journalists. Yet, a PhD student for example from overseas, or heavily into research; may not be known to the ACCC.
The Act provides for an authorisation to be made under a journalist information warrant. Is to be no later than the end of the period specified under section 180N, as the period for which the warrant is to remain in force.
A service provider may apply in writing to ACMA, requesting a review of decision under subsection 187K(1) relating to the service provider.

The Law Council of Australia’s Mr McConnell,[2] found another inconsistency may well arise; when a Whistle-blower contacts a lawyer for legal advice- before contacting a journalist. Yet, once the adverse confidential information is ‘disclosed’ the whistle-blower will be ‘known’ via the meta data.

Mr McConnell, recognises that legal professional privilege covers the content of communications between lawyers and clients. He does however, point to a High Court decision where three judges said legal professional privilege may also apply to telecommunications data which discloses a client’s identity.

Another major concern Mr McConnell, raised was an important section which was omitted with this years amendment, has now forfeited our promise, for a reasonable regard for privacy.

Privacy rights were removed, and the regard for proportionate rights and liberties for Australians was lost, through the amendment which extracted 6J Section 180F [Omit] “have regard to whether any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable”, substitute “be satisfied on reasonable grounds that any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable and proportionate”.

Mr McConnell, notes the ambiguity, ‘there is no provision in the Act on how it intends to remedy a breach done to a journalist- if a source is uncovered; provided within the revoke authorisation section.’ S 176(6) provides Revoking the authorisation  (6) An eligible person must revoke the authorisation if:  (a) he or she is satisfied that the disclosure is no longer required; or  (b) in a case where the authorisation is made under a journalist information warrant:  (i) the warrant is revoked under subsection 180N(1); or  (ii) the Director-General of Security has informed the Minister under section 180P that the Director-General is satisfied that the grounds on which the warrant was issued have ceased to exist.’

There is no cap on the number of devices that a single ASIO warrant may cover. It may have the capacity to capture every device within a university, or it may take on an entire township during a possible investigation.[3] Questions asked by The Senate Legal and Constitutional Affairs References Committee surrounding the exemption for ‘immediate circle’ and for ‘same place’ and the maximum number of devices that a single warrants allows, remains a mystery.
These newly introduced laws are a very expansive set of powers.[4]

However circumvention is possible for those with a bit of IT knowledge.[5] Natasha Despoja describes the massive amount of attainable data as a ‘honey pot for hackers.’[6] “No laws currently exist on data breaches.”[7]She said. [8]

The Act provides financial incentives for network providers. [9] It is unknown how many will continue to experience interruptions to network services, and receive a poor quality service, from quality service provider. The Bill’s debate- Senator Scott Ludlum put some questions to the consequence of driving customers to offshore provider.


It would be impossible for a journalist to work these days without the use of these networks.

There are serious penalties for breaches of the Act.[10] Once a journalist information warrant is issued on a journalist, it will specify the period for which it is to be in force, this is generally a period of up to 90 days.[11]Warrants served under the Act will be done in secret.

Yet, journalist will continue to work in the light, whilst journalist Liam Tung pointed out- ‘criminals will hide within the dark web.’[12]

[1] Meta data retention by Rouse M. http://rouselawyers.com.au/metadata-retention/

[2] http://www.theaustralian.com.au/business/legal-affairs/lawyers-call-for-metadata-amendments-on-privilege-protection/story-e6frg97x-1227270180746

[3] Senator Scott Ludlum in the debate above questioning QC Attorney General Brandis.

[4] Independent Senator Nick Xenophon questioning QC Attorney General Brandis.

[5] The circumventing of our data-https://www.youtube.com/watch?v=bfVA9t_lbQ&feature=youtu.be

[6] Also see Liam Tung 17/03/15 http://www.brisbanetimes.com.au/it-pro/security-it/dark-web-keeps-criminals-out-of-reach-of-metadata-retention-laws-20150317-1m125k.html

[7] ABC- Down Load This Show– Comments by Natasha Stott Despoja https://www.youtube.com/watch?v=a8c82nCIpOY

[8] The Bill has been described as disentangling the indiscriminate- by Senator Scott Ludlum

[9] Section- 187KB  Commonwealth may make a grant of financial assistance to service providers

[10] Found in section 182A  Disclosure/use offences: journalist information warrants

[11]  Form and content of a journalist information warrant found in section 180U.

[12] Mr Moore explains how criminals can hide-http://www.brisbanetimes.com.au/it-pro/security-it/dark-web-keeps-criminals-out-of-reach-of-metadata-retention-laws-20150317-1m125k.html

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