ALHR calls on ALP and cross bench to stop data retention laws

March 15, 2015

ALHR president, Nathan Kennedy, wrote to all ALP and cross bench MPs and Senators today urging them not to pass the Data Retention Bill.

The text of the correspondence can be found below.

On behalf of the over 2,600 members of Australian Lawyers for Human Rights I am writing to urge you not to pass the Data Retention Bill.

There is no national security reason for the Bill to be passed as a matter of urgency because existing powers already enable numerous police, security and government bodies to access metadata without warrants, and these powers are regularly used.

There are a great number of both practical and ethical reasons why the Bill should not be passed and should be abandoned in its entirety.  The Bill severely infringes Australians’ rights to privacy and chills their freedom of speech and freedom of assembly (to communicate). All Australians are effectively treated as suspects.  It is an attack on the presumption of innocence and the type of mass surveillance expected from a totalitarian state not a free and democratic one.  The lack of the need for warrants and the potential for data breaches and misuse are further reasons not to support this Bill.

At the very least, the Bill needs to be fully and thoroughly considered, not rushed through.  This cannot be done until the Parliamentary Joint Committee on Intelligence and Security has provided its report on the proposed exception for journalists.  We understand that a Senate committee has been reviewing the existing system and is due to report on 18th March 2015.  Its views should also be taken into account.

The Bill has no proposed exception for Parliamentarians. We believe it highly unlikely that Parliamentary privilege can protect either Parliamentarians or their constituents from having data about their communications collected and accessed (although this is not legal advice and you should obtain your own advice on this point).  It will certainly not protect Parliamentarians in relation to non-parliamentary activities.

These kind of exemptions, like the ‘journalist’ exemption, are necessary to protect a relationship of trust between the ‘client’ and the person they approach.  Legislation that destroys the possibility of such relationships is inherently bad.  As a lawyer I am very concerned about the Bill’s impact on human rights and upon my ethical obligations to keep my client communications confidential.

This type of legislation has been rejected by other Western Democracies – including in the last week in Holland, Bulgaria and Paraguay.

No convincing reasons have been given by the government or the ALP as to why this Bill is needed.  It should be scrapped entirely.

I urge you not to support the Bill.

Kind regards,

Nathan Kennedy
Australian Lawyers for Human Rights