Data retention…do the ends justify the means?

August 10, 2015

The new data retention laws have caused quite a stir in both the legal community and the public at large. Since the passing of these laws (with support from both sides of politics), many have questioned whether these laws would be effective in stopping terrorist threats and whether they go too far in compromising our right to privacy.

Individual privacy is an indispensible part of a free society. Professor D M Walker in the Oxford Companion to Law defines the right to privacy as ‘the right to be left alone… [to] not have one’s private life intruded upon or unjustifiably brought into public consideration.’[1] Professor Zelman Cowen in a lecture entitled ‘The Private Man’ explained that the right to privacy enables the individual to exercise their autonomy and frees them of the fear that a government could unjustifiably intrude on their personal affairs and alter how they conduct themselves.[2] Thus, to apply the argument that, ‘if you have nothing to hide then you have nothing to fear’, would be to disregard the possible chilling effects on the personal autonomy of an individual caused by constant surveillance, in particular Metadata retention.

But keep in mind, like all rights and freedoms; the right to privacy does have its limits. It is proportional and reasonable that a government in times of crisis can implement measures that would protect the nation.[3] However, it seems that if Metadata retention is to be a justifiable compromise to privacy, it must: (i) be a method that cannot be easily bypassed by individuals or groups that do pose a legitimate threat to Australians and; (ii) be a method that is not so invasive that it begins to completely compromise the privacy of the citizenry.

In relation to the first point, Metadata retention is not a foolproof method of detecting a terrorist threat to Australia. There are loopholes[4], although they are not so simple as merely using encrypted message apps or using offshore internet service providers such as Gmail. [5] Astonishingly, some of these loopholes have been made known to the public by the current Minister for Communications Malcolm Turnbull. This weakens the justification for having mandatory data retention as a way to prevent any terrorist attacks because the means to bypass these laws are common knowledge, and thus readily available to terrorists.

Addressing the second point, Metadata retention has compromised our right to privacy in ways that have far reaching effects in our society. An example of this is in the profession of journalism, whose members face the risk of having their sources exposed by surveillance agencies.[6] Also, there is uncertainty as to the confidentiality of client records in the medical and legal professions, due to the use of Metadata retention.[7] The acceptance of these ever increasingly invasive forms of surveillance are impacting on areas of everyday life that are more and more unrelated to matters relating to national security.

Lastly, a valid point to consider is the experiences of other nations with similar data retention laws. A prominent case is with the United States. In June 2015, its senate passed the USA Freedom Act which has been regarded as the most extensive reform of the powers of surveillance agencies in the US since the 1970’s.[8] Although it does not abolish all the invasive actions by these government agencies, the legislation stops the more gross violations of privacy, such as the indiscriminate collection of phone records of American citizens.[9]

Metadata retention is a popular measure to obtain information from the citizenry of a country. It is done with the aim of keeping security services informed about any possible threat to the nation. However, it is a policy that has implications to the detriment of the citizens of our nation and, furthermore, has been shown (by a Government Minister none the less) to be easily bypassed, thereby challenging its effectiveness at all and any purported rationalisation that the end justifies the means.


Socrates Aronis

Freedoms Sub-Committee Member


[1]        Jennifer Nielson & Tony Pagone, ‘Privacy’ in Jude Wallace and Tony Pagone (eds), Rights and Freedoms in Australia (Federation Press, 1990) 14.

[2]        ibid, 15.

[3]        ibid.

[4]        John Kerin, “What Metadata laws mean for you” Australian Financial Review, 27 March 2015, accessed 14 June 2015 at <>.

[5]        Philip Branch, “Is it possible to circumvent metadata retention and retain your privacy?” The Conversation Website, 31 March 2015, accessed 14 June 2015 at <>.

[6]        Kerin, op cit.

[7]        Kerin, op cit

[8]        Sabrina Siddiqui, “Congress Passes NSA surveillance reform in vindication for Snowden”, The Guardian, 3 June 2015, accessed 14 June 2015 at <>.

[9]        “Freedom Act to limit domestic surveillance signed into US law by President Barack Obama”, ABC News Website, 3 June 2015, accessed 14 June 2015 at <>.