Federal cabinet has been caught unawares by media reports of a national security committee plan to require telecommunications companies to retain customers’ metadata for at least two years.



Cabinet is likely to be briefed on Tuesday morning about the plan, but had no knowledge a decision had been taken before it was revealed in the Daily Telegraph newspaper. The issue is not on the formal cabinet agenda.

Telecommunications companies had not been briefed on the decision before it was revealed in the media and were frantically seeking information on Tuesday morning, although they have responded to several parliamentary inquiries on the issue.

It is understood ministers hold strongly differing views about the practicalities of metadata retention, which has been proposed for several years and which the government argues is now needed to combat domestic terrorism threats.

The communications minister, Malcolm Turnbull, said on Tuesday there were “formidable” technical problems with mandatory data retention.

“Let me scope out a bit of the challenge,” he told the ABC.

“In days gone by, telephone companies kept detailed records for billing purposes of who you called and how long you were on the phone for … and they have always been accessible because they’re business records and that’s true whether here or in the United States or elsewhere.”

Turnbull said with the advent of the internet, telecommunications had become “much more complex”.

“There’s a lot more data out there but there is less and less of it actually in the hands of the telcos – this is an important point to bear in mind – so it’s a very complex issue. There are technical questions, there are issues of privacy and security. No one said government was easy and this is just another one of those difficult exercises that we’ve got to deal with.”

According to the Daily Telegraph the attorney general, George Brandis, and Turnbull, will be asked to work up an urgent interim measure by as early as September, with legislation to be introduced later after the government has considered a report from a Senate inquiry.

Neither minister was aware of the interim plan, although Brandis sits on the national security committee, and some government officials claimed the prime minister’s office appeared to have “gone rogue”.

Australia’s intelligence agencies have been strongly pushing the government to introduce a mandatory data retention scheme, whereby telecommunications providers must store customer data for two years.

David Irvine, the chief of the Australian Security Intelligence Organisation (Asio), mounted the case for the scheme last month when he appeared before the Senate’s legal and constitutional affairs references committee, which is conducting an inquiry into possible changes to the Telecommunications (Interception and Access) Act.

Irvine said companies often kept data for billing purposes, but increasingly did not have a commercial need to store it for as long as they had in the past.

Irvine said he did not want any change to the existing arrangements surrounding access to call data and was “not seeking a Big Brother arrangement whereby the government itself stores all that data”.

Irvine acknowledged that if large volumes of data were stored, the government would have to consider provisions to ensure the security of that data from unlawful access, but he believed it was primarily a responsibility of telecommunications providers.

On 16 July, while announcing the first tranche of national security reforms focused on boosting the powers of Asio, Brandis said mandatory data retention was under “active consideration” and it was “very much the way in which western nations are going”.

At the same media conference Irvine described data retention as “absolutely crucial” because “there is increasing sophistication in communications in almost every Asio investigation and a very large number of law enforcement investigations depend, at least, in the first instance access to retained data”.

Asked about the reported plan on Tuesday, Turnbull said “data is retained now. Data is retained now and accessible by the security services. The question is how much, what type of data, how long, who bears the cost. They’re all the issues that are of concern. But again, that’s a penetrating glimpse of the obvious. As to what the government will do, that’s a matter that you’ll have to wait to hear.”

“We are a Liberal government, we believe in small government. We are absolutely

committed to individual liberty and privacy and we believe that the incursion of government into our lives, into our affairs, should be absolutely limited to no more than is necessary.

“In this case, in the context of data retention, for national security. So you can be assured that those matters are being very carefully considered. But the issue that you’re talking about I’ve seen speculated in the press, hasn’t come to cabinet yet and I’m not in a position to add to the speculation.”

Steven Ciobo, the parliamentary secretary to the treasurer, said he believed it was “not the right approach to have mass surveillance of the Australian population”.

In 2012, Ciobo strongly criticised the then Labor government’s plans for mandatory data retention as “akin to tactics that we would have seen utilised by the Gestapo”.

He told Sky News on Tuesday: “This is all speculation. I understand no decision’s been made. It’s something that’s being looked at and this is an ongoing discussion.”

The acting leader of the Greens, Adam Bandt, said the Coalition

government was pursuing “a plan to spy on every Australian” and “treat every Australian as a suspect”.

“Every email that you send, every web site that you visit, everything you buy, every time you go somewhere and the phone company collects information about where you are will be recorded for two years and made available to the government,” Bandt said.

“This is massive overkill and overreach. If the government is concerned about illegal activity it should do what it does elsewhere and get a warrant.”

The opposition leader, Bill Shorten, said Labor would approach the debate on data retention “with a very open mind” and it was “a matter of getting the balance right”.

“The government hasn’t consulted Labor; we have to see the detail of what is proposed,” Shorten said on Tuesday.

“Let me state a couple of basic principles, though. On one hand we need to make sure that our national security agencies are able to do the job they’re required to do and keep Australia safe – that’s of fundamental importance to all Australians – but at the same time we’ve got to make sure that we don’t have the rights of individuals, their private conversations on the internet being intruded on by ‘big brother’.”

The Institute of Public Affairs, which has close links to the Liberal party, called on Coalition members to stand up for their values, warning that mandatory data retention would represent an “incredible invasion of privacy” and add significant costs to internet service providers.

“There are definitely people within the Coalition that have pretty serious reservations about it,” said Simon Breheny, director of the thinktank’s legal rights project.

“There’s a misconception that metadata is not something that we need to protect, that having internet service providers collect this kind of data isn’t going to mean a real invasion of privacy that we should be concerned with, when in fact the collection of metadata is just as bad as the collection of the content of communications.

“A very significant picture can be put together just by examining metadata over the course of two years.”

Tim Wilson, who was appointed by Brandis to the Human Rights Commission to champion freedom, also raised concern about the risk to people’s privacy and called for strong protections to ensure data was not misused.

The internet service provider iiNet confirmed on Tuesday it had not been consulted. The company told a Senate hearing last week of significant costs for consumers and privacy concerns as a result of mandatory data retention.

The former Labor government shelved a controversial plan to force Australian telecommunications companies, internet service providers and sites such as Facebook to collect “metadata” from Australian users and store it for two years as the 2013 election approached.

In the Alfred Deakin Lecture in 2012 about “liberty in the digital age”, Turnbull called on the then government to explain any estimated costs and benefits “for this sweeping and intrusive new power” and “what, if any, cost was ascribed to its chilling effect on free speech”.

“Leaving aside the central issue of the right to privacy, there are formidable practical objections,” Turnbull said in the 2012 speech.

Under existing law, warrants are required before law enforcers can listen to telephone calls or read stored emails and other data, but amendments in 2007 to the telecommunications interception act clarified that metadata – email addresses, information about where emails are sent and from whom they are received and who is calling or called from a certain telephone number, from which location and for how long – can be accessed simply by filling in forms such as these, tabled by federal police at the request of the Greens senator Scott Ludlam during Senate committee hearings in 2013.

There is no judicial oversight or requirement that domestic law enforcers prove a suspicion of a crime being committed in order to get permission to access metadata and in 2011-12 it was accessed 293,501 times according to the Telecommunications (Interception and Access) Act annual report.

The report shows metadata access was granted to state and federal police forces, the Australian Competition and Consumer Commission, the RSPCA, a long list of federal government departments – including the tax office and the departments of Foreign Affairs and Trade, defence, health and ageing, immigration and environment as well as state government departments responsible for commerce, the environment and primary industries. Metadata access was also approved for the Victorian taxi directorate.

The Australian Mobile Telecommunications Association – which represents the mobile telecommunications industry – and the Communications Alliance told a Senate committee the cost of retaining data beyond any period it would be kept in the course of business must be paid by the agencies that required it.

The associations warned a scheme would involve “an increased risk to the privacy of Australians and provide an incentive to hackers and criminals”.

In its submission to the same inquiry, Asio said there were cases in which the agency was able to “achieve a security outcome” only because “the telecommunications data happened to be held by the service providers”.

The Attorney General’s Department told the inquiry a requirement for telecommunications providers to retain data “would not involve mass surveillance or the collection and analysis of telecommunications data in bulk” because it would not alter the process for accessing that data.