Major parties join forces in the Senate to vote for the metadata storage scheme despite attempts to amend bill by independents and minor parties

This article is more than 5 years old

This article is more than 5 years old

Australia’s mandatory data retention scheme has passed both houses of parliament after the Coalition and Labor stared down privacy-based objections from minor parties and independents.



The Senate voted in favour of the legislation on Thursday amid continuing uncertainty over the cost of requiring telcos and internet service providers (ISPs) to store customers’ metadata – including the time and participants in phone calls, text messages and emails – for two years.

The Coalition government and Labor opposition defeated a series of last-ditch amendments proposed by the Greens and other crossbench senators aimed at further tightening access arrangements, including a proposal to expand the use of warrants to obtain people’s metadata.

The upper house passed the bill 43 votes in favour to 16 against. The Coalition easily had the numbers to secure the legislation with support from Labor and the Palmer United senator Dio Wang. Opponents included the Greens and other crossbenchers David Leyonhjelm, Nick Xenophon, Jacqui Lambie, Glenn Lazarus, John Madigan and Ricky Muir.

The Greens senator Scott Ludlam said the legislation contained “the DNA of both of the major parties” and “entrenches a form of passive surveillance over 23 million Australians”.

“The ALP has caved into Tony Abbott’s self-interested fear campaign and supported the bill,” Ludlam said. “You failed to turn up. You will be judged for that … We will remember this in 2016 and we will not let others forget.”

But Labor speakers maintained that they had secured improvements to the original bill, including protections for journalists and other safeguards after the government accepted the recommendations of the bipartisan security committee.

“The Labor party has not caved in on this matter,” the Labor senator Jacinta Collins said. “And yes, indeed, we do accept that we will be judged as will yourselves as will all of us in the public arena. We accept that and we take responsibility for that. We are the alternative government and we do have to be responsible about issues related to national security.”

Collins also insisted that mandatory data retention was “not mass surveillance”.

“Information that is recorded is not necessarily accessed. We have built a strong system with checks and balances to ensure that we have that balance right,” she said.

The attorney general, George Brandis, praised senators for conducting “a very civil and intelligent debate” about the legislation, which he argued was proportionate.

“Nobody could say this has been a rushed process,” he said. “This legislation does contain protections that weren’t there before. It does preserve a capability for police and national security and commercial regulatory agencies which was on the verge of being lost. It does contain safeguards that weren’t there before.”

In a statement welcoming the decision, Brandis said metadata was “the basic building block in nearly every counter-terrorism, counter-espionage and organised crime investigation”.

He underlined the need for a mandatory scheme with consistent storage obligations to replace the current practice of relying on data retained by companies voluntarily.

“A victim’s right to justice, and agencies’ ability to solve crimes, shouldn’t depend on which service provider is used by the victims and perpetrators,” Brandis said.



But Xenophon said he was worried the law would have a “suffocating effect on press freedom”.



“We live in difficult and dangerous times,” the independent senator said. “There is a need to combat terrorism and do all we can to combat paedophilia and to stamp that out and bring those predators to justice but my concern is with our intelligence agencies having more and more power … we do not have that same level of scrutiny of some of our allies.”

Leyonhjelm, the Liberal Democratic senator, said he was worried the “data honeypot” would be used to pursue trivial matters.

The prime minister, Tony Abbott, had been determined to pass the law before parliament rose for a six-week pre-budget break, describing a mandatory data retention scheme as necessary to avoid “a form of unilateral disarmament in the face of criminals”.

But hours before the bill passed the upper house, Abbott was unable to answer a direct question about the amount the government would contribute to businesses to assist with the cost of implementation, estimated to be up to $300m.

“We have said to the industry that we are prepared to make an appropriate upfront contribution to the cost. We are continuing to talk to the industry about precisely what that will be,” he said. “But the important thing is that the metadata legislation be passed and passed quickly, because if we want to keep our communities safe we need this legislation in place.”

The Senate vote came a week after the bill passed the House of Representatives, where the government holds a majority.

Senators debated whether agencies should continue to be able to access to metadata without a warrant, privacy implications, the effectiveness of the scheme, the cost of implementation and definitional problems.

Crossbenchers also questioned the adequacy of the new warrant protections for journalists agreed between Labor and the Coalition after fears about the data being used to identify confidential sources.

Xenophon unsuccessfully attempted to amend a separate security law that passed parliament last year and introduced lengthy jail terms for journalists who reported information about “special intelligence operations” even where people lives’ were not jeopardised.

He wanted exemptions for journalists who reported in good faith about a matter of public interest so long as it would not enable an intelligence official to be identified.

“Make no mistake about it: these issues go to the heart of press freedom in this country and the ability of investigative journalists to do that work,” Xenophon said.

Ludlam questioned the effectiveness of the data retention scheme after the communications minister, Malcolm Turnbull, used a television interview to list a variety of “over the top” messaging services that journalists and sources could use to avoid their interactions being captured.

“Amazing – tips on how to avoid mandatory data retention by the guy who introduced the bill,” Ludlam told the Senate, urging people to follow Turnbull’s advice.

Despite the bill’s passage, the data retention obligations do not begin immediately. Telcos and ISPs will have until 2017 to fulfil their implementation plans.