Federal Government departments — that are not currently permitted to access the metadata of Australians — have attempted to work around the restrictions established in last year's Data Retention Bill by requesting the Australian Federal Police (AFP) do the searches for them.

Key points: Data retention legislation came into force on October 13 last year

Data retention legislation came into force on October 13 last year More than 60 organisations are removed from accessing citizens' metadata

More than 60 organisations are removed from accessing citizens' metadata Expert is concerned government departments are "sidestepping what the law says"

The departments include the Australian Taxation Office (ATO), the Department of Foreign Affairs and Trade (DFAT), the Department of Agriculture, the Department of Education and the Department of Social Services (DSS).

The AFP was asked to obtain metadata for them after the data retention legislation came into force on October 13 last year.

When the amendment became law, more than 60 organisations, including departments, local councils and the RSPCA, were removed from the list which allowed them to access citizens' metadata without a warrant.

"DFAT sought the assistance of the AFP in accessing metadata should it be required in the course of passport fraud investigations," a spokeswoman for DFAT said.

"DFAT has not previously asked the AFP to access metadata, as we had access to metadata until October 2015."

A spokesperson for the DSS said AFP assistance was requested on advice from the Attorney-General's Department.

"Advice was provided by the Attorney-General's Department to DSS that any organisation not listed in the legislation may wish to engage with law enforcement about being able to access telecommunications data for criminal investigative purposes," she said.

"DSS then sought advice from the AFP regarding future requests for telecommunications data and received the response that has been released by the AFP."

The AFP declined the metadata requests, telling them in a letter in December last year that "due to resourcing, compliance and risk considerations" it was "not in a position to consider requests from other agencies to access telecommunications data on their behalf".

The AFP emails were obtained by the ABC under Freedom of Information legislation.

Organisations bypassing safeguards, expert says

Dr Angela Daly, a technology law expert from the Queensland University of Technology, said it was concerning the public service appeared to be bypassing the safeguards built into the data retention legislation.

"My concerns about organisations, that have not been authorised to access the retained data, are that they are bypassing the safeguards that were built into the data retention legislation, which limited the agencies that could access the data as an attempt to preserve individual privacy," she said.

"These safeguards are supposed to allay fears regarding privacy invasiveness of the data retention scheme.

"Not that this restriction allayed my own concerns about privacy, but at least that was the Government's argument."

During last year's Senate debate about the data retention amendments, Attorney-General George Brandis defended the bill's changes, arguing they restricted metadata access only to law enforcement agencies, anti-corruption authorities and economic regulators.

Dr Daly said it was worrying the Attorney-General's Department then offered government agencies an alternative to access metadata.

"I am very concerned to hear the Attorney-General's Department has been encouraging unauthorised agencies to kind of sidestep the safeguards built into the data retention legislation in this kind of way," she said.

"I think it's very concerning that the part of Government that should be most concerned with the rule of law seems to be trying to sidestep what the law actually says."

A Freedom of Information release in January showed 61 government entities had applied to be classified as an enforcement agency, which would allow them to access metadata under the data retention regime.

However, a spokesman for the Attorney-General's Department has confirmed no additional government body has been added to the official list since the metadata legislation passed into law.

"Criminal law enforcement agencies can only authorise requests to access metadata for investigative purposes where reasonably necessary to enforce criminal law, a law imposing a pecuniary penalty or to protect public revenue, and where privacy intrusion is considered justifiable and proportionate in the circumstances," a spokesperson for the Attorney-General's Department said.

"If departments without access believe the law has been breached, they can alert law enforcement agencies."

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