Opinion

Brandis’s plan for metadata in civil litigation

New tricks are in store for your private information. 

As if having the entire nation under surveillance for potential criminal offences was not sweeping enough, George Brandis and his department have fresh thoughts about extending Big Brother’s scope. 

The attorney-general and the minister for communications, Mitch Fifield, are conducting a review to see whether private metadata captured from mobile phones and computers and retained for criminal investigations and counterterrorism measures should be available in civil court proceedings. 

How brave is that new world? Exciting possibilities could open up for copyright owners tracking down people “borrowing” their property, for litigants wanting to know journalists’ sources, for family law proceedings, personal injury litigation, migration cases, revenue disputes, robo-debt collectors, whistleblowers, the works. 

Forget the privacy, enjoy the view. Why is there a need for this review if these ministers aren’t plotting something? The timing has Brandis’s fingerprints all over it – the review was announced a few days before Christmas with submissions due by January 13. 

Absent from the associated consultation paper is any request from “stakeholders” for information about the impact of this idea on fundamental rights and freedoms.  

From April 13 personal electronic information stored to comply with the data retention scheme cannot be used in civil litigation. It now looks very likely that the government will seek amendments to flick the switch to remove that prohibition after April 13, the date the civil litigation report is due to be finalised.

Data kept by the telecommunication companies for their own business operations is another matter. Generally, that is for billing information and customer analytics. That information can be subject to subpoenas, notices to disclose and other court orders. 

It is the deeper, richer, juicier data retained under George Brandis’s 2015 retention law that is up for grabs for litigants, and that includes the source and destination of the communication, its date, time and duration, and, chillingly, the location of the communications equipment. 

Submissions have rolled in and unsurprisingly there is opposition from the Australian Privacy Foundation, Electronic Frontiers Australia and the Australian Communications Consumer Action Network. 

Also there is opposition from the lawyers peak body, the Law Council of Australia – which is interesting, given that swaths of its litigation members would be smacking their chops at the thought of accessing litigants’ electronic secrets. 

Telstra’s submission complained about “uncertainty for staff in having to differentiate” between data retained for the Telecommunications (Interception and Access) Act and that which is retained for its own business purposes. 

It may not be entirely surprising that Brandis’s metadata retention scheme already is subject to slippage. On Sky News a few years ago the attorney-general made it clear he had no idea what metadata was, but by November 2014 he had wised up, telling the audience of Q&A: “The mandatory metadata retention regime applies only to the most serious crime – to terrorism, to international and transnational organised crime, to paedophilia, where the use of metadata has been particularly useful as an investigative tool.”

Further: “Civil wrongs have nothing to do with this scheme.”  

One aspect of the retention law was trumpeted for its virtue. The legislation reduced from about 100 agencies and organisations that could access telco data to 20. Another 61 have applied to be classified as enforcement agencies, and departments such as foreign affairs, agriculture, education, social services and the Australian Taxation Office are bypassing what we thought were safeguards by asking the Australian Federal Police to do the metadata sleuthing for them. 

This has been encouraged by the attorney-general’s department. The warrantless world doesn’t end there, though – organisations with legislative power for the enforcement of their authority are asking telecommunication providers directly for information about customers or users. According to the Communications Alliance, this includes local councils trying to enforce parking fines or investigating tree removals and dumping of rubbish, the RSPCA, and a state environmental protection authority. 

The use of private information in some circumstances is undoubtedly for a socially beneficial purpose, yet the concern is that we were not told that it would somehow tailgate onto Brandis’s scheme to combat serious crime, paedophilia and terrorism. 

Peter Leonard, a partner at law firm Gilbert + Tobin, noted that in 2015 more than 550,000 requests for information about communications were made by Australian law enforcement agencies. 

Technology website Telsyte gives us some idea of the expanding potential for data access by civil litigants. By 2019 it is estimated that the average household will have 24 internet-connected devices, up from nine in 2015. This is a result of the take-up of the “internet of things”: smart thermostats, smart appliances, smart cars and in the case of Canada, a smart vibrator called We-Vibe. 

And there is the new dimension of ministerial revenge, with legislation that allows the relevant minister to access and release the personal information of veterans, just so the government can rebut public assertions made by unhappy ex-Diggers. Similarly, the minister for human services, Alan Tudge, has dubiously cited legislation that he thought empowered him to release the personal file of a young person critical of the performance of Centrelink. 

With people like that at the top of the greasy pole, everything is unfair game. 

Not that the data retention scheme will function flawlessly. This is Brandis legislation, after all. Laurie Patton, a board member and former chief executive of Internet Australia, says the attorney-general’s department received applications from 210 internet service providers seeking funding to help meet compliance costs. About 180 of those applications were approved. However, Patton estimates that there are between 250 and 400 ISPs in Australia, meaning there are some big gaps in George’s retention scheme. 

It’s not the only gap in Brandis’s handiwork, and it’s worth recalling some of the others as speculation mounts that he may have found a taxpayer-funded soft landing away from parliamentary politics. 

In no particular order of horror, we had his mistreatment of Gillian Triggs, the president of the Human Rights Commission, over her temerity to investigate children held in immigration detention camps, behaviour that led the senate to censure him 35 to 32, finding he is unfit to hold office. 

There is his blatant refusal to respond to freedom of information requests – legislation for which he has ministerial responsibility – and now he is dragging his feet in processing the release of his diaries, as ordered by the full Federal Court. 

The diaries are important because in 2015 the government announced a 30 per cent reduction in the funding of community legal centres. Brandis claimed to have consulted widely on the cuts but no one at the community centres can remember these consultations, hence shadow attorney-general Mark Dreyfus’s application for access to his diaries – to check whether there are gaps in Brandis’s memory. 

And who can forget the truly awful episode when Brandis decided he didn’t want an independent solicitor-general giving advice to and acting for government departments and agencies without his written approval? 

Again, he said there were consultations with the former solicitor-general, Justin Gleeson, when none were apparent. The reason he wanted to corral Gleeson is now apparent, however – it pointed to a scam whereby some Commonwealth ministers and the West Australian government stitched up a deal to allow the sandgropers to legislatively grab the assets of the Bell Group, in liquidation. This gave the Insurance Commission of WA first dibs at the remaining Bell assets of $1.8 billion, placing it ahead of the ATO, which claimed $300 million. The gropers were given to believe that the Commonwealth would run dead on any litigation challenging the WA Bell Act and that the state would benefit as a payoff for the loss of GST revenue. 

No one counted on Justin Gleeson taking the brief from the ATO to set the lurk aside, which is exactly what the High Court did. Now the attorney-general is ducking and weaving as to when he had consultations with his WA counterpart and whether his office tried to block the ATO from intervening in the case.

Smelly deals around Bell Group go back to the good old WA Inc days, when Alan Bond acquired effective control of its massive piles of cash through a sleight-of-hand deal with the insurance commission. Nearly 30 years later, the Bell scam is still damaging business and political careers. 

Or it ought to be, but not in George Brandis’s case. To the list of mishandling and disgrace, we now add that the security and sanctity of our private data is at risk because the attorney-general has allowed it to slide into the hands of agencies not contemplated in the legislation.

This sneakiness is a hallmark of his ministerial run. For normal mortals it would render them ineligible for high office, but Brandis is in a magic circle where, quite shockingly, he is regarded as an adornment for a possible overseas posting or a quiet spot on a bench somewhere.

This article was first published in the print edition of The Saturday Paper on Mar 18, 2017 as "Bare phones and Brandis clause". Subscribe here.

Richard Ackland
is the publisher of Justinian. He is The Saturday Paper’s diarist-at-large and legal affairs editor.

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