Labor pledges Data Retention policy review


news The Australian Labor Party passed a motion at its National Conference on Friday that will see it formally review the Data Retention legislation passed earlier this year, adding to an existing planned review enshrined in the legislation itself.

The successful amendment to Labor’s policy platform — which appears to have been backed by Labor state NSW MP Jo Haylen passed through Labor’s National Conference on Friday afternoon and— states: “Labor will review the retention of telecommunications data by carriage services providers under the Telecommunications (Interception and Access) Act and the regulation of access to telecommunications data by law enforcement and national security agencies.”

“Labor wants to ensure that the types of agencies with access to the data and purposes for which the data is available are appropriate. We want to ensure that the current warrant scheme and threshold conditions on warrantless access are appropriate and that freedom of the press is protected.”

Haylen has strong connections with Labor’s left wing, having worked as director of administration for former Prime Minister Julia Gillard and as deputy chief of staff for former Deputy Prime Minister Anthony Albanese. Haylen holds the seat of Summer Hill — in Sydney’s progressive inner west — in the NSW Legislative Assembly and is a former Mayor of Marrickville. These areas are part of Albanese’s federal seat of Grayndler.

At Labor’s National Conference in Melbourne on Friday, Haylen made it plain she didn’t believe Labor had gotten the balance right when voting for the Data Retention legislation earlier this year. The MP’s full speech is available online.

“The challenge for law-makers is to strike the right balance: balance between privacy and security, between transparency and strength, and between the power of government and the rights of citizens,” Haylen told the conference. “The Government’s data retention laws do not strike the right balance and neither does Labor’s support of these laws.”

“Proponents of metadata retention say those who do nothing wrong have nothing to fear, but these laws help create a culture of fear. A culture where we are all under suspicion and subject to heightened mass surveillance. Where some government agencies don’t require a warrant to investigate alleged wrongdoing.”

“We do not need laws that give access to our metadata to over 20 government agencies, some of which have tenuous responsibility for national security if any. We don’t need laws that empower the Attorney General to add more agencies to that list, on a whim, and forever expand the government’s access to our digital lives. And we don’t need flawed laws that demand Australians sacrifice their privacy supposedly for the sake of security.”

“This amendment commits us to review these laws and – I hope – find a better balance.”

Haylen said Labor was the “only party” that can get this balance between security and privacy right.

The amendment comes despite the fact that the data retention legislation itself already contains a mandatory review within three years after it is implemented by the Parliament’s Joint Committee on Intelligence and Security — which only Labor and the Coalition sit on.

However, Labor’s membership on the Committee is currently dominated by Labor figures who are typically hard-line on national security matters and/or members of Labor’s right-wing faction, including Anthony Byrne, member of the ALP Caucus Committee on Security and Defence, Shadow Attorney-General Mark Dreyfus and Shadow Defence Minister Senator Stephen Conroy. Labor’s representation on the committee is somewhat balanced out by left-aligned Senators Penny Wong and Katy Gallagher, but neither have demonstrated a strong interest in the data retention debate.

The news attracted criticism from the Greens, with Senator Scott Ludlam stating on Twitter that it was too late for Labor to “reinvent Data Retention history”, as the party had already voted for the policy:

And former Internode and iiNet senior executive John Lindsay wrote on his blog: “You can’t have it both ways Labor. Reports that you’re “rethinking” Data Retention mean you’ve worked out your supporter base doesn’t actually like surveillance. You unquestioningly supported it in spite of the evidence put in front of you by experts. So now it’s yours. You made it. You didn’t OPPOSE it, so you get no credit for opposing it now. Future performance is predicted by past behaviour – remember that at the ballot box voters.”

These amendments demonstrate that there continues to be strong concern within Labor’s left-wing faction regarding the controversial Data Retention amendments which Labor teamed up with the Government to pass earlier this year.

When you consider the fact that elements of the Labor right — for example, Ed Husic, who has long been associated with the NSW Labor Right — continue to demonstrate concern about the legislation — this means there is substantial opportunity for the legislation to be amended in future to place further restrictions on it. This will especially become a possibility if Labor wins Government and the Greens, who are staunchly against data retention, hold the balance of power in the Senate, or if Senator Leyonhjelm or Senator Xenophon, who also hold strong concerns, are in the mix for the balance of power.

The amendments also appear to represent an attempt by the Labor left to reassure its own constituency over the issue.

Labor left MPs such as Haylen will continue to face challenges in their seats from the Greens. Haylen won her seat of Summer Hill in the recent NSW Election with a primary vote of 43.3 percent, which led to a two party preferred vote of 60.5 percent when preferences were allocated. However, the Greens came second in that contest, with a primary vote of 27.3 percent and a two party preferred vote of 39.5 percent. The Liberals came in third with a primary vote of 23.8 percent.

No doubt this high Greens vote would make Haylen extremely nervous about the potential of issues such as Data Retention — which the Greens have been strong on — to impact on the Greens vote in her seat, especially considering the Greens picked up the neighbouring seat of Newtown in the same election.

I don’t personally expect Haylen to lose her seat to a Greens candidate any time soon — she’s young, energetic, and I think the Greens will most likely concentrate on holding what they have in NSW and federally for now. Haylen has a pretty clear margin, high-profile allies, and appears to have a strong history in the area. But the possibility of a strong challenge is still there if the MP doesn’t continue make the right noises on issues like Data Retention to her progressive Sydney voter base.

I haven’t met Haylen, but she looks like a solid MP, and I expect she will continue to attract national attention and support if she pushes this issue further. From the public statements she’s made on a few issues, I suspect she will align pretty well with Australia’s technology community on a few policy issues. And eventually she may be a candidate for Federal Parliament. Definitely a MP to keep an eye on.

From the perspective of Australia’s technology community, it’s great to see the Labor left showing some energy on Data Retention, and that the issue received support from the party’s National Conference. It shows that the issue is not dead yet, and indeed will continue to attract attention as the policy is implemented, used by law enforcement and eventually reviewed.

Image credit: Screenshot of footage taken by the Labor Herald


  1. Whilst I think it is great that there is further discussion on this. My cynical self finds it hard to separate the support of it from the donations provided by vested interests specifically Village Roadshow, to Labor(and the Coalition).
    It concerns me that this is simply a way for them to look like they care about this issue, vs an actual desire to “fix” the issue.
    But again that may well be just my jaded cynical self.

  2. Additional comment from the EFA on the Labor announcement:

    EFA welcomes the Labor Party’s decision to adopt an amendment to its platform that calls for a review of the data retention legislation passed in March this year.

    As a long-standing opponent of mandatory data retention, EFA remains committed to rolling-back the worst aspects of this legislation, including the unjustifiably long retention period of two years and the routine collection of mobile phone location data. EFA is also committed to extending the warrant requirement for data access to cover the entire population.

    EFA Chair David Cake said today, “It’s reassuring to see that within the wider ALP there remains an understanding of the importance of meaningful protections for individual privacy, and for the protection of whistle-blowers and other journalists’ sources. It’s unfortunate however that the party leadership chose to allow this badly flawed legislation to pass the parliament despite these concerns. EFA looks forward to the opportunity to participate in a review of this legislation, should the ALP form government after the next election.”

  3. I would mind data retention if there was due process eg a warrant. Or worst still jurno won’t even know if there data has been requested the telco won’t know if a warrant has been issued and the judge won’t know what the warrent is for.

    But at this stage a terrorist that these “laws” was put in to stop only needs a yahoo email address to bypass it.

    • I still don’t like mandatory data retention. The effectiveness of it is extremely questionable. At best allowing discovery “after the fact” unless they are actively trawling though it, which is a privacy issue. As to those suspects they already have they could simple request targeted data retention for them, in much the same way they do now with phone taps etc.

      But I agree, if we are going to have it, then it needs proper controls and mechanisms with judicial process to oversee it.

      Commercial interests should not be allowed direct access to it, in fact there should really be a dedicated and audit-able group looking after it, to whom requests would go and they would perform the work.

      Which of course adds more costs to it.

  4. Labor’s hedging it’s bets with the voters.

    “Oh, sorry, we didn’t mean to vote with the preference of the lobbyists … now we’ve had a closer look … we’ll … uh … have an even CLOSER look at them … and ummm …. we’ll think about coming to a proper decision. We’ll get back to you about that around election time … but nothing solid until after we’re elected … OK?”

    Sound about right?

    ‘scuse the cynicism Renai, that’s not very constructive I guess. I just don’t see this sort of half baked response as a positive note … all Labor has effectively said is that they don’t think it’s a good idea, but have promised nothing in return.

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