news The Australian Federal Police has refused to answer questions from a Federal Senator about whether it has recently accessed the metadata of journalists, politicians or political staffers, on the basis that doing so would be illegal under new Data Retention legislation.
The Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015 passed the Federal Parliament in March last year. For the first time, it forces Australian telcos and Internet service providers to retain comprehensive records on their customers’ Internet and telephone habits for a period of two years.
Even for major telcos such as Telstra, which were already retaining large amounts of data about their customers, the scheme significantly expands the amount and type of data which will be held compared to the telcos’ previous records.
In a Senate Estimates session on 9 February, independent Senator Nick Xenophon asked the Australian Federal Police a number of questions about how it had used the laws to access metadata pertaining to journalists, politicians or political staffers over the past year.
However, in its written response to Xenophon’s questions, the Australian Federal Police said it was prohibited from disclosing any information about whether it had made such accesses.
“The Australian Federal Police is unable to provide the Hon. Senator with this information as doing so would be an offence under section 181B of the Telecommunications (Interception and Access) Act 1979,” the AFP wrote.
“This section makes it an offence to disclose whether a Division 4 authorisation to access telecommunications data has been, or is being, sought. Further it is an offence to disclose information about the making of a Division 4 authorisation, the existence or non-existence of such an authorisation, the revocation of such an authorisation, or the notification of such a revocation.”
The Data Retention legislation does not require any especial provisions for the AFP, or other law enforcement agencies, to access the metadata of politicians or their staff, but it does require specific provisions if law enforcement agencies want to access the data of journalists.
In January this year, it was revealed that Prime Minister Malcolm Turnbull had appointed two retired judges, Kevin Duggan and John Muir, appointing the, as public interest advocates able to argue against police requests for journalists’ metadata.
It is not known to what extent — if any — either of the pair has been required to argue against the release of journalist’ metadata, as it is not clear whether journalists’ metadata has so far been requested by a law enforcement agency under the new Data Retention scheme.
However, it is certainly possible.
In mid-February, Guardian journalist Paul Farrell published an article noting that he had requested a copy of his police files from the Australian Federal Police, and received back more than 200 pages of heavily redacted police files. It is possible that police accessed Farrell’s metadata in an attempt to find sources who had leaked information to Farrell regarding the implementation of Australia’s immigration policy.