Is data retention swallowing your legal professional privilege?

The highly controversial Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 passed through Parliament last week with the support of both major parties and is now part of the law of the land.

The laws will require telecommunications providers to keep records of phone and internet use for two years and allow security agencies to get access to those records. A late amendment, to ensure bipartisan support for the bill, included provisions which require security agencies to get a warrant to get access to journalists’ metadata and created a presumption whereby the need for journalist’s confidentiality (to protect their sources) outweighs any public interest, although questions remain about the effectiveness of these protections.

Unfortunately, as it is often the case with laws that are rushed through Parliament without appropriate consultation, significant further issues have been already highlighted with the new laws, including how they may affect legal professional privilege.

Those who engage a lawyer need to know their communications are confidential and that legal professional privilege is not compromised under the new data retention laws. Legal professional privilege, the confidentiality of communications between lawyers and clients, is a fundamental principle of our justice system and a long-held common law right.

It is right to note that legal professional privilege attaches to the content of such communications, not to the fact that such communications exist between lawyers and their clients, nor would generally the privilege attach to a client’s identity or contact details.

It’s notable in this context that observations by Chief Justice Gleeson and Justices Kirby and Callinan in Z v New South Wales Crime Commission [2007] HCA 7 indicate that legal professional privilege may apply to telecommunications data where in certain circumstances the data would disclose a client’s identity and where it is provided for the purpose of obtaining or giving legal advice.

Without appropriate provisions in the new laws, providing for the protection of legal professional privilege, currently that privilege is at considerable and real risk.

Respected legal experts and bodies lined up in their opposition to the new laws, highlighting a multitude of issues with the Bill, many of which remain unaddressed.

For example, the submission to the Parliamentary Joint Committee on Intelligence and Security Inquiry by the Law Institute of Victoria (LIV) primarily recommended that the Bill not be passed. In the alternative, the LIV highlighted the need for the protection of legal professional privilege, among other things.

The Law Council of Australia also called upon the Government to make sure that legal professional privilege is protected under the new laws.

The LIV took a particularly strong line and Katie Miller, the President of the LIV, stated in a piece written for the Australian Financial Review that ‘[n]either the government nor the opposition have made out a case that mass mandatory data retention of the scale set out in the bill is necessary, reasonable or proportionate’.

It is predicted that anyone with true criminal intent and minimal understanding of technology will be able to avoid having their data scooped up under the new data retention laws, utilising widely available technologies, including virtual private networks, or VPNs.

This means that the only data telecommunications companies are likely to end up retaining, and thus government and security agencies accessing, will be data created by average, law-abiding citizens, including lawyers and journalists, utterly defeating the disclosed purpose of the new laws.

If you would like to learn more about the concept of data retention and why it represents a potentially bigger threat to democracy than criminals, the Electronic Frontier Foundation prepared an informative fact sheet on mandatory data retention and TechDirt published an article which explains, in very simple terms, why the ‘If you’ve nothing to hide’ argument is a fallacy which confuses privacy with secrecy.