AFP Admits Accessing Metadata of Australians 20,000 Times in a Year

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Australian Federal Police have admitted accessing the metadata of Australians around 20,000 times in just 12 months.

The admission came during the AFP’s submission to the parliamentary joint committee on intelligence and security’s review of the mandatory data retention laws.

Parliamentary committee review

The review, currently underway, is examining a range of laws, including anti-encryption legislation, and is looking into the recent AFP raids on the media.

Information on the number of times metadata is accessed by government agencies is supposed to be released in an annual report on the operation of the Telecommunications (Interception and Access) Act, but a report hasn’t been released for nearly two years.

Under the controversial 2015 metadata retention laws, internet service providers are required to keep data including call records and IP addresses of users for at least two years, and hand it over to law enforcement agencies without the need for them to obtain a warrant.

This data includes, but is not limited to:

  • Telephone records
  • The time and length of phone calls
  • The internet protocol addresses (IP addresses) of computers from which messages are received or sent
  • Location of parties making phone calls
  • To and from email addresses on emails
  • Logs of visitors to chat rooms online
  • Status of chat sites – whether they are active and how many people are participating
  • Chat aliases or identifiers (the name a person uses in a chat room online)
  • Start and finish times of internet sessions
  • The location of an individual involved in communications
  • The name of the application someone uses online and when, where and for how long used

The laws were spruiked as being necessary to catch terrorists and organised criminals, but are actually being used by not just the AFP, but a range of law enforcement agencies and even local councils have been using the laws for ‘unintended’ purposes.

It was revealed that in 2016, for example, over 60 Government agencies applied to the Attorney-General for metadata access, including Australian Taxation Office, Department of Human Services, and even local councils.

In fact, Bankstown Council applied for metadata access in order to catch illegal rubbish dumpers and those who breach by-laws. That access was granted. And the Queensland Police Service used the scheme to access the metadata of cadets in an attempt to determine whether they were sleeping with one another, or faking sick days.

To many, dumping rubbish, monitoring the sexual activities of cadets or even evading tax is not enough to justify sacrificing the privacy of the entire Australian population – especially when the reason put forth for the implementation of the laws was to fight against terrorism and organised crime.

Indeed, Australia is the only Western democracy to have such pervasive surveillance laws, and their lack of transparency and accountability has raised additional concerns that the information being accessed is not limited to metadata, but encompasses a range of other data including the content of communications.

Seeking the data of journalists

If the metadata of a journalist is sought, the law enforcement body is meant to obtain a journalist information warrant if the metadata of a journalist is sought. That warrant is signed off by an issuing authority, that is appointed by the government.

The application is not subjected to judicial review, and the person or body in respect of which the data is sought does not even know about the application.

The AFP told the committee that in the 2017-18 financial year that it had obtained two journalist information warrants and accessed the metadata of journalist 58 times. The subject journalists are not advised that their metadata is being accessed, and therefore are not able to have the decision reviewed by a court of law.

AFP accessed private travel information

The release of figures showing AFP accessing metadata comes just after it was also revealed that the AFP also accessed ABC reporter Dan Oakes’ private travel records from Qantas as part of their AFP investigation into the leak of classified documents into alleged misconduct among Australian troops in Afghanistan.

Dan Oakes was one of the ABC journalists involved in the Afghan Files story, which resulted in a raid by AFP officers on the head offices of the ABC in Sydney, the day after AFP officers searched the home of NewsCorp journalist Annika Smethurst who published a story about proposed new powers which would allow some intelligence agencies within the Australian Government to spy on the general public.

While laws make it possible for the Government to consider prosecuting not just whistleblowers but also journalists who handle leaked and confidential government information, whether or not there will be criminal charges against any of the ABC journalists in question or the Newscorp journalist, remains unclear. Their employers maintain that they were doing their jobs and highlighting information of ‘public interest’.

Journalists may still face prosecution

Attorney General, Christian Porter, has since backed away from the assurance that journalists aren’t being targeted by police, claiming his initial comments were based on ‘limited information.’

In the meantime, media chiefs from the ABC and Newscorp have both filed legal action against the constitutional validity of the AFP warrant and subsequent raids and have written directly to Home Affairs Minister Peter Dutton, to whom the AFP reports, to ask him to drop the police action against the journalists.

Mr Dutton has rejected the request, stating that “nobody is above the law.”

Legislation governing the AFP prevents Mr Dutton from ordering the agency to drop an investigation, however, media chiefs as well as some Coalition MPs want the government to diffuse the situation as it stands, and publicly declare it would never authorise the prosecution of Ms Smethurst, Mr Oakes and Mr Clark.

Damage to Australia’s reputation as a ‘democracy’

There is widespread concern that so far, that the Government’s handling of the situation has caused serious damage to Australia’s reputation as a democracy on the world stage.

Since the moment the AFP raids on journalists hit headlines there has been outpouring of opinion, backlash and condemnation from around the globe.

It has also been pointed out that right now Australia has an opportunity to set a benchmark for laws that sensibly govern national security, balanced with ‘freedom of the press.’

The latest critic has been high profile human rights lawyer Amal Clooney, who likened Australia to North Korea at a recent media freedom conference in London, joining the outcry of many who say that the Australian Government’s stance over the AFP raids is in danger of limiting press freedom unless and hurting democracy.

The ‘real’ implications of the national security laws

What conclusions will be drawn from the parliamentary inquiry and what – if any – changes will be made to existing legislation, remain unclear.

But it is worth noting that Since the 9/11 terrorist attacks in the U.S., Australia has passed or amended more than 60 laws related to secrecy, spying and terrorism — more than any other liberal democracy.

What many Australians are now coming to realise is that a significant proportion of these laws have far-reaching powers, serious implications, and exceptionally harsh penalties. And they can just as easily be used on any Australians, as they can on the terrorists we’ve were told by the Government, that they were designed to protect us from.

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.
Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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