Reform of metadata retention laws welcomed

The Attorney General the Hon Mark Dreyfus KC released the Government’s response to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) review of the Mandatory Data Retention Regime.

The Law Council of Australia welcomes this commitment to reform of Australia’s metadata retention laws.

Australia’s Mandatory Data Retention Regime was introduced in 2015 and enables law enforcement and intelligence agencies to access electronic information when needed to prevent, disrupt and investigate serious crimes and threats to national security.

The Government has announced it will substantially accept the detailed recommendations of the PJCIS which are directed to improving the transparency and accountability of the regime, greater protections for privacy and strengthening safeguards.

The Law Council of Australia is pleased that its consistent advocacy on a number of key issues related to the proportionality of the scheme have proved influential in both the PJCIS’s consideration of the scheme and the Government’s announced approach.

Changes the Law Council was calling for that will now be implemented include:

• The TIA Act will be amended to more clearly define the distinction drawn in the legislation between the ‘contents’ and ‘substance’ of a communication for the purpose of providing greater certainty and enhancing privacy protections. This distinction is crucial for the operation of the Mandatory Data Retention Regime because a service provider is not required to keep information that ‘is the contents or substance of a communication.’ The PJCIS recommended the Government consult with a group of key stakeholders, including the Law Council, in preparing a new definition to guide legislative change in this area and promote certainty.
   
• A set of national guidelines on the operation of the mandatory data retention scheme by enforcement agencies will be prepared to ensure greater clarity, consistency and security in respect of requests for – and the collection and management of – telecommunications data by enforcement agencies across Australia. In preparing the draft guidelines, the PJCIS recommended the Government consult with key stakeholders, including the Law Council.
   
• The Government has committed to legislative reform to ensure access to telecommunications data is necessary and proportionate and the thresholds for authorising access are calibrated at an appropriate level of seriousness. In this regard, the Law Council looks forward to continuing to advocate for its long-held position that access to existing telecommunications data should only be granted to criminal law enforcement and security agencies that investigate specific serious crimes such as serious indictable offences or specific serious threats to national security.
   
• The number of officers and officials of criminal law-enforcement agencies who may be designated as “authorised officers” under the TIA Act will be reduced to ensure that authorisations to access telecommunications data are made by officers with appropriate training and knowledge of legislative requirements.

The Law Council appreciates that implementation of some of the measures advocated by the Law Council and PJCIS call for legislative reform – and this is best achieved in the context of holistic reforms to the Commonwealth electronic surveillance legislative framework in response to recommendations of the Comprehensive Review of the Legal Framework of the National Intelligence Community. The Law Council looks forward to continuing to engage constructively with the Attorney General’s Department on this larger project.

Public Interest Disclosure Amendment (Review) Bill 2022

On 14 February 2023, the Law Council made a submission to the Senate Standing Committee on Legal and Constitutional Affairs on its inquiry into the provisions of the Public Interest Disclosure Amendment (Review) Bill 2022 (Cth) (PIDAR Bill).

The PIDAR Bill seeks to amend the Public Interest Disclosure Act 2013 (Cth) by excluding 'personal work-related conduct' from the federal whistleblower scheme, improving the processes for the handling, allocation and investigation of disclosures, and expanding the protections for those who make public-interest disclosures.  Most of the measures in the PIDAR Bill were informed by recommendations about Commonwealth whistleblower laws made in the 2016 Moss Review and by the Parliamentary Joint Committee on Corporations and Financial Services and Parliamentary Joint Committee on Intelligence and Security in 2017 and 2020.

In its submission, the Law Council indicated that comprehensive changes to federal whistleblower laws were needed to promote open government, to simplify the legislation governing public‑interest disclosures and to enhance the protection of whistleblowers.  

However, as the PIDAR Bill is to be followed by a series of consultations relating to Australia’s whistleblower laws, the Law Council confined the recommendations in its submission to matters that arose directly from the modest reforms contained in the Bill. 

The Law Council recommended that the PIDAR Bill should, amongst other matters, (i) require the Act to be reviewed in three years’ time and every five years thereafter to ensure that the law continues to protect public-sector whistleblowers adequately; (ii) make it easier for those disclosing classified information to receive legal advice and for whistleblowers to be able to obtain support from professional bodies (including unions) about public-interest disclosures; (iii)  place greater emphasis on the need for internal investigations of disclosures to be completed by government agencies in the expected 90-day timeframe; and (iv) allow parliamentary staff to continue to benefit from the Act’s protections when revealing others’ misconduct.    

The Law Council is grateful to its National Human Rights Committee and National Security Law Working Group and to the Law Society of New South Wales in the preparation of the submission on the PIDAR Bill.

The Senate Standing Committee on Legal and Constitutional Affairs is due to report on the PIDAR Bill by 14 March 2023. The Law Council will monitor the Committee’s recommendations and any amendments to the Bill that follow.

Read more here.

A New Act to Replace the Disability Services Act 1986

On 15 February 2023, the Law Council made a submission to the Department of Social Services (DSS) in response to its ‘Consultation Paper: A New Act to Replace the Disability Services Act 1986’.

The Disability Services Act 1986 (Cth) (Disability Services Act), amongst other things, supports the provision of employment services, advocacy services, rehabilitation programs and other ‘eligible services’ to some persons with disabilities. Through its Consultation Paper, DSS sought input to inform the development of a new Act to replace the Disability Services Act which is consistent with the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and Australia’s Disability Strategy 2021-31.  

The focus of the Law Council’s submission was to recommend that consideration be given to underpinning the new Disability Services Act with a supported decision-making framework, consistent with article 12 of the CRPD. Article 12 of the CRPD reaffirms that persons with disabilities enjoy legal capacity on an equal basis with others and obligates states parties to take appropriate measures to support those persons to exercise their legal capacity and make their own decisions where such support is needed.  As the submission pointed out, the present Disability Services Act provides for the making of standards to which services providers are subject, which presently deal with decision-making rights.

In the submission, the Law Council observed that the model for the design of laws to give effect to supported decision making principles is still informed by the National Decision-Making Principles derived by the Australian Law Reform Commission in 2014 and was most recently developed further in the ‘Research Report: Diversity, dignity, equity and best practice: a framework for supported decision-making’ commissioned by the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.

Importantly, the Law Council emphasised that thought needs to be given as to how the Act interacts with other legal frameworks, including those underpinned by a substituted decision-making, as opposed to supported decision-making, approach. The Law Council has long recognised both the need for greater consistency across a range of Commonwealth, state and territory legal frameworks concerning individual decision-making and the significance of that task, noting complexities and different traditions underpinning each of those frameworks and the costs involved. In light of the endorsement of supported decision-making principles under Australia’s Disability Strategy 2021–31, and multiple ongoing reform projects in relation to such frameworks, the Law Council suggested that now may be a good opportunity for a broader discussion as to how that consistency may be achieved.

The Law Council is very grateful to the Law Institute of Victoria for writing to it to raise the fundamental issues addressed in the submission.  

BLS 2023 Annual Planning Workshop

On 10 February 2023, Business Law Section Executive, lead by Chairman Philip Argy, met with the Chairs and Deputy Chairs of our Specialist Committees in Melbourne at the 2023 Annual Planning Workshop.

This annual event provides the BLS an opportunity to come together to discuss operational matters, build cross-committee relationships and plan for the year ahead. It was wonderful to be able to return once again to an in person event after a two-year virtual hiatus.

As has been the practice in previous years, the workshop was joined by the Law Council of Australia President, Luke Murphy, who addressed the group on the objectives for his presidential year and how the BLS can support the Law Council of Australia's operational plan.

BLS also extend our thanks to the LCA's CEO Dr James Popple and Director of Policy Leonie Campbell for joining us to engage with our members throughout the day.

The Business Law Section look forward to what is expected to be another busy year ahead.