George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

Senator, as you know, the conventions to which Australia has acceded are not, without specific enactment, part of Australian domestic law. That being said, Australia is observant of its international human rights obligations. There is nothing in the International Covenant on Civil and Political Rights, which is the instrument with which I am familiar and which would seem to bear most directly on issues of privacy, that comes readily to my mind that is inconsistent with a scheme of mandatory metadata retention. Indeed, there has been some loose talk about a decision of the European Court of Justice in April of last year concerning the European Data Protection Directive, where the European Data Protection Directive was struck down. But people who marshal that event as some kind of rhetorical proof of the validity of their argument that a data retention scheme violates human rights standards always omit to mention that the European Court of Human Rights held, in striking down the European data directive, that it did so on the ground of proportionality. It held that if the data retention schemes of member nations of the EU were crafted conformably to the matters set out in its reasons for judgement then it would not have struck them down.

In other words, what the European Human Rights Court held was that it was possible to have a mandatory data retention scheme that was compliant with human rights standards, including European human rights laws. Most member states—not all, but most—including the United Kingdom, I might say, with whose Attorney-General I have discussed this matter, have subsequently enacted complying data retention schemes. The point I make is that the issue is one of proportionality, as the European Court of Human Rights recognised, and an appropriately crafted mandatory metadata retention scheme can be, and in the European case is, human rights compliant. Proportionality is one of the values that underlie this bill and the way in which the bill will be given effect to by the agencies, and I am quite satisfied, by parody of reasoning with the European Human Rights Court in the case of the European data directive, that this bill is also compliant.