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

I will try and reply to the points you have made, Senator Ludlam. I hope not to be condescending to you; I will just try and express myself accurately and carefully. I am very familiar with the European Court of Justice's decision on 8 April 2014, because I actually introduced reference to it into this debate. I am familiar with the press release from which you have quoted and I will quote you some other passages that you chose to omit. I find, Senator Ludlam, forgive me for being fussy about this, that I prefer when considering the decisions of courts to read the judgements rather than press releases, and I have read the judgements as well.

The point I was making to your colleague Senator Wright, which I thought was a straightforward point but which I will make again lest it not be understood, is that although the European Court of Justice struck down the European data retention directive, it did so on specified grounds relating to proportionality. It did not decide, in fact it specifically said that it was not deciding, that a mandatory data retention regime, properly designed, was contrary to European human rights standards. So it struck down that particular mandatory data retention regime embodied in the European data directive on the ground that, to use the vernacular, it went too far—it violated the test of proportionality. But, at the same time, it held that states could develop mandatory metadata retention regimes that would not violate the test of proportionality or otherwise violate the European human rights charter. Instructively, you did not read these passages from the press release in the contribution you just made. From page 2:

It states—

that is, the court's judgment, because this is a precis of the judgment:

It states that the retention of data required by the directive is not such as to adversely affect the essence of the fundamental rights to respect for private life and to the protection of personal data. The directive does not permit the acquisition of knowledge of the content of the electronic communications as such and provides that service or network providers must respect certain principles of data protection and data security—

as this bill does. The press release goes on to say:

Furthermore, the retention of data for the purpose of their possible transmission to the competent national authorities genuinely satisfies an objective of general interest, namely the fight against serious crime and, ultimately, public security.

And then it goes on to say:

However, the Court is of the opinion that, by adopting the Data Retention Directive, the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality.

I do not want to accuse you of intellectual dishonesty, Senator, but I find it remarkable that you would assert the proposition you just asserted, reading from the document from which you just read, omitting the most important qualification, which makes my point and entirely answers yours.

Furthermore, Senator Ludlam, and Senator Wright, who also addressed this issue, the European data retention directive was judged by the European Court of Human Rights against the European human rights charter. We do not have an Australian bill of rights. We do not have that instrument as part of our domestic law. We do not.