It’s Only Metadata: Political posturing on privacy principles

Stream: Panel 9 - Human Rights & Democracy: Metadata, Whistle-blowing, Privacy, and Law 
Date: Monday, 26 September 2016
Time: 11.30 am – 1.00 pm


There is a delicate balance between individual rights and the rights of civil society on the one hand and the needs of the state on the other. This balance is challenged when there is an exogenous crisis which creates a threat to the state. However, there is an increasing tendency in Australia for exogenous crises to be created to fit the government of the day’s political discourse. The impact of a contrived threat is compounded in the absence of a formal, enduring and constitutional expression of individual rights. By examining the extent to which the Australian government overrides privacy protection in law enforcement activity acquiring telecommunications metadata, this paper analyses evidence of three distinct trends. The first is that exogenous terrorism crisis is used to justify data collection that is mainly used in drug crime. The second is that Australia’s willingness to provide metadata to the US is unmatched by any other US ally. The third is that the effects of the recently legislated data retention regime for telecommunications companies has led to the erosion of those privacy rights afforded to Australians in the absence of a credible exogenous crisis. The paper concludes by establishing the case that the absence of a bill of rights means that metadata collection per head of population is higher than in other countries with a comparable legal system


Rob Nicholls (Presenter), UNSW
Dr Rob Nicholls is a lecturer in business law at UNSW Business School and is a research fellow at the Centre for Law, Markets and Regulation at UNSW Law School. His research interests encompass competition law and policy as well as the regulation of networked industries and the financial services sector. Before this appointment, Rob was a research fellow at the Centre for International Finance and Regulation where he investigated the intersection of competition law and financial services regulation. He is also a visiting fellow at UTS Sydney Law. Rob is an accredited mediator and the Independent Telecommunications Adjudicator.