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Labor member says data retention creates 'culture of fear,' calls for review

The Australian Labor Party has come under fire from within for its support of data retention, as a NSW Labor member calls for a review of the laws amid concerns of "mass surveillance."

Seamus Byrne/CNET

Just four months after voting with the Federal Government to pass mandatory data retention legislation, Labor has been called on to review the scheme with one of the party's state members saying the laws "help create a culture of fear" in Australia.

The news emerged from Labor's National Conference, held in Melbourne over the weekend, where NSW Labor member for Summer Hill Jo Haylen took to the stage to call for the review amid concerns about "heightened mass surveillance."

Mandatory data retention passed Parliament in March, requiring telecommunications and Internet service providers to retain communications metadata on their customers for a minimum of two years, beginning 13 October, 2015, and granting a number of government agencies warrantless access to this data. The laws were couched in terms of preserving investigative powers for national security and law enforcement agencies, but they were also met with stiff opposition from crossbench MPs and civil liberties advocates who argued data retention amounted to state-sanctioned surveillance.

In its report on data retention legislation and its implementation, the Parliamentary Joint Committee on Intelligence and Security recommended that a review into the "effectiveness" of the regime to be presented to Parliament. Both the Government and the Labor opposition supported this call for review.

However, in her speech to delegates at the conference, Haylen brought the issue to the fore, moving an amendment to the party's stance on data retention. As well as calling for an official review, Haylen's amendment noted the need to ensure the types of agencies with access to metadata was "appropriate" and that there were adequate "threshold conditions on warrantless access."

"The challenge for law-makers is to strike the right balance: balance between privacy and security, between transparency and strength, and between the power of government and the rights of citizens," she said in her speech at the conference. "The Government's data retention laws do not strike the right balance and neither does Labor's support of these laws."

Haylen further criticised the number of agencies granted warrantless access to metadata under the laws, saying some of them "have tenuous responsibility for national security if any," and warned against the potential scope-creep in granting the Attorney-General the power to open access to even more agencies.

In what may be the strongest language yet seen from a Labor party member on data retention, Haylen said the Government's "flawed" scheme demanded Australians "sacrifice their privacy supposedly for the sake of security."

"Proponents of metadata retention say those who do nothing wrong have nothing to fear, but these laws help create a culture of fear. A culture where we are all under suspicion and subject to heightened mass surveillance," she said.

The renewed focus on data retention has been welcomed by digital civil liberties advocates, though not without criticism of the party's original voting position.

"It's reassuring to see that within the wider ALP there remains an understanding of the importance of meaningful protections for individual privacy, and for the protection of whistle-blowers and other journalists' sources," said Electronic Frontiers Australia Chair David Cake.

"It's unfortunate however that the party leadership chose to allow this badly flawed legislation to pass the parliament despite these concerns."

Internet Australia CEO Laurie Patton also welcomed the move, noting that the bill was "flawed" from the start.

"The departmental lawyers charged with drafting this controversial legislation simply did not have sufficient understanding of its implications for the hundreds of service providers required to comply with its complex provisions," he said.

The Government has since jumped on Ms Heylan's comments with Attorney-General George Brandis issuing a statement saying they "cast doubt" on Labor's support for mandatory data retention.

"Mr Shorten must confirm that if elected, he will not repeal our data retention laws," the statement read. "The Australian people deserve the certainty that our national security agencies will continue to have access to the data they need to investigate and interdict terrorist networks."