Australian Privacy Commissioner grants journalist access to his own metadata withheld by Telstra in 2013

The Australian Privacy Commissioner has determined that metadata produced by journalist Ben Grubb’s mobile phone activity is personal information and ordered Telstra to allow him access to this type of data.

Unfortunately, changes* to the Commonwealth Privacy Act 1988 may mean that this determination might not support futures challenges in cases where a telecommunications company refuses access to an individual’s own metadata.

Ben Grubb and Telstra Corporation Limited [2015] AICmr 35 (1 May 2015): Determination and reasons for determination of Privacy Commissioner, Timothy Pilgrim

Background

3. On 15 June 2013 the complainant claimed a right of access under the Privacy Act to ‘all the metadata information Telstra has stored’ about him in relation to his mobile phone service, including (but not limited to) cell tower logs, inbound call and text details, duration of data sessions and telephone calls and the URLs of websites visited……..

Summary

1. Telstra Corporation Limited (Telstra) interfered with the complainant’s privacy by failing to provide the complainant with access to his personal information held by Telstra in breach of National Privacy Principle (NPP) 6.1 of the Privacy Act 1988 (Cth) (the Privacy Act).

2. To redress this matter, Telstra shall:

* within 30 business days after the making of this declaration, provide the complainant with access to his personal information held by Telstra in accordance with his request dated 15 June 2013, save that Telstra is not obliged to provide access to inbound call numbers;

* provide the complainant with access to the above information free of charge…….

13. I note from the outset that because this matter relates to events that occurred prior to reforms to the Privacy Act which commenced on 12 March 2014, the complaint has been dealt with under the legislative regime as it applied when the events occurred. The National Privacy Principles (NPPs) not the Australian Privacy Principles² therefore apply in this instance to the question of whether or not Telstra has breached the Act. The NPPs outline the standards for handling personal information that legally bind organisations.

Full transcript of this determination can be found here.

* The Privacy Act 1988 defined personal information as:

personal information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

* Under the Privacy Amendment (Enhancing Privacy Protection) Act 2012 which amended the Privacy Act 1988, personal information is now defined thus:

personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:

                     (a)  whether the information or opinion is true or not; and

                     (b)  whether the information or opinion is recorded in a material form or not.

BACKGROUND

The Sydney Morning Herald 4 May 2015:

Monday marks 688 days since I first asked Telstra for the metadata generated by my mobile phone - the same information it routinely gives law-enforcement and intelligence agencies without a warrant when investigating crime.

Monday also marks the start of Privacy Awareness Week 2015, which usually goes by each year without too much fuss and, to be quite frank, is a little boring. But this year's Privacy Awareness Week is different.

You see, Monday also marks the day the Office of the Australian Information Commissioner hasmade public a landmark decision in relation to my battle with Telstra for access to my metadata.

You might remember how I detailed my tussle with the telco last year, in which I explained how spies, councils, the RSPCA and others could gain access to my phone's metadata but I couldn't, as Telstra was refusing me access.

I wanted access to the data in light of the data retention laws, which recently passed parliament, so that I could show Australians exactly what metadata was, considering not even George Brandis could explain it. I wanted to put my metadata on a map like German politician Malte Spitz did after he successfully sued his telco in 2011 to show just how invasive having all of your metadata stored was in the wake of mandatory data retention in his country……

In Abbott's Australia things are improving - citizens are getting told "No" faster

Since the Abbott Government came to power in September 2013 information from government departments has been somewhat more difficult to obtain.

Websites have been redesigned in such a way that data is often buried layers deep with no obvious links on the home page, telephone queries are often answered more guardedly than before and now it seems that Freedom of Information (FOI) requests are being answered within an acceptable time frame but with those answers more likely to be a Yes, but or an outright No to releasing information if the Office of the Australian Information Commissioner (OAIC) December 2014 report on the Department of Human Services is any indication.

The Information Commissioner noted in relation to the Dept. of Human Services that between 2011–12 and 2013–14 there was: a) an increase in the department’s use of the FOI Act practical refusal mechanism, from 33 occasions in 2011–12 to 777 in 2013–14;  b) a decline in the number of FOI requests to which access to documents was given in full, from 58% of requests in 2011–12 to 26% in 2013–14; and c) an increase in the number of applications for Information Commissioner (IC) review of the department’s access refusal decisions, from 49 IC review applications in 2011–12 to 95 in 2013–14.

So how do other federal government departments which handle ‘sensitive’ information rate when it comes to the ease with which publicly available information can be obtained regarding their response to FOI requests?

Well there does appear to have been some improvements in time between FOI request received and reply sent by other government departments in the same period covered by the OAIC report.

However……………..

The Dept. of Immigration and Border Protection very cutely informs readers of its 2013-14 Annual Report of the high number of FOI requests it finalised in that financial year – but not the total number of these requests which resulted in a partial or complete refusal of requested data/information. The department’s disclosure logs give no indication as to whether documents supplied under FOI requests were redacted in the 2013 section, but do indicate which document releases were full/partial in the 2014 section of that financial year.

Given this department finalised 14,923 FOI requests in 2013-14, the relatively small number listed in the disclosure logs leads one to suspect that a great many requests were refused.

Of the 146 FOI requests which appear to have been finalised by the Dept. of Prime Minister and Cabinet (DPMC) in the 2013-14 financial year only 8 are listed as having been released as full or partially redacted documents and 3 are elsewhere listed as being rejected outright. The status of the remaining 135 FOI requests is uncertain.

In August 2014 this is what one released DPMC document looked like:

The content of which could not be more obscure.

The Australian Attorney-General’s Department website lists approximately 40 documents released under Freedom of Information in 2013-14 but there are no details published online and one must contact the department directly for information on these documents. The department’s annual report for that year does not list the number of FOI requests received or finalised.

According to its annual report the Australian Taxation Office (ATO) received 768 FOI requests in 2013-14 but only lists 9 finalised FOI requests for that period in its online disclosure log. The status of the remaining 759 is unknown. A number of the documents that were released are heavily redacted. 

Treasury displays 13 FOI requests on the departmental website for 2013-14. A number of documents are redacted and there is one refusal recorded. However, neither Treasury's website or annual report for that financial year state the number of FOI requests received or finalised in that year.

All in all, a suspicion forms that freedom of information is more honoured in concept than in fact by a government led by Tony Abbott, who before he became prime minister stated an alleged belief that; we should have a government which is transparent and open.

Senator Christine Milne: "Farewell, so long"

Photo from @ninemsm

Text of an email sent out by Australian Greens Senator Christine Milne on 6 May 2015:

Dear [redacted],

I've just stepped out of a meeting with my Party Room colleagues to send you this note. They are 10 of the best politicians I have ever known. And so, it is with a mix of optimism, pride and sadness that I am letting you know that, at that meeting, I resigned my position as Leader of the Australian Greens.

After 3 years as leader, 10 years as a senator, and 25 years in politics, the time has come.

To my family, staff, colleagues, friends, party members, supporters and voters – thank you. I have cherished your input, your passion, and your support.

From my humble beginnings in the rolling dairy hills of Wesley Vale where an alliance of farmers, fishers, scientists, environmentalists and community members stood together to prevent the construction of a polluting pulp mill, to being elected to the Tasmanian Parliament and going on to be the first woman to lead a political party in Tasmania.

There were battles against, and sometimes with, the Tasmanian Liberal Government, the subsequent Labor-Green Accord which doubled the Tassie Wilderness World Heritage Area and then the balance of power allowed us to deliver significant social change with gay law reform, gun law reform and an apology to the Indigenous Stolen Generation.

To the federal parliament, where we delivered a world-leading legislative package to price pollution – with an emissions trading scheme that worked and made the big polluters pay for their pollution, the biodiversity fund and $10 billion for the Clean Energy Finance Corporation. I was proud of our achievements then and I remain proud of them now. The repeal of the carbon price was the last stand of the vanquished. The community is now leaving the old parties behind in the fossil-fool age and getting on with realising the clean energy jobs of the future.

I leave today knowing that I achieved what I set out to do when I stood as Leader – I have nurtured our growing Party Room into a team of equals, each using their dedication and expertise to deliver outcomes for the community.  I have overseen the Greens' electoral success, from retaining all our MPs and gaining one in the 2013 election, to successful state election campaigns in Victoria, Queensland and NSW which have seen our state parliamentary representation increase to record levels.

The Greens have proven that working together with a clear vision for our country's future and to speak with voters directly brings electoral and societal change. I have led the Australian Greens through a period of reform and modernisation which stands it in good stead for our future electoral success.

For me, life after parliament is not, however, life after politics. The fight for action on global warming will continue and I will take my passion and all that I've learnt, to that fight standing shoulder to shoulder with the community for climate justice. I'm looking forward to continuing my international advocacy and to holding Australia to account on the international stage.

The Greens are a party of vision. We are the party who can deliver the caring society and clean environment Australians deserve.  We are the only viable alternative to the old parties – and we have the strength and the will to make a difference.

Best wishes and thanks to you all,

Christine

PS Please consider joining the Australian Greens to be part of our bright, green, future. Click here: http://greens.org.au/join

Metgasco still a long way from recovering ground lost

Now that the post-Supreme Court judgment market speculators have moved on, coal seam & tight gas explorer and wannabee production company, Metgasco Limited, is watching its ordinary share price start to fall once more.

 Graphs from the Australian Stock Exchange, 5 May 2015

Typically this company's 'lack of charm offensive' continues in this letter to the Editor of The Northern Star on 2 May 2015, in which it is incorrectly asserted that an exploration licence is similar to a land title and that the type of gas expected from the Rosella well is purely 'conventional' gas*:

Confusion reigns

ATTENTION Mr Laurance Axtens:

There seems to be some confusion about NSW resource management.

NSW's mineral and resources are owned by the state, not individuals or selective local communities.

It is the responsibility of the State Government to manage these resources in the interest of all people in NSW. People living in Byron Bay and Balmain, who by the way have no gas potential in their areas and will not be affected in any way by gas development around Casino, have no more rights to impose their views on resource development than any other NSW citizen or community.

NSW Governments of both political persuasions have awarded and renewed exploration licences to Metgasco over a period that exceeds 10 years. These exploration licences are like a title, similar to a farmer's title to his land, and entail both exploration rights and obligations. The licences (titles) need to be respected.

Please be aware that the democratically elected NSW Government has acknowledged the need for gas and is developing a new NSW gas plan accordingly. Please also be aware that the gas industry enjoys strong support from both the LNP and Labor party at federal level. The NSW Labor position is at complete odds with its federal counterpart and seems to be little more than a cynical, short term expedient.

Please also note that Metgasco is exploring for natural gas in conventional, tight rock and coal seams. I presume from your open letter that you support "conventional gas" and hence our plans to drill the Rosella well.

By the way, given that so much of the world and Australia's gas already comes from coal seams, shales and tight gas, the word "unconventional" is becoming less and less relevant. For example, one third of the gas we currently use in Eastern Australia is coming from coal seam gas wells.

PETER J HENDERSON

Managing director

Metgasco

* Metgasco holds PEL 16, which is located in the Northern Rivers of New South Wales. On 6 February 2014, the OCSG approved Metgasco drilling an exploration well targeting conventional and tight sands gas at Bentley, located between Casino and Lismore [NSW Office of Coal Seam Gas, 26 June 2014]

The Rosella well is testing for gas in conventional and tight gas rocks....if we find gas it will be like the gas in the Kingfisher well, almost entirely methane. [www.metgasco.com.au, 6 May 2015]

Unconventional gas is trapped in formations that are atypical in terms of their geological location and characteristics. Recovering these resources requires the use of techniques designed to "untrap" the gas.

The term "unconventional gas" actually covers three main types of natural gas resources: shale gas, tight gas and coalbed methane (also known as coal seam gas). Conventional and unconventional gases differ not by their chemical compositions (they are all natural gas) but rather by the geological characteristics of their reservoir rock.

Hydrocarbons (mainly natural gas, but some oil as well) are trapped in subsurface formations called "reservoir rock." Despite the word’s connotation, however, these are not huge, continuous "pools" but rather minuscule pores between the grains that make up the rock matrix.

The quality of a reservoir rock is determined by its porosity and its permeability.

Porosity is the void space between the grains, and thus represents the rock’s capacity to contain fluids (liquid or gaseous hydrocarbons). A highly porous reservoir rock therefore can contain a large volume of oil or gas. But porosity alone will not suffice: the fluids must be able to flow, meaning that the pores must be interconnected. This characteristic, called permeability, is the measurement of the rock’s ability to permit the flow the oil or gas.

Tight gas is trapped in ultra-compact reservoirs characterized by very low porosity and permeability. The rock pores that contain the gas are minuscule, and the interconnections between them are so limited that the gas can only migrate through them with great difficulty. [www.total.com, 6 May 2015]

Tight gas, like shale gas, requires large quantities of water for fracking [Parliament of Victoria, research paper]

Media Entertainment & Arts Alliance: "This has been a dire 12 months for the state of press freedom in Australia"

Forward to the Media Entertainment & Arts Alliance (MEAA) 2015 Australian Press Freedom Report:

This has been a dire 12 months for the state of press freedom in Australia — for journalists, for the communities we serve and for sources that trust us to tell their stories.

On October 30 last year, Attorney-General George Brandis admitted that the controversial section 35P of the Government’s first tranche of national security laws was written with the aim of targeting whistleblowers. “It was primarily, in fact, to deal with a Snowden-type situation,” he said. Whistleblower Edward Snowden had worked with journalists to reveal US government officials had routinely and deliberately broken the law. [1]

On February 27 this year, the report of Parliament’s Joint Committee on Intelligence and Security revealed that targeting whistleblowers was one of the aims of its metadata retention scheme. Recommendation 27 of the committee’s report said journalists’ metadata would be accessed “for the purpose of determining the identity of a journalist’s sources”.

Public interest journalism relies on whistleblowers, the confidential sources that provide crucial information to journalists — sometimes placing both at great risk.

It is a well-known ethical principle of journalism that journalists do not reveal their confidential sources. It’s a principle that is vigorously defended because it is the only way many vital stories in the public interest can ever be told. Whistleblowers turn to journalists to help expose misconduct, illegality, fraud, threats to health and safety, and corruption. Our communities are the better for their courageous efforts to ensure the public’s right to know.

If the identity of whistleblowers can be revealed then that has a chilling effect on public interest journalism; sources needing anonymity cannot rely on their contact with a journalist being kept secret. When that happens, we all lose.

The politicians who ignored press freedom concerns about the raft of national security laws failed to understand how confidential sources and public interest journalism are linked.

If you are going after whistleblowers, you are going after journalism.

And even when they did register the concerns for press freedom, their solutions failed miserably. Take the so-called “safeguard” of journalist information warrants introduced as an amendment to the data retention scheme. The journalist information warrant will operate in secret on pain of a two-year jail term. It relies on “public interest advocates” appointed by the government. It will still allow a journalists’ metadata to be accessed to identify a journalist’s sources, and the journalist and their media organisation will never know access was granted. Nor will they be able to argue the public interest in protecting the identity of a whistleblower.

In short, the three tranches of national security legislation passed by the Parliament represent a colossal failure to stand up for press freedom, freedom of expression, privacy, freedom to access information and the public’s right to know.

As this 2015 report into the state of press freedom in Australia shows, press freedom has been under assault in many other areas. South Australia continues to reject attempts to introduce a shield law, thus exposing journalists throughout Australia to the prospect of plaintiffs going “jurisdiction shopping”.

Tasmania briefly considered breaking away from the uniform national defamation scheme to reintroduce the prospect of corporations suing for damages.

Freedom of information law reform continues to linger in limbo due to successive governments’ inaction and a lack of courage in embracing sensible remedies that ensure the public can benefit from truly open government.

And while we are all delighted at the release and homecoming of Peter Greste from his Cairo prison, the re-trial of Peter and his colleagues goes on. MEAA is also awaiting the fate of Australian journalist Alan Morison who faces up to seven years in a Thai jail for reprinting a paragraph from a Reuters news report.

This year marks the 40th anniversary of the murder of our colleagues Brian Peters, Malcolm Rennie, Tony Stewart, Gary Cunningham and Greg Shackleton in Balibo and Roger East in Dili in East Timor. MEAA is disappointed that the AFP spent five years on examining these war crimes only to abandon their investigation without seeking any co-operation from Indonesia and “without any interaction with their counterparts, the Indonesian National Police. The result is that impunity has triumphed and the killers of the Balibo Five and Roger East have literally got away with murder.

It can only be hoped that over the coming year, greater effort will be made by governments, politicians, government agencies and those who like to talk about championing press freedom to turn away from repressing freedom of expression and actually respect and promote it.

Paul Murphy
CEO MEAA

Brief background on Australian journalist Alan Morison here.

Abbott Government's mindless obeisance to foreign-owned multinational commercial fishing corporations has had the inevitable result

The 100% Dutch-owned subsidiary of Parlevliet & Van der Plas Beheer B.V. the Australian registered Seafish Tasmania and its super trawler hired from the parent company, the now rebranded Geelong Star, have been found to have committed the inevitable environmental crime associated with large factory ships – killing prohibited species as part of their by-catch.

The Abbott Government would have been well aware that classifying commercial fishing trawlers on length of vessel and not freezer storage capacity would lead to adverse environmental impacts but, in its mindless rejection of any measure put in place by the former federal Labor government, Tony Abbott & Co have shown that far-right ideology is more important that preserving sustainable food resources and biodiversity of marine life for the benefit of present and future Australian citizens.

The Guardian, 3 May 2015:

The Australian environment minister, Greg Hunt, has condemned as “unacceptable and outrageous” the killing of a dozen dolphins and seals by a factory fishing trawler.

The Geelong Star, a ship that environmental groups and some MPs wanted banned from fishing Australian waters, voluntarily returned to its home port after catching four dolphins and two seals on its second local outing.

The Australian Fisheries Management Authority (AFMA) had previously said the ship would face stricter controls after it also caught and killed four dolphins and two seals in its nets on its first trip.

Hunt released a statement on Sunday saying he was “absolutely appalled” by the news, ABC reported.

Hunt said he would write to the AFMA and to Tasmanian senator Richard Colbeck, the parliamentary secretary for fisheries and a strong defender of the trawler’s methods.

The Geelong Star has factory freezer capabilities but escapes a permanent ban on so-called super trawlers because at 95 metres it is under the 130-metre size limit.

Greens senator Peter Whish-Wilson said the government should cancel the trawler’s fishing licence and management plan immediately.

“They’ve failed twice. The regulator has failed in its job to protect dolphins and seals and who knows whatever other marine life and the boat needs to go home,” he told ABC.

Colbeck released his own statement saying the further deaths of marine mammals was “very bad news and is not welcomed by anyone”.

He said the decision of operators Seafish Tasmania to “voluntarily return to port is appreciated”….

Basic building blocks of the Australian superannuation rort

Superannuation is generally taxed more concessionally than some other forms of saving, such as bank deposits, in recognition of the fact that superannuation saving cannot be accessed until retirement.

 * Pre-tax contributions of up to $30,000 pa ($35,000 for those aged 50 or over) into superannuation funds are taxed at a flat rate of 15 per cent in the fund.

 * It is also possible to make post-tax contributions of up to $180,000 per annum.

 * Superannuation fund earnings in the accumulation phase are taxed at 15 per cent, while superannuation fund assets that support a retirement income stream are tax exempt.

 * Most superannuation benefits to those aged over 60 are tax exempt. [Intergenerational Report 2015]

The quote above lays out the basic outline of concessional arrangements attached to the national mandatory superannuation scheme.

How does it work in real life?

In the 2012-13 financial year 9.3 million employers contributed $54 billion to their employees' superannuation funds and 1.7 million employees contributed $27.8 billion to their superannuation funds.

Of these 1.7 million employees, 571,575 individuals earn less than $37,001 a year. Currently the federal government contributes an annual lump sum payment (equal to 15 per cent of an individual's annual superannuation contributions) to a low income employee's super fund. However, from 1 July 2017 the lump sum payment will cease and the annual superannuation contributions of these same employees will be taxed at the rate of 15 per cent.

In 2012-13 there were also 183,975 non-employee individuals (or individuals receiving only a small proportion of income from work as an employee), with income derived from a personal business/self-employment, investments, government pensions/allowances, super, partnership/trust distributions, and/or a foreign source, who made personal superannuation contributions totalling $2.9 billion. These super contributions could be claimed as tax deductions.

Of these ‘non-employees’, 26,980 had annual taxable incomes of over $180,000 and made personal superannuation contributions totalling $603.07 million. Which equates to income of $22,352 per person per annum on which little or no tax is paid.

When will the Abbott Government address the imbalance in the national superannuation scheme, where the working poor are penalised and wealthy rewarded for their participation?

Some of Australia's richer citizens in 2012-13, not content with legally rorting the superannuation scheme, took their sense of entitlement to levels undreamed of by ordinary workers, as this observation in The Sydney Morning Herald on 30 April 2015 demonstrates:

Fifty-five of Australia's highest earners paid no income tax at all during 2012-13, not even the Medicare levy.

All earning at least $1 million, they managed to write their taxable incomes down to below the $18,200 tax-free threshold, although for most the exercise was expensive.

Tax statistics released Wednesday reveal that 40 of them claimed an extraordinary $42.5 million for the "cost of managing tax affairs" meaning they each paid an average of $1 million to an adviser prepared to help to bring down their taxable income, which is itself a tax deduction.

Between them they reported earning $129.5 million, an average of $2.3 million. By the time their accountants had finished with them they reported losing a combined $12.8 million.

The implausibility of someone earning $2.3 million and paying half of it to a tax adviser suggests some may be understating​ their earnings.

A tax office spokeswoman said there were "legitimate reasons why a wealthy taxpayer might not pay tax in a particular financial year".

These included tax losses through poor business performance, tax losses in previous years which could be carried forward indefinitely and dividend imputation credits.

She said the majority of wealthy Australians paid the right amount of tax.

Most of the 55 were either ungenerous or modest when it came to giving, claiming nothing for gifts. However 10 of the 55 gave between them $10.4 million, also suggesting their incomes were higher than reported. The gifts may not have all gone to charities. The Tax Office also allows deductions for gifts to political parties.

Fifteen were unsuccessful in business, losing $2.7 million between them. They carried over previous losses of $22.5 million.

They were more successful when it came to investing, receiving $8.8 million between them in so-called 'franked' dividends, and only $839,000 in unfranked dividends. Franked dividends allow the recipients to cut their taxable incomes to take account of company tax already paid.

They were also surprisingly successful landlords. Whereas 1.3 million Australian landlords claimed between them losses of $12 billion, the 15 of the 55 millionaires who rented out properties made a combined $1.6 million dollars……