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Australia: Committee Report on Data Retention Bill Released

(Mar. 4, 2015) On February 27, 2015, the Australian Parliamentary Joint Committee on Intelligence and Security (PJCIS) released an advisory report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 (Advisory Report). (PJCIS,Advisory Report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 (Feb. 2015), Parliament of Australia website.)

Data Retention Bill

The bill, which was introduced on October 30, 2014, proposes a mandatory system that would require telecommunications service providers to retain telecommunications data, such as information about subscribers and their use of telecommunication services, that could be accessed by government agencies for law enforcement and national security purposes. The proposed mandatory retention period is two years. (Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 (Cth), sch 1, new s 187C (Data Retention Bill 2014), Parliament of Australia website.)

Under the current legislation, certain agencies can access telecommunications data through internal authorization processes, but there is no requirement that service providers retain and store such data for a specified period of time. (Telecommunications (Interception and Access) Act 1979 (Cth) ch 4, COMLAW.)

While the bill describes the characteristics of the data to be collected and retained, it states that the specific types of information will be prescribed by regulations. (Data Retention Bill 2014, sch 1, new 187A.) The explanatory memorandum for the bill broadly describes the data to be collected as being “information about a communication, as distinct from its content.” (Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014: Explanatory Memorandum 5 (2014), Parliament of Australia website.)

The Committee’s Advisory Report

The bipartisan report by the PJCIS includes 39 recommendations. These include defining, in the law rather than through regulations, the “data set” that would be subject to the retention requirement. (Advisory Report, supra, at xiii (Recommendation 2).) It also recommended that the legislation specifically list the criminal law enforcement agencies that can obtain data under stored communications warrants, as well as those enforcement agencies that do not require a warrant to access telecommunications data. (Id. at xvii & xix (Recommendations 17 & 21).)

Among other groups that have raised concerns about the bill, media entities submitted to the PJCIS that journalists should be exempt from the laws or that a warrant should always be required to access data related to communications by journalists and their sources. (Id. at 251–258.) The PJCIS did not include such recommendations in its report, but instead proposed a separate process, to be run by the PJCIS, to examine the issues in more detail. (Id. at xxi (Recommendation 26).) The committee would report in three months, which would likely be after the bill has been passed. (Id.; Daniel Hurst, Senators and MPs Back Data Retention Scheme but Want More Safeguards, GUARDIAN (Feb. 27, 2015).)

Another concern relates to the costs arising from the data retention and data security requirements in the bill. The PJCIS, as a result of a briefing from the Attorney-General’s Department, understood the “capital upfront costs of implementing data retention” to be between approximately AU$188.8 million and AU$319.1 million (about US$148 million to US$250 million.) (Advisory Report, supra, at 177.) The PJCIS welcomed the government’s “commitment to make a ‘substantial contribution’ to the costs of implementing and operating the scheme.” (Id. at 183.)

Next Steps

The Prime Minister, Tony Abbott, wants the bill passed this month. The Labor Party, currently the opposition party in Parliament, has indicated that it will likely support the bill if the government accepts all of the PJCIS’s recommendations. (Daniel Hurst, supra.)