On 27 March 2015, the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 (Cth) was passed into law. From 2017 onwards, the data retention law will require telecommunications service providers to keep customer metadata for two years to aid law enforcement agencies in their investigations of serious offences.
In order to access data, security agencies need only prove that the metadata is 'reasonably necessary' to an investigation. Outside the journalists’ exception (discussed below), all other citizen metadata will be available for access without a warrant. The number of authorities able to access metadata has been reduced to 20 security agencies including the Australian Tax Office (ATO), Australian Securities and Investments Commission (ASIC) and the Australian Competition and Consumer Commission (ACCC).
The journalists' exception
The House of Representatives agreed to amendments to provide for ‘journalist information warrants’, with the purpose of controlling and protecting access to a journalist’s data that would identify a confidential source. Notably, this protection only applies to data of a person ‘who is working in a professional capacity as a journalist’ and their employers.
Journalists will not be notified that an agency is seeking their metadata, and their lawyers will not be able to make representations before a decision is made on issuing the warrant. The legislation will however create the role of a public interest advocate who will be able to argue against access to metadata that may reveal a journalist’s source. A judge will then assess whether the disclosure outweighs the public interest in protecting confidentiality of sources, taking into account whether the matter being investigated is ‘serious or trivial’, as well as the importance of ‘personal privacy’.
The Government is still negotiating with the telecommunications industry as to who will pay for this new system, which is expected to cost up to $400 mil per year. The legislation can be accessed here.
For more information, please contact Anne-Marie Allgrove, Toby Patten or Jarrod Bayliss-McCulloch.