Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015

Overview

The Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 was enacted by the Parliament of Australia to amend the Telecommunications (Interception and Access) Act 1979, primarily to introduce data retention obligations for certain telecommunications service providers. This legislation was introduced to address the gap in retaining data that could be crucial for law enforcement and national security purposes. The Act requires specified service providers to keep certain types of information and documents relating to communications carried by their services for specific periods. The policy objective behind this Act is to balance the need for data retention for security purposes with the protection of privacy and the avoidance of undue regulatory burden on service providers.

Scope and Application

The Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 amends the Telecommunications (Interception and Access) Act 1979 to introduce new obligations for certain service providers to retain telecommunications data. The Act applies to service providers who operate services for carrying communications using electromagnetic energy, including carriers, internet service providers, and services for which a declaration is in force. It does not apply to broadcasting services. The Act requires service providers to retain specified types of information relating to communications carried by their services, such as subscriber information, communication identifiers, and connection details. However, it explicitly excludes the retention of communication content, web browsing history, and other information. The retained data must be kept for a period of up to two years, depending on the type of information. Service providers can apply for data retention implementation plans to phase in compliance with the retention obligations. The Minister may grant exemptions or variations to the retention obligations, taking into account factors such as law enforcement interests and service provider compliance history. The Act also includes provisions for the review of exemption decisions by the Australian Communications and Media Authority. The Act extends to the Commonwealth and applies nationally. The Act does not specify any exclusions or thresholds. The application of the Act may be extended through subordinate instruments, such as declarations by the Minister regarding the services to which the retention obligations apply.

Key Provisions

• The Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 introduces significant changes to the Telecommunications (Interception and Access) Act 1979, particularly in relation to data retention obligations for service providers. The Act mandates that service providers operating certain telecommunications services must retain specific types of information and documents related to communications carried by their services. This includes details about the subscribers, accounts, telecommunications devices, and services associated with the communication, as well as identifiers related to the source and destination of the communication, the date and time of the communication, and the type of communication or service used. The Act specifies the period for which this information must be retained, which generally ranges from the creation of the information to two years after the account's closure.
• The Act also outlines the obligations and requirements for service providers, including the need to protect the confidentiality of retained information through encryption and measures against unauthorised access or interference. It provides mechanisms for service providers to apply for data retention implementation plans that may temporarily modify their obligations, subject to approval by the Communications Access Co-ordinator. Furthermore, the Act establishes a framework for exemptions or variations to the data retention obligations, which can be decided by the Communications Access Co-ordinator and reviewed by the Australian Communications and Media Authority (ACMA).
• In terms of consequences for non-compliance, the Act designates certain sections as civil penalty provisions under the Telecommunications Act 1997, which allows for pecuniary penalties and infringement notices for breaches. Additionally, the Act mandates a review of its operation by the Parliamentary Joint Committee on Intelligence and Security and requires the Minister to prepare annual reports on the Act's operation, including information on the costs to service providers and the use of data retention implementation plans.
• The Act also includes provisions for oversight by the Commonwealth Ombudsman, who is tasked with inspecting the records of enforcement agencies to ensure compliance with the Act. The Ombudsman has the authority to require officers of these agencies to provide information and attend interviews, and is empowered to delegate these functions to inspecting officers or other authorised individuals. Failure to comply with the Ombudsman's requirements is an offence carrying a penalty of imprisonment for six months.

Legal classification tags

Area of Law

Telecommunications Law

Privacy Law

Data Protection Law

Instrument

Act

Concepts

Definitions & Interpretation

Commencement Provisions

Regulatory Standards

Enforcement Powers

Reporting & Disclosure Obligations

Prohibited Conduct