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Labor 'very concerned' about telco data retention use in civil cases

Mark Dreyfus has said the review of whether data retention should contain exceptions for use in some civil cases should be public, and needs to be explained 'very, very carefully' by Australia's 'incompetent attorney-general'.
Written by Corinne Reichert, Contributor

Shadow Attorney-General Mark Dreyfus has said that despite remaining "very concerned" about the use of retained telecommunications data in some civil cases, which is currently being reviewed by government, the Labor party would not rule it out.

The data retention legislation, passed by the Australian government in March 2015 thanks to the votes from Labor, came into effect in October 2015 and sees customers' call records, location information, IP addresses, billing information, and other data stored for two years by telecommunications carriers, accessible without a warrant by law-enforcement agencies.

With the legislation introduced for the purposes of combating terrorism and protecting national security, the retained data is prohibited from being used in civil cases, with the Parliamentary Joint Committee on Intelligence and Security (PJCIS) saying that data access and use by civil litigants would be unsuitable.

However, there was a provision inserted allowing, effectively, for exception-making powers that could enable its use, for instance, in family law proceedings concerning either violence or international child abduction. This is currently being reviewed by the attorney-general.

"At the time that the committee was considering this, I was very concerned, Labor was very concerned, about the possibility of use for civil proceedings," Dreyfus, speaking on ABC's Radio National on Friday morning, said.

"We remain very concerned, and we are waiting to see what this review says."

Dreyfus explained that the two exceptions being suggested for consideration have a criminal element, which is why the retained data could potentially be used in those cases.

In fact, the opposition party was instrumental in ensuring that there would be such a power inserted in the Bill for the civil cases exception, Dreyfus said, as such circumstances "seemed potentially to offer some sort of societal benefit".

However, he added that if the government expanded this to more general civil proceedings, it would be a problem -- and the issue needs to be discussed publicly, Dreyfus said.

"I think if the government now goes forward and introduces a broad category of civil proceedings where access is available, then that would have been incredibly disingenuous," Dreyfus said.

"It's hard to know with such an incompetent attorney-general what's going to happen, but at present, there's a prohibition in Australian law on the use of this data for any purpose other than the law-enforcement purposes.

"The attorney-general needs to explain very, very carefully if there is to be anything other than that blanket prohibition."

Dreyfus' comments follow Attorney-General George Brandis earlier this month extending the deadline for those wanting to make a submission on whether the federal government should prohibit access by parties for civil proceedings to data retained by telecommunications providers under the data retention legislation.

According to the government's consultation paper [PDF] on the matter, the PJCIS had suggested that the civil litigation prohibition not apply to telecommunications data that is retained under the laws but then also used for business purposes, as well as permitting access to the data under "appropriate" exceptions.

"The committee also recommended that the Bill be amended to include a regulation-making power to enable provision for 'appropriate exclusions'," the consultation paper said.

"In making this recommendation, the committee gave examples of 'family law proceedings involving violence or international child abduction cases' as potential classes of matters that could be excluded from the scope of the prohibition.

"However, the committee noted that it '[did] not wish to prescribe how a regulatory power would work when it comes to what should be excluded', and further recommended that the minister for communications and the attorney-general review the measure and report to the Parliament on the findings of that review by 13 April 2017."

Section 280 of the Telecommunications Act was at the time hence amended so that data retained under the legislation solely for the sake of complying with data retention obligations cannot be used for civil proceedings -- apart from these exception-making powers and when it is also used for business needs by the retaining provider.

The Attorney-General's Department in December announced that it would be reviewing the law, as recommended, to look into whether retained telco data could be used in civil proceedings, with submissions on the matter being accepted until January 27. The review is then due on April 13.

The government is specifically seeking feedback on: What retained telco data is currently requested by parties to civil proceedings, and in what circumstances; what impact there would be if parties to civil proceedings were not permitted to access such data; and whether there are definite civil proceedings or circumstances when the prohibition to accessing such data should not apply.

The AGD earlier this month removed the civil proceedings portion on its data retention FAQ; however, it is understood that this was part of a streamlining process for the AGD website.

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