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Access to telecommunications data in civil proceedings

The submission to the Attorney-General’s Department’s Inquiry into Access to Telecommunications Data in Civil Proceedings was prepared by the Law Council.

The purpose of the current Inquiry is to determine whether regulations should be made pursuant to section 280 of the Telecommunications Act 1997 (Cth) (the Telecommunications Act) to allow access to telecommunications data retained solely for the purposes of the mandatory data retention scheme in civil proceedings.

The mandatory data retention scheme must be necessary and proportionate and not unduly impinge on the values and freedoms on which our democracy is founded. It is intrusive of privacy as it requires relevant service providers to collect and retain telecommunications data on every customer in case it might be needed for law enforcement purposes.

Mandatory data retention schemes with lesser scope of coverage and shorter retention periods than the Australian scheme have been ruled as unlawful in other comparable jurisdictions on the basis that they are a disproportionate and unwarranted intrusion.

The Consultation Paper appears to be designed to solicit suggestions as to a wide range of unspecified possible exceptions to the current section 280 Telecommunications Act. Specification of exceptions would have the effect of expanding the circumstances in which access to telecommunications data retained solely for the purposes of the mandatory data retention regime would be permitted. No specific proposals for exceptions are proposed in the Consultation Paper despite the vast array of possible civil proceedings that might be considered.

You can read the full submission below.

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