The Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015, which amended the Telecommunications (Interception and Access) Act 1979, introduced the requirement that all telecommunications and internet service providers (‘TISPs’) store certain telecommunications metadata of their users for a period of two years. The metadata can be accessed by a number of agencies which can generally access the data without warrant.
A report into the Amendment two years on released by the Attorney-General’s Department titled ‘Telecommunication (Interception and access) Act 1979 – Annual Report’ provided the first insight into the operation of the amendment which included information about the reasons why the requests were made, the agencies who made the requests, and the industry cost of implementing the program.
One detail that is often overlooked is how the storage of metadata during investigations by federal agencies intersects with client legal privilege which is a cornerstone of our justice system. During the Parliamentary Joint Committee on Intelligence and Security in 2014, the Law Council of Australia raised concerns that the collection of metadata, although it is not intended to reveal the content of communications, nevertheless poses significant problems for client legal privilege by potentially revealing who the lawyer has contacted, the identity and location of the lawyer or witnesses, and by extension the litigation strategy.
Although there are avenues that may be taken by lawyers to prevent the government from accessing this privileged information, most of these avenues rely on encryption. However, earlier this year the Federal Government made the announcement that it will allow agencies to access the content of end-to-end encrypted information. This proposal would further undermine client legal privilege in our justice system.