An Australian Perspective
and Access Act 1979 (Cth) (TIAA),
as amended in 2015, requires that
Australian telecommunication companies
retain specific data for a period of at
least two years. The purpose of the TIAA
is to permit access to retained data by
Australian law enforcement and security
agencies to assist in national security and
to the Australian government's 2014/15
annual report on the TIAA, enforcement
agencies made 365,728 authorizations for
access to historical telecommunications
data in that financial year, of which the
overwhelming majority was related to
enforcement of criminal law.
party in civil proceedings to request a
subpoena to compel a service provider
(SP) to produce documents relating to
telephone or internet communications,
amendments to the TIAA due to come
into effect in April 2017 will restrict
access of data by subpoena where that
data was retained by a SP to solely
comply with the TIAA, provided no
exclusion applies.
The Federal Attorney-General's
Department has recently invited
submissions to widen the application
of the TIAA to allow access to retained
data in civil litigation.
are not immediately apparent as, apart
from copyright rights holders, there
appears to be limited support for the
proposal when weighed against the
compromise to personal privacy.
Currently under consideration by
the Government is the Parliamentary
Committee on Intelligence and Security's
recommendation that the TIAA include
the ability for regulations to be made
which exclude the new restriction
for certain classes of matters. The
Committee mentioned examples such
as family law proceedings, including
violence or international child abduction
cases, but did not propose an exhaustive
list of classes.
the TIAA?
information such as:
number, email address or IP address;
transfer; and
Civil Litigation
a communication, such as the data
transfer or web history, the retained
data is by no means minimal and its
significance to civil litigation ought not
be underestimated. Such data may, and
often can, substantially assist a litigant to
prove elements of their case, and would
have wide application in matters where,
for example, defamation or breach of
copyright is alleged.
Litigation
significance of retained data is the
case of Dallas Buyers Club.
an application to obtain preliminary
discovery of the identifying information
of 4,726 IP address
2013 movie Dallas Buyers Club via
government division of HHG Legal Group.
Since 2003, Murray has developed and led
HHG's success in construction law, insolvency,
employment, trusts and estate litigation and
corporate/commercial dispute resolution,
including in relation to cross-border disputes.
Murray has a particular interest in private
international law and jurisdiction disputes.
Jordan has worked with the firm since 2014
and has been admitted to the Supreme Court of
Western Australia.
Level 1, 16 Parliament Place
West Perth, Western Australia 6005
Australia
jordan.hurley@hhg.com.au
hhg.com.au