Who Will Be Required to Retain Data under Australia's New Data Retention Law?

The House of Representatives recently passed the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 (Cth) (‘Data Retention Bill’) with the support of the Liberal-National Coalition Government and the Labour Party opposition. It will then be introduced to the Senate, where it is expected to be passed promptly, and referred to the Governor-General for Royal Assent. It will commence six months from the date of assent,1 meaning it could enter effect before the end of the year.

There has been much discussion about what data will be retained and for how long it will be retained, but little attention has been given to who will be required to retain the data, and that is the focus of this article.

Relevant Provisions

The Data Retention Bill will insert several new provisions into the Telecommunications (Interception and Access) Act 1979 (Cth) (‘TIAA 1979’), among them section 187A(1) which concerns which persons will be required to retain data. It reads:

(1) A person (a service provider) who operates a service to which this Part applies (a relevant service) must keep, or cause to be kept, [in accordance with section 187BA and] for the period specified in section 187C:

(a) information of a kind [specified in or under section 187AA]; or

(b) documents containing information of that kind; relating to any communication carried by means of the service.2

Under the proposed section 187A(1), data will be retained by everyone who is ‘[a] person … who operates a service to which this Part applies’. The proposed section 187A(3) states the services to which the Part applies:

(3) This part applies to a service if:

(a) it is a service for carrying communications, or enabling communications to be carried, by means of guided or unguided electromagnetic energy or both; and

(b) it is a service:

(i) operated by a carrier; or

(ii) operated by an internet service provider (within the meaning of Schedule 5 to the Broadcasting Services Act 1992); or

(iii) of a kind prescribed by the regulations; and

(c) the person operating the service owns or operates, in Australia, infrastructure that enables the provision of its relevant services;

but does not apply to a broadcasting service (within the meaning of the Broadcasting Services Act 1992).3

These provisions require unpacking to understand. There are three criteria in paragraphs (a)–(c), and an exclusion at the end. To be included, a service provider must meet all three criteria and not be covered by the exclusion. The use of the word ‘and’ between paragraphs (a)–(c) means that each of these provisions must be read together as codependent criteria.

Criterion (a): Services for Carrying Communications

(3) This Part applies to a service if:

(a) it is a service for carrying communications, or enabling communications to be carried, by means of guided or unguided electromagnetic energy or both;

Most pieces of legislation include a section titled ‘Dictionary’ or ‘Interpretation’ near the start (and sometimes the end) that defines specific terms used in that particular law. Some have several such sections scattered throughout the legislation that define or redefine specific words and phrases for specific parts, divisions or sections. Section 5 of the TIAA 1979 is titled ‘Interpretation’ and includes many relevant definitions:

carry’ includes transmit, switch and receive …

communication’ includes conversation and a message, and any part of a conversation or message, whether:

(a) in the form of:

(i) speech, music or other sounds;

(ii) data;

(iii) text;

(iv) visual images, whether or not animated; or

(v) signals; or

(b) in any other form or in any combination of forms.

The proposed section 187A(3)(a) is identical in all material aspects to the definition of ‘carriage service’ in section 7 of the Telecommunications Act 1997 (Cth) (‘TA 1997’), being ‘a service for carrying communications by means of guided and/or unguided electromagnetic energy’. The definitions of of ‘carry’ and ‘communication’ are also substantially the same across both the TIA 1979 and TA 1997.

Services that transmit, switch and receive all or parts of conversations and messages by guided or unguided electromagnetic energy (or that enable this process) are therefore included. The meanings of ‘conversation’ are ‘message’ in the definition extracted above are quite broad.

Criterion (b): Services Operated By Carriers and ISPs

(3) This Part applies to a service if: …

(b) it is a service:

(i) operated by a carrier; or

(ii) operated by an internet service provider (within the meaning of Schedule 5 to the Broadcasting Services Act 1992); or

(iii) of a kind prescribed by the regulations;

Because the proposed subparagraphs 187A(3)(b)(i)–(iii) are separated by ‘or’, they are independent of each other and so long as a service meets the requirements of one of them, as well as the requirements of paragraphs (a) and (c), the service will come under the data retention regime.

Carrier-Operated Services

Section 5 of the TIAA 1979 defines a carrier:

carrier’ means:

(a) except in Parts 5-4 and 5-4A:

(i) a carrier (within the meaning of the Telecommunications Act 1997); or

(ii) a carriage service provider; and

The data retention regime will be in Part 5-1A of the TIA 1979, meaning this definition applies. It requires reference to the TA 1997 to understand the meaning of ‘carrier’.

Section 7 of the TA 1997 defines a carrier to be ‘the holder of a carrier licence’; it also defines a carrier licence as being ‘a licence granted under section 56.’ Unhelpfully, section 56 simply states that ‘[a]fter considering an application, the [Australian Communications and Media Authority] may grant a carrier licence in accordance with the application.’ Section 52 of the TA 1997 explains that a constitutional corporation, eligible partnership or public body may apply for a carrier licence, but does not explain the purpose or function of a carrier licence; this is instead contained in section 42(1), which reads:

(1) If there is only one owner of a network unit, the owner of the network unit must not use the unit, either alone or jointly with one or more other persons, to supply a carriage service to the public, unless:

(a) the owner holds a carrier licence; or

(b) a nominated carrier declaration is in force in relation to the unit.

Subsections (2)–(5) extend this provision to jointly owned network units, and prohibit allowing others to use network units unless the owner of it has a carrier licence or a nominated carrier declaration is in force. A carrier licence is essentially a permit to let people use network units to supply a carriage service to the public. A network unit is defined in section 7 of the TA 1997 to have ‘the meaning given by Division 2 of Part 2.’

There are four sections in Division 2 of Part 2, and each one deals with telecommunications infrastructure. In short, a network unit is a line or facility that can be used to supply a carriage service over a certain minimum distance. There are many complexities in these provisions, but for present purposes it’s enough to say that a network unit refers to telecommunications infrastructure such as cables and radio towers.

Therefore, a carrier is an entity that has a licence to supply a carriage service to the public over network units they own, or that has a licence to let other entities supply carriage services to the public over their network units.

Section 7 of the TA 1997 defines a carriage service as ‘a service for carrying communications by means of guided and/or unguided electromagnetic energy.’ The definitions of ‘carry’ and ‘communication’ are found in the same section and, as noted, are substantially the same as those in section 5 of the TIAA 1979 extracted previously. It is also worth noting that this definition of ‘carriage service’ is the same as the proposed section 187A(3)(a).

Services Provided By an Internet Service Provider

Apart from services operated by carriers, Internet service providers will also be required to retain data under the proposed 187A(3).4 The provision directs readers to schedule 5 of the Broadcasting Services Act 1992 (Cth) for the definition of ‘Internet service provider’, and the dictionary in schedule 5 directs readers to clause 8 of that schedule, which reads:

(1) For the purposes of this Schedule, if a person supplies, or proposes to supply, an Internet carriage service to the public, the person is an Internet service provider.

Schedule 5 defines an ‘Internet carriage service’ to mean ‘a listed carriage service that enables end-users to access the Internet’; ‘listed carriage service’ is defined to have the same meaning as in the TA 1997.5 Section 7 of the TA 1997 then refers to section 16 of the same Act, which states that a listed carriage service is a carriage service between two or more points, where at least one point is in Australia. This includes fixed points, mobile points, and points in the atmosphere or ‘in or below’ the stratsophere, so long as at least one point is in (or above) Australia.

Services Prescribed in the Regulations

The final class of services that will be required to retain data are those prescribed in the regulations. Regulations cannot be made until the legislation commences, but the Attorney-General may exercise the legislative power it delegates in the future.

Criterion (c): Service Infrastructure in Australia

(3) This Part applies to a service if: …

(c) the person operating the service owns or operates, in Australia, infrastructure that enables the provision of its relevant services;

To fall under the obligations of the data retention regime, the operator of the service must ‘own or operate’ relevant infrastructure in Australia, which naturally includes ownership or operation of any hardware used to enable the service.

The law will apply throughout Australia, which under section 15B of the Acts Interpretation Act 1901 (Cth) extends to the coastal sea of Australia — the territorial sea, the sea on the landward side of the territorial sea, the airspace above it, and the seabed and subsoil below. To avoid ambiguity, ‘Australia’ means ‘in any Act … the Commonwealth of Australia and the Territory of Cocos (Keeling) Islands, but does not include any other external Territory’ according to section 2B of the Acts Interpretation Act 1901 (Cth).

The Broadcasting Services Exception

(3) This Part … does not apply to a broadcasting service (within the meaning of the Broadcasting Services Act 1992).

The definition of a ‘broadcasting service’ is provided in section 6 of the Broadcasting Services Act 1992 (Cth):

broadcasting service’ means a service that delivers television programs or radio programs to persons having equipment appropriate for receiving that service, whether the delivery uses the radio-frequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means, but does not include:

(a) a service (including a teletext service) that provides no more than data, or no more than text (with or without associated still images); or

(b) a service that makes programs available on demand on a point-to-point basis, including a dial-up service; or

(c) a service, or a class of services, that the Minister determines, by notice in the Gazette, not to fall within this definition.

‘Program’ is defined in the same section as being material primarily intended to entertain, educate or inform, or material that is advertising or sponsorship matter. ‘Broadcasting service’ includes services that deliver programs from one source to many persons; it is unlikely that such a service would have much if any data to retain, even if required to do so.

Conclusion

A service provider will be required to retain data if it is a carrier or Internet service provider that operates a service for carrying communications by means of guided or unguided electromagnetic energy, and owns or operates relevant infrastructure in Australia. A service provider qualifies if the service transmits, switches or receives all or part of a communication or message, it has a carrier licence, and one of the end points for the communication is in Australia. This appears to include anyone who provides public access to the Internet, but services that deliver content in only one direction will be excluded under the broadcasting services exception.


  1. Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 (Cth) cl 2. 

  2. Ibid sch 1 pt 1. 

  3. Ibid. 

  4. Ibid. 

  5. Broadcasting Services Act 1992 (Cth) sch 5 cl 3 (definitions of ‘Internet carriage service’ and ‘listed carriage service’).