ASIC unhappy with exclusion from data retention regime

Financial watchdog wants to ensure it has access to metadata

The head of the Australian Securities and Investments Commission is not happy that the financial watchdog has been excluded from the list of agencies that will automatically be authorised to access metadata under the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014.

The government's bill allows warrantless access to metadata for those organisations classified as a 'criminal law enforcement agency' under the Telecommunications (Interception and Access) Act 1979.

Those agencies include state police forces, the Australian Federal Police, the Australian Crime Commission and a number of anti-corruption organisations such as the Independent Commission Against Corruption and Police Integrity Commission.

Currently telco metadata can be accessed by "any authority or body that enforces a criminal law, a law imposing a pecuniary penalty or a law that protects the public revenue is an 'enforcement agency' under the TIA Act and can seek telecommunications data where that access complies with the requirements set out in Chapter 4 of the TIA Act," the explanatory memorandum accompanying the government's bill states.

However, the attorney-general at his or her discretion will be able to give other agencies access to data retained under the proposed scheme.

ASIC chairperson Greg Medcraft told a meeting of the Parliamentary Joint Committee on Corporations and Financial Services that he was concerned about the potential for his agency to lose its access to metadata.

"We're a law enforcement agency," the ASIC head told the committee. "I do appreciate under that bill many parties have been carved out of it who probably it's reasonable they're not accessing the data. But I think we're a law enforcement agency of white collar crime — just like the police... we should be classified as a law enforcement agency — it's frankly as simple as that."

"The concern I have [is] the fact that it's left up to the attorney-general — a future attorney-general could remove that power and I think it's sort of critical to us to have that ability to get that data and it has to be unquestionable [that ASIC has the right to access it] and frankly it's a really genuine concern," Medcraft said.

"My understanding from ... discussions with the [Attorney-General's]] Department is that the intention is that the bill would not be brought into effect for a period of six months after it was passed, during which time there would be an ability for agencies such as ours to make an application to the attorney-general for a declaration of that kind," ASIC commissioner Greg Tanzer said.

"What is not very clear, and it's difficult to be clear because the attorney can't prejudge his position on this ... is whether that declaration might be limited by time or particular types of offences. But, yes, the ability is in there in the bill for an agency such as ours to make a case."

In comments earlier this week at a Bloomberg event Medcraft reportedly said that he had written to Attorney-General George Brandis and Finance Minister Mathias Cormann to express his concerns.

"The point that the chairman made in his Bloomberg speech is that access to that data is absolutely essential for the discharge of our law enforcement responsibilities, particularly with respect to insider trading and market manipulation, superannuation fraud and the like," Tanzer said.

"We had made the point, indeed publicly, that, for example, the actions that we took in were facilitated by access to that information and the actions that recently were taken in relation to some insider trading involving a National Australia Bank employee and an ABS employee also were facilitated by ... access to that information."

A section on the Attorney General's Department website covering issues surrounding the data retention bill states that the government "will reduce the number of agencies permitted to access metadata".

"Only agencies that have a clear need for such access and well-developed internal systems for protecting privacy, such as law enforcement and intelligence agencies will be able to access the data. Data must be reasonably necessary for the purposes of investigating criminal offences and other permitted purposes," the 'Frequently asked questions' page states.

The Parliamentary Joint Committee on Intelligence and Security yesterday launched its inquiry into the data retention bill.

Follow Rohan on Twitter: @rohan_p

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Tags civil libertiesASICdata retentionAustralian Securities and Investments Commission

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