news The Attorney-General’s Department this week claimed it had received “positive” feedback from Australia’s telco sector regarding its engagement on the Data Retention policy, despite also acknowledging that it has not yet worked through most of the plans which telcos and Internet service providers have sent it detailing how they will implement the policy.
The Government’s Data Retention legislation passed Parliament in March this year. It requires that all Australian telecommunications carriers store significantly more data on their customers than they were previously holding, including records pertaining to all emails, telephone calls and SMS messages. The scheme was slated to come into effect by 13 October, although telcos and ISPs are able to apply for an 18 month extension on that date.
However, in responses to questions from Labor Senator Catryna Bilyk in Senate Estimates hearings this week, the Attorney-General’s Department — which administers the scheme — acknowledge it had not yet worked through the majority of the plans which telcos and ISPs have sent it detailing how they will implement the policy.
Samantha Chard, Assistant Secretary of the Department’s Data Retention Taskforce Executive, noted that some 227 implementation plans had been submitted to the Department. Of those, the Department had only made decisions on 79 by the 13 October date. The department is planning to finalise its decisions on the remainder by the end of December.
Chard stated that during the 18 month implementation period, the Department will not be seeking to pursue “enforcement action” against those companies which are non-compliant. Instead, it will be working with the industry to resolve issues.
The bureaucrat denied, however, that the Department had a “backlog” of requests to work through.
“When a plan arrives to the department, the communications access coordinator has 60 days under the statutory time frames to consider that application and make a decision,” Chard said. “So we are working within those statutory time frames. They have been met to date and we foresee that we will continue to be able to meet those time frames.”
Under questioning from Bilyk, Chard noted that none of the $131.3 million which the Government has allocated to help recompense ISPs for the costs of data retention had yet been allocated, apart from $2.9 million to go towards the department’s own costs.
ISPs may have to wait for some time to receive funding under the scheme. “It is likely that their funding would be distributed as payments on commencement of a grant—so on agreement of funding agreements between the Commonwealth and the provider—and then there would be another payment made towards the end of the grant when we are towards the end of the [18 month] implementation period,” said Chard.
Some major ISPs — such as Telstra — have successfully applied to use the 18 month implementation period, but Chard would not be drawn on why specific companies were finding it difficult to comply.
“There are quite strict confidentiality provisions under the act that prevent us from discussing any individual provider’s implementation plan,” said Chard.
Overall, the Department claimed it had received “positive” feedback from industry on the implementation of the Data Retention scheme. “We have had quite positive feedback from industry in our engagement with them,” said Chard.
“The department has engaged through the industry implementation working group, the IWG, which is a senior implementation industry group consisting of representatives from the department and from law enforcement and national security agencies as well as the telecommunications industry,” the bureaucrat noted.
“The department has also attended a wide range of industry stakeholder forums. There has been quite substantial guidance material prepared that has been distributed to industry and published on the department’s website. There have been emails that have gone out from the Communications Access Coordinator to industry groups, predominantly through the Telecommunications Industry Ombudsman. And we also have been managing a hotline where we have been fielding any inquiries from industry.”
However, the main industry group, the Communications Alliance, has been critical of the implementation of the program. Last week it released the results of a member survey which appeared to show that the Department was proving unable to successfully administer the scheme.
“In light of the survey results, the onus remains on Government to work constructively with industry – and not rush to enforcement – over coming months to help providers come into line with what is proving to be a very challenging and somewhat confusing impost on the industry,” said Communications Alliance CEO John Stanton.
In a statement released after the Senate Estimates hearings this week, Internet Australia chief executive Laurie Patton rejected Chard’s comments as “mind-boggling”.
“I don’t know who they’ve been talking to, but I suggest they should start talking to some of the hundreds of ISPs affected. Our ISP members are overwhelmingly unhappy and cite confusion as to their obligations and concern about the costs of complying. This all stems from what we have consistently said is fundamentally flawed legislation”, Patton said.
Patton pointed out that the Department denied that it had a “back log” of implementation plans despite the fact that no ISP’s were able to comply with the Data Retention Act when it came into force on 13 October.
Internet Australia estimates are that there are more than 400 ISPs caught by this legislation so “it appears that half are still struggling to get their plans in”.