ASIC to lobby Govt for metadata access

The Australian Securities and Investments Commission has expressed concern at being excluded from the initial batch of approved agencies under the Government's mandatory data retention scheme, and has promised to apply for access within six months of the scheme's implementation.

The Government's Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 will allow organisations classified as "criminal law enforcement agencies" to access metadata stored for two years under the regime without a warrant.

That list includes state police forces, the Australian Federal Police, the Australian Crime Commission and a number of anti-corruption organisations - but not Australia's financial regulator ASIC.

ASIC is currently able to access telecommunications metadata under the existing TIA Act, given its classification as an "enforcement agency" -  defined as a body that enforces a criminal law, a law imposing a pecuniary penalty or one that protects public revenue - but that power will be removed if the new bill passes.

ASIC chairman Greg Medcraft today told the Parliamentary Joint Committee on Corporations and Financial Services he was concerned about the effect of the agency's loss of access to metadata.

"We're a law enforcement agency," he said.

"I do appreciate that under the bill many parties [who should not be accessing the data] have been carved out.

"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."

Under the proposed legislation, the Attorney-General of the day has the power to name which agencies are allowed access to the data. 

Medcraft said it was concerning that any agency's right to access the data could be removed at the whim of the Attorney-General of the day.

"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 can access it]," Medcraft said.

ASIC commissioner Greg Tanzer said he had been informed by the Attorney-General's Department that the bill would not be brought into effect until six months after it had passed, during which time agencies would be able to plead their case for access. 

"What is not very clear ... is whether that declaration might be limited by time or particular types of offences," he said.

"But, yes, the ability is in there ...  for an agency such as ours to make a case."

Tanzer said access to metadata was "absolutely essential" for ASIC to meet its law-enforcement responsibilities when it comes to insider trading, market manipulation, and superannuation fraud.

The Government's data retention bill will soon come under the scrutiny of the Parliamentary Joint Committee on Intelligence and Security, which yesterday announced the commencement of its own inquiry into the bill.

The committee will take submissions until January 19 next year, and expects to report on its findings by February 27, 2015.

The bill has already been criticised by two parliamentary committees - the Senate Standing Committee for the Scrutiny of Bills this week reported it was ill-defined and far-reaching, while the parliamentary joint committee on human rights earlier this month said it was over the top and open to misuse.