The Australian Local Government Association (ALGA) has argued that councils should be able to skirt metadata laws for the purpose of pursuing a breach of the law, citing high-crime activities such as illegal rubbish dumping and the removal of trees.
ALGA is a federation of state and territory local government associations. It considers itself the national voice of local government in Australia, representing 537 councils.
“ALGA’s view is that if metadata is required by council to pursue a breach of the law, council should be able to access the data to pursue criminal activities, such as illegal dumping, removal of trees, traffic offences, etc, if it is lawfully within their legislated powers,” ALGA wrote in its submission [PDF] to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) and its review of Australia’s mandatory data retention regime.
“A balance has to be struck between lawfully pursuing criminal activity using this data.”
It was previously revealed that three councils in NSW, one in Queensland, the RSPCA, the Environment Protection Authority, and state coroners, to name a few, were accessing metadata under Section 280 of the Telecommunications Act 1997.
The Communications Alliance labelled this as “examples of entities that have managed to subvert the intended scope of the legislation”.
“Requests under section 280(1)(b) are facilitated by industry obligations under section 313(3) of the Telco Act, which requires carriers and carriage service providers to give authorities ‘such help as is reasonably necessary’. This is a licencing condition for all carriers,” ALGA wrote in its submission, quoting remarks made by the Department of Home Affairs.
“Many Commonwealth, state, and territory organisations have their own ‘notice to produce’ powers, set out in their own enabling statute. As a result, these bodies can lawfully access telecommunications data under section 280, provided the request falls within their legislated powers.”
ALGA said it supports the view of Home Affairs that an exemption to the prohibition of disclosure of the data is provided under section 280 of the Act if the disclosure is required or authorised under law.
“Council should be able to pursue breaches of the law using those statutory powers,” ALGA wrote.
ALGA also said that no data was accessed by councils during the 2018-19 financial year, nor the 2019-2020 financial year.
ALGA included testimony from the Canterbury-Bankstown City Council in its submission, which said the retrieval of information required by councils justified the cost to telcos.
“Whilst council accepts that there may be some cost associated with telcos responding to notices issues by council, it is considered that such a cost would be minimal in the scheme of the telecommunications industry given that metadata has to be retained in any event,” Canterbury-Bankstown said.
“Furthermore, it is a cost that assists in the achievement of deterring environmental offences that can have significant impacts on the environment and the amenity of the community.
“As good corporate citizens, council submits that telcos should not be averse to assisting in achieving these goals.”