This chapter sets out an overview of the Telecommunications Legislation Amendment (International Production Orders) Bill 2020 (‘the Bill’), the context of the Bill’s introduction, and the conduct of the Committee’s inquiry.
The Bill and its referral
On 5 March 2020 the Telecommunications Legislation Amendment (International Production Orders) Bill 2020 was introduced to Parliament.
The Bill complements Australia’s domestic powers under the Telecommunications (Interception and Access) Act 1979, as enabled by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018, and the ability to cooperate with trusted international partners under the Mutual Assistance in Criminal Matters Act 1987.
The Bill seeks to address Australia’s evolving technological landscape where data previously held in Australia is now stored overseas. The Explanatory Memorandum states:
The extensive use of foreign telecommunications and online platforms by both criminals and terrorists has made accessing this data increasingly valuable. Australian law enforcement and national security agencies require timely access to electronic information and communications data from foreign communications providers for criminal investigations and prosecutions, as well as other law enforcement and national security purposes. To collect this data, Australia has relied heavily on mutual legal assistance from overseas jurisdictions, particularly the United States, where many communications providers of interest are located. Accessing communications data through the mutual legal assistance regime is a lengthy process, which cannot keep pace with the fast moving requirements of the investigation and prosecution of serious crime.
On 9 March 2020 the Minister for Home Affairs, the Hon. Peter Dutton MP, wrote to the Parliamentary Joint Committee on Intelligence and Security (‘the Committee’) to inquire into the effectiveness of the Bill.
The Minister for Home Affairs asked the Committee to table its report by 26 June 2020, and that as far as possible, the Committee should conduct its inquiry in public.
Conduct of the inquiry
The Committee announced its inquiry on Friday, 13 March 2020 and invited submissions from interested members of the public by Thursday, 30 April 2020.
The Committee received 32 submissions and 12 supplementary submissions from industry, government and academia. A list of submissions received by the Committee is provided at Appendix A.
Submitters expressed concern about the timeframe for submissions to the inquiry, noting the impact of the COVID-19 pandemic at the time submissions were opened.
The Committee held three public hearings between Tuesday, 12 May 2020 and Thursday, 14 May 2020. A list of hearings and witnesses who appeared before the Committee is included at Appendix B.
Copies of the submissions, the transcripts from the public hearings and links to the Bill and Explanatory Memorandum can be accessed at the Committee’s website.
This report comprises four chapters:
The remainder of Chapter 1 provides a summary of the Bill, and how the current inquiry fits into the framework of telecommunications related inquiries of the Committee.
Chapter 2 outlines the proposed overarching enabling instrument of the international production orders regime, designated international agreements, and discusses the interplay of the proposed regime with existing conditions. The Chapter closes with an analysis of the various human rights considerations invoked by the Bill.
Chapter 3 details the proposed provisions governing outgoing international production orders, discussing the process outlined in the Bill to the point of approval by the relevant decision-maker.
Chapter 4 outlines the proposed process of international production orders once agreement has been provided by the decision-maker, discussing the role of the Australian Designated Authority and other oversight bodies. This Chapter contains discussion of record-keeping processes and notice requirements as well.
Summary of the Bill
Primarily, the Bill seeks to append a new Schedule 1 to the Telecommunications (Interception and Access) Act 1979 which will establish a framework to allow for Australia to negotiate agreements with like-minded foreign governments for reciprocal cross-border access to communications data.
An agreement made under the provisions of the Bill would allow law enforcement and national security agencies of participating countries to issue orders, through a designated authority, for the production of data directed to communications and technology companies in the other country’s jurisdiction.
From a domestic standpoint, the Bill provides for relevant agencies to seek orders for domestic interception or stored communications or authorisations for access to telecommunications data (referred to as ‘outgoing’ production orders).
An order may be sought by relevant agencies for the purposes of enforcing the criminal law, to monitor a person subject to a control order, or for the purposes of upholding Australia’s national security.
For requests received from foreign governments with a designated international agreement in place (referred to as ‘incoming’ production orders), the Bill removes the blocking provisions that prevent domestic communications providers and technology companies from cooperating with a request from a foreign government, when the request complies with the conditions of the designated international agreement.
The Bill establishes an Australian Designated Authority to review ‘outgoing’ international production orders to ensure compliance with the terms of designated international agreements and to act as a first point of contact for communications providers and technology companies.
The Bill provides for the Office of the Commonwealth Ombudsman to have oversight of enforcement agencies’ access to the regime, and the Inspector-General of Intelligence and Security (IGIS) to oversee the Australian Security Intelligence Organisation’s (ASIO) access to the regime.
Additional consequential amendments to the Freedom of Information Act 1982, International Criminal Court Act 2002, Law Enforcement Integrity Commissioner Act 2006 and Mutual Assistance in Criminal Matters Act 1987 are included in the Bill to enable the international production order regime to operate, and to incorporate relevant changes following the commencement of the Federal Circuit and Family Court of Australia Act 2020.
The Committee’s review of telecommunications legislation
In 2018, the Committee conducted an inquiry into the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 (‘TOLA Bill’). The TOLA Bill sought to deal with the challenges of encryption by enabling law enforcement and intelligence agencies to compel telecommunications providers to assist with encrypted communications.
The TOLA Bill also made provisions for ASIO to apply for computer access warrants.
The Committee’s report made 17 recommendations, largely directed at the efficacy and oversight of the industry assistance measures in Schedule 1 of the Bill. In addition to a number of drafting recommendations, the Committee recommended that the IGIS and the Commonwealth Ombudsman be adequately resourced to undertake their respective oversight responsibilities.
The Committee concluded its review into the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (‘TOLA Act’) in April of 2019 to clarify the intent of its recommendations in the 2018 inquiry and provide advice to Parliament on the extent to which its recommendations were addressed.
The inquiry report made three recommendations; a further statutory review, the Independent National Security Legislation Monitor to provide a report on the TOLA Act, and to ensure that the IGIS as well as the Commonwealth Ombudsman were adequately resourced to undertake their oversight functions.
In its response to the review of the TOLA Act, the Government indicated its support of all three recommendations, noting in relation to resourcing:
The Government supports this recommendation. The Government will monitor the resource impacts on the Inspector General of Intelligence and Security and the Commonwealth Ombudsman and consider additional resourcing where necessary.
Noting the Committee’s recommendations in these inquiries, the Office of the Commonwealth Ombudsman said that funding has not yet been provided in relation to its oversight functions in the TOLA Act:
The Office has also requested funding, which has not yet been provided, for two additional functions:
Overseeing agency compliance with the computer access and industry assistance provisions of the Surveillance Devices Act 2004 and the Telecommunications Act 1997, as introduced by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018.
Overseeing agency compliance with the international production order scheme, introduced in the Telecommunications Legislation Amendment (International Production Orders) Bill 2020.
We are in ongoing discussion with government on these two measures.
The Committee has commenced its statutory review into the TOLA Act and was due to conclude the review in September 2020.
The Committee acknowledges the contributions of industry, government and academia occurred during the COVID-19 pandemic, and expresses its gratitude to those who provided submissions and appeared via telepresence at its public hearings during a challenging and unprecedented time.
The Committee acknowledges that the Telecommunications and Other Legislation Amendment (International Production Orders) Bill 2020 forms one part of a suite of telecommunications and technology related legislative amendments in recent years, and further, that some of these amendments are currently being considered in other inquiries of the Committee.
The Committee considers that robust oversight arrangements provide assurance to the Australian community that these necessarily intrusive powers are used proportionately and appropriately to investigate and prosecute the commission of serious crimes and uphold Australia’s national security.
The Committee, therefore, reiterates that an essential component of a robust oversight regime is adequate resourcing, and recommends that the Government ensure the Commonwealth Ombudsman has sufficient resources to oversee telecommunications powers.
In accordance with the Committee’s recommendations from previous reports, which the Government has agreed to, the Committee recommends that the Government ensure that the Office of the Commonwealth Ombudsman’s has sufficient resources to enable effective oversight of powers under the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018.
The Committee anticipates that this issue will receive further attention in its review of the TOLA Act, and welcomes further engagement with the Commonwealth Ombudsman and the IGIS on this topic.
The Committee notes the additional consequential amendments provided by the Bill enable Schedule 1 of the Bill to function. The Committee notes that submitters have not raised concerns regarding these consequential provisions, and the Committee has not identified any concerns with these provisions. The Committee has therefore contained its discussion to the provisions of proposed Schedule 1 to the Telecommunications (Interception and Access) Act 1979.