Revised Explanatory Memorandum
(Circulated by authority of the Minister for Home Affairs, the Hon Karen Andrews MP)GENERAL OUTLINE
1. The Telecommunications Legislation Amendment (International Production Orders) Bill 2021 (the Bill) will amend the Telecommunications (Interception and Access) Act 1979 to establish a new framework to assist Australia's international crime cooperation efforts by improving Australian agencies' access to overseas communications data for law enforcement and national security purposes.
2. Almost every crime type and national security concern has an online element- agencies require electronic information and communications data not only for cyber investigations but also for investigations and prosecutions regarding violent crimes, human trafficking and people smuggling, drug trafficking, financial crimes, terrorism and child sexual abuse.
3. The exponential rise of global connectivity and reliance on cloud computing means that intelligence and evidence that was once stored within Australia and available under a domestic warrant or authorisation is now distributed over different services, providers, locations and jurisdictions, and is often only obtainable through international cooperation.
4. Criminals, including terrorists, typically access communications services that are supplied or operated by entities outside Australia. The overwhelming majority of data from these services is held by companies located overseas, including the United States. This places these service providers in a unique position to assist Australian law enforcement and national security efforts.
5. 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.
6. To address this issue, Australia is seeking to negotiate agreements with like-minded foreign governments for reciprocal cross-border access to communications data. It is anticipated that these agreements would allow law enforcement and national security agencies in each participating country to issue orders, through a competent authority, for the production of data directed to communications and technology companies in the other country's jurisdiction. These agreements would significantly reduce the time it currently takes to acquire communications data that is vital to law enforcement and security efforts.
7. The Bill provides the legislative framework for Australia to give effect to future bilateral and multilateral agreements for cross-border access to electronic information and communications data.
8. Schedule 1 of the Bill will:
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- introduce a regime for Australian agencies to obtain independently-authorised international production orders for interception, stored communications and telecommunications data directly to prescribed communications providers in foreign countries with which Australia has a designated international agreement;
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- provide that an agreement cannot become a designated international agreement unless the Attorney-General, after consulting the Minister for Home Affairs and Minister for Foreign Affairs, is satisfied that the agreement and the foreign country parties to the agreement meet specified requirements, and the Attorney-General has issued a written certificate and provided a copy to the Chair of Joint Standing Committee on Treaties;
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- provide that international production orders:
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- may be sought by agencies permitted under the Telecommunications (Interception and Access) Act 1979 to seek warrants for domestic interception or stored communications or authorisations for access to telecommunications data; and
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- may be sought by law enforcement agencies for the purposes of investigating a serious criminal offence or monitoring a person subject to a control order; and
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- may be sought by the Australian Security Intelligence Organisation for the purpose of it carrying out its functions;
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- establish an Australian Designated Authority to review international production orders for compliance with the nominated designated international agreement and act as an intermediary between Australian law enforcement and national security agencies and prescribed communications providers, including giving international production orders to prescribed communications providers and, in some cases, receiving data back from prescribed communications providers pursuant to international production orders;
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- include provisions relating to other aspects of the new international production order regime, such as:
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- application, issuing, giving and revocation procedures;
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- requirements to be met for an order to be able to be issued;
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- compliance with orders;
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- oversight, reporting and record-keeping;
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- disclosure of protected information; and
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- evidentiary certificates;
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- clarify the interaction between the new regime and the requirements of the Telecommunications Act 1997, Telecommunications (Interception and Access) Act 1979 and Privacy Act 1988, to ensure that Australian communications providers are not prevented from responding to incoming orders and requests for electronic information and communications data from foreign countries with which Australia has a designated international agreement. The Schedule does not place any obligations on Australian communications providers under Australian law to respond to incoming requests for information from foreign countries.
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- establish an appropriate enforcement mechanism with civil penalties. Prescribed communications providers will be required to comply with international production orders to the extent they are capable of doing so, and subject to the provider meeting a particular enforcement threshold.
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- make 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, to ensure that information obtained by Australian agencies pursuant to an international production order is subject to appropriate protections and permitted uses, consistent with the treatment of information obtained under a domestic warrant or authorisation.
ABBREVIATIONS
The following abbreviations will be incorporated throughout this explanatory memorandum:
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- Administrative Appeals Tribunal (AAT)
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- Administrative Decisions (Judicial Review) Act 1977 (ADJR Act)
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- Australian Criminal Intelligence Commission (ACIC)
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- Australian Federal Police (AFP)
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- Australian Security Intelligence Organisation (the Organisation)
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- Inspector-General of Intelligence and Security (IGIS)
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- International Covenant on Civil and Political Rights (ICCPR)
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- International Production Order (IPO)
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- Public Interest Monitors (PIMs)
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- Regulatory Powers (Standard Provision) Act 2014 (RPA Act)
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- Telecommunications (Interception and Access) Act 1979 (TIA Act)
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- Telecommunications Legislation Amendment (International Production Orders) Bill 2021 (the Bill)
FINANCIAL IMPACT
9. Nil, as financial impacts will be met from existing appropriations.