Senate

Revised Explanatory Memorandum

(Circulated by authority of the Minister for Home Affairs, the Hon Karen Andrews MP)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Telecommunications Legislation Amendment (International Production Orders) Bill 2021

1. The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

2. The Telecommunications Legislation Amendment (International Production Orders) Bill 2021 (the Bill) will amend the Telecommunications (Interception and Access) Act 1979 (TIA Act), the Australian Crime Commission Act 2002, the Australian Security Intelligence Organisation Act 1979, the Freedom of Information Act 1982, the International Criminal Court Act 2002, the Law Enforcement Integrity Commissioner Act 2006, the Mutual Assistance in Criminal Matters Act 1987, the Inspector-General of Intelligence and Security Act 1986, the Intelligence Services Act 2001, and the Ombudsman Act 1976 to enhance the process of exchanging information held by prescribed communications providers for the purpose of criminal investigations and prosecutions.

3. The Bill introduces three types of International Production Orders (IPOs) to allow Commonwealth, state and territory law enforcement and national security agencies to more efficiently acquire data held in a foreign country by a prescribed communications provider.

Human rights implications

4. The human rights and freedoms engaged by the Bill fall under the following Articles of the International Covenant on Civil and Political Rights (ICCPR) to which Australia is a State Party:

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protection against arbitrary or unlawful interference with privacy in Article 17 of the ICCPR

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protection of the right to freedom of expression in Article 19 of the ICCPR

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the right to peaceful assembly in Article 21 of the ICCPR

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the right to freedom of association in Article 22 of the ICCPR

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the right to life in Article 6 of the ICCPR, and

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the right to effective remedy in Article 2(3) of the ICCPR.

Schedule 1

Protection against arbitrary or unlawful interferences with privacy - Article 17 of the ICCPR

5. The Bill engages the protection against arbitrary or unlawful interference with privacy contained in Article 17 of the ICCPR. Article 17 provides that no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation, and that everyone has the right to the protection of the law against such interference or attacks.

6. The protection against arbitrary or unlawful interference with privacy under Article 17 can be permissibly limited in order to achieve a legitimate objective and where the limitations are lawful and not arbitrary. The term unlawful in Article 17 of the ICCPR means that no interference can take place except as authorised under domestic law. Additionally, the term arbitrary in Article 17(1) of the ICCPR means that any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. ^[1] The United Nations Human Rights Committee has interpreted reasonableness to mean that any limitation must be proportionate and necessary in the circumstances.

7. The purpose of the Bill, and the associated limitations on the protection against arbitrary or unlawful interference with privacy, are to protect national security, public safety, and address crime and terrorism. The Bill aims to protect the rights and freedoms of individuals by providing law enforcement and national security agencies with the tools they need to keep Australians safe.

8. Several provisions in the Bill engage the protection against arbitrary and unlawful interferences with privacy in Article 17 of the ICCPR. These provisions include:

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the requirement that that the text of agreement cannot be set out in the regulations 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.

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powers enabling Australian law enforcement and national security agencies' access to private communications data where an underlying IPO is present.

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exemptions to certain prohibitions on accessing and disclosing communications to enable Australian communications providers to facilitate the government of a foreign country's access to private communications data, where an appropriate order is in place.

Statutory requirements for designated international agreements

9. The provisions establishing a framework for the Attorney-General, in consultation with the Minister and the Minister for Foreign Affairs, to issue a statutory requirements certificate in relation to agreements and foreign country parties to agreements positively engages this right. These additional statutory safeguards and limitations ensure and provide assurance to the public that, agreements are appropriate in the circumstances having regard to how the agreement and the foreign country preserve, protect and promote fundamental human rights.

10. Clause 3B includes requirements that the Attorney-General be satisfied of numerous requirements, including that:

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The agreement is appropriate in the circumstances, having regard to the foreign country's respects the rule of law and its respect for its obligations under international law relating to human rights.

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The agreement provides that orders may only be issued by the foreign country for the purposes of obtaining information relevant to the prevention, detection, investigation or prosecution of serious crime (as defined in the agreement).

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The agreement does not permit orders to be issued for the purposes of obtaining information about the communications of a person who is an Australian citizen or a permanent resident of Australia.

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The agreement provides for limitations and safeguards relating to the use, handling and disclosure of information obtained in accordance with orders.

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The agreement, so far as it relates to orders issued by a foreign country, is appropriate in the circumstances, specifically having regard to particular matters. Such matters are the criteria for issuing orders, and limitations on the scope, object of the orders, the period for which orders are in force.

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The agreement does not permit orders to be issued on behalf of another country (including Australia).

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The agreement does not impose obligations on the foreign country to share information it has obtained in accordance with orders with another country (including Australia).

11. While the Attorney-General is required to be satisfied that an agreement does not permit orders to be used for the purposes of obtaining information about the communications of a person who is an Australian citizen or permanent resident of Australia, provisions in clause 3B may engage human rights to the extent that persons in Australia may be affected by an order issued by a foreign country. An order may not be issued for the purposes of obtaining information on Australian citizen or permanent resident of Australia However, it is possible that information produced pursuant to an order may incidentally include information about such persons. Where such collection occurs, clause 3B ensures the agreement will provide for limitations and safeguards relating to the use, handling and disclosure of information obtained in accordance with orders (this may include requiring a foreign country to adopt certain principles or procedures when dealing with information relating to a person who is an Australian citizen or permanent resident of Australia).

12. To the extent that a person in Australia is affected by an order issued by a foreign country pursuant to a designated international agreement, clause 3B promotes the right to freedom from arbitrary or unlawful interference with privacy. This is achieved by ensuring that before issuing a statutory requirements certificate, the Attorney-General is satisfied a range of requirements and standards that engage the right to privacy are observed by the foreign country and are present in the agreement.

International Production Orders - interception

13. Provisions in Schedule 1 of the TIA Act will allow interception agencies, control order IPO agencies, and the Australian Security Intelligence Organisation (the Organisation) to apply for an IPO directing a prescribed communications provider to provide communications carried by the individual carriage service during a specified period.

Interception agencies and control order IPO agencies

14. An interception agency includes, among others, the Australian Federal Police (AFP), Australian Commission for Law Enforcement Integrity, the Australian Criminal Intelligence Commission (ACIC), and authorised state and territory police forces. Control order IPO agency includes the AFP, the ACLEI, the ACIC, and designated state authorities under section 34 of the TIA Act.

15. Only an eligible judge or nominated Administrative Appeals Tribunal (AAT) member may issue an IPO relating to interception as a result of an application made by an interception agency or a control order IPO agency. Having authorised members of the AAT being able to issue IPOs in addition to an eligible judge is consistent with the existing framework under the TIA Act.

16. The eligible judge or nominated AAT member (together referred to as 'the decision maker') may only issue an IPO relating to interception where they are satisfied on reasonable grounds a particular person is using or is likely to use the communications service, and the extent to which information gathered under the order would be likely to assist the detection, prevention, investigation or prosecution of an offence which either carries a maximum penalty of at least 7 years imprisonment or life imprisonment, or is a serious offence under section 5D of the TIA Act. Under section 5D, serious offences are offences of certain specified categories including murder, kidnapping and terrorism, offences that carry a maximum term of imprisonment of 7 years, and a series of listed specified other offences.

17. The decision maker may only issue an IPO in relation to interception activities for a period no longer than 90 days for interception agencies and control order IPO agencies.

18. In deciding whether to issue an IPO relating to interception, the decision maker must have regard to several matters including relevantly, how much the privacy of any person or persons would be likely to be interfered with. The decision maker must also take into account the availability and use of other means to achieve the objectives of the IPO, including how much the use of such methods would assist with or be likely to prejudice the investigation (e.g. by delay).

19. This means that where there are other methods to access the necessary information that would be less intrusive on the privacy of the person, the relevant agency may be required to turn to those means instead of seeking an IPO for interception activities.

20. In addition, there are other considerations the decision maker must take into account, which vary according to the order being sought. Broadly, the decision maker must consider the gravity of the conduct concerned, and to what degree the order will assist in the detection, prevention, investigation or prosecution of the offence. There are other, more specific considerations; for example, for an IPO relating to control orders, the decision maker must also take into account the likelihood that a person will breach a control order. Each of these factors go toward ensuring that actions taken under the IPO, including the necessary interference with a person's privacy, are proportionate to the relevant conduct.

21. Specifically in relation to IPOs relating to control orders, the Bill includes an additional privacy consideration that orders in relation to the enforcement of criminal law or national security do not possess. For IPOs relating to control orders, the decision maker must consider whether intercepting communications would be the method that is likely to have the least interference with any person's privacy. This additional requirement was inserted into the Bill (and forms part of the current domestic control order warrant regime) on the basis that additional protection is considered appropriate noting the IPO can be issued for purposes in connection with the monitoring of a person subject to a control order rather than in connection with an investigation into a specific serious offence.

The Organisation

22. Prior to the Organisation applying for an IPO, the consent of the Attorney-General must be obtained in writing, except in urgent circumstances where it may be obtained verbally. Once the Attorney-General's consent is obtained, the Organisation may then apply to a nominated AAT Security Division member for an IPO.

23. The nominated AAT Security Division member may only issue an IPO relating to interception where they are satisfied on reasonable grounds a particular person is using or is likely to use the communications service, and the extent to which information gathered under the order would be likely to assist the Organisation in carrying out its functions in relation to security.

24. The nominated AAT Security Division member may issue an IPO in response to an application made by the Organisation for a period no longer than 6 months.

25. In deciding whether to issue an IPO relating to interception, the nominated AAT Security Division member must have regard to whether other less intrusive means of obtaining intelligence relating to security are available, or have been used. The less intrusive method is then weighed against its effectiveness and potential to prejudice the Organisation in carrying out its functions (e.g. by delay).

26. This means that where there are other methods to access the necessary information that would be less intrusive on the privacy of the person, the Organisation may be required to turn to those means instead of seeking an IPO for interception activities. While an application by the Organisation does not need to be assessed with respect to other privacy considerations, the Organisation must conduct their security intelligence activities in accordance with Ministerial Guidelines. This includes, among other things, that the Organisation's actions should be proportionate to the gravity of the threat posed and the probability of its occurrence, and that inquiries and investigations should be done with as little intrusion into privacy as possible.

Summary

27. As a result, the Bill provides the decision maker or nominated AAT Security Division member must evaluate the individual circumstances of each application made by interception agencies, control order IPO agencies, and the Organisation. They must turn their mind to the interests of the agency applying for an IPO, as well as wider public interests, such as the impact on privacy. To assist the decision maker or nominated AAT Security Division member reach a decision in connection with an application, they have the discretion to seek additional information from the relevant agency to further inform their assessment of the application.

28. Therefore, the amendments do not constitute an arbitrary or unlawful incursion into the protection against arbitrary or unlawful interference with a person's privacy. To the extent that there is a limitation on the protection against arbitrary or unlawful interference with privacy, statutory safeguards ensure any interference is reasonable, necessary and proportionate.

Public Interest Monitors

29. Public Interest Monitors (PIMs) currently operate in Victoria and Queensland. They were established under the Public Interest Monitor Act 2011 (Vic), the Police Powers and Responsibilities Act 2000 (Qld), and the Crime and Corruption Act 2001 (Qld). The PIM provides safeguards in relation to applications by Victorian and Queensland law enforcement agencies for various warrants, orders or approvals to use certain covert or coercive investigative powers, by:

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appearing at hearings of applications to test the content and sufficiency of information relied upon;

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questioning any person giving information in relation to the application; and

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making submissions as to the appropriateness of granting the application.

30. Parts 2 and 3 of Schedule 1 of the TIA Act include provisions that allow the intervention of the Victorian and Queensland PIMs to assess the applications for interception activities made by their jurisdiction's relevant agency.

31. To enable the PIMs to provide effective oversight, provisions in the Bill permit the PIMs to have access to the necessary information relevant to the agency's application for an IPO for interception, including the power to question relevant persons supporting the application for an order.

32. Based on the information before them, the PIMs may make an assessment of the application against the same criteria that the decision maker will use to make their assessment. The PIMs may submit their assessment to the decision maker which then must be considered in the decision maker's assessment of the application.

33. Victorian and Queensland PIMs will add an additional layer of oversight to ensure the use of the IPO framework by agencies in their jurisdictions is appropriate and remains consistent with their use of the current domestic warrant regime under the TIA Act.

34. For these reasons, the inclusion of provisions relevant to PIMs strengthens the existing protections in the Bill against arbitrary or unlawful interference with privacy in Victoria and Queensland. Moreover, while the current provisions relating to PIMs are relevant only to Victoria and Queensland, there is scope to accommodate similar oversight bodies in the framework, should they be established in other jurisdictions in the future.

B-Party interception

35. Several provisions in the Bill enable B-Party services to be the subject of an IPO in relation to interception activities in limited and controlled circumstances. B-Party interception activities involve the interception of a communications service of a person who is not a person involved in an investigation of a relevant offence (the B-Party).

Interception agencies and control order IPO agencies

36. For applications made by interception agencies and control order IPO agencies, the decision maker must have reasonable grounds for suspecting the person involved in the offence is likely to communicate using the particular communications service of the B-Party. In deciding whether to issue a B-Party order relating to interception, the decision maker must have regard to several matters including relevantly, how much the privacy of any person or persons would be likely to be interfered with. The decision maker must also take into account the availability and use of other means to achieve the objectives of the IPO, including how much the use of such methods would assist with or be likely to prejudice the investigation (e.g. by delay).

37. This means that where there are other means to access the necessary information that would be less intrusive on the privacy of the person, the relevant agency may be required to turn to those means instead of seeking an IPO seeking interception activities.

38. In addition, there are other considerations the decision maker must take into account, which vary according to whether the order is being sought by an interception agency or a control order IPO agency. Broadly, the decision maker must consider the gravity of the conduct concerned, and how much the order will assist in the detection, prevention, investigation or prosecution of the offence. Each of these factors go toward ensuring that actions taken under the IPO, including the necessary interference with a person's privacy, are proportionate to the relevant offence.

The Organisation

39. Applications for B-Party interception made by the Organisation must satisfy the nominated AAT Security Division member there are reasonable grounds for suspecting the person involved in the offence is likely to communicate using the particular communications service of the B-Party. In deciding whether to issue a B-Party order relating to interception, the nominated AAT Security Division member must have regard to whether other less intrusive means of obtaining intelligence relating to security are available, or have been used. The less intrusive method is then weighed against its effectiveness and potential to prejudice the Organisation in carrying out its functions (e.g. by delay).

40. This means that where there are other means to access the necessary information that would be less intrusive on the privacy of the person, the Organisation may be required to turn to those means instead of seeking an IPO seeking interception activities. While an application by the Organisation does not need to be assessed with respect to other privacy considerations, the Organisation must conduct their security intelligence activities in accordance with Ministerial Guidelines. This includes, among other things, that the Organisation's actions should be proportionate to the gravity of the threat posed and the probability of its occurrence, and that inquiries and investigations should be done with as little intrusion into privacy as possible.

Restrictions on issuing order

41. Of chief importance, a decision maker or nominated AAT Security Division member is restricted from issuing an IPO seeking B-Party interception unless they are satisfied the relevant agency has exhausted all other practicable methods of identifying the telecommunications services used by the person involved in the offence, or it is not otherwise possible to intercept the telecommunications used by the person involved in the offence.

42. B-Party interception IPOs must not be longer than 45 days for interception agencies and control order IPO agencies. The Organisation may use B-Party interception for up to 3 months. These periods are half that applicable to a non B-Party telecommunications interception warrant, as B-Party interception inherently involves a potential for greater privacy intrusion of persons who may not be involved in the commission of an offence.

43. Under this formulation, B-Party IPOs for interception activities are a means of last resort. The restrictions on the circumstances for when an order may be issued and the duration of time for which an order remains in force appropriately balances the desire to protect the privacy of individuals not the subject of investigation against the need for effective law enforcement and national security.

44. The provisions enabling the issuance of B-Party IPOs are therefore a proportionate and necessary limitation on the protection against arbitrary or unlawful interference with privacy under Article 17 of the ICCPR.

International Production Orders - stored communications and telecommunications data

45. The provisions in Schedule 1 of the TIA Act will allow criminal law-enforcement agencies, control order IPO agencies, and the Organisation to apply for an IPO directing a prescribed communications provider to obtain stored communications.

46. A criminal law-enforcement agency captures the same definition as the existing framework under the TIA Act and includes, among others, the AFP, the ACLEI, the ACIC, and state and territory police forces.

47. An enforcement agency, control order IPO agency, and the Organisation may also apply for an IPO directing a prescribed communications provider to obtain telecommunications data for a specific period. An enforcement agency has the same meaning as in the TIA Act.

Enforcement agencies and control order IPO agencies

48. Only an issuing authority may issue an IPO relating to stored communications or telecommunications data as a result of an application made by a criminal law-enforcement agency, enforcement agency, or control order IPO agency.

49. The issuing authority or nominated AAT Security Division member (together referred to as 'the decision maker') may only issue an IPO relating to stored communications or telecommunications data where they are satisfied on reasonable grounds a particular person is using or is likely to use the individual carriage service, and the extent to which information gathered under the order would be likely to assist the detection, prevention, investigation or prosecution of an offence which carries a maximum penalty of at least 3 years imprisonment or life imprisonment.

50. In deciding whether to issue an IPO relating to stored communications or telecommunications data, the decision maker must have regard to several matters including relevantly, how much the privacy of any person or persons would be likely to be interfered with. The decision maker must also take into account the availability and use of other means to achieve the objectives of the IPO, including how much the use of such methods would assist with or be likely to prejudice the investigation (e.g. by delay).

51. In addition, there are other considerations the decision maker must take into account, which vary according to which order is being sought. Broadly, the decision maker must consider the gravity of the conduct concerned, and how much the order will assist in the detection, prevention, investigation or prosecution of the offence. Each of these factors go toward ensuring that actions taken under the IPO, including the necessary interference with a person's privacy, are proportionate to the relevant conduct.

The Organisation

52. Prior to the Organisation applying for an IPO relating to stored communications the consent of the Attorney-General must be obtained in writing, except in urgent circumstances where it may be obtained verbally. Once the Attorney-General's consent is obtained, the Organisation may then apply to a nominated AAT Security Division member for an IPO. The consent of the Attorney-General is not required where the Organisation applies for an IPO seeking telecommunications data. This is consistent with current arrangements in the TIA Act.

53. In deciding whether to issue an IPO relating to stored communications or telecommunications data, the nominated AAT Security Division member must have regard to whether other less intrusive means of obtaining intelligence relating to security are available, or have been used. The less intrusive method is then weighed against its effectiveness and potential to prejudice the Organisation in carrying out its functions (e.g. by delay).

54. This means that where there are other methods to access the necessary information that would be less intrusive on the privacy of the person, the Organisation may be required to turn to those means instead of seeking an IPO for interception activities. While an application by the Organisation does not need to be assessed with respect to other privacy considerations, the Organisation must conduct their security intelligence activities in accordance with Ministerial Guidelines. This includes, among other things, that the Organisation's actions should be proportionate to the gravity of the threat posed and the probability of its occurrence, and that inquiries and investigations should be done with as little intrusion into privacy as possible.

Summary

55. When an IPO is sought by enforcement agencies, control order IPO agencies, and the Organisation, the decision maker or nominated AAT Security Division member must evaluate the individual circumstances of each application. They must balance the effectiveness of the agency applying for an IPO, as well as wider public interests, such as the impact on privacy. To assist the decision maker or nominated AAT Security Division member reach a decision in connection with an application, they have the discretion to seek from the relevant agency additional information to further inform their assessment of the application before them.

56. Therefore, the amendments allowing enforcement agencies, control order IPO agencies, and the Organisation to apply for IPOs related to stored communications and telecommunications data do not constitute arbitrary or unlawful interference with a person's privacy. To the extent that there is a limitation on the protection against arbitrary or unlawful interference with a privacy, statutory safeguards ensure any interference is reasonable, necessary and proportionate.

Incoming orders and requests

57. Part 13 of the Schedule forms part of the framework to support situations whereby governments of foreign countries that have a designated international agreement with Australia may seek communications data from Australian communications providers. Part 13 excludes the prohibitions in the TIA Act and the Telecommunications Act 1997 and authorises disclosures for the purposes of the Privacy Act 1988 to the extent the disclosure is in accordance with an incoming order or request (referred to as 'blocking provisions').

58. This Part removes these blocking provisions for a purpose that is authorised by the Bill and for no other purpose. Therefore, the protections of the blocking provisions continue to have effect generally in law and are not set aside.

59. The removal of blocking provisions is reasonable and necessary in the circumstances, as it ensures Australian communications service providers are not be prevented from responding to requests for communications data by foreign governments with which Australia has a designated international agreement, and which are expected to operate under the principle of reciprocity. These measures are permissive in nature, and place no obligations under Australian law on Australian communications service providers to provide data in response to an incoming request.

60. If Part 13 did not form part of the Bill, Australian communications providers may not be able to disclose information with foreign partners with whom Australia has an agreement and where an underlying order to do so is in place. This Part does not diminish the responsibility of Australian communications providers to comply with privacy obligations in providing information to foreign parties. For the reasons identified above, the protection against arbitrary or unlawful interference with privacy under Article 17 of the ICCPR are appropriately and permissibly limited.

Disclosure of protected information

61. Part 11 of the Bill prohibits the disclosure of information obtained under an IPO issued under Parts 2, 3 or 4 except in certain circumstances.

62. The purpose of the IPO framework is to enhance Australian agencies' access to electronic evidence located in foreign countries for the purpose of preventing, detecting, investigating and prosecuting serious crimes in a way that appropriately balances these legitimate aims with an individual's right to privacy.

63. The circumstances for which information may be disclosed are outlined in Part 11 and include, but are not limited to, the investigation or prosecution of relevant serious offences, the making of reports and keeping of records under Part 10, independent oversight by the Commonwealth Ombudsman and Inspector-General of Intelligence and Security, and for the purposes of a designated international agreement.

64. Noting the specific limited circumstances outlined throughout Part 11 and the relevance to the operation of the framework established in the Bill, the use of information obtained under an IPO promotes the privacy of individuals as it does not permit the use of information for a purpose not relevant to achieving a legitimate aim of the Bill.

Destruction of records

65. Section 140 of Schedule 1 of the TIA Act requires the destruction of information obtained under IPOs issued in Parts 2, 3 and 4 for interception activities and stored communications.

66. The information must be destroyed by the chief officer of the relevant agency which is in possession of the information if the chief officer is satisfied the information is not likely to be required for a permitted purpose identified in Part 11.

67. The destruction of information obtained under an IPO seeking telecommunications data is not required by this section in line with current arrangements in the TIA Act. This view is supported by the Attorney-General's Department in their response to recommendation 28 of the Parliamentary Joint Committee on Intelligence and Security's Advisory report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014. Among other things, the Attorney-General's Department's response found:

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Keeping telecommunications data for extended periods of time can be beneficial to law enforcement agencies in particular circumstances.

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A destruction requirement may have little privacy benefit and could create a further burden on the telecommunications industry.

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It will be administratively challenging to destroy copies of telecommunications data given its need to be stored on numerous information management systems. ^[2]

68. Requiring the destruction of records ensures the private communications of individuals subject to an IPO are not kept in perpetuity where there is no legitimate reason to do so. This measure serves to limit the scope of the interference with an individual's privacy by ensuring the power to retain information is appropriately focused on achieving a legitimate purpose under the Bill. On this basis, the provision serves to enhance the protection against arbitrary or unlawful interference with privacy in circumstances where they are subject to an IPO.

The right to freedom of expression in Article 19 and the rights to peaceful assembly and the right to freedom of association in Article 21 and 22 of the ICCPR

69. The right to freedom of expression protects the right to hold opinions without interference and the right to express those opinions. The rights to peaceful assembly and association protect the rights of individuals and groups to meet for a common purpose or in order to exchange ideas and information, to express their views publicly and to hold a peaceful protest.

70. To the extent that a person in Australia is affected by an order issued by a foreign country pursuant to a designated international agreement, the provisions concerning the statutory requirements certificate promote the rights to freedom of expression, and the rights to peaceful assembly and freedom of association to the extent they apply to freedom of expression, by ensuring that, before issuing a statutory requirements certificate, the Attorney-General be satisfied that the agreement provides that the foreign country is not permitted to issue orders for the purposes of investigating, prosecuting or punishing a person on account of their political opinions.

Access to information

71. The framework may engage the right to freedom of expression by indirectly making some people more reluctant to use communications services. It is plausible that a person may minimise their use of communication services if they know government agencies can seek prescribed communications providers to provide communications carried through these services.

72. However, the amendments will not enable agencies to access communications absent an order. IPOs are subject to strict thresholds, for example, they can only be issued in relation to stored communications and telecommunications data to detect, prevent, investigate or prosecute serious offences attracting a maximum penalty of at least 3 years imprisonment, or life imprisonment. This approach is consistent with the current domestic warrant regime under the TIA Act, and the mutual legal assistance regime.

73. The framework advances a legitimate objective of protecting Australia's national security and public order by allowing law enforcement and national security agencies to respond to the modern communications environment and effectively access information that will assist investigations and prosecutions.

74. To the extent that a person refrains from or minimises their use of electronic communications in response to this framework, the circumstances under which IPOs may be issued ensure any limitation on the freedom of expression is necessary and proportionate. Additionally, to the extent that the framework does limit the right to freedom of expression, such a limitation is contemplated by the ICCPR as Article 19(3) allows for restrictions for the protection of national security or of public order.

Right to life - Article 6 of the ICCPR

75. Article 6(1) of the ICCPR protects the inherent right to life and the right to not be arbitrarily deprived of life.

76. The IPO framework enables Australia to give effect to agreements with governments of foreign countries for the purpose of obtaining data to be able to investigate and prosecute serious criminal offences. These agreements are expected to operate under the principle of reciprocity. As governments of foreign countries are responsible for their own criminal offences, it may be contemplated that Australia enters into an agreement with a foreign country where death is the penalty for certain serious criminal offences and therefore, in accordance with the international production order framework, enables communications providers in Australia to provide information to that foreign government for the purpose of prosecuting a person for an offence for which the death penalty relates.

77. Clause 3 provides that if the law of a foreign country party to an agreement contains offences that are punishable by death, then the text of a bilateral agreement cannot be set out in the regulations, or the foreign country cannot be declared a recognised party to the agreement, unless the Minister has received a written assurance from the government of the foreign country relating to the use or non-use of Australian-sourced information obtained by virtue of the agreement in any proceeding by way of a prosecution for a death penalty offence in the foreign country. The written assurance may deal with how Australian-sourced information may be used by the foreign country in proceedings in connection with prosecutions for death penalty offences, including for exculpatory purposes, and subject to any restrictions or conditions required by Australia, or it may deal with how Australian-sourced information is not to be used in prosecutions for death penalty offences, or a combination of both.

78. Australia's long standing bipartisan opposition to the death penalty is well-known and Australia opposes the death penalty in all circumstances for all people. The Bill recognises the right to life by ensuring the Minister must require governments of foreign countries that have the death penalty to provide a written assurance in relation to the use or non-use of Australian-sourced information in a prosecution for an offence punishable by death before an agreement with that country can be a designated international agreement. Accordingly, the decision to designate an agreement is not left to the discretion of the Minister as clause 3 prohibits a bilateral agreement from being set out in the regulations and a foreign country being declared a recognised party where no assurance is received from the foreign country relating to the use or non-use of Australian-sourced information in proceedings connected with prosecutions for death penalty offences.

79. The decision to specify an agreement is not left to the discretion of the Minister as the relevant provisions in the Bill place an obligation on the Minister to not specify an agreement where no assurance is given. A further safeguard is provided in clause 3B, which provides that, if the law of a foreign country contains death penalty offences, the Attorney-General must be satisfied that the Minister has received a written assurance from the government of the foreign country before issuing a statutory requirements certificate in relation to the agreement and foreign country.

80. Owing to the restriction on the Minister's ability to designate agreements with governments of foreign countries in relation to the provision of a written assurance, the right to life under Article 6 of the ICCPR is recognised.

Right to effective remedy - Article 2(3) of the ICCPR

81. Article 2(3) of the ICCPR protects the right to an effective remedy for any violation of rights and freedoms recognised by the ICCPR, including the right to have such a remedy determined by competent judicial, administrative or legislative authorities or by any other competent authority provided for by the legal system of the State. To the extent that a legal entity subject to an IPO argues that complying with the order would infringe the rights of natural persons affected by compliance with the order, the remedies discussed here are applicable.

82. Judicial review under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) is not available for decisions made under the TIA Act. This is consistent with similar decisions made for national security and law enforcement purposes - for example those made under the Intelligence Services Act 2001, the Australian Security Intelligence Organisation Act 1979, and certain decisions made under the Telecommunications Act 1997. Decisions of a law enforcement nature were identified by the Administrative Review Council in its publication 'What decisions should be subject to merits review?' as being generally unsuitable for merits review.

83. Australian courts will retain jurisdiction for judicial review of a decision of a decision maker or nominated AAT Security Division member to issue an IPO, through the original jurisdiction of the High Court of Australia and in the Federal Court of Australia by operation of subsection 39B(1) of the Judiciary Act 1903. This will ensure that an affected person or a provider has an avenue to challenge unlawful decision making.

84. As IPOs are intended to be used without the knowledge of the person of interest, so as not to jeopardise an investigation or prosecution, challenges to an application will generally not be able to take place at the same time an application for an IPO is made. However, the decision to issue an IPO may be challenged by a defendant during court proceedings on the basis that the evidence was improperly or illegally obtained. The court has the discretion not to admit such evidence should a challenge on this basis be successful.

85. Oversight by the Commonwealth Ombudsman will also provide for an effective mechanism to ensure agency use of the powers in the Bill is compliant with the terms of the legislation, thereby bolstering the proper use of framework. The power to inspect agency records, and the obligation to provide reports to the Minster on the results of those inspections is contained in Part 10 of the Bill. The Minister is obliged to table the report in Parliament. The Inspector-General of Intelligence and Security will automatically have oversight over the Organisation's compliance with the scheme under its existing legislation.

86. To the extent a person's right to an effective remedy for the violation of their human rights under the ICCPR is restricted by the limitations in the ADJR Act, those limitations are reasonable, necessary and proportionate.

Conclusion

87. This Bill is compatible with human rights as set out above and promotes the protection of several rights. To the extent that the Bill limits a human right, those limitations are reasonable, necessary and proportionate.