24th Jun 2021, 4:40 PM – Senate Telecommunications Legislation Amendment (International Production Orders) Bill 2020 - Second Reading - Protections

The majority voted against an amendment to the usual second reading motion "that the bill be read a second time", which is parliamentary jargon for agreeing with the main idea of the bill. This means the amendment failed.

Amendment text

At the end of the motion, add: ", but the Senate:

(a) notes that:

(i) the bill lacks the protections included under equivalent United States legislation, and the safeguards provided for under mutual assistance laws, with respect to matters such as protection of human rights, including the right to life and prohibition on torture, and restrictions on accessing data about Australian persons,

(ii) it is currently impossible to fully identify and assess the safeguards that will apply to the scheme set out in the bill, particularly any safeguards to protect the privacy and the rights of law abiding individuals,

(iii) the bill leaves many essential details, including critical safeguards, to the content of individual, future executive agreements that would be prescribed by regulation as Designated International Agreements (DIAs), and

(iv) some Administrative Appeals Tribunal members lack the independence required to properly fulfil the role of considering and issuing International Production Orders (IPOs), particularly given community perceptions that the Tribunal is being influenced through appointments that reflect political affiliation, and

(b) calls on the Government to:

(i) ensure that proposed DIAs are subject to the same degree of parliamentary scrutiny as mutual assistance treaties,

(ii) create statutory requirements for the timely publication and tabling in Parliament of the full text of any agreement that is to be prescribed as a DIA, so that Parliament has immediate access to that agreement when considering whether to disallow regulations prescribing it as a DIA,

(iii) ensure that the Parliament can properly exercise its discretion to disallow DIA regulations, and maximise legal certainty for agencies, by providing that such regulations commence after the disallowance period has ended, and

(iv) ensure that IPOs relating to criminal law enforcement and control orders are only issued by judicial officers, in order to provide greater substantive and perceived independence to the approval process".

What does this bill do?

According to the bills digest:

The purpose of the Bill is to amend the Telecommunications (Interception and Access) Act 1979 (the TIA Act) and make consequential amendments to other Acts to introduce a framework for Australian agencies to obtain an international production order (IPO) requiring a designated communications provider (DCP) overseas to:

• intercept communications
• provide access to stored communications or
• provide access to telecommunications data.

Certain agencies will be able to apply for IPOs in relation to investigating serious offences, carrying out ASIO’s functions, and purposes relating to control orders.

IPOs will be authorised externally to the requesting agency. They will only be available in relation to providers in countries with which Australia has a bilateral or multilateral agreement on cross-border access to electronic information and communications data; that is, a designated international agreement.

The Bill will also amend the TIA Act and other Acts to ensure that Australian communications providers are not prevented from responding to incoming requests for access to electronic information and communications data from countries with which Australia has a designated international agreement.

The proposed IPO framework is intended to provide a faster alternative to the formal mutual legal assistance process for obtaining access to certain information and data held by overseas providers (and for overseas authorities to access information and data held by Australian providers).