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Thursday, 5 March 2020
Page: 1


Mr TUDGE (AstonMinister for Population, Cities and Urban Infrastructure) (09:32): I move:

That this bill be now read a second time.

The coalition government's first priority is to keep Australia and our communities safe. This bill is a significant step towards ensuring just that, by ensuring our agencies have the appropriate tools to keep pace with modern technology as it evolves.

The Telecommunications Legislation Amendment (International Production Orders) Bill will provide for a step change in international cooperation to combat crime. Almost every serious crime and national security threat today has an online element. Not only is technology advancing at an exceptional rate; we are also witnessing an unprecedented surge in online platform development and use.

A globalised economy brings with it an abundance of opportunities—and this government always welcomes advancements that enhance our productivity and make the lives of everyday Australians easier.

However, a digitally connected world also means data is increasingly stored in other countries, which in turn means vital evidence of serious criminality is often distributed across multiple jurisdictions. Crucial electronic evidence—from messages between violent extremists plotting terrorist attacks, drug syndicates planning major imports to child exploitation material shared on online platforms—is often stored out of Australian agencies' reach.

Our agencies' ability to deter, detect, investigate and prosecute national security threats and serious crimes, now more than ever, is heavily reliant upon significant international cooperation in order to overcome these cross-border barriers and access crucial evidence.

Accessing internationally-held data is increasingly important to Australian law enforcement. However, it is also an increasingly complex and intensive task. The nature of modern data storage and cloud computing means that data is transient. Data stored by a company seamlessly moves between physical international servers, making it very difficult for law enforcement and national security agencies to pin it down and collect it. This data is also volatile and is often deleted before our police or national security agencies can lawfully access it. The need to act fast to secure evidence of a serious crime has never been more critical.

Our agencies currently rely on mechanisms like mutual legal assistance agreements to seek critical evidence and information needed to combat serious crime. However, these mechanisms were designed in a very different time. They are cumbersome, resource intensive and no longer an effective means of obtaining electronic information in the modern digital age.

This means that our law enforcement agencies struggle to secure access to valuable evidence in a timely and legally admissible form. It also means we face unacceptable delays to criminal justice outcomes.

To resolve these issues, Australia and like-minded countries are working to create a new framework of modern international crime cooperation, underpinned by robust privacy and civil liberties protections. This framework will allow law enforcement to request data directly from communications providers and technology companies in trusted partner countries by agreements and with independent authorisation. Allowing targeted and independently authorised direct access will significantly reduce the time it takes to receive vital data that is critical to detecting, preventing, investigating and successfully prosecuting serious criminal offenders.

The United States, where most of the world's largest communications and technology providers are based, has paved the way forward through its Clarifying Lawful Overseas Use of Data Act (CLOUD Act) and through signing the first of these new cross-border access to data agreements with the United Kingdom.

Australia stands to benefit significantly from participating in this new framework of international crime cooperation. This follows the Minister for Home Affairs' joint announcement with the US Attorney-General late last year that formal negotiations have commenced for a bilateral 'CLOUD Act' agreement.

This bill is necessary to give effect to agreements like this. The Telecommunications (Interception and Access) Act 1979 (TIA Act) has a domestic framework for interception and access to stored communications and telecommunications data. However, warrants under this framework do not have international reach.

The Telecommunications Legislation Amendment (International Production Orders) Bill will amend the TIA Act to include a new framework for international production orders that can operate beyond Australia to seek data from service providers in another country, where an international agreement is in place. This will complement the existing framework for domestic warrants and authorisations in the TIA Act.

This legislation will be a significant step in increasing the effectiveness of Australian investigations and prosecutions of serious crimes—without the significant delay that can often accompany international crime cooperation.

Our Commonwealth, state and territory law enforcement agencies will be able to apply for an independently authorised order for communications interception, stored communications or telecommunications data to be served on a 'designated communications provider' in the other country by a coordinating Australian Designated Authority.

The legislation sets up a framework to support criminal justice outcomes—it will be used to investigate serious criminal offences and for monitoring compliance with control orders. The legislation will also support the Australian Security Intelligence Organisation (ASIO) to carry out its functions in protecting Australians from terrorism.

The legislation is crucial to ensure agencies can adapt to the modern age of communication and global connectivity. Designated communication providers will include carriers and carriage service providers, as well as message application providers, voice and video call application providers, storage back-up providers, and other electronic content providers such as website providers, chat forums and social media platforms.

It is important that Australia is able to provide reciprocal access to data to international partner countries. This legislation will amend the regulatory framework to ensure Australian companies are able to provide this reciprocal assistance.

This will be achieved through exemptions to existing prohibitions in Commonwealth law on disclosure of data. However, it is important to note that this legislation does not place any new obligations on our communications providers to disclose data to partner authorities.

The mechanism by which incoming orders or requests come to Australian providers will be determined by individual agreements, and the government is committed to ensuring each agreement under this framework provides essential protections for our communications providers and community. Every request will need to be appropriately authorised and oversighted.

Rigorous privacy protections will also be ensured under each individual agreement. Like our domestic regime, privacy protections are built in to the legislation and the extent to which the privacy of any person would be affected, or the intrusiveness of the order where it relates to national security, will be a primary consideration before an order can be issued.

Information obtained under an order will be protected against use or disclosure unless a specified exception applies. Breach of this prohibition carries a maximum penalty of imprisonment. Agencies will only be able to use or share that information for specific purposes only.

Agencies will also not be permitted to retain this information where there is no longer a legitimate reason to do so, and will be required to destroy this information when it is no longer required for a permitted purpose. By design, the legislation has clear limits and comprehensive safeguards around access to data.

There will be rigorous oversight and accountability measures, consistent with the current domestic warrants regime. The Commonwealth Ombudsman and the Inspector-General of Intelligence and Security will oversee respective agencies' compliance with the legislation and report on their inspections. Agencies will also be required to keep records and provide reports consistent with the domestic framework. The Minister for Home Affairs will table an annual report in both houses of this parliament.

The government is committed to ensuring that agreements designated under this framework are with countries that apply strict oversight and accountability. This government is committed to developing each designated agreement to ensure those measures and privacy protections are appropriate and enshrined. There will also be comprehensive consideration by parliaments of each individual agreement.

The legislation also gives a provider the ability to object to an international production order it has received if it believes the order does not comply with the international agreement. This is an important protection. The Australian designated authority will, under this legislation, have the power to respond to that objection by cancelling the order.

This legislation is an essential step to enable a bilateral 'CLOUD Act' agreement with the United States. Given our agencies are making a significant and increasing number of requests to the United States, this bilateral agreement will provide our law enforcement and national security agencies with independent authorisation for efficient access to cross-border data.

In conclusion, access to overseas data is increasingly necessary for investigating crime and combatting serious threats in a globalised and electronically connected world. Cross-border transfers of data are now a part of everyday life—indeed it is a necessary and appropriate way of how we live and do business in the 21st century. However, as serious criminals and malicious actors adapt to these changes, so too must our agencies.

This framework is a way forward for our agencies to respond to the challenges of an evolving technological landscape to ensure serious crimes and national security threats can be combated more efficiently, with appropriate authority and oversight.

This legislation demonstrates the government's ongoing commitment to ensuring the safety of all Australians by working seamlessly in international law enforcement cooperation, and by equipping our law enforcement and national security agencies with the appropriate and modern tools for the job.

I commend this bill to the House.

Debate adjourned.