PJCIS: New intelligence law must spell out conditions for data-sharing

By Melissa Coade

Monday May 17, 2021

(Image: Adobe/JNT Visual)

A report by the parliamentary joint committee on intelligence and security (PJCIS) has been tabled recommending changes to a new bill that will create a framework for the collection and disclosure of intelligence data (via international production orders) before it is passed by parliament.

The committee tasked with reviewing the Telecommunications Legislation Amendment (International Production Orders) Bill 2020 has flagged that the legislation should be accepted by parliament with a few changes.

The bill, which was presented to parliament last March, creates a framework for security and intelligence agencies to intercept, access stored communications, or access telecommunications data to monitor criminals and suspects, or ‘for the purposes of upholding Australia’s national security’. 

Among the committee’s key recommendations are the creation of a list of conditions to apply to any international agreement that Australia enters into to share intelligence data with overseas powers.

Those conditions should include that international data sharing agreements, or an international production order (IPO), be subject to rules including:

  • The non-use of the death penalty on Australian-sourced information
  • A prohibition of any foreign government from intentionally targeting an Australian (including the targeting of a non-Australian to obtain information about an Australian)
  • The rule that foreign activities which intercept communications must only be carried out to obtain information about a non-Australian who is outside of Australia
  • Safeguards for the use, handing and disclosure of the information
  • The domestic law of the foreign country
  • The rule that the IPO does not extend any longer than is reasonably necessary to accomplish the approved processes of the order
  • The rule that IPO must only relate to an offence (political or criminal) which is recognised in the ordinary law of Australia, and only for serious crimes (including terrorism)
  • No production order will be granted if the information seeking to be obtained can be collected using a less intrusive method

The IPO bill is intended to complement other laws concerning Australia’s domestic powers and ability to cooperate with international partners under the Mutual Assistance in Criminal Matters Act 1987. Former Home Affairs minister Peter Dutton referred the bill to the PJCIS for review last year.

Significantly, the proposed bill adds a new schedule to the existing law that will establish a framework for ‘reciprocal cross-border access to communications’ data. 

The bill’s explanatory memorandum outlines that in an increasingly digital world, law enforcement bodies 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,” the memorandum says.

According to PJCIS Chair James Paterson (who replaced MP Andrew Hastie in the role in February), the recommended changes seek to ensure that the international intelligence sharing agreement that Australia enters into are ‘necessary, proportionate and subject to appropriate oversight’.

“An international production orders scheme will provide Australia’s law enforcement agencies and ASIO with much faster access to evidence during the investigation and prosecution of serious crimes, a vital power in an increasingly digital world where much evidence is located offshore,” Patterson said. 

The committee also recommended changes to include better oversight of the new powers by the Commonwealth Ombud and Inspector-General of Intelligence and Security with additional resourcing. This also included amendments to allow information sharing between the offices of the ombud, inspector-general and the Attorney-General’s Department.  

The committee went on to recommend that a full list of designated international agreements entered into by the government be published and subject to parliamentary scrutiny (after a period of disallowance).

Only countries that respect the rule of law and principles of equality and non-discrimination should be eligible to obtain a designated international agreement with Australia, the committee added. This includes a respect for human rights obligations and commitments, as well as clear legal procedures and restrictions regarding the use of electronic surveillance investigatory powers.


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