Legislation that paves the way for a reciprocal cross-border data access regime between Australia and the United States has passed the federal parliament despite lingering privacy concerns.
The Telecommunications Legislation Amendment (International Production Orders) Bill 2020 cleared both houses of parliament with the support of Labor on the last sitting day before the winter break.
The bill establishes a framework that allows “reciprocal cross-border access to communications data” with foreign governments for law enforcement and national security purposes.
It is necessary for Australia to enter into a bilateral agreement with the US under its Clarifying Lawful Overseas Use of Data Act (CLOUD Act), which the government has been negotiating since 2019.
The CLOUD Act created a pathway for Australian authorities to serve US service providers directly with requests for user data, bypassing the mutual legal assistance mechanism which is considered slow.
But US authorities – and potentially other countries in the future – will also be able to access data directly from Australian service providers, granted international agreements are in place.
The bill passed both houses only a day after the government moved more than 500 amendments, including those recommended by the Parliamentary Joint Committee on Intelligence and Security.
The PJCIS last month called for 23 changes to the bill, including greater guarantees that Australian citizens and permanent residents wouldn’t be “intentionally targeted” under international agreements.
The revised bill now indicates that orders are not to be permitted “for the purposes of obtaining information about the communications of a person who is an Australian citizen or permanent resident”.
But despite the changes, the Greens remain concerned that the legislation lacks safeguards and leaves many important details to future agreements with foreign governments.
It moved a motion on Thursday calling on the government to ensure future agreements are subject to the same degree of parliamentary scrutiny as mutual assistance treaties, which was voted down.
Green senator Larrissa Waters had earlier moved to have the bill withdrawn, arguing that more time was needed to understand the ramifications of the government’s 502 amendments.
She described the government has having been “rammed [the bill] through the house [of representatives]” on Wednesday, with amendments one to 502 moved together and voted on shortly after.
“There were 46 pages of amendments, 502 in total. This is an absolute farce. You cannot ram this bill through the senate with such extensive amendments,” she said on Thursday.
Home Affairs minister Karen Andrews said the “legislation stands as a significant achievement for Australia”, ushering in a “new generation of international crime cooperation agreements”.
“Today, almost every serious crime and national security threat has an online element,” she said in a statement.
“This will vastly fast-track the time it takes for police and intelligence agencies to obtain overseas-held data, which at the moment can run into months, often meaning investigations have run cold.”
She said while law enforcement agencies had previous been unable to liaise directly with service providers to access data, sometime leading to significant delays, this would now be possible.
“This legislation enables Australian law enforcement to protect Australians more effectively by serving warrants directly to communications service providers based overseas, such as Facebook and Google.”
