CTH Bill Proposes New International Production Orders Framework to Access Communications Data

On 5 March 2020, the Telecommunications Legislation Amendment (International Production Orders) Bill 2020 (Cth) was introduced to the House of Representatives.  The Bill has been sent to the Parliamentary Joint Committee on Intelligence and Security and the Parliamentary Joint Committee on Human Rights for consideration.

Purpose of the Bill

The Bill is intended to establish a framework in the Telecommunications (Interception and Access) Act 1979 (Cth) which will improve “Australian agencies’ access to overseas communications data for law enforcement and national security purposes.” Since the majority of Australian data is stored overseas, requesting access to that data currently requires applications to the governments where the companies that own, control or store that data are based. The Bill allows Australia to form “designated international agreements” with countries so that Australian security agencies can request that data directly from the communication providers. The Bill also provides amendments to the regulatory framework to enable Australian communications providers to intercept and disclose electronic information in response to an incoming order or request from a foreign country with which Australia has an agreement.

What is an “international production order”?

Under the Bill, there are three types of international production orders (“IPOs”):

1. IPOs relating to interception; and 
2. IPOs relating to stored communications; and
3. IPOs relating to telecommunications data.

Furthermore, an IPO may be issued for purposes related to:

1. An investigation of an offence of a serious nature; or 
2. The monitoring of a person subject to a control order for the purposes of community protection against terrorist acts, prevention of support for terrorist and hostile acts overseas and detection of breaches of the control order; or
3. The carrying out by the Organisation of its functions.

An IPO is directed to a designated communications provider which refers to a carrier, carriage service provider, message/call application service provider, storage/back-up service provider or general electronic content provider. 

Who can seek an “international production order”?

IPOs relating to interception, stored communications or telecommunications may be issued in response to an application by an interception agency, a criminal-law enforcement agency or an enforcement agency respectively. The Bill states the relevant bodies that relevantly belong to each category. 

The application process varies depending on the type and purpose of the IPO. For instance, if the IPO relates to interception and involves the enforcement of the criminal law, the relevant body applies to an “eligible judge” or “nominated AAT member” for an IPO. On the other hand, if the IPO relates to stored communications or telecommunications data, and involves the enforcement of the criminal law, the relevant agency applies to an “issuing authority”. If the IPO concerns a control order, then the relevant body must apply to an eligible judge or nominated AAT member. If the IPO concerns national security, the agency must apply to a nominated AAT Security Division member.

An eligible judge is defined as a judge that consents in writing to a written nomination by the Attorney-General to be an eligible judge under Schedule 1 of the Bill. Schedule 1 outlines the power to issue IPOs. Similarly, the Attorney-General may nominate the Deputy President as well as any senior member or member of the AAT to issue IPOs. Nominated AAT members must be enrolled as a legal practitioner of the High Court, another federal court or, the Supreme Court of a State or the ACT for not less than five years. An “issuing authority” includes a person who substantially meets the same criteria as an eligible judge or nominated AAT member. However additionally, an “issuing authority” includes magistrates who by writing have accepted a nomination by the Attorney-General. Nominated AAT Security Division members have substantially equivalent eligibility criteria to nominated AAT members with the additional criteria that they are members of the Security Division of the AAT. The Bill states that eligible judges, nominated AAT members, any “issuing authority” and nominated AAT Security Division members in performance of their functions and powers under the Schedule have the same protection and immunity that Justices of the High Court have in relation to High Court proceedings. 

What is involved in the process of applying for an “international production order”?

As previously mentioned, the process varies depending on the nature of the IPO being requested. Some commonalities across the different application processes include the requirements of a nominated “designated international agreement” and an affidavit which sets out the facts and other grounds on which the application is based.

The Bill lays out in extensive detail what must be considered when issuing an IPO. For example, an IPO relating to interception for the purpose of enforcement of the criminal law requires the eligible judge or nominated AAT member to be satisfied that there are reasonable grounds to suspect that either:

1.  the designated communications provider owns or operates a telecommunication network that is, or is likely to be, used to supply the individual carriage services specified in the application; or
2. the designated communications provider supplies the individual  carriage services listed in the application.

The Bill also lists several matters which the person reviewing the application must consider when deciding whether to issue an IPO. For the example mentioned previously, the eligible judge or nominated AAT member must consider the extent to which the IPO will breach individual privacy, the gravity of the conduct constituting the serious offence, the likelihood that information will assist investigations, alternative investigative methods and, their usefulness or prejudice to ongoing investigations. The Bill states that IPOs are not to be issued unless the eligible judge or nominated AAT member is satisfied that the relevant agency has exhausted all other practicable methods and that the purpose of the IPO cannot or is unlikely to be fulfilled without an IPO. To reiterate, the exact considerations and requirements for IPOs differs according to the type and purpose of the IPO.

The Bill also contains provisions relating to compliance with orders, oversight, reporting, record-keeping, disclosure of protected information and evidentiary certificates.

Stakeholder Concerns

Evidently, the possibility for unnecessary invasions of privacy has been raised as a  concern among various stakeholders and community members which have been reflected in the recent submissions for the committee reports. The Parliamentary Joint Committee on Human Rights asserted that the right to privacy may be subject to permissible limitations where the limitation pursues a legitimate objective, is  rationally connected to that objective and is a proportionate means of achieving that objective.“” The Committee acknowledged the legitimate objectives of the Bill but raised several concerns on the issue of proportionality. Some of the issues raised include:

1. The lack of a uniform nationwide mechanism such as the Public Interest Monitors available in Queensland and Victoria who provide independent expertise and oversight;
2. The ability for AAT members with a minimum of 5 years experience to issue IPO when it is considered best practice for surveillance methods at international law to be issued by judicial officers; and,
3. The inconsistencies within the mandatory considerations for different types of IPOs, in particular the consideration of whether the IPO is the surveillance method most  likely  to  have  the  least  interference  with  any  person’s  privacy”.

In a June article, the Law Council of Australia expressed concerns that the Bill “offers very few of the safeguards that exist in comparable nations.” In the US and Britain, production orders are strictly authorised by judges only which provides a “crucial independent layer of oversight”. Further, in Britain, there are special approval processes for requesting access to legally privileged or journalists’ information. Moreover, the equivalent American legislation requires that designated international agreements meet certain human rights obligations. The Law Council stated that the absence of such a provision in the Australian Bill would effectively mean that if Australia entered such agreements with countries with mixed human rights records, Australia would be under obligation to hand over private data which could be used for various purposes that infringe on human rights. However the Law Council also stated that the Bill is “fairly easily rectified” by replicating the established safeguards in other international jurisdictions.

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Telecommunications Legislation Amendment (International Production Orders) Bill 2020, Second Reading and Explanatory Statement, available from TimeBase's LawOne service

"Opinion piece: Communications bill will gnaw at privacy" (Law Council of Australia, 16 June 2020)