A New Framework to assist Australia’s International Crime Cooperation Efforts
On 5 March 2020, the Telecommunications Legislation Amendment (International Production Orders) Bill 2021 (Cth) ('the Bill') was introduced in the House of Representatives by then Minister for Population, Cities and Urban Infrastructure Alan Tudge ('the Minister') for then Minister for Home Affairs Peter Dutton. The Bill passed the lower house with amendments, before passing the upper house without further amendments on 24 June 2021.
On 23 July 2021, the Telecommunications Legislation Amendment (International Production Orders) Act 2021 (Cth) (‘the Act’) received royal assent. The Act is partially uncommenced.
According to the Bill’s explanatory memorandum, the purpose of the Act is:
Background: Global connectivity and online elements to security threats
In his second reading speech of the Bill, the Minister commented that
“almost every serious crime and national security threat today has an online element ... 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".
This new Act aims to establish a framework to make the process of collecting evidence easier. Mutual international agreements between countries will be necessary in order to share evidence of serious crimes to support this framework.
Function of the new Act
In explaining the overarching function of the Act, the Minister said in his second reading speech that the amendments to the Telecommunications (Interception and Access) Act 1979 (Cth) (‘the TIA Act’) would include:
The TIA Act, as it existed prior to this new Act, only provided for a domestic framework to access communications data. Importantly, evidence from overseas databases could not be obtained under the Act.
The Minister commented in his second reading speech that the amendments under the Act would be:
“crucial to ensure [that] agencies can adapt to the modern age of communication and global connectivity”.
The Bill's explanatory memorandom summarises that the Act would:
"introduce a regime for Australian agencies to obtain independently-authorised international production orders for interception, stored communications and telecommunications data directly to prescribed communications providers in foreign countries with which Australia has a designated international agreement".
Whilst the logistics of these international production orders ('an Order') will still be provided for under individual international agreements, the Act contains provisions for privacy protections. Any information shared through an agreement under the Act will be subject to the following a number of safeguards including:
- information obtained under an Order will have protections against its usage or disclosure unless an exception applies;
- retention of information for longer than there is a legitimate reason to do so is not permitted;
- information no longer to be retained must be destroyed; and
- providers of the information may object to an Order if it believes that the Order goes against the international agreement Australia has with the country.
The Minister concluded his second reading speech by stating:
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Telecommunications Legislation Amendment (International Production Orders) Act 2021 (Cth), Bill and explanatory materials available from TimeBase's LawOne service.