Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

On behalf of the Parliamentary Joint Committee on Intelligence and Security, I present the following reports: Advisory report on the Telecommunications Legislation Amendment (International Production Orders) Bill 2020—Report, May 2021; and Report by statement: A review of regulations re-listing Jaish-e-Mohammad as a terrorist organisation under the Criminal Code Act 1995Report, May 2021.

In accordance with standing order 39(e) the reports were made p arliamentary p apers.

by leave—Under existing mutual assistance processes, it is not possible for Australian authorities to obtain information directly from foreign communications providers and vice versa. As a result, it can often take many months for Australian law enforcement authorities to obtain evidence that is held overseas, including text messages and emails stored on foreign servers. Under the framework proposed by the Telecommunications Legislation Amendment (International Production Orders) Bill 2020, it would be possible for Australia and foreign countries with which Australia has an agreement to effectively circumvent the existing and often cumbersome mutual assistance processes. In short, the international production orders bill would provide a framework for Australian law enforcement agencies and ASIO to obtain independently authorised international production orders to require designated communications providers located outside Australia to intercept electronic communications or access stored communications and communications data, and authorise designated communications providers located in Australia to comply with similar orders from foreign law enforcement and intelligence agencies.

A so-called outgoing international production order could only be obtained by an Australian law enforcement agency or ASIO if the relevant communications provider were located in a country with which Australia had a designated international agreement. Similarly, a communications provider in Australia would only be permitted to comply with a so-called incoming international production order if it originated in a country with which Australia had such an agreement. There is no doubt that the existing mutual assistance processes are cumbersome for Australian law enforcement agencies wanting to obtain important evidence, much of which is increasingly held overseas by offshore data providers. It can presently take many months for information of this kind to be obtained by our police forces.

All members of the Intelligence and Security Committee therefore welcome the fact that Australia and the United States are in the process of negotiating an agreement to address this issue, and we also welcome the fact that the government has introduced a bill to establish a framework under which such an agreement could be put into effect. However, the bill as currently drafted is seriously deficient. It is largely silent on a range of important matters, including the purposes for which a foreign government could seek information or request assistance under an international production order, the nature of the information that could be sought directly from Australian telecommunications companies under an international production order, and who a foreign government could seek information about under an international production order. The government says that all of these matters will be addressed in the agreements that it reaches with foreign countries, including the United States, but, with respect, that is not good enough. It is not the role of the parliament to write blank cheques to the executive branch of government. Under the bill as it is currently drafted, it would be theoretically possible for the current Australian government or any future government to permit, by agreement, foreign law enforcement or intelligence services to, among other things, obtain information from Australian communications providers for any purpose whatsoever and intentionally target Australian citizens or permanent residents. Nor is there anything in the bill that would prevent an Australian government from entering into and then giving effect to agreements with undemocratic authoritarian regimes—agreements that could have serious repercussions for human rights and the rule of law, both in Australia and overseas.

While we all, on both sides of the House, hope that would never happen and while such agreements could theoretically be disallowed by the parliament, Labor and Liberal members of the committee do not believe that they should exist in the first place. I'm pleased to report that the committee has made 23 bipartisan recommendations to improve the bill. Some of the key recommendations include amending the bill to provide that, first, in order to qualify as a designated international agreement under the proposed framework, an agreement with a foreign country must prohibit the foreign government from, among other things, intentionally targeting an Australian citizen or permanent resident; second, foreign countries with which Australia has an agreement must comply with a range of conditions relating to the collection, use, handling and disclosure of information obtained under the proposed framework; and, third, any country seeking an agreement with Australia under the proposed framework must, at a minimum, demonstrate respect for the rule of law, the principles of equality and non-discrimination and applicable human rights obligations. The committee has also recommended that the bill be amended to include additional protections for journalists and media organisations consistent with the recommendations we made in the report that we tabled last year in respect of press freedom. I remind the House that the government accepted all the recommendations made by the intelligence committee in its report in respect of press freedom but has yet to implement a single one of them. I do not have time to go through the many other significant recommendations the committee has made in its report. I will say that all of them are important and that all of them should be implemented by the government.

This report is yet a further reminder of the importance of the work that is done by parliamentary committees, specifically the intelligence and security committee. On behalf of the Labor members of the committee I would like to thank everyone who contributed to this report, especially the dozens of organisations and individuals who made thoughtful and detailed submissions. I would like to thank the committee secretariat for their professionalism and hard work. Finally, I would like to thank the Liberal members of the committee, especially the chair, Senator Paterson, for working constructively with my Labor colleagues and I to produce this report.

See this speech in context