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A new law that would help foreign governments surveil people in Australia has been given the tick of approval from Parliament’s security committee pending a list of proposed changes that would add additional safeguards and beef up oversight.

If passed, the law would make it quicker and easier for a network of nations to exchange telecommunications data — obtained via real-time wiretapping, stored communications or records — belonging to its citizens and those from foreign nations.

The Parliamentary Joint Committee on Intelligence and Security (PJCIS) has published its advisory report on the Telecommunications Legislation Amendment (International Production Orders) Bill 2020.

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The controversial bill creates the framework for Australia to enter into reciprocal agreements with other countries to exchange surveillance data on people within their countries. These nations can use an international production order to get data straight from companies.

Such legislation would be necessary for Australia to enter into an agreement with the US under their CLOUD Act, which compels tech companies in the US to provide data to law enforcement agencies whether it’s housed domestically or internationally. This would supersede the slower and more difficult mutual legal assistance mechanism.

The bipartisan committee ultimately recommended that the Parliament pass the bill with 23 changes.

These changes include:

  • Publishing any agreements with foreign governments prior to signing for parliamentary scrutiny
  • Mandating that surveillance efforts by foreign authorities on behalf of Australia will only be for obtaining data about people who are outside of Australia, and only if other “less intrusive” methods can’t be used. This means that Australian security agencies can’t ask a foreign country to monitor someone in Australia an an attempt to circumvent other restrictions
  • Ensuring foreign governments won’t “intentionally” target Australians through direct surveillance or surveillance of a third party
  • Implementing a criteria that would ensure that any country seeking an agreement with Australia must have a respect for rule of law, international human rights obligations, and has a clear electronic surveillance investigatory legal framework. Additionally, an agreement can only be signed if the government has assured Australia that Australian-sourced information will not be used as part of any death penalty proceedings
  • Giving more money to the Commonwealth ombudsman and the inspector-general of intelligence and security for oversight measures. Last week’s federal budget announced an additional $9.6 million earmarked for the ombudsman to support such a scheme.

While releasing the document, PJCIS chair Senator James Paterson extolled how this bill, once amended with suggested changes, will give law enforcement agencies just enough power to crack down on international crime without going too far.

“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,” he said in a statement published alongside the report.

Update: this article originally said that the report did not address a loophole raised during hearings that the legislation could be used to surveil journalists without using Journalist Information Warrant. This loophole was addressed in a separate PJCIS report recommending the expansion of a Public Interest Advocate to include this legislation as well. As such, the section of this article has been removed.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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