Attorney-General urged to produce facts on US law enforcement access to COVIDSafe

In its second interim report, Australia's COVID-19 committee argues misuse of public interest immunity claims from agencies, including by the Attorney-General's Department which it has accused of failing to confirm whether a US law enforcement agency was barred from accessing data collected by COVIDSafe.
Written by Asha Barbaschow, Contributor

The Attorney-General has been asked by Australia's COVID-19 Senate Select Committee to produce documentation pertaining to legal advice received on the COVIDSafe app's Bill -- the Privacy Amendment (Public Health Contact Information) Bill 2020 -- in relation to the United States Clarifying Lawful Overseas Use of Data Act (CLOUD Act).

Amazon Web Services (AWS) was handed the data storage contract for Australia's COVID-19 contact tracing app in April. With AWS headquartered in the United States, concerns over the security of the data had been raised, with fears the data could be accessed by US law enforcement.

The committee has, since May, been seeking access to the legal advice provided to the Attorney-General's Department (AGD) on the matter. So far, the committee has not been convinced that the public interest immunity claims made by the department were sufficient to exempt it from producing such documentation.

The committee sought the AGD's assurance that the data collected by COVIDSafe could not be accessed by a US law enforcement agency under the provisions of the CLOUD Act.

See also: New Bill to prepare Australian law enforcement for the US CLOUD Act

While AGD confirmed it had received legal advice on the interaction of the two laws, it would not discuss the content of that advice on the basis of legal professional privilege. The committee then received a letter from AGD, further refusing to provide the information.

In a rebuttal, the committee has said it emphasised the importance of receiving the information.

"The legal advice is significant evidence to the committee's inquiry," it wrote [PDF].

"Serious concerns have been raised by the technology industry and peak legal bodies in relation to the safety of COVIDSafe data, which require scrutiny."

The committee said the provision of the legal advice would permit it to independently assess whether the CLOUD Act could allow US authorities to compel AWS to hand over COVIDSafe data under a warrant.

As a result, the committee has asked AGD, no later than 12:00pm on 17 March 2021, to produce an unredacted copy of the legal advice that the department received regarding the interaction of the Privacy Amendment (Public Health Contact Information) Bill with the United States' CLOUD Act.

"In the event that the Attorney-General fails to provide the unredacted document, the Senate requires that the Minister representing the Attorney-General attend the Senate at the conclusion of question time on 17 March 2021 to provide an explanation, of no more than 10 minutes, of the Minister's failure to provide the document," it wrote.

The Second interim report: Public interest immunity claims document detailed further claims of public interest immunity received during the course of its COVID-19 hearings.

This comprised of two claims made on behalf of the Minister for Health by Senator Michaelia Cash, then-Minister who represented the Minister for Health in the Senate; two claims made on behalf of the treasurer, one by former Senator Mathias Cormann and one by Senator Simon Birmingham; a claim made by Senator Richard Colbeck, then-Minister for Aged Care and Senior Australians; and a claim made by Minister for Families and Social Services Anne Ruston.

"The committee has resolved not to accept these claims on the grounds provided," it wrote.

"Taken together, these claims have compromised the committee's ability to scrutinise government decisions with a profound impact on lives of Australians."

It said it was concerned the claims reflect a pattern of conduct in which the government has "wilfully obstructed access to information that is crucial for the committee's inquiry".

"The committee believes the government's repeated misuse of public interest immunity claims as a basis for withholding key information from the committee is at best lazy and at worst a deliberate abuse of the public interest immunity process. Such an approach undermines the Senate and cannot be left to go on unchallenged," the report states.

"If we do not stand up for the Senate's powers and reject this government's secretive agenda designed simply to protect the executive, then the Senate will become a toothless tiger that gets spoon fed only the information that the government wants to feed it. That is not how our system is meant to operate."


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