Australian Privacy Foundation labels CLOUD Act-readying Bill as 'deeply flawed'

The foundation also called the Telecommunications International Production Orders Bill a 'manifestation of a drip by drip erosion of privacy protection in the absence of a justiciable constitutionally-enshrined right to privacy in accord with international human rights frameworks'.

The Australian Privacy Foundation (APF) has labelled Australia's pending Telecommunications International Production Orders Bill as "deeply flawed", saying it sees no real need for the Bill to be put in place.

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"The Bill is deeply flawed. It conflates bureaucratic convenience with what is imperative," the foundation said.

"It obfuscates accountability through inadequate transparency, including reliance on the under-resourced Commonwealth Ombudsman.

"It enshrines an inappropriate level of discretion and weakens parliamentary oversight regarding interaction with governments that disrespect human rights.

"It is a manifestation of a drip by drip erosion of privacy protection in the absence of a justiciable constitutionally-enshrined right to privacy in accord with international human rights frameworks."

The remarks were made in the opening of APF's submission [PDF] to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) and its review of the Telecommunications Legislation Amendment (International Production Orders) Bill 2020.

The Bill is intended to amend the Telecommunications (Interception and Access) Act 1979 (TIA Act) to create a framework for Australian agencies to gain access to stored telecommunications data from foreign designated communication providers in countries that have an agreement with Australia, and vice versa, as well as remove the ability for nominated Administrative Appeals Tribunal members to issue certain warrants.

The Bill is a precondition for Australia to obtain a proposed bilateral agreement with the United States to implement the US Clarifying Lawful Overseas Use of Data Act (the CLOUD Act).

Read more: New Bill to prepare Australian law enforcement for the US CLOUD Act

The APF said there is an absence of demonstrated need for the Bill and that "a core concern for civil society is the absence of any substantive information justifying the need for amendment".

It said there was a lack of genuine community consultation, that had been further heightened by the COVID-19 outbreak, saying that a little over a month is not sufficient time to develop a Bill.

"There has been no demonstration that existing processes are tangibly affecting law enforcement," it wrote.

"Legal practitioners might be forgiven for thinking that the problem is one of inefficiency on the part of government agencies rather than a true need.

"It is incumbent on the government to do more than say 'we need it' and for the Minister for Home Affairs (like a character in Lord of the Rings) to say, 'I wants it'."

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Minister for Home Affairs Peter Dutton

Image: APH

Continuing its dislike for the Bill, the APF said the proposed legislation offers a framework for future abuse, pointing to the notion of Australia sharing data with "like-minded foreign governments" such as Saudia Arabia and China.

"Civil society might legitimately wonder about Australia's relationship with like-minded governments -- such as that of Saudi Arabia -- that have been distinguished by a systemic disregard of human rights while providing assurances of trustworthiness," APF said.

"The legislation will for example allow sharing of data with states such as the People's Republic of China (noted for its persecution of minorities such as the Uighurs and its current confinement without due process of several Australian citizens)."

Similarly, the APF noted that several nations, including the United States, still retain the death penalty, which it said was likely to continue to be a feature of respective legal regimes in the future.

"Given that law enforcement in other states is often not transparent, the foundation considers that the Australian government is unlikely to be able to verify compliance with what the Explanatory Memorandum characterises as 'restrictions or conditions' that are 'flexible as to the form, content, and nature'," APF explained.

"Importantly, given that the specifics of sharing will not be publicly available (and are likely to be inadequately supervised by the Commonwealth Ombudsman or other watchdogs) the Australian community will not be able to determine whether the assurance is being subverted by the foreign government or the minister."

The foundation said the proposed legislation disregards concerns regarding proportionality in favour of bureaucratic convenience.

It also took the opportunity to note the "salience of truly independent, appropriately resourced and vigorous" non-Commonwealth Public Interest Monitors in all Australian jurisdictions.

The APF also takes issue with the reliance on the Administrative Appeals Tribunal (AAT).

"The Bill seeks to enshrine authorisation by a member of the Administrative Appeals Tribunal rather than by a court. Reliance on the AAT is inappropriate and of deep concern, particularly given community perceptions that the Tribunal is being influenced through appointments that reflect political affiliation. It is symptomatic of ongoing weakening of privacy protection," it said.

"The Bill should be reconsidered."

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