The Telecommunications Legislation Amendment (International Production Orders) Bill 2020 has been sent off to the Australian Parliamentary Joint Committee on Intelligence and Security (PJCIS) for review following a request from Home Affairs Minister Peter Dutton.
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.
Under the proposed legislation, Australian and the United States could enter into a bilateral CLOUD Act agreement.
"Almost every serious crime and national security threat today has an online element. Not only is technology advancing at an exceptional rate; we are also witnessing an unprecedented surge in online platform development and use," Minister for Population, Cities and Urban Infrastructure Alan Tudge said last week.
The minister said gaining access to data held overseas was increasingly important to Australian authorities, and modern data storage and cloud computing meant data was often transient and hard to pin down and collect.
"Our agencies currently rely on mechanisms like mutual legal assistance agreements to seek critical evidence and information needed to combat serious crime. However, these mechanisms were designed in a very different time. They are cumbersome, resource intensive and no longer an effective means of obtaining electronic information in the modern digital age," Tudge said.
"This means that our law enforcement agencies struggle to secure access to valuable evidence in a timely and legally admissible form. It also means we face unacceptable delays to criminal justice outcomes."
Under the law, designated communication providers will include telcos, carriage service providers, messaging applications, video and voice call providers, as well providers of storage, web sites, forums, and social media platforms.
The Bill will create an Australian Designated Authority to review international production orders for compliance and to act as an intermediary between Australian authorities and designated communications providers, including giving international production orders to designated communications providers and, in some cases, receiving data back from designated communications providers pursuant to international production orders.
"Agencies will also not be permitted to retain this information where there is no longer a legitimate reason to do so, and will be required to destroy this information when it is no longer required for a permitted purpose," Tudge added.
"The legislation also gives a provider the ability to object to an international production order it has received if it believes the order does not comply with the international agreement. This is an important protection. The Australian Designated Authority will, under this legislation, have the power to respond to that objection by cancelling the order."
The Telecommunications Interception Access Act amendment seeks to 'enhance the process of exchanging information held by communications providers for the purpose of criminal investigations and prosecutions'.
The commissioner also reiterated the importance of limiting the retention period, introducing a warrant-based system, better defining terminology used in the legislation, and restricting who exactly has access to data.