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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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This bill seeks to provide the legislative framework for Australia to give
effect to future bilateral and multilateral agreements
for cross-border access
to electronic information and communications data
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Portfolio
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Home Affairs
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Introduced
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House of Representatives on 5 March 2020
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1.82 The bill seeks to provide the legislative framework for Australia to give effect to future bilateral and multilateral agreements for cross-border access to electronic information and communications data.[44] To do so, the bill seeks to introduce International Production Orders (IPOs), which may be issued by a judge or nominated Administrative Affairs Tribunal (AAT) member. Such orders would allow Commonwealth, state and territory law enforcement and national security agencies to acquire data held in a foreign country by a designated communications provider (outgoing orders), and to allow foreign governments to access private communications data held by a communications provider in Australia (incoming orders).[45]
1.83 Proposed new Schedule 1 to the Telecommunications (Interception and Access) Act 1979 (TIA Act) sets out the scheme, and proposes the introduction of three types of IPOs, relating to:
• interception of telecommunications;
• accessing stored communications (for example, stored messages, voice mails, video calls); and
• accessing telecommunications data (being information about the communication, other than information that is the contents or substance of the communication).
1.84 IPOs can be issued for three different purposes:
• to enforce a number of serious offences or offences punishable by imprisonment of at least seven years (for intercepted material) or three years (for stored communications and telecommunications data); [46]
• in connection with the monitoring of a person subject to a control order; [47] and
• in connection with the carrying out of the Australian Security and Intelligence Organisation’s (ASIO) functions. [48]
1.85 IPOs to enforce the criminal law or monitor a person subject to a control order can be issued by a judge (or in some cases a magistrate) or a nominated member of the AAT. IPOs that relate to the carrying out of ASIO’s functions can be issued by a nominated AAT Security Division member.
1.86 The committee notes that the framework the bill seeks to establish could significantly trespass on a person's rights and liberties and considers that the inclusion of such provisions should be sufficiently justified and that appropriate safeguards should be in place to ensure that a person's electronic information and communications data is only accessed in appropriate circumstances. The committee's view on the relevant safeguards contained in the bill is set out in the following paragraphs.
Issuing of IPOs by members of the AAT
1.87 Clause 15 of proposed Schedule 1 to the TIA Act provides that the Attorney‑General may nominate an AAT member for the purpose of issuing IPOs for the interception of data in relation to enforcing the criminal law and monitoring a control order. The nominated AAT member can be an AAT member of any level, although members and part-time senior members must also have been enrolled as a legal practitioner for at least five years.
1.88 Clause 16 of proposed Schedule 1 to the TIA Act provides that the Attorney‑General may nominate a judge or magistrate, or an AAT member of any level who has been enrolled as a legal practitioner for at least five years, as an issuing authority for the purpose of issuing IPOs for accessing stored communications or telecommunications data in relation to enforcing the criminal law and monitoring a control order.
1.89 Clause 17 of proposed Schedule 1 to the TIA Act provides that the Attorney‑General may nominate a member of the Security Division of the AAT for the purpose of issuing IPOs in connection with carrying out ASIO’s functions. The nominated AAT member can be an AAT member of the Security Division at any level, although members and part-time senior members of the Security Division must also have been enrolled as a legal practitioner for at least five years.
1.90 The committee has a long-standing scrutiny view that the power to issue warrants or orders relating to the use of intrusive powers should only be conferred on judicial officers. In this regard, the committee does not consider that consistency with existing provisions is, of itself, a sufficient justification for allowing warrants or orders relating to the use of intrusive powers to be issued by non-judicial officers.
1.91 In light of the extensive personal information that could be covertly accessed, the committee would expect a detailed justification to be given as to the appropriateness of conferring such powers on AAT members, particularly full‑time senior members without experience as a legal practitioner and part-time senior members and general members. In this instance, the explanatory memorandum provides no such justification.
1.92 The committee therefore requests the minister's advice regarding why it is necessary and appropriate to allow IPOs to be issued by members of the AAT.
1.93 Where Victorian and Queensland law enforcement agencies make an application for an IPO relating to interception, the public interest monitors (PIMs) that exist in those states can appear at hearings of IPO applications to test the content and sufficiency of the information relied on, can question any person giving information, and can make oral and written submissions as to the appropriateness of granting the application, which must be considered by the judge or AAT member when deciding whether to grant an IPO.
1.94 The statement of compatibility states:
Victorian and Queensland PIMs will add an additional layer of oversight to ensure the use of the IPO framework by agencies in their jurisdictions is appropriate and remains consistent with their use of the domestic warrants regime under the TIA Act.
For these reasons, the inclusion of provisions relevant to PIMs strengthens the existing protections in the Bill against arbitrary or unlawful interference with privacy in Victoria and Queensland. Moreover, while the current provisions relating to PIMs are relevant only to Victoria and Queensland, there is scope to accommodate similar oversight bodies in the framework, should they be established in other jurisdictions in the future.
1.95 While noting this information, from a scrutiny perspective, the committee considers that the bill should be amended to establish a national system so that public interest monitors may make submissions in relation to all IPO applications, regardless of whether they relate to interception or involve Victorian or Queensland law enforcement agencies. The committee considers that this would provide a significant safeguard to the issuing of all IPOs.
1.96 The committee requests the minister's advice as to whether the bill could be amended to include a national public interest monitor scheme so that public interest monitors may make submissions in relation to all IPO applications.
Consistency of safeguards
1.97 The committee notes that before issuing an IPO in relation to a person subject to a control order, the relevant decision maker must be satisfied that the IPO ‘would be likely to substantially assist’ with the relevant purpose for issuing the IPO.[49] However, in relation to the two other types of control orders, the decision maker merely has to determine that the IPO is ‘would be likely to assist’ with the relevant purpose.[50]
1.98 The committee requests the minister's advice as to whether the bill could be amended to require that, for all IPOs, the relevant decision maker must be satisfied that an IPO would be ‘likely to substantially assist’ with the relevant purpose for which the IPO is sought, rather than merely ‘likely to assist’.
1.99 Subclause 81(1) of proposed Schedule 1 to the TIA Act provides that, within 3 months after an IPO in relation to a control order is issued, the chief officer of the relevant agency must notify the Ombudsman that the order has been issued and give the Ombudsman a copy of the order.
1.100 The committee notes that the 3 month period for notification that a control order IPO has been issued is a considerable period of time. The committee considers that, noting the significant consequences that could flow from the issuing of an IPO, this period should be reduced to allow for more effective and responsive oversight by the Ombudsman.
1.101 Additionally, Part 10 of proposed Schedule 1 to the TIA Act provides the Ombudsman with the ability to inspect records of a relevant agency and the Australian Designated Authority to determine compliance with the Schedule.
1.102 Clause 144 provides the Ombudsman with the power to obtain information from an officer of a relevant agency or from a member of staff of the Attorney‑General's Department. The Ombudsman may obtain information where the Ombudsman has reasonable grounds to believe that the officer is able to give relevant information.
1.103 It is unclear to the committee why the Ombudsman cannot obtain information when they have reasonable grounds to suspect an officer is able to give information. The committee notes that Part 10 provides a significant safeguard regarding the issuing of IPOs and that this power would be strengthened if the Ombudsman were only required to suspect that the officer is able to give relevant information, rather than believe the officer is able to give relevant information.
1.104 The committee requests the minister’s advice regarding whether the 3 month period in subclause 81(1) of proposed Schedule 1 to the TIA Act could be reduced to provide the Ombudsman with more immediate oversight of the issuing of control order IPOs.
1.105 The committee also requests the minister's advice as to whether clause 144 of proposed Schedule 1 to the TIA Act could be amended to provide that the Ombudsman has the power to obtain relevant information from officers and members of staff if the Ombudsman has 'reasonable grounds to suspect' that the officer or member of staff is able to give the relevant information, rather than the higher threshold of 'reasonable grounds to believe'.
1.106 The bill provides that a wide variety of persons may make an application for an IPO relating to enforcement of the criminal law or relating to control orders on behalf of their agency, including any member of the Australian Federal Police, any member of the staff of the Crime Commission or any officer of a Police Force of a State.[52] Applications for an IPO relating to the carrying out of ASIO’s functions may be made by any ASIO employee authorised by the Director-General of Security.[53]
1.107 The committee has consistently drawn attention to legislation that allows the delegation of administrative powers to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, the committee prefers to see a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated. The committee's preference is that delegates be confined to the holders of nominated offices or to members of the Senior Executive Service. Where broad delegations are provided for, the committee considers that an explanation of why these are considered necessary should be included in the explanatory memorandum. In this instance, the explanatory memorandum provides no explanation for the broad delegation of power to make an application for an IPO.
1.108 The committee's scrutiny concerns in this instance are heightened by the significant nature of the powers and the potential trespass on a person's rights and liberties flowing from the issue of an international production order.
1.109 The committee requests the minister's advice regarding why it is necessary and appropriate to allow a broad range of persons to make an application for an international production order.
1.110 The committee also requests the minister's advice as to whether the bill could be amended to:
• limit the persons who can make an application for an international production order to only the heads of relevant agencies and members of the senior executive service (or equivalent); or
• at a minimum, require that the relevant agency head be satisfied that persons authorised to apply for an IPO have the relevant qualifications and expertise to do so.
1.111 As noted above, subclause 81(1) of proposed Schedule 1 to the TIA Act provides that, within 3 months after an IPO in relation to a control order is issued, the chief officer of the relevant agency must notify the Ombudsman that the order has been issued and give the Ombudsman a copy of the order. Additionally, subclause 81(2) provides that if the chief officer of a control order IPO agency contravenes paragraph 114(1)(d) of Schedule 1, the chief officer must notify the Ombudsman of the contravention as soon as practicable. Paragraph 114(d) provides that the chief officer of an agency must revoke an IPO issued under Part 2 or 3 if the chief officer is satisfied that the grounds on which the order was issued have ceased to exist.
1.112 Subclause 81(3) provides that a failure to comply with subclause 81(1) or 81(2) does not affect the validity of an IPO. A legislative provision that indicates that an act done or decision made in breach of a particular statutory requirement or other administrative law norm does not result in the invalidity of that act or decision, may be described as a 'no-invalidity' clause.
1.113 There are significant scrutiny concerns with no-invalidity clauses, as these clauses may limit the practical efficacy of judicial review to provide a remedy for legal errors. For example, as the conclusion that a decision is not invalid means that the decision-maker had the power (i.e. jurisdiction) to make it, review of the decision on the grounds of jurisdictional error is unlikely to be available. The result is that some of judicial review's standard remedies will not be available. Consequently, the committee expects a sound justification for the use of a no-invalidity clause to be provided in the explanatory memorandum. In this instance, the explanatory memorandum provides no explanation for this provision, merely restating the terms of the provision.[55]
1.114 The committee requests the minister's advice as to the rationale for including a no-invalidity clause in relation to requirements to notify the Ombudsman about the issuing of control order IPOs or where the chief officer of an agency has contravened paragraph 114(1)(d).
1.115 Proposed subclause 148(1) provides the Ombudsman may, by writing, delegate all or any of the Ombudsman’s powers under Part 10 of proposed Schedule 1 to the TIA Act, other than a power to report to the Minister, to an APS employee responsible to the Ombudsman or to a person having similar oversight functions to the Ombudsman under the law of a State or Territory or to an employee responsible to that person.
1.116 The committee has consistently drawn attention to legislation that allows the delegation of administrative powers to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, the committee prefers to see a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated. The committee's preference is that delegates be confined to the holders of nominated offices or to members of the Senior Executive Service. Where broad delegations are provided for, the committee considers that an explanation of why these are considered necessary should be included in the explanatory memorandum. In this instance the explanatory memorandum provides no explanation for this provision, merely restating the terms of the provision.[57]
1.117 The committee requests the minister's advice as to why it is necessary to allow most of the Ombudsman's powers and functions to be delegated to APS employees at any level.
1.118 The committee also requests the minister's advice as to whether the bill could be amended to:
• provide some legislative guidance as to the scope of powers that might be delegated, or the categories of people to whom those powers might be delegated; or
• at a minimum, require that the Ombudsman be satisfied that persons performing delegated functions and exercising delegated powers have the expertise appropriate to the function or power delegated.
1.119 Clause 149 provides that the Ombudsman, an inspecting officer, or a person acting under an inspecting officer's direction or authority, is not to be sued for, or in relation to, an act or omission done in good faith in the performance or exercise, or the purported performance or exercise, of a function or power conferred by Part 10. The clause therefore removes any common law right to bring an action to enforce legal rights, unless it can be demonstrated that lack of good faith is shown. The committee notes that in the context of judicial review, bad faith is said to imply a lack of an honest or genuine attempt to undertake the task and that it will involve personal attack on the honesty of the decision-maker. As such the courts have taken the position that bad faith can only be shown in very limited circumstances.
1.120 The committee expects that if a bill seeks to provide immunity from civil liability, particularly where such immunity could affect individual rights, this should be soundly justified. In this instance, the explanatory memorandum provides no explanation for this provision, merely restating the terms of the provision.[59]
1.121 The committee requests the minister's advice as to why it is necessary to provide the Ombudsman, an inspecting officer, or a person acting under an inspecting officer's direction or authority with immunity so that affected persons have their right to bring an action to enforce their legal rights limited to situations where lack of good faith is shown.
1.122 Proposed subclauses 161(1) and 161(2) provide that a provider or manager of a designated communications provider, may issue a signed written certificate setting out facts detailing acts or things done by the provider in order to comply with an IPO. Proposed subclause 161(3) permits a certificate issued under subclauses 161(1) and 161(2) to be received in evidence in a proceeding in Australia without further proof, and the certificate is to be conclusive evidence of the matters stated in the document in those proceedings.
1.123 In this instance, the explanatory memorandum states:
Taking the designated communications provider's evidentiary certificate as conclusive evidence of the matters stated in the document ensures that employees of the provider are not required to testify in each proceeding where evidence obtained under an IPO is adduced. Current practices within the TIA Act for domestic interception, access to stored communications and telecommunications data allow for evidentiary certificates. The use of evidentiary certificates for IPOs is of significant utility as requiring the appearance of employees of foreign designated communications providers to court proceedings held in Australia will be complex and, at times, impractical. This also recognises the novel fact that whilst it will be easier to obtain information by virtue of the new order framework, Australian prosecutorial and law enforcement bodies will not be able to compel foreign provider employees to attend court to give evidence.[61]
1.124 The Guide to Framing Commonwealth Offences states, in relation to conclusive evidentiary certificates, that requiring courts to exclude evidence to the contrary in this way can destroy any reasonable chance to place the complete facts before the court.[62] As a result the committee will have significant scrutiny concerns regarding the use of such certificates. Additionally, the committee notes that, as the relevant employees will be located outside of Australia, it will be difficult for a defendant to confirm that the relevant information provided in the certificate is accurate.
1.125 The committee therefore requests the minister’s advice regarding whether the bill can be amended to provide that an evidentiary certificate made under clause 161 will be prima facie evidence rather than conclusive evidence of the matters stated in the certificate.
1.126 Clause 168 provides that if there is a designated international agreement between Australia and one or more foreign countries and the agreement deals with the issue of orders or the making of requests by a competent authority of the foreign country then a number of statutory provisions will not apply to the issue or making of the order or request or an act or thing done in compliance with such an order or request. The excluded provisions include:
• subsections 7(1) and 108(1) of the TIA Act, which relate to the prohibition on interception of telecommunications and access to stored communications;
• subsections 63(1) and 133(1) of the TIA Act, which relate to the prohibition on dealing with intercepted information and interception warrant information, and accessed information; and
• sections 276, 277 and 278 of the Telecommunications Act 1997, which deal with the prohibition on, and offences relating to, the disclosure or use of certain information by current or former eligible persons, eligible number-database persons or emergency call persons.
1.127 Clause 169 provides that for the purposes of the Privacy Act 1988 (Privacy Act), if there is a designated international agreement between Australia and one or more foreign countries and the agreement deals with the issue of orders or the making of requests by a competent authority of the foreign country, any disclosure of information in compliance with any such order or request will be taken to be a disclosure that is authorised under the Privacy Act.
1.128 The committee has significant scrutiny concerns regarding the broad ability for foreign governments to access information held in Australia in circumstances where many of the legislative protections surrounding the accessing of data are removed. Where a provision has the potential to significantly trespass on personal rights and liberties, the committee expects that a sufficient justification for the inclusion of these provisions is included in the explanatory memorandum. In this instance, the explanatory memorandum merely repeats the operation of the provisions. In relation to the removal of the operation of the provisions of the Privacy Act, the explanatory memorandum states that:
In practice, it is expected that consideration of protections and safeguards related to privacy will also be a consideration when developing international agreements.[64]
1.129 The committee does not consider that the information provided constitutes a sufficient justification for provisions that would have the potential to trespass on personal rights and liberties. While noting the statement that privacy will be considered when developing international agreements, there is nothing on the face of the bill that requires this. The committee also notes there is no guidance on the face of the bill as to how the issue of orders or making of requests will occur or what will constitute a competent authority. The committee considers that, as currently drafted, there are no safeguards on the face of the bill to ensure that information requested by foreign governments is only accessed in appropriate circumstances. The committee therefore considers that the provisions as currently drafted have the potential to significantly trespass on a person’s rights and liberties.
1.130 The committee's concerns are heightened by the lack of parliamentary oversight of any relevant international agreement. Clause 3 merely provides that the name of the relevant designated international agreement must be specified in the regulations. Given the significant nature of the power and the potential trespass on a person's rights and liberties, the committee considers that, at a minimum, the bill should be amended to require that designated international agreements be subject to parliamentary scrutiny.
1.131 Based on the above, the committee therefore considers that the provisions as currently drafted have the potential to significantly trespass on a person’s rights and liberties, particularly in circumstances where access to information held in Australia may be given to foreign jurisdictions whose governance structures are not underpinned by respect for the rule of law and the separation of powers.
1.132 The committee requests the minister's more detailed advice regarding why it is considered necessary and appropriate to allow information held in Australia to be accessed by foreign governments in circumstances where existing legislative protections for the accessing of information have been removed and no safeguards are provided on the face of the bill to ensure a designated international agreement contains sufficient safeguards regarding the circumstances in which information can be accessed.
1.133 The committee also requests the minister's advice as to whether the bill can be amended to:
• set out minimum protections and safeguards related to privacy that must be included in designated international agreements;
• specify that designated international agreements must be tabled in the Parliament; and
• provide that any regulation that specifies the name of a designated international agreement does not commence until after the Parliament has had the opportunity to scrutinise the designated international agreement.
[43] Proposed Schedule 1 to the Telecommunications (Interception and Access) Act 1979. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).
[44] Explanatory memorandum, p. 1.
[45] Statement of compatibility, paras [3] and [8].
[46] See Schedule 1, item 43, proposed Schedule 1, Part 2.
[47] See Schedule 1, item 43, proposed Schedule 1, Part 3.
[48] See Schedule 1, item 43, proposed Schedule 1, Part 4.
[49] Schedule 1, item 43, proposed paragraphs 60(2)(i), 60(2)(j), 69(2)(e) and 78(2)(e).
[50] Schedule 1, item 43, proposed paragraphs 30(2)(g), 30(2)(h), 39(2)(d), 48(2)(d), 89(2)(g), 89(2)(h) and 98(2)(e).
[51] Schedule 1, item 43, clause 22. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii).
[52] Schedule 1, item 43, subclauses 22(3), 33(3), 52(3) and 63(3).
[53] Schedule 1, item 43, subclauses 83(3), 92(3) and 101(3).
[54] Schedule 1, item 43, clause 81. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a) (i) and (iii).
[55] Explanatory memorandum, paragraph [274].
[56] Schedule 1, clause 148. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii).
[57] Explanatory memorandum, paragraph [488].
[58] Schedule 1, clause 149. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).
[59] Explanatory memorandum, paragraph [490].
[60] Schedule 1, item 43, clause 161. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).
[61] Explanatory memorandum, paragraph 540.
[62] Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 55.
[63] Schedule 1, item 43, clauses 168 and 169. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i), (iv) and (v).
[64] Explanatory memorandum, paragraph [559].
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