By Paul Gregoire* of Sydney Criminal Lawyers
It’s three months into the new year and Home Affairs Minister Peter Dutton has come out swinging with a new rights-eroding piece of legislation that’s destined to increase the reach of all law enforcement and spying agencies under the home affairs umbrella at the expense of our withering rights.
The Telecommunications Legislation Amendment (International Production Orders) Bill 2020 (Cth) is all about prying opening the data of Australians stored overseas, while enabling foreign agencies to directly obtain access to data stored over here.
While the bill is Dutton’s Frankenstein, it was Minister for Population, Cities and Urban Infrastructure Alan Tudge who delivered the monster into parliament.
Tudge (photo) explained that the legislation is about allowing law enforcement and intelligence prompt access to “messages between violent extremists plotting terrorist attacks, drug syndicates planning major imports to child exploitation material shared on online”.
The new framework sets up three types of international production orders, which allow agents to directly require foreign designated communication providers to hand over metadata or stored communications, along with another type of order that actually provides for direct wiretapping.
And while the legislation is basically formalising a lot of practices that are already going on behind closed doors, the ever-increasing enhancement of these mechanisms is a little creepy to say the least.
Control’s unquenchable thirst
“There should be no new intrusions into the privacy of Australians until there’s a total review of privacy and terrorism laws in Australia,” Civil Liberties Australia (CLA) CEO Bill Rowlings told Sydney Criminal Lawyers.
“We’ve had nearly 20 years of draconian laws – many totally over the top – and most absolutely slashing personal privacy,” he continued. “Without a federal charter of rights, there has been nothing protecting the basic rights of individual Australians.”
The freedoms advocate described Dutton’s current endeavour as “putting bubble glass laws” over a pre-existing practice that’s been less than transparent. And he noted that Australia being a part of the Five Eyes alliance means information has been thrown back and forth over borders for decades.
“These proposed laws will make it worse. Dutton and the henchmen have all the laws they need already. This is overkill,” Rowlings made clear. And he added that as trust in government has bottomed out, it should make an effort to regain some prior to enacting “more intrusive laws”.
The guts of the bill
The International Production Orders (IPO) Bill establishes a framework of international orders that will be inserted into the Telecommunications (Interception and Access) Act 1979 (Cth). This will allow for multinational data access agreements to be forged, similar to the 2019 US-UK agreement.
An IPO relating to interception – a telephone-tapping or wiretapping order – can relate to a carriage service or a messaging app. It can be authorised by an Administrative Appeals Tribunal (AAT) Security Division member and is directed towards a “designated communications provider”.
Designated communications providers can be carriers, carriage service providers, message or call application service providers, storage/back-up service providers or general electronic content service providers.
An IPO wiretapping order can only be issued for investigations involving an offence punishable by at least seven years imprisonment. And it can involve the monitoring of “B-Party” communications if it can be shown that the target uses the other party’s communication services.
Then there’s an IPO relating to stored communications, which involves emails or messages stored on apps. And the third order is an IPO relating to telecommunications data, which is metadata, such as the time and date of calls, their duration and the parties they’re made to.
These two types of IPO can again be accessed via the AAT Security Division. They’re made directly to designated communications providers. And both these orders can be made in relation to investigations of crimes with a maximum penalty of three years or more.
The new legislation also establishes an Australian Designated Authority that will be charged with making sure that IPOs are in compliance with a designated international agreement that allows for them to be issued.
And the bill also makes alterations to various pre-existing legislation to ensure that local communications providers are “not prevented from responding to incoming orders and requests for electronic information and communications data from foreign countries”.
The all-pervasive watch
The agreements that are to be established in accordance with this framework are mostly likely to be between Australia and the other Five Eyes nations: the United States, the United Kingdom, Canada and New Zealand. And an initial agreement with the US has already been proposed.
The Five Eyes alliance grew out of the signals sharing arrangements between the US and UK during the Second World War, which were formalised under the 1946 UK-USA Agreement. And these days the secretive alliance is also gathering and sharing defence, human and geospatial intelligence.
“Five Eyes spook agencies have been spying on behalf of each other for the past two decades,” Mr Rowlings remarked, on being questioned as to whether IPOs could lead to foreign agencies spying on Australians on occasions when the local government isn’t permitted to do so.
As an example, Rowlings suggested that when US legislation forbids tapping of its citizens’ phones, it’s likely that UK or Canadian spies have carried out such operations instead. While he asserts that “US spooks can spy in Australia or overseas on Australians – and have been doing so for years”.
‘Waved through’ parliament by two parties in collusion
The International Protection Orders Bill has been sent to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) for review. And like all legislation of this nature, it’s likely to be waved through parliament with bipartisan approval.
Since 9/11, there’s been around 80 pieces of national security legislation passed by successive federal governments, that have impinged on the rights of all citizens while ostensibly being aimed at countering terrorism.
“Let’s face it,” Mr Rowlings continued. “The Australian government wants limitless powers to pry and prod and poke into the affairs of ordinary Australians.” And he said that ultimately, the authorities want to be doing it in real time.
To support his claim, he pointed to the fact that today intelligence agents can secretly raid citizens’ homes, bug their computers, detain people without notifying anyone for more than a week, and soon all ID photos will be added to a central database. And this wasn’t the case 20 years ago.
“Phone privacy? Forget it,” Rowlings concluded. “You may as well use a loudspeaker in a city square to communicate, because ’The Community’ can know everything you say and do.”
* Paul Gregoire a journalist and writer who focuses on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Before writing for Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub. This article appeared first on the SCL website – http://tinyurl.com/u2ha74o – and is carried here with permission. 200316