Ombudsman seeks more funds for CLOUD Act role


Denham Sadler
Senior Reporter

The Commonwealth Ombudsman has asked for more funding to properly scrutinise the proposed new data-sharing deal with the US, which would give “significant new powers to covertly intrude on individuals’ privacy”.

The Telecommunications Legislation Amendment (International Production Orders) Bill 2020 lays the legislative groundwork for Australia to enter into an agreement with the US under the CLOUD Act.

This would facilitate expedited access to data held by an American company to Australian authorities without the need to go through US authorities, and vice versa. It would provide a quicker way of doing this than the existing mutual assistance notice system.

The legislation was introduced to Parliament early last month and quickly referred to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) for inquiry.

Ombudsmam: CLOUD Act oversight adds to workload

Under the new scheme, the Commonwealth Ombudsman will be responsible for ensuring the international production orders are being used legally by law enforcement and government agencies.

In a submission to the committee, the Commonwealth Ombudsman said that six Commonwealth agencies and 15 state and territory agencies would be able to gain access to data through the new scheme, leading to up to 65 new inspections for the Ombudsman each year.

To properly execute its duties, the office will have to be provided with additional funding, Commonwealth Ombudsman Michael Manthorpe said in the submission.

“I anticipate that not only will the number of inspections my Office is required to perform increase, but so too will the volume of electronic information accessed by Australian law enforcement agencies which my staff will need to assess,” Mr Manthorpe said.

“While I am broadly comfortable with the oversight role the Bill provides my Office, if the Bill is passed without appropriate funding, my Office will not be able to undertake the activities necessary to assure the Parliament these new powers are being used appropriately.”

The Ombudsman is currently engaged with the federal government over the funding issue, although the budgetary process has now been pushed back due to the ongoing COVID-19 pandemic.

“I am of course mindful that the current coronavirus pandemic has placed Australia’s economy under significant strain. However, it remains important to ensure that, where agencies are given significant new powers to covertly intrude on individuals’ privacy, appropriate oversight is provided for, both in law and in practice,” Mr Manthorpe said.

The Ombudsman’s submission is only the third to be made public so far. In its submission, the Australian Privacy Foundation labelled the legislation “deeply flawed” and providing a “framework for future abuse”. The organisation said such a data-sharing deal with the US would “erode privacy and civil liberty protections”.

In another submission, the Australian Commissioner for Law Enforcement Integrity said the new powers would help it to combat political corruption and assist it in accessing data held by the likes of Facebook, Hotmail, WhatsApp and Google.

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