The Attorney General was requested by the Australian Senate COVID-19 Selected Committee to produce the documentation relating to the legal advice received in the COVIDSafe bill – the Privacy change (public health contact information) Bill 2020 – in relation to the United States Law on Clarification of Legal Use of Data Abroad (CLOUD Law).
Amazon Web Services (AWS) has received the data storage contract for Australia COVID-19 contact tracking application in April. With AWS headquarters in the United States, concerns about data security have been raised, with fears that data could be accessed by US police.
Since May, the commission has sought access to legal advice provided to the Attorney General’s Office on the subject. So far, the committee is not convinced that the department’s claims of public interest immunity are sufficient to exempt it from producing such documentation.
The committee sought AGD’s assurance that the data collected by COVIDSafe could not be accessed by a US law enforcement agency under the provisions of the CLOUD Act.
Although AGD confirmed that it received legal advice on the interaction of the two laws, it did not discuss the content of that advice based on legal professional privilege. The committee then received a letter from the AGD, still refusing to provide the information.
In reply, the committee said it emphasized the importance of receiving the information.
“The legal opinion is significant evidence for the committee’s investigation,” he wrote [PDF].
“Serious concerns have been raised by the technology industry and peak legal bodies regarding the security of COVIDSafe data, which require analysis.”
The committee said the provision of legal advice would allow it to independently assess whether the CLOUD Act could allow US authorities to compel AWS to hand over COVIDSafe data under a warrant.
As a result, the committee requested the AGD, no later than 12 noon on March 17, 2021, to produce an unedited copy of the legal opinion the department received on the interaction of the Privacy Amendment (Public Health Contact Information) United States CLOUD Act.
“If the Attorney General does not provide the unwritten document, the Senate requires the Minister representing the Attorney General to appear in the Senate at the conclusion of Question Time on March 17, 2021 to provide an explanation, not exceeding 10 minutes , the minister’s failure to provide the document, “he wrote.
THE Second interim report: public interest immunity claims The document detailed other public interest immunity claims received during the course of its COVID-19 hearings.
This consisted of two demands made on behalf of the Minister of Health by Senator Michaelia Cash, then Minister who represented the Minister of Health in the Senate; two complaints made on behalf of the treasurer, one by ex-senator Mathias Cormann and one by senator Simon Birmingham; a complaint made by Senator Richard Colbeck, then Australian and Elderly Minister for the Elderly; and a complaint made by the Minister of Family and Social Services Anne Ruston.
“The committee decided not to accept these claims based on the grounds provided,” he wrote.
“Together, these demands have compromised the committee’s ability to examine government decisions that have a profound impact on Australians’ lives.”
He said he was concerned about the claims reflecting a pattern of conduct in which the government “intentionally obstructed access to information that is crucial to the committee’s inquiry”.
“The committee believes that the government’s repeated misuse of public interest immunity claims as a basis for withholding important information from the committee is, at best, lazy and, at worst, a deliberate abuse of the public interest immunity process. Such an approach weakens the Senate and cannot be abandoned to remain unchallenged “, states the report.
“If we don’t defend the Senate’s powers and reject this government’s secret agenda designed simply to protect the executive, the Senate will become a toothless tiger that only feeds on the information the government wants to feed it. This is not how our system should operate. “