On June 24, 2021, Australian parliament passed legislation establishing a framework for its enforcement agencies to access certain electronic data held by companies outside of Australia for law enforcement and national security purposes.  The law paves the way for the establishment of a bilateral agreement with the United States under the U.S. Clarifying Lawful Overseas Use of Data (CLOUD) Act.

Similar to the function of the CLOUD Act, the Telecommunications Legislation Amendment (International Production Orders) Bill 2020 enables Australian enforcement authorities to compel companies covered by the statute to provide data, regardless of where the data is stored.  The legislation introduces international production orders, a form of legal process for compelling real-time interception of communications or the production of stored communications and telecommunications data, which can be served directly on communications providers in foreign countries with which Australia has an agreement.

In an Explanatory Memorandum, the Australian government explained that it seeks to negotiate agreements with “like-minded foreign governments” for reciprocal access to communications data.  Without these agreements in place, Australia has relied on mutual legal assistance treaties (“MLATs”) to access data in overseas jurisdictions, particularly the United States.

The CLOUD Act provides an alternative to the MLAT process and facilitates cross-border data requests by allowing the United States to enter into agreements with foreign governments that remove legal restrictions that may otherwise prohibit communications service providers from complying with a foreign government’s order.

The United States signed the first bilateral agreement under the CLOUD Act with the United Kingdom in October 2019.  Since that time, the United States and Australia have been negotiating a bilateral agreement under the CLOUD Act.  The recently passed legislation provides a framework for Australia to give effect to such an agreement.