Regulation Impact Statement – Department of Home Affairs
On 15 December 2021, the Minister for Home Affairs, the Hon Karen Andrews MP, and the United States Attorney General, Merrick Garland, signed an agreement between Australia and the United States that will enable law enforcement agencies to more efficiently access electronic data for investigations of serious crimes.
Nearly every crime and threat to national security has an online element and requires the collection of electronic data. Often this electronic data is held by communications service providers with global operations and across various jurisdictions. Accessing this data is of increasingly high value to Australian law enforcement and national security agencies. However, due to difficulties associated with accessing data stored offshore by communications service providers, it is often challenging to effectively investigate and prosecute crimes in Australia.
The preferred policy option is a cross-border access to data agreement which would facilitate the timely, and lawful exchange of electronic data between Australia and the United States. The AUS-US Clarifying Lawful Overseas Use of Data (CLOUD) Act Agreement will significantly reduce the delays associated with obtaining information relevant to ongoing investigations. The agreement will also advance public safety and security, and ensure the ongoing protection of privacy rights by resolving potential conflict of law issues between Australia and the United States (e.g. blocking statutes). The AUS-US CLOUD Act Agreement will significantly enhance the ability of Australian law enforcement and national security agencies to prevent, detect, investigate and prosecute all manner of serious crime.
The Department of Home Affairs prepared and certified a Regulation Impact Statement (RIS), which the Office of Best Practice Regulation (OBPR) assessed as good practice.
The RIS estimates the average annual regulatory costs to be negligible.