Singapore Digital Economy Agreement implemented without parliamentary debate but Greens dissent

December 9, 2020: The Report 192 of the Joint Standing Committee on Treaties (JSCOT) Inquiry on the Australia-Singapore Digital Economy Agreement was quietly tabled in Parliament on the night of Tuesday December 8. The government has a majority on the Committee.

AFTINET’s submission to the inquiry is here. The agreement is an amendment to the existing Singapore-Australia Free Trade Agreement (SAFTA) and will not require any implementing legislation, so was not debated in Parliament.

The agreement was negotiated behind closed doors in record time between October 2019 and March 2020. The government claims it “breaks new ground” and goes further than the CPTPP and other agreements on deregulating cross-border data flows, preventing requirements for local storage of data or local presence and preventing access to source code by government regulators.

The agreement will be used as a model for other agreements, and should have the highest level of parliamentary scrutiny.. But instead the committee only heard evidence from DFAT and the Agreement came into force when the Committee report was tabled.

AFTINET’s submission noted that the ACCC report on digital platforms and a Human Rights Commission report expressed concern about:

The ACCC and Human Rights Commission have recommended more, not less, regulation of big tech companies and the digital domain to address these issues.AFTINET’s submission questioned the deregulatory provisions of the agreement in this context.

The Committee majority report recommends ratification of the agreement. It acknowledges these concerns but claims that the exceptions in the agreement for privacy and public interest regulation will enable governments to regulate in the public interest, claiming that Australian privacy law and other public interest regulation will apply to data stored overseas and to companies without a local presence in Australia. The report reflects concerns about the regulation of Artificial Intelligence and facial recognition technology by requesting an update by the end of 2021 on progress towards establishing an ethical governance framework for the use of AI technologies which is foreshadowed in the agreement.

The Greens’ dissenting report raises issues from the AFTINET and other submissions. These question the adequacy of the exceptions for public interest regulation and point out that the privacy standards in the Agreement differ from EU’s General Data Protection Regulation (GDPR). The agreement commits Australia to a model of lower privacy standards, which could jeopardise Australia’s position in our trading negotiations with the EU. They also criticise the restrictions on regulation of source code and algorithms, particularly in the context of COVID-19 where the public scrutiny of source code and algorithms used in the COVIDSafe App were crucial to ensuring appropriateness and transparency of a government-issued application of significant public importance.

The agreement was implemented as an amendment to the text of the SAFTA on December 8..