The government has been forced to agree to the appointment of a list of security-cleared lawyers to argue the public interest case before judges or the attorney general as part of any decision to allow a government agency access to journalists’ metadata.
The changes have secured the passage of the metadata laws with Labor’s support and the cancellation of a parliamentary inquiry scheduled for Friday, at which media executives were preparing to rail against the implications of the laws for journalists.
The new public interest advocates - to be appointed by the prime minister - would be able to make submissions to judges of the Administrative Appeals Tribunal, who will consider applications for metadata warrants relating to journalists’ sources from law enforcement agencies, and to the attorney general, who will consider applications from security agencies.
The amendments also change the starting point presumption when the judge or the attorney general weighs the issuing of the warrant for “professional journalists”.
Agencies must prove that the public interest in issuing the warrant outweighs the public interest in protecting the identity of the journalist’s source, having regard to the importance of personal privacy; whether the agency has made reasonable attempts to obtain the information sought by other means; whether the matter being investigated is serious; and any submissions made by the public interest advocate.
But the director-general of security will still be allowed to issue a warrant without prior approval of the attorney general if they were “satisfied that, security will be, or is likely to be, seriously prejudiced if the access to which the request relates does not begin before a journalist information warrant can be issued and made available by the minister.”
“This is a very important protection,” Turnbull said of the sweep of new amendments. “All of us understand the work that journalists do in our democracy is just as important as the work that we do as legislators or the work that public servants do … our democracy depends absolutely, fundamentally on a free press and journalists being able to do their work.”
But Turnbull also said the concern that the bill “might have a chilling effect on sources cooperating with journalists” was “misguided” because “in our submission, the bill does not grant law or security agencies any new powers in the way they access metadata of journalists or anyone else ... it simply ensures the type of data currently being retained is being retained for a specified period.”
The new laws, which require telecommunications companies to store all customers’ metadata for two years, has been presented by the government as critical for national security. The data is now routinely accessed by up to 80 different government agencies. The bill ensures it is kept and stored, amid concerns that companies were keeping it for shorter periods, but restricts the agencies that can access it to around 20 and includes some additional oversights.
The Greens spokesman, senator Scott Ludlam, said the last-minute amendments to protect journalists “did nothing to protect the 23m other Australians who will still be exposed to out of control warrantless surveillance.”
“We are moving to entrench a system that says the surveillance of ordinary people should be indiscriminate … on the basis of a handshake deal between Bill Shorten and the prime minister in the dead of night.”
And Greens MP Adam Bandt unsuccessfully moved that consideration be delayed given that MPs had not even had time to read the amendments.
He said it was outrageous that, on an issue so serious, the government and the Labor opposition were effectively telling the parliament to “just trust us.” After skimming the amendments as the debate proceeded in the house, he said the amendments did not address concerns about where the data was kept, or the circumstances in which it would be destroyed.
Labor’s shadow attorney general Mark Dreyfus said the amended bill struck the right balance between privacy and the legitimate needs of law enforcers and Labor communications spokesman Jason Clare said many other amendments had been included to protect the data held - including that it be encrypted.
The treatment of journalists under the new regime emerged as an impediment to Labor’s support, as the government sought to have the new laws passed before parliament rose next week. Earlier in the week the government agreed that agencies would need a warrant to access metadata for the purpose of identifying a journalist’s source.
Independent senator Nick Xenophon said that the coalition and the Labor party were patting themselves on the back for legislation that effectively stabbed investigative journalism in the heart.
Media industry representatives argued the warrant application process should be “contestable” so journalists’ lawyers could argue their case for protecting confidential sources.
After two days of intensive negotiations lasting late into Wednesday night the Coalition’s leadership group agreed on Thursday morning to a compromise. Under that plan a list of security-cleared barristers would be created to argue the public interest case as a judge weighed that against national security interests in deciding whether to issue such a warrant.
The important new amendments to the bill as it relates to journalists are as follows:
“The prime minister shall declare, in writing, one or more persons to be Public Interest Advocates … A Public Interest Advocate may make submissions: (a) to the minister about matters relevant to: (i) a decision to issue, or refuse to issue, a journalist information warrant … or (ii) a decision about the conditions or restrictions (if any) that are to be specified in such a warrant”
And that anyone issuing a warrant against a journalist must take into account whether: “the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the identity of the source in connection with whom authorisations would be made under the authority of the warrant, having regard to: (i) the extent to which the privacy of any person or persons would be likely to be interfered with by the disclosure of information or documents under authorisations that are likely to be made under the authority of the warrant; and (ii) the gravity of the matter in relation to which the warrant is sought; and (iii) the extent to which that information or those documents would be likely to assist in relation to that matter; and (iv) whether reasonable attempts have been made to obtain the information or documents by other means; and (v) any submissions made by a Public Interest Advocate.
