By coincidence, on the day that The Guardian revealed that Australian journalists’ reports on asylum seeker issues had been referred to the Australian Federal Police so their sources could be pursued, the submission by the Attorney-General’s Department on data retention has been made public.

As Crikey has reported previously, the AFP is on the record as saying it obtains the metadata of journalists and politicians in order to try to identify sources for stories deemed inconvenient or embarrassing for the government. That is why data retention is a direct threat to whistleblowers, because it will dramatically increase the chances of the AFP identifying them through the communications data of journalists or politicians.

In its submission, the AGD cavalierly dismisses this possibility, saying “legitimate whistleblowers” will be protected by the Public Interest Disclosures Act 2013, which gives them immunity from prosecution. It’s an eccentric claim on the face of it — it assumes that the AFP would decide prior to any investigation whether a leak has been “legitimate whistleblowing”; to do otherwise would lead to information about a whistleblower being obtained by the AFP even if that information was not later used.

More particularly, “legitimate whistleblowing” is extraordinarily limited — it applies only to non-intelligence agency public servants who have met a series of highly restrictive criteria relating to internal disclosure. There’s no protection for corporate whistleblowers, no protection for intelligence whistleblowers, no protection for public service whistleblowers too frightened to draw attention by raising misconduct internally. It is highly unlikely that any of the stories referred to the AFP by the government amount, under the Act, to “legitimate whistleblowing” — despite their being manifestly in the public interest.

As Crikey has repeatedly argued, data retention is a direct threat to a free press. Far from successfully addressing this concern, the Attorney-General’s Department has merely confirmed it.

Peter Fray

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