Image source: CeBIT Australia

It took less than 72 hours for the politicians to crumble: after Laurie Oakes sounded reveille for a media onslaught on the government’s mass surveillance laws on Saturday — following a week of inept government efforts to calm the industry down — by Monday lunchtime first Labor, then the Coalition had buckled on the issue of protecting journalists.

Inflict mass surveillance on ordinary citizens easy as you please, but whatever you do, don’t upset the media.

The specific protection now being drafted will be along the lines of the model the British are now drafting, which Crikey revealed a month ago (though the UK model will wait until after the general election in May to be legislated). That is, if an agency wants to access a journalists’ metadata for the purposes of identifying the source for a story, it will need to obtain a warrant from a judicial officer, rather than simply going and getting it on their own say-so from communications companies.

It’s not much protection — judges will issue warrants to police claiming various laws have been broken by a public servant leaking a story — but it establishes a mechanism for external oversight of what is widely acknowledged, except by security state delusionals, as having a chilling effect on journalism. And if media companies are able to contest the issuing of warrants, that will provide for a stronger protection — if only because they themselves will be able to reveal that the government is trying to go after them.

The peculiar thing is, it wasn’t the media that suggested this protection. No media company proposed the UK model during the course of the Joint Committee on Intelligence and Security’s inquiry. The source for the idea was Labor’s Anthony Byrne, deputy chair of the committee, who chaired the previous JCIS inquiry into data retention (among other matters) and who has kept a close eye on overseas developments. He was the one who spotted what the Brits were doing to protect journalists’ sources and pushed for Labor to adopt the model. Byrne had also pushed for a similar external oversight model for the notorious “special intelligence operations” measures passed last year, which could jail journalists who even accidentally reveal certain intelligence operations, though he only got JCIS as far as the Attorney-General authorising them.

Labor was unsuccessful in getting the Liberal JCIS members — who include dogged anti-civil liberties advocates like Philip Ruddock and Andrew Nikolic — to agree to Byrne’s proposal, but struck a deal for a separate inquiry into the matter, until the media belatedly jacked up last week. Suddenly the Byrne proposal was Labor’s lifeline to preserving its standing with the media despite rolling over on data retention. Faced with an alliance between Labor and all the major media players, the government decided yesterday to abandon the field rather than fight. The wedgers had been wedged — though not by any effort on the part of Labor.

That had the collateral damage of humiliating the Attorney-General, who wasn’t privy to what was happening with his own legislation. Fairfax reported that it was Malcolm Turnbull who brokered the new deal with Labor on the warrant amendment, not Brandis. Instead, Brandis stood up in question time in response to a question from Greens Senator Scott Ludlam, inflated to his standard level of bloviation and dismissed the idea of journalists needing protection, telling Ludlam that the data retention laws “apply to all citizens and they ought to apply equally”. By that stage, Abbott had already written to Shorten agreeing to change Brandis’ own bill.

One factor that might also have weighed on Labor’s thinking is that, despite claims to the contrary, the government isn’t implementing the recommendations of JCIS on the issue of journalists’ sources. In the course of the debate on data retention, Brandis has routinely misrepresented, evaded and stumbled over basic facts, and he continued that when he claimed that the government “will support all of the committee’s recommendations”.

In fact, the amendments will not implement the committee’s recommendation. Under the model recommended by JCIS, any time agencies seek to access journalists’ metadata to identify their sources, they would have to report that to either the Commonwealth Ombudsman or, for security agencies, the Inspector-General of Intelligence and Security. And both of those bodies would in turn be required to immediately report the effort to hunt down sources to JCIS. That is, the committee itself would know, in real time, if agencies were going after journalists’ sources, and be able to interrogate agencies on the matter using changes it recommended elsewhere in the report on its oversight of the broader scheme.

That’s not what Brandis says he is legislating, however. Brandis’ detailed response to the recommendation 27 proposes that agencies will only have to tell the Ombudsman or IGIS that they’ve gone after a journalist and their source “as appropriate at the next relevant inspection”. And when they’re told of it, the Ombudsman and IGIS won’t report it to the committee, but to the Attorney-General, who will only tell JCIS once a year about the number of times journalists have been targeted.

The result: no more JCIS oversight of the targeting of journalists. Brandis — at the behest of security agencies and AGD, who viscerally hate the idea of additional scrutiny — has tried to pull a fast one. We’ll see today if his bill reflects that, or whether he’ll do what he says he’s doing, which is implementing the recommendations of the committee.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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