As Crikey approached deadline this morning, amendments to the data retention legislation to require law enforcement agencies to seek a warrant before accessing the metadata of a journalist have yet to be released to the public.

This is despite the bill having been debated in Parliament this morning. And it leaves those trying to understand the bill reliant on interviews and public statements as they try to understand the scope of the amendments, with no concrete legal terminology to go on.

But if public comments by Attorney-General George Brandis to the ABC yesterday are a reliable indicator, the data retention provisions will not protect “bloggers”.

“I wouldn’t regard bloggers as journalists,” Brandis told ABC radio. “A journalist is for the purposes of this law a person engaged in the profession of journalism.”

Brandis’ comments suggest the bill will contain a more narrowly defined understanding of what constitutes a journalist than is currently applied in the federal shield laws, which give journalists protection under cross-examination from revealing their sources unless a judge explicitly compels them to provide evidence. The federal Evidence Act, amended in 2011, currently defines a journalist as:

“… a person who is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information be published in a news medium.”

The limits of this have yet to be tested in court — ultimately the exact meaning of who is “engaged and active” in the provision of news is left up to a judge to interpret. But it is a broader definition of journalism than what is operating in the evidence acts of New South Wales and Victoria, which, while containing provisions for journalistic privilege, limit this to those employed as journalists. The Australian Capital Territory has identical wording to the federal law, which seems to leave open the possibility of a prolific blogger who regularly publishes news being considered a journalist for the purposes of the shield laws.

A journalist for the purposes of the NSW Evidence Act is:

“… a person engaged in the profession or occupation of journalism in connection with the publication of information in a news medium”.

The Victorian Evidence Act has virtually the same wording, but also considers “comment, opinion or analysis” as possible publications by a journalist which deserve to be legally privileged.

Of course, the whole debate about who is and isn’t a journalist is somewhat moot in this case, because it takes both a confidential source and a journalist to reveal a sensitive story, and if the government can access the metadata of confidential sources, it’s “only protecting one side of the equation”, as Griffith University professor of journalism and social media Mark Pearson told Crikey this morning. If a journalist breaks a story about a particular government policy, for example, law enforcement could access the metadata of everyone in the relevant government department to see who’d had contact with the journalist or was familiar with their publication. And anyway, Pearson notes, there’s no reason to assume the courts won’t be happy to provide law enforcement agencies with warrants to uncover the source of stories on things like national security. For example, in the NSW Emblems surveillance scandal, crime reporter Steve Barrett was named on a warrant allowing police to bug him along with 100 police officers — he recently told a parliamentary inquiry the warrant had destroyed his reputation and damaged his career.

Pearson expressed concerns about the potentially narrower definition of journalism, as many of those who currently do investigative journalism do not do so for a living.

“There’s swathes of people who do journalism without being employed by news organisations.” He cited journalism academics, who often publish investigative journalism through not-for-profits while being employed in academia, journalism students who likewise are not paid for their work, and lobby and interest groups who support investigative journalism to push their causes.

Peter Fray

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