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So now we know, courtesy of ASIO Director-General Duncan Lewis’ admission at Senate estimates yesterday, that ASIO has been pursuing journalists’ sources using data retained under the government’s mass surveillance regime.

In response to questioning from Nick Xenophon, Lewis admitted yesterday that ASIO had obtained a “small” number of warrants but declined to reveal how many.

“Journalist information warrants” are a special scheme under the data retention regime, introduced in response to an outcry from the media when the Abbott government introduced the laws with the support of Labor. It requires ASIO to obtain approval from the attorney-general to seek metadata that would reveal the sources of a journalist, and the Australian Federal Police and other agencies to apply to a warrant-issuing authority for such a warrant. The AFP has previously stated it has never sought such warrants (understandably — for the purposes of investigating leaks, it is easier for the AFP to obtain the data of everyone within an organisation suspected of leaking and identify who has contacted a journalist, than to go through the journalist information warrant process). 

ASIO, we now learn, has tried to track down a small number of journalists’ sources — a major assault on a free press that has gone strangely unremarked since Lewis made the admission. But there’s a caveat attached to the legislation providing for these warrants, placed there at the insistence of parliament’s Joint Committee on Intelligence and Security. Under s.185D of the Telecommunications (Interception and Access) Act 1979, if ASIO obtains a journalist information warrant:

(a)  the Director-General of Security must, as soon as practicable, give a copy of the warrant to the Inspector-General of Intelligence and Security; and
(b)  the Minister must, as soon as practicable, cause the Parliamentary Joint Committee on Intelligence and Security to be notified of the issuing of the warrant.

The problem is, as Crikey has so often pointed out, both George Brandis himself, and the Attorney-General’s Department, are hopelessly inept. So, have they complied with the requirements of their own act and notified JCIS about the warrants as soon as practicable? None of committee chair Andrew Hastie, Brandis’ media advisers or the Attorney-General’s Department media area responded to our repeated requests for an answer.

Call us cynical, but we think this means that no, Brandis and his department have failed to comply with their own law, because if they had complied they’d be quick to say they did. Brandis has the reverse Midas Touch, and can’t be trusted to carry out even the simplest portfolio tasks. We say he botched this too. Happy to be proven wrong.

Peter Fray

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Peter Fray
Editor-In-Chief of Crikey

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