Even if you ignore the evidence about ineffectiveness of data retention and believe it is necessary, there are a number of ways in which the Australian Federal Police’s “accidental” breach of the journalist information warrant requirements for investigating journalists could have been avoided, or handled differently.
In a supplementary submission to the Joint Committee on Intelligence and Security inquiry into the data retention bill in 2014, Professor George Williams responded to a request from the committee during his evidence about the use of a “Single Point of Contact” (SPoC) within an organisation, as occurs under the United Kingdom’s data retention regime. Such a scheme would be a “useful addition”, according to Williams, even if it didn’t address the major flaws of data retention. “For example, if a junior police officer wanted to access communications data under Part 1, Chapter 2 of the Regulation of Investigatory Powers Act 2000 (UK), he or she would first submit an application to the SPoC. The SPoC would then consider the merits and lawfulness of that request, and provide advice on its drafting, before sending it to a senior designated officer to be authorised.”
Had such an officer been in place within the AFP, an officer would not have “mistakenly” accessed a journalist’s metadata in breach of the law. The intelligence and security committee considered this safeguard, but rejected it.
That AFP officer faces no consequences for this breach. In the data retention legislation, there are no penalties for breaching the journalist information warrant requirements, of any kind. The only penalties in the relevant legislation are for revealing the existence of a journalist information warrant — for which you can go to jail for two years. So the officer who failed to get a journalist information warrant doesn’t even get a slap on the wrist, but the journalist targeted by the AFP could be jailed for two years if he or she finds out one exists and reveals they’ve been targeted — to anyone, including their sources.
There are also no consequences if an agency fails to advise the Attorney-General that they have obtained a journalist information warrant, as they are required to do under the Telecommunications (Interception and Access) Amendment (Data Retention) Act. Nor are there consequences if the attorney-general fails to tell the joint committee — which they are also required to do.
The alleged protections for journalists contained within the hastily drafted “journalist information warrant” section of the legislation were introduced when the mainstream media belatedly woke up to the threat posed by the data retention regime on the eve of its passage and began demanding special protection. That the AFP can insouciantly declare it broke the law but everything is fine, it was just “human error” and that it doesn’t even intend to tell the journalist concerned (anyone who has written a story involving a public service leak could be the target), illustrates just how badly the joint committee did its work of vetting the legislation and crafting basic protections in 2014.
And while the committee was then chaired by Coalition MP Dan Tehan, much of the blame rests with Labor, which took the path of least resistance to Tony Abbott when it came to national security, leaving the Greens, Nick Xenophon and David Leyonhjelm to fight data retention in the Senate. Labor’s lead on the debate on the bill in the Senate was Jacinta Collins, who accused the Greens of “deliberately and irresponsibly misrepresent[ing] the facts for their own cynical political purposes” and “a hysterical campaign of misinformation”.
Collins boasted “Labor forced the Abbott government to implement a regime whereby it will be illegal for agencies to access metadata for the purpose of identifying a journalist’s source unless they first obtain a warrant, generally from a court.” Collins, ridiculous at the time, is now demonstrated to be the fool she’s widely known as within parliament — it’s not “illegal” at all, senator. The AFP just rode roughshod over Labor’s amendment, without any consequences whatsoever.
But while Labor was too busy selling out the basic rights of Australians just in case the worst Prime Minister in history suddenly found his touch and ran a scare campaign against them, another group also failed to do its job. The independent media, civil society groups, the Greens and the tech industry media had been warning of the dangers posed by data retention to journalists for many years and particularly since 2012, when then-attorney-general Nicola Roxon first put forward the idea. But the mainstream media showed virtually no interest in the bill under Labor and minimal interest until the Abbott government was on the verge of passing its own bill. Admittedly, some did show some interest in it — to cheer it; some insisted data retention was not “mass surveillance” and only the guilty had something to hide.
The fact that no evidence has ever been produced from anywhere in the world to justify data retention was of no interest to the Press Gallery. The fact that, inevitably, data retention would not be used, as promised, only for the most serious crimes, but for any passing whim security agencies had, did not dawn on them until the last moment. And then, the media’s only, belated interest was in the impact of data retention on themselves. The impact on other professions that require (perhaps more than journalists do) confidentiality and freedom from surveillance — lawyers, doctors, activists, politicians, perhaps even priests — was of no interest to journalists and editors. The impact on ordinary Australians, whose personal data would become part of a vast honey pot stored offshore as a compelling target for thieves, certainly wasn’t. But last week there was plenty of anger when a journalist was treated by the AFP just like ordinary citizens, and their data seized without a warrant.
The intelligence and security committee failed to do its job, the opposition failed to do its job, and the media failed to do its job. No wonder the AFP thinks it can do what it likes.