Minister for Home Affairs Peter Dutton (Image: AAP/Darren England)

The government’s proposed scheme to enable foreign intelligence services to spy on Australians will enable Australia’s intelligence agencies to circumvent measures designed to protect journalists from unfettered pursuit of their sources.

Labor’s Mark Dreyfus yesterday exposed the loophole, with Home Affairs officials left unable and unwilling to explain why their minister Peter Dutton was proposing a runaround on existing procedures designed to protect journalists’ sources.

The Telecommunications Legislation Amendment (International Production Orders) Bill 2020 will to pave the way for agreements between Australia and the United States, and other “like-minded countries”, for the direct accessing of surveillance information, including real-time wiretapping, by intelligence agencies from both counterpart countries. In Australia, such requests would be signed off by members of the Security Division of the Administrative Appeals Tribunal (AAT), which is heavily stacked with former Coalition MPs and staffers.

In hearings before the intelligence and security committee yesterday, shadow attorney-general Dreyfus asked Dutton’s bureaucrats why existing protections around accessing the metadata of journalists were not part of the proposed process.

When the Abbott government introduced mass surveillance laws in 2015, the mainstream media belatedly realised that journalists’ phone and IT records would be easily accessed by intelligence and law enforcement agencies under “data retention” laws. In response, a “Journalist Information Warrant” (JIW) process was hastily put together that would require agencies to apply for a special warrant, with more stringent thresholds and procedural safeguards, like a Public Interest Advocate, if agencies wanted to obtain data relating to a journalist’s sources.

No such safeguard exists under the International Production Orders (IPO) process, meaning that if a journalist’s data was held by a US company — such as Google, Apple, Facebook or Microsoft — it could be obtained by ASIO or the Australian Federal Police (AFP) from those companies through an IPO without a Journalist Information Warrant, unlike information held by a local company such as Telstra.

“Are you able to tell us why an Australian journalists whose telecoms data is held by a US carrier should have fewer protections than an Australian journalist whose telecoms data is held in Australia?” Dreyfus asked Home Affairs bureaucrats.

Andrews Warnes of Home Affairs tried to argue that in fact the threshold for accessing data for all Australians had been “lifted up” to the same level of protection as that afforded journalists.

“Now all requests for metadata have to be done under this regime at a higher level of authorisation, when they’ll go to an independent authoriser, so actually those protections in terms of the authorisation remains the same as in the JIWs, they’ll have to be authorised by independent persons, either a judge or the AAT member.”

What Warnes failed to note is that a former Coalition MP or staffer sitting in the Security Division of the AAT offers nothing like the same kind of independent authorisation as a judge — especially when many of the Coalition’s appointees to the AAT don’t have law degrees or legal experience.

Dreyfus pressed further. The Journalist Information Warrant process was not replicated in this bill, was it, he asked.

“It is not replicated,” Warnes had to admit, before insisting an AAT authorisation was enough protection.

Dreyfus went further. “The Journalist Information Warrant process has a public interests monitor provided. There is no such public interest monitor provided in the authorisation process that is provided under this bill is there?”

“That’s correct,” the bureaucrat admitted.

“So it’s not the same level of protection for journalists whose data is held by a US carrier. It’s a lesser level of protection isn’t it?” said Dreyfus.

“Different considerations at play, yes,” Warnes , humiliated, had to admit. 

Dreyfus also pointed out that the Journalist Information Warrant process had additional criteria that had to be considered in granting warrants. They weren’t in the IPO scheme, were they?

“That’s correct,” Warnes said.

“So why should an Australian journalist whose telecoms data is held by a US carrier have fewer protections than an Australian journalist whose telecoms data is held in Australia?” 

“I don’t have anything further to add,” Warnes said.

Dreyfus told him to come back to the committee with a better explanation for why the loophole was being pursued by the government.

The Journalist Information Warrant process can be circumvented by agencies, but it involves obtaining the metadata of a large number of people who are suspected of sending information to a journalist. And the AFP have struggled with its requirements. In 2017, the AFP admitted that one of its officers had illegally accessed a journalist’s metadata without undertaking the approval process.

It is unclear whether the omission by Home Affairs was deliberate or an oversight. But as Dreyfus noted, the omission was pointed out by the inspector-general of intelligence and security, with whom Home Affairs consulted — and apparently ignored — on the bill last year.

The AFP also gave evidence at yesterday’s hearing. Dreyfus asked the AFP if it was possible that ABC journalists Dan Oakes and Sam Clark, and News Corp’s Annika Smethurst, could still be charged after police raided the ABC and Smethurst’s home in the wake of stories that embarrassed the government. “That matter is still under consideration,” the AFP replied about all three cases.

The AFP, of course, took only a couple of days to decide it couldn’t possibly charge anyone over a blatantly forged document used for political purposes by a Coalition minister, but after many months has yet to decide whether it will pursue journalists for providing excellent public interest journalism that just so happened to embarrass the government and Home Affairs bureaucrats.

Up against such government goons, journalists need all the protections they can get.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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