The federal government is being encouraged to consider special legislation to entrench protections for journalists, as concerns grow about a bill that would undermine current safeguards.
The new data access bill has prompted warnings that it could leave Australian journalists whose data is stored offshore with American companies more vulnerable to security agency access than their peers in the United States and Britain.
Both the Law Council of Australia and the Inspector-General of Intelligence and Security (IGIS) have suggested the government could consider standalone Australian legislation to protect journalists from being required to reveal their sources.
But the fact existing safeguards are absent from the new bill suggests the government is unlikely to embrace the recommendation.
The Law Council has joined IGIS Margaret Stone in raising strong concerns about the Telecommunications Legislation Amendment (International Production Orders) Bill, which would give the Australian and US governments greater access to data stored on computer servers in both countries.
Stone’s concerns were laid out in discussions with the Home Affairs Department before the bill was drafted.
They include its impact on a free media and on human rights, including the risk that it could see more Australians subject to the US justice system, which includes the death penalty.
These were not addressed in the text of the legislation.
The parliamentary joint committee on intelligence and security (PJCIS) is examining the bill, which would align Australian law with the US CLOUD Act – a law that requires US companies to provide access to their customers’ data.
The bill omits the journalistic safeguards that were inserted into Australian law three years ago, which require security agencies to apply to a judge, magistrate or member of the Administrative Appeals Tribunal for a special journalist information warrant to be able to access journalists’ metadata.
Applicants must prove the public interest in issuing the warrant outweighs the public interest in protecting the source.
If enacted in its current form, the bill would not require Australian agencies to go through these channels to access the data of Australians, including journalists, that is stored on American computer servers. It would also allow greater access for US agencies.
American journalists have protections under the US constitution and bill of rights, and Britain incorporated specific protections for the journalist-source relationship when it drafted its own legislation to align with the CLOUD Act.
In evidence to the PJCIS, Margaret Stone said protections for Australian journalists would be greater if they were encompassed in a single, standalone bill.
She suggested such legislation could cover more than just access to metadata.
“Our submissions are directed to this bill and consequently the protections that journalists might require under this bill,” Stone told the committee on May 12. “But if parliament was minded to make a more extensive protection for journalists, then clearly one overriding legislation would be the way to go.”
Last week, the Law Council made a new submission to the inquiry, also emphasising the need for greater journalistic protection and highlighting the anomaly the bill would create.
It said it was “essential” that the domestic journalist information warrant system be adopted consistently, irrespective of where metadata is stored.
“The Law Council strongly supports the availability of comprehensive protections for journalists and journalistic information, so that journalists are not exposed to criminal liability and protracted criminal investigation merely for doing their job and reporting matters in the public interest,” council president Pauline Wright told The Saturday Paper.
Last year’s raids on the Canberra home of News Corp political journalist Annika Smethurst and the Sydney offices of the ABC in relation to separate work by journalists Dan Oakes and Sam Clark refocused attention on the lack of protections for journalists in Australia.
The High Court recently found the warrant used to search Smethurst’s home was unlawful, although it ruled police could retain evidence they obtained.
Police announced subsequently they would not pursue charges against Smethurst. They are yet to resolve the case involving the ABC.
This article was first published in the print edition of The Saturday Paper on June 6, 2020 as "Under a CLOUD".
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