Julian Leeser (Berowra, Liberal Party) Share this | Link to this | Hansard source

On behalf of the Parliamentary Joint Committee on Intelligence and Security, I present the committee's report, incorporating dissenting reports, entitled Inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press.

Report made a parliamentary paper in accordance with standing order 39(e).

by leave—I am pleased to present the report of the Parliamentary Joint Committee on Intelligence and Security's inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press. This statement has largely been prepared by the chair of the committee, the member for Canning, and I acknowledge his outstanding leadership of the committee and the work of all colleagues on both sides of the House and in the other place on this report.

The report covers the committee's consideration of the matters referred to it by the Attorney-General under section 29 of the Intelligence Services Act 2001. The execution of two search warrants by the Australian Federal Police in June 2019 provoked public discussion on the impact of law enforcement and intelligence powers on the freedom of the press in Australia. The committee acknowledges the government has already acted to address concerns raised by journalists, media organisations and civil society in response to the execution of these search warrants. Though these are welcome steps, the committee considers there are other opportunities for further reform.

This report considered both the need to protect Australia from threats to our national security and the importance of public interest journalism to a free and open society. We consider the rule of law and a free press mutually supporting in a healthy democratic society. All Australians have obligations before the law. This includes journalists and media organisations who serve a vital role in upholding it through fair and accurate public interest reporting. No Australians are exempt from the obligations of the law. In our consideration of press freedom we've resisted calls to recommend an exemption from the law for journalists, for reasons detailed in the report. It is the committee's view that there is a healthy tension between the obligations of national security and the transparency of public interest journalism in Australia.

We can improve our current warrant regime as it applies to journalists and media organisations, as the following recommendations make clear. The committee has recommended that the existing role of the public interest advocate, provided by the Telecommunications (Interception and Access) Act 1979, be amended and expanded to apply to warrants involving the investigation of unauthorised disclosure of government information when it relates to journalists and media organisations. In recognition of the gravity of occasions where national security may encroach on the freedom of the press, the committee has recommended elevating the qualifications required of public interest advocates and issuing authorities for these warrant applications. Specifically, we recommend that all warrants sought by an enforcement agency related to a person working in a professional capacity as a journalist or a media organisation should be issued by a judge of a superior court of record in the jurisdiction of issue for the relevant Crimes Act 1914 warrants, and a nominated Federal Court judge for relevant Surveillance Devices Act 2004 and Telecommunications (Interception and Access) Act 1979 warrants.

While the committee has not recommended an exemption or exception for journalists and media organisations, the committee acknowledges the important place of public interest journalism in Australia and recommends that the government consider whether defences for journalism undertaken in the public interest should be applied to additional Commonwealth secrecy offences. The committee has made recommendations relating to the Public Interest Disclosure Scheme, noting that it is preferable for public servants to have access to a robust process to raise concerns before approaching journalists and media organisations.

In relation to the events underpinning the inquiry, the committee believes there is a role for better cooperation between journalists, media organisations and government departments. Therefore, the committee has recommended that the government consider establishing a mechanism for journalists and media organisations to communicate with the originating agency of national security classified information without the threat of investigation or prosecution. In addition, the committee recommends government departments and agencies prioritise the establishment of media liaison units.

The committee noted the concerns raising the appropriateness of national security classification on documents and recommends that oversight bodies audit and inquire into the implementation and application of the National Security Classification Framework. Though outside of the scope of the inquiry, the committee recognises the evidence it received about defamation, shield laws and freedom of information and has made recommendations on harmonising shield laws and addressing consistency with the freedom of information process.

Finally, the committee recognises that measuring the impact of these recommendations on improving the perception of a free press in Australia is difficult without additional transparency. The committee has therefore recommended additional reporting measures on the Public Interest Advocate regime as well as on warrants that relate to journalists and media organisations. I commend this report to the House.

Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to this | Hansard source

I seek leave to make a statement.

Leave granted.

No journalist should be charged, or even jailed, just for doing their job. Law enforcement agencies should never raid journalists just because they are embarrassing government. But when a journalist's home and the ABC headquarters were raided on consecutive days in June 2019, the Prime Minister responded to community concern with a wave of the hand and the glib declaration:

It never troubles me that our laws are being upheld.

According to the current Prime Minister, Federal Police raids on a respected journalist and the national broadcaster were just business as usual in Australia. It was only in the face of overwhelming political opposition that the Morrison government asked the intelligence and security committee to conduct an inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press—not that the Prime Minister thought that such an inquiry was necessary. Even after establishing the inquiry, the Morrison government insisted that the law was perfect as it was and that no changes were needed. To quote directly from the first submission to the committee by the Department of Home Affairs and the Attorney-General's Department: 'The current legislative frameworks appropriately balance the importance of press freedom with the imperative to protect national security.'

The absurdity of the government's position that nothing needs to change was laid bare when the committee asked the Department of Home Affairs how many warrants had been issued, or even how many were currently in force, against journalists in Australia. Incredibly, the department told the committee that it did not know and that it did not care to find out because to do so would be an unreasonable diversion of the government's resources. Let that sink in. The Morrison government asked the committee to inquire into the impact of the exercise of law enforcement and intelligence powers on the press, told the committee that the existing legal framework in relation to freedom of the press was appropriate, and then admitted that it did not actually have any idea how the existing legal framework was operating in practice—nor did it care to find out. It is yet another example of the Prime Minister confusing his own spin for substance.

The intelligence and security committee does not agree with the Prime Minister that nothing needs to change. In the report that it has tabled today, the committee has unanimously concluded that existing Australian law does not adequately protect freedom of the press, or the public's right to know, and that significant reforms are needed. Perhaps most significantly, the committee has recommended sweeping changes to the way in which warrants are issued. If recommendation 2 of the committee's report is implemented, warrants that relate to professional journalists or media organisations could only be issued by a superior court judge acting persona designata where such a warrant is sought as part of an investigation of an unauthorised disclosure or common-law secrecy offence. While the committee accepts that such warrants should continue to be issued without notice to the journalist or media organisation, the committee recommends that those warrants must be contestable by a public interest advocate. Further details of how the contestable warrant framework would operate are set out in the committee's report.

In total the committee made 16 recommendations, including in relation to the harmonisation of state and territory journalist shield laws; ensuring that agencies are not marking documents as secret without good reasons; the Public Interest Disclosure Act 2013; and extending existing defences for public interest journalism to a range of Commonwealth secrecy offences. The committee has also recommended significant changes to existing record-keeping and reporting requirements so that the government must tell the Australian people how many warrants are being sought in relation to journalists and media organisations. All of these are positive recommendations.

However, for the reasons outlined in our additional comments to the report, Labor members believe that the bipartisan recommendations of the committee do not go far enough to protect freedom of the press and the public's right to know. In our view, the Morrison government should regard the committee's recommendations as a starting point for reform. Broader reforms are clearly needed, including in relation to matters that are outside the purview of the intelligence and security committee.

I would like to acknowledge the hard work of all committee members. In many ways, this was unlike any inquiry the committee has ever undertaken. On behalf of Labor members, I would like to thank the committee secretariat for their excellent work on this report and thank the Liberal members of the committee—particularly the chair, the member for Canning—for the constructive way in which they have engaged with us over the course of this inquiry.

Julian Leeser (Berowra, Liberal Party) Share this | Link to this | Hansard source

I move:

That the House take note of the report.

Sharon Bird (Cunningham, Australian Labor Party) Share this | Link to this | Hansard source

The debate is adjourned. The resumption of the debate will be made an order of the day for the next sitting.