David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Hansard source

by leave—I move Liberal Democratic Party amendments (10), (11), (14), (15), and (17) to (25) on sheet 7661 together:

(10) Schedule 1, item 1C, page 23 (line 26), omit "journalist information warrants", substitute "protected class warrants".

(11) Schedule 1, item 1C, page 23 (line 28), omit "journalist information warrants", substitute "protected class warrants".

(14) Schedule 1, item 5, page 29 (lines 9 and 10), omit the definition of journalist information warrant.

(15) Schedule 1, item 5, page 29 (after line 12), after the definition of Part4-1 issuing authority, insert:

  protected class: each of the following is a protected class of persons:

  (a) Australian legal practitioners (within the meaning of the Evidence Act 1995);

  (b) journalists (within the meaning of section 126G of the Evidence Act 1995);

  (c) health practitioners (within the meaning of the Health Practitioner Regulation National Law);

  (d) any other class of professional determined by the Minister under subsection (7).

  protected class warrant means a warrant issued under Division 4C of Part 4-1.

(16) Schedule 1, item 5, page 29 (lines 26 to 29) omit paragraphs (a) and (b) of the definition of source, substitute:

  (a) to another journalist; and

  (b) in the normal course of the other person's work as a journalist; and

(17) Schedule 1, page 30 (after line 2), after item 5, insert:

5A At the end of section 5

  Add:

(7) The Minister may, by legislative instrument, determine a class of professional for the purposes of paragraph (d) of the definition of protected class.

(18) Schedule 1, item 6E, page 31 (lines 27 and 28), omit "journalist information warrant", substitute "protected class warrant".

(19) Schedule 1, item 6F, page 32 (lines 7 and 8), omit "journalist information warrant", substitute "protected class warrant".

(20) Schedule 1, item 6G, page 32 (lines 21 and 22), omit "journalist information warrant", substitute "protected class warrant".

(21) Schedule 1, item 6H, page 33 (lines 1 and 2), omit "journalist information warrant", substitute "protected class warrant".

(22) Schedule 1, item 6L, page 33 (line 23) to page 43 (line 28), omit the item, substitute:

6L After Division 4B of Part 4 -1

  Insert:

Division 4C—Protected class warrants

Subdivision A—The requirement for protected class warrant

180G The Organisation

(1) An eligible person (within the meaning of subsection 175(2) or 176(2), as the case requires) must not make an authorisation under Division 3 that would authorise the disclosure of information or documents relating to a particular person if the eligible person knows or reasonably believes that particular person to be:

  (a) a member of a protected class; or

  (b) an employer of such a person;

unless a protected class warrant is in force in relation to that particular person.

(2) Nothing in this section affects by implication the kind of person in relation to whom a warrant (other than a protected class warrant) may be issued under this Act.

180H Enforcement agencies

(1) An authorised officer of an enforcement agency must not make an authorisation under section 178, 178A or 180 that would authorise the disclosure of information or documents relating to a particular person if the authorised officer knows or reasonably believes that particular person to be:

  (a) a member of a protected class; or

  (b) an employer of such a person;

unless a protected class warrant is in force, in relation to that particular person, under which authorised officers of the agency may make authorisations under that section.

(2) An authorised officer of the Australian Federal Police must not make an authorisation under Division 4A that would authorise the disclosure of information or documents relating to a particular person if the authorised officer knows or reasonably believes that particular person to be:

  (a) a member of a protected class; or

  (b) an employer of such a person.

(3) Nothing in this section affects by implication the kind of person in relation to whom a warrant (other than a protected class warrant) may be issued under this Act.

Subdivision B—Issuing protected class warrants to the Organisation

180J Requesting a protected class warrant

(1) The Director-General of Security may request the Minister to issue a protected class warrant in relation to a particular person.

(2) The request must specify the facts and other grounds on which the Director-General considers it necessary that the warrant be issued.

180K Further information

(1) The Minister may require the Director-General of Security to give to the Minister, within the period specified in the requirement, further information in connection with a request under this Subdivision.

(2) If the Director-General breaches the requirement, the Minister may:

  (a) refuse to consider the request; or

  (b) refuse to take any action, or any further action, in relation to the request.

180L Issuing a protected class warrant

(1) After considering a request under section 180J, the Minister must:

  (a) issue a protected class warrant that authorises the making of authorisations under Division 3 in relation to the particular person to which the request relates; or

  (b) refuse to issue a protected class warrant.

(2) The Minister must not issue a protected class warrant unless the Minister is satisfied that:

  (a) the Organisation's functions would extend to the making of authorisations under Division 3 in relation to the particular person; and

  (b) the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality that relates to the protected class of which the person is a member, having regard to:

     (i) the extent to which the privacy of any person or persons, or any duties of confidentiality, would be likely to be interfered with by the disclosure of information or documents under authorisations that are likely to be made under the authority of the warrant; and

     (ii) the gravity of the matter in relation to which the warrant is sought; and

     (iii) the extent to which that information or those documents would be likely to assist in the performance of the Organisation's functions; and

     (iv) whether reasonable attempts have been made to obtain the information or documents by other means; and

     (v) any submissions made by a Public Interest Advocate under section 180X; and

     (vi) any other matters the Minister considers relevant.

(3) A protected class warrant issued under this section may specify conditions or restrictions relating to making authorisations under the authority of the warrant.

180N Duration of a protected class warrant

     A protected class warrant issued under section 180L must specify the period (not exceeding 6 months) for which it is to remain in force. The Minister may revoke the warrant at any time before the end of the specified period.

180P Discontinuance of authorisations before expiry of a protected class warrant

     If, before a protected class warrant issued under this Subdivision ceases to be in force, the Director-General of Security is satisfied that the grounds on which the warrant was issued have ceased to exist, he or she must:

  (a) forthwith inform the Minister accordingly; and

  (b) takes such steps as are necessary to ensure that the making of authorisations under the authority of the warrant is discontinued.

Subdivision C—Issuing protected class warrants to enforcement agencies

180Q Enforcement agency may apply for a protected class warrant

(1) An enforcement agency may apply to a Part 4-1 issuing authority for a protected class warrant in relation to a particular person.

(2) The application must be made on the agency's behalf by:

  (a) if the agency is referred to in subsection 39(2)—a person referred to in that subsection in relation to that agency; or

  (b) otherwise:

     (i) the chief officer of the agency; or

     (ii) an officer of the agency (by whatever name called) who holds, or is acting in, an office or position in the agency nominated under subsection (3).

(3) The chief officer of the agency may, in writing, nominate for the purposes of subparagraph (2)(b)(ii) an office or position in the agency that is involved in the management of the agency.

(4) A nomination under subsection (3) is not a legislative instrument.

(5) The application may be made in writing or in any other form.

Note: The Electronic Transactions Act 1999 deals with giving information in writing by means of an electronic communication.

180R Further information

(1) The Part 4-1 issuing authority may require:

  (a) in any case—the chief officer of the agency; or

  (b) if the application is made, on the agency's behalf, by a person other than the chief officer—that other person;

to give to the Part 4-1 issuing authority, within the period and in the form specified in the requirement, further information in connection with the application.

(2) If the chief officer or other person breaches the requirement, the Part 4-1 issuing authority may:

  (a) refuse to consider the application; or

  (b) refuse to take any action, or any further action, in relation to the application.

180S Oaths and affirmations

(1) Information given to the Part 4-1 issuing authority in connection with the application must be verified on oath or affirmation.

(2) For the purposes of this section, the Part 4-1 issuing authority may:

  (a) administer an oath or affirmation; or

  (b) authorise another person to administer an oath or affirmation.

The oath or affirmation may be administered in person, or by telephone, video call, video link or audio link.

180T Issuing a protected class warrant

(1) After considering an application under section 180Q, the Part 4-1 issuing authority must:

  (a) issue a protected class warrant that authorises the making of authorisations under one or more of sections 178, 178A and 180 in relation to the particular person to which the application relates; or

  (b) refuse to issue a protected class warrant.

(2) The Part 4-1 issuing authority must not issue a protected class warrant unless the Part 4-1 issuing authority is satisfied that:

  (a) the warrant is reasonably necessary for whichever of the following purposes are applicable:

     (i) if the warrant would authorise the making of authorisations under section 178—for the enforcement of a serious contravention;

     (ii) if the warrant would authorise the making of authorisations under section 178A—finding a person who the Australian Federal Police, or a Police Force of a State, has been notified is missing;

     (iii) if the warrant would authorise the making of authorisations under section 180—the investigation of an offence of a kind referred to in subsection 180(4); and

(b) the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality that relates to the protected class of which the person is a member, having regard to:

     (i) the extent to which the privacy of any person or persons, or any duties of confidentiality, would be likely to be interfered with by the disclosure of information or documents under authorisations that are likely to be made under the authority of the warrant; and

     (ii) the gravity of the matter in relation to which the warrant is sought; and

     (iii) the extent to which that information or those documents would be likely to assist in relation to that matter; and

     (iv) whether reasonable attempts have been made to obtain the information or documents by other means; and

     (v) any submissions made by a Public Interest Advocate under section 180X; and

     (vi) any other matters the Part 4-1 issuing authority considers relevant.

180U Form and content of a protected class warrant

(1) A protected class warrant issued under this Subdivision must be in accordance with the prescribed form and must be signed by the Part 4-1 issuing authority who issues it.

(2) A protected class warrant issued under this Subdivision may specify conditions or restrictions relating to making authorisations under the authority of the warrant.

(3) A protected class warrant issued under this Subdivision must specify, as the period for which it is to be in force, a period of up to 90 days.

(4) A Part 4-1 issuing authority must not vary a protected class warrant issued under this Subdivision by extending the period for which it is to be in force.

(5) Neither of subsections (3) and (4) prevents the issue of a further warrant under this Act in relation to a person, in relation to which a warrant under this Act has, or warrants under this Act have, previously been issued.

180V Entry into force of a protected class warrant

  A protected class warrant issued under this Subdivision comes into force when it is issued.

180W Revocation of a protected class warrant by chief officer

(1) The chief officer of an enforcement agency:

  (a) may, at any time, by signed writing, revoke a protected class warrant issued under this Subdivision to the agency; and

  (b) must do so, if he or she is satisfied that the grounds on which the warrant was issued to the agency have ceased to exist.

(2) The chief officer of an enforcement agency may delegate his or her power under paragraph (1)(a) to a certifying officer of the agency.

Subdivision D—Miscellaneous

180X Public Interest Advocates

(1) The Prime Minister shall declare, in writing, one or more persons to be Public Interest Advocates.

(2) A Public Interest Advocate may make submissions:

  (a) to the Minister about matters relevant to:

     (i) a decision to issue, or refuse to issue, a protected class warrant under section 180L; or

     (ii) a decision about the conditions or restrictions (if any) that are to be specified in such a warrant; or

  (b) to a Part 4-1 issuing authority about matters relevant to:

     (i) a decision to issue, or refuse to issue, the warrant under section 180T; or

     (ii) a decision about the conditions or restrictions (if any) that are to be specified in such a warrant; or

(3) The regulations may prescribe matters relating to the performance of the role of a Public Interest Advocate.

(4) A declaration under subsection (1) is not a legislative instrument.

(23) Schedule 1, item 6V, page 46 (line 11) to page 47 (line 29), omit the item, substitute:

6V At the end of Division 6 of Part 4 -1

  Add:

182A Disclosure/use offences: protected class warrants

(1) A person commits an offence if:

  (a) the person discloses or uses information; and

  (b) the information is about any of the following:

     (i) whether a protected class warrant (other than such a warrant that relates only to section 178A) has been, or is being, requested or applied for;

     (ii) the making of such a warrant;

     (iii) the existence or non-existence of such a warrant;

     (iv) the revocation of such a warrant.

Penalty:   15 penalty units.

(2) A person commits an offence if:

  (a) the person discloses or uses a document; and

  (b) the document consists (wholly or partly) of any of the following:

     (i) a protected class warrant (other than such a warrant that relates only to section 178A);

     (ii) the revocation of such a warrant.

Penalty:   15 penalty units.

182B Permitted disclosure or use: protected class warrants

     Paragraphs 182A(1)(a) and (2)(a) do not apply to a disclosure or use of information or a document if:

  (a) the disclosure or use is for the purposes of the warrant, revocation or notification concerned; or

  (b) the disclosure or use is reasonably necessary:

     (i) to enable the making of submissions under section 180X; or

     (ii) to enable a person to comply with his or her obligations under section 185D or 185E; or

     (iii) to enable the Organisation to perform its functions; or

     (iv) to enforce the criminal law; or

     (v) to enforce a law imposing a pecuniary penalty; or

     (vi) to protect the public revenue; or

  (c) in the case of a disclosure—the disclosure is:

     (i) to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising powers, or performing functions or duties, under the Inspector-General of Intelligence and Security Act 1986; or

     (ii) by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under that Act; or

  (d) in the case of a use—the use is by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under the Inspector-General of Intelligence and Security Act 1986; or

  (e) the disclosure or use is with the consent of the person to whom the warrant relates; or

  (f) the disclosure or use is in the public interest.

Note: A defendant bears an evidential burden in relation to the matter in this section (see subsection 13.3(3) of the Criminal Code).

(24) Schedule 1, item 6X, page 48 (line 1) to page 49 (line 36), omit section 185D, substitute:

185D Notification etc. of authorisations

The Organisation

(1) If a protected class warrant is issued under Subdivision B of Division 4C of Part 4-1:

  (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.

(2) If an authorisation under Division 3 of Part 4-1 is made under the authority of the warrant, the Director-General of Security must, as soon as practicable after the expiry of the warrant, give a copy of the authorisation to the Inspector-General of Intelligence and Security.

(3) If:

  (a) the Inspector-General gives to the Minister a report under section 22 or 25A of the Inspector-General of Intelligence and Security Act 1986; and

  (b) the report relates (wholly or partly) to one or both of the following:

     (i) a protected class warrant issued to the Organisation;

     (ii) one or more authorisations referred to in subsection (2) of this section;

the Minister must, as soon as practicable, cause a copy of the report to be given to the Parliamentary Joint Committee on Intelligence and Security.

(4) The Parliamentary Joint Committee on Intelligence and Security may request a briefing from the Inspector-General on:

  (a) a protected class warrant; or

  (b) an authorisation or authorisations;

to which a report referred to in paragraph (3)(b) of this section relates.

Enforcement agencies

(5) If a protected class warrant is issued to an enforcement agency:

  (a) if the agency was the Australian Federal Police:

     (i) the Commissioner of Police must, as soon as practicable, give copies of the warrant to the Minister and the Ombudsman; and

     (ii) the Minister must, as soon as practicable after receiving a copy, cause the Parliamentary Joint Committee on Intelligence and Security to be notified of the issuing of the warrant; and

  (b) otherwise—the chief officer of the agency must, as soon as practicable, give a copy of the warrant to the Ombudsman.

(6) If an authorisation under Division 4 of Part 4-1 is made under the authority of the warrant, the chief officer of the agency must, as soon as practicable after the expiry of the warrant, give a copy of the authorisation to the Ombudsman.

(7) If:

  (a) the Ombudsman gives to the Minister a report under section 186J of this Act; and

  (b) the report relates (wholly or partly) to one or both of the following:

     (i) a protected class warrant issued to the Australian Federal Police;

     (ii) one or more authorisations, referred to in subsection (6) of this section, that were made by one or more authorised officers of the Australian Federal Police;

the Minister must, as soon as practicable, cause a copy of the report to be given to the Parliamentary Joint Committee on Intelligence and Security.

(8) The Parliamentary Joint Committee on Intelligence and Security may request a briefing from the Ombudsman on:

  (a) a protected class warrant; or

  (b) an authorisation or authorisations;

to which a report referred to in paragraph (7)(b) of this section relates.

(25) Schedule 1, item 6Y, page 51 (lines 16 to 21), omit paragraphs 186(1)(i) and (j), substitute:

  (i) the number of authorisations, referred to in paragraph (e) of this subsection, that were made under protected class warrants issued to the agency under Subdivision C of Division 4C of Part 4-1; and

  (j) the number of protected class warrants issued to the agency under that Subdivision during the period; and

This is a group of amendments which has the rationale of establishing a warrants regime which not only protects journalists and their sources but is also to protect other persons who normally handle confidential information and whose communications, therefore, attract privilege under the ordinary laws of evidence. That is why I have called them in these amendments 'protected class warrants', as in protected under the ordinary laws of evidence. To that end, I have imported the definition of 'journalist' used in the Evidence Act 1995 and which is used in other legislation in shield laws.

The Evidence Act's definition of 'journalist' ensures that freelancers are covered. The definition in the bill is so narrow that a journalist who hops between blogging and writing articles for, say, The Drum and The Australian does not enjoy warrant protection. I am aware that the Australian Media, Entertainment and Arts Alliance is unhappy with the complete exclusion of bloggers. Even my warrants regime would not address all that organisations concerns; however, as I have said repeatedly, even if all my amendments were passed this would still be bad law. I have done my best within the constraints of the bill before us today.

Of greater import, the warrants regime I have developed defends the important principle of legal professional privilege. Law societies throughout the country have pointed out that retained metadata could allow inferences that undermine legal professional privilege to be drawn—when a given lawyer has been contacted, the identity and location of clients and witnesses, the number and type of communications and so on. The scenario repeatedly presented—and highly likely, in my view—is that, when a whistleblower seeks legal advice before contacting a journalist, as the bill currently stands the journalist's communication may be confidential but the lawyer is exposed. The information obtained, of course, could be used in the interviewing of a suspect as evidence tending to indicate guilt.

All my protected class definitions are taken from the Commonwealth Evidence Act 1995. Although they have not represented themselves to me as strongly as lawyers and journalists, I have also included health practitioners as defined in Commonwealth law. Doctors know the most intimate details of their patients' personal lives, so it seems bizarre that they not be protected by a warrants regime as well. I should note in particular that amendment (17) allows the class of protected persons to be added to. This bill is extremely intrusive and I could well imagine an addition to the class becoming necessary at some point in the future.

I will just explain some of the details of the amendments. Amendment (10) is a name change. Amendment (11) is a name change. Amendment (13), which we will be dealing with subsequently, inserts the definition of 'journalist' from the Evidence Act 1995. Amendment (14) is a name change. Amendment (15) inserts the definition of 'protected class' from the Evidence Act. Amendment (16) inserts a definition of 'source' from existing shield laws. Amendment (17) allows the class of protected persons to be added to. Amendments (18), (19), (20) and (21) are name changes.

This running sheet also includes (17) to (25). Amendment (22) marks the commencement of a detailed instruction of my proposed protected class warrants regime. The steps to be undertaken are clearly set out in the document circulated in my name. However, I will provide some background to what I am proposing. I do add the caveat that the system I propose is far from ideal—the government gets to choose the public interest advocates, for example—but it does represent a genuine improvement.

I wrestled for some time with how best to treat ASIO legislation like this. I recognise that an intelligence agency has a different, albeit sometimes overlapping, role from the police and other law enforcement agencies. To that end, proposed sections 180G, 180K and 180L adapt the system of ministerial authorisations already in the bill but introduce further safeguards, including an enhanced role for the public interest advocates and a stronger public interest test. I have also been particularly concerned to ensure that the buck always stops with an elected person—in this case, the relevant minister. It is quite improper for an unelected civil servant to be making decisions of this nature. Proposed sections 180H, 180Q and 180R, by contrast, apply to enforcement bodies other than ASIO and take a more familiar form. Once again I have introduced more safeguards and oversight, enhanced the role of the public interest advocates and developed a strong public interest test.

Amendment (23): one of the most draconian provisions in the bill is the offence attaching to unauthorised disclosure of the issuance of a journalist information warrant. As it stands, the penalty is two years and there is no public interest defence. This is clearly meant to prevent journalists from talking to each other and, in certain respects, to participate in their own surveillance. However, I recognise that the offence protects those whose information is being accessed from having that fact disclosed to the world, the disclosure which, in itself, could be prejudicial to the person concerned. Once the warrants scheme is expanded, as I propose, then there are legitimate reasons why the existence of a warrant should not be disclosed—that is, prejudicing the investigation or reputational damage to the targeted person. In order to balance these legitimate public interests against public debate about the operation of the data retention scheme, I have also amended 182B to include a further exception, namely, an exception where the disclosure i