Nick Xenophon (SA, Independent) Share this | Hansard source

May I suggest to the Attorney that sections 70 and 79 of the Crimes Act relate, in broad terms, to whistleblowers, to the leak of information. And, as Philip Dorling, the investigative journalist, said, technically you could be done for saying how many paperclips Centrelink has, in respect of that itself being an unauthorised disclosure of information. Whistleblowers will be affected by this in terms of the context of sections 70 and 79, because the AFP is the relevant authority; it is one of the authorities prescribed by this bill.

The consequences of metadata surveillance are that it will be so much easier for sources to be tracked down. It will have an effect on investigative journalism in this country in the sense that sources and journalists will have to avoid pretty much any electronic communication in order to communicate with each other. The consequence of that will be, I think, to make the job of investigative journalists in this country that much more difficult in the context of other legislative frameworks to do with whistleblower protections, to do with sections 70 and 79 of the Crimes Act.

That is why, if there is going to be a public interest advocate—and I commend the government and the opposition for at least having the public interest advocate up there as a matter to be considered in this bill—I agree with the comments of Professor Clinton Fernandes from the Australian Centre for Cyber Security at the University of New South Wales. He said that there is a real problem that the public interest advocate could well be flying blind and have one hand tied behind their back in the absence of knowing, being aware of, what arguments the journalist may have to say, 'We want to protect the source for these reasons, because there are a whole range of factors that need to be considered in the context of the story that we are investigating.'

I will have a discussion with your advisors and with you, Attorney, if you are minded to, about the US approach. I am only relying on information from the US Department of Justice. But there does seem to be an approach where media organisations are consulted much more comprehensively than is being suggested in this particular bill.