Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

The question is that Senator Xenophon's amendments (4), (5), (6), (8) and (9) on sheet 7672 be agreed to.

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

I reiterate and indicate that the amendments I have moved would require the Public Interest Advocate, in addition to having broader powers, to be a contradictor—in other words, to be a genuine devil's advocate in relation to a journalist's information warrant being obtained. A key element of it, which has similarities and parallels with the American system or the American approach to this, is that, as a general rule, there will be consultation with media outlets. The Americans—our closest allies—do not have a problem when seeking journalists' metadata to consult, as a general principle—

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

They believe in free speech.

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

They believe in free speech, Senator Bernardi.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

And they wouldn't agree to section 18C.

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

I am not going to get into a debate about section 18C. I am pleased that Senator Bernardi—without verballing him—is enamoured with the American approach to freedom of speech, which would be consistent with protecting journalists' sources in order that—

Senator Bernardi interjecting—

Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Senator Xenophon, I urge you to ignore the interjections of Senator Bernardi.

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

Madam Temporary Chair, can I say that your urging is very wise. It is easy to be distracted by my colleague from South Australia. Consideration must be given to this amendment, because our public interest advocates will be flying blind. They will not have access to journalists. They will not be able to speak to journalists or to media organisations to ask, 'What is this about?' as they do in the US, as a general principle, unless it is a matter of an emergency in terms of security and the like, in terms of an imminent risk. They will not be able to do that. There ought to be that level of scrutiny; otherwise, my fear is contained in the words of Philip Dorling, a great investigative journalist, in a piece on 17 March headed 'Security laws bring us closer to the day when journalists will be jailed for reporting'. May I add to that that it will also bring us closer to the day where it will be much easier for sources to be exposed as a result of metadata surveillance. This is not about making us safer; this is about sections 70 and 79 of the Crimes Act in terms of whistleblowers who release, in an unauthorised fashion—which is extremely broad under sections 70 and 79—information which governments may find embarrassing.

The classic case is that of a person I have enormous respect for, Allan Kessing, who, to this day—and I absolutely believe him—was not responsible for leaking the reports he prepared as a Customs officer in the early 2000s in relation to security breaches and terrorist threats at Australian airports. Those reports found their way into The Australian newspaper in 2005, as memory serves me correctly. He was dragged through the courts and was convicted, notwithstanding maintaining his innocence. The material which I have not seen contained in those reports, I understand, was mirrored in the report of the Rt Hon. Sir John Wheeler, who prepared a report for the Howard government. As a result of the triggering of the exposure in The Australian newspaper of material written by Mr Kessing, there was a massive $200-plus million upgrade of airport security in this country. It was clearly embarrassing to the government of the day.

This metadata law will make it much easier for those that have gone to journalists with information to be tracked down. You can triangulate the information: you can find out the time of call, where it was made, who contacted whom and at what time. Metadata allows you to do that. You do not actually need to look at the content; you will have enough information there to have a successful prosecution under sections 70 and 79. I agree with Mr Dorling's recent piece in The Canberra Times that, in respect of section 70 of the Crimes Act, it makes it an offence for Commonwealth official to disclose any government information without proper authorisation. He makes the point:

This is the basic law that makes it a crime to leak any government information – from the highest cabinet secrets or the number of paperclips used in a local Centrelink office.

That is why it can be abused. What I am proposing would strengthen protection for journalists; it would be a much stronger and much more robust regime of public interest advocates. I commend the amendments. I indicate that, in respect of these amendments, I feel so strongly about them that I will be seeking to divide on this issue.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I am sorry, Senator Xenophon, that I did not hear your contribution. I have just been out announcing more good news from the Abbott government. So I am sorry that I was a little late in coming back into the chamber.

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

It is a tough job, but somebody has to do it, Attorney! Just to recap: I maintain my position in respect of these amendments. I believe that public interest advocates will have one hand tied behind their backs and will be blindfolded in the absence of having access to journalists' information or access to be able to speak to journalists about the issuing of these warrants. That is my position; I will not go over it ad nauseam. I will be seeking to divide, because this is one particular issue that I think ought to be divided on. I feel very strongly about it. I will not take it any further.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Xenophon, I note your position and I do not agree with it, for the reasons I explained before. In speaking to your amendment, if I may, I wanted to deal with a remark that Senator Collins made before the debate adjourned earlier in the day. Senator Collins said that the purpose of the public interest monitor was to protect journalists. That is not correct. The purpose of the public interest monitor—

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

Advocate.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

is to protect the public interest, as is made clear from proposed section 180X. The public interest is defined by proposed section 180L(2)(b) of the bill, and there are various elements of the public interest, all of which the public interest monitor is there to protect.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

Advocate.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I am sorry—the public interest advocate; I was thinking of the states. The elements of the public interest, which are anatomised in proposed subparagraph (b) of subsection (2) put first and foremost the interest in the protection of privacy. That is appropriate. And that will protect journalists and their sources. That is an indication, a direction, to the public interest advocate to have that in mind. But also, the public interest is defined in terms of the gravity of the matter in relation to which the warrant is sought, the extent to which the information or the documents would be likely to assist in the performance of ASIO's functions, and other matters as well. So the public interest advocate certainly is there to protect journalists, but that is an incorrectly narrow conception of the public interest advocate's role. The public interest advocate's role is to protect the public interest. The 'public interest' is defined by the bill. The rights of journalists and the protection of privacy are one of those public interests, but they are not the only one.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

I do not want to occupy too much of the committee's consideration time, but I would not want to be verballed by the minister on this occasion. My notes of what I said earlier are in front of me. I disagreed with his analogy of the amicus curiae role.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Curiae.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

Well, thank you for the pronunciation, Senator Brandis. I, unlike you, did not actually study Latin, or law, so you will excuse me that small error, I am sure. What I did say was that the role was clearly to protect journalists and to advocate the public interest.

Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

The question is that amendments (4) to (6) and (8) and (9) on sheet 7672 moved by Senator Xenophon be agreed to.

Dio Wang (WA, Palmer United Party) Share this | Link to this | Hansard source

I move Palmer United Party amendment (1) on sheet 7690:

(1) Schedule 1, item 6L, page 43 (after line 28), at the end of Subdivision D, add:

180Y Notification of access by Organisation

Scope

(1) This section applies if:

  (a) a journalist information warrant has been issued in relation to a person under Subdivision B; and

  (b) an authorisation was made, under section 175 or 176, under the warrant.

Notification

(2) If the Director-General of Security is satisfied that the disclosure under the authorisation is no longer required, and is not likely to be required, in connection with the purpose for which the authorisation was made, the Director-General must, as soon as practicable, notify the person:

  (a) that a journalist information warrant was issued in relation to the person; and

  (b) that an authorisation was made under section 175 or 176; and

  (c) whether any information or documents were disclosed in accordance with the authorisation.

180Z Notification of access by enforcement agency

Scope

(1) This section applies if:

  (a) a journalist information warrant has been issued in relation to a person under Subdivision C; and

  (b) an authorisation was made, under section 178, 178A, 179 or 180, under the warrant.

Notification

(2) If the Part 4-1 issuing authority is satisfied that the disclosure is no longer required, and is not likely to be required, in connection with the purpose for which the authorisation was made, the Part 4-1 issuing authority must, as soon as practicable, notify the person:

  (a) that a journalist information warrant was issued in relation to the person; and

  (b) that an authorisation was made under section 178, 178A, 179 or 180; and

  (c) whether any information or documents were disclosed in accordance with the authorisation.

In this public debate about data retention it is a little unfair to the media that they have sometimes been accused of self-interest. The media plays a very important role—as important as politicians—in a democracy. They review our work, they scrutinise our work—just as we are doing today in this chamber. We are reviewing and scrutinising an important bill. My amendment simply introduces one little measure to improve transparency in the implementation of this law. It requires individuals to be given notice after the investigation is closed so that the individual can be made aware that their data was looked at. In my view it should have no impact on investigations at all. In another sense, it does increase transparency and tackle the fear of the unknown. When a journo knows his data has been looked at—probably a year or two since the investigation was under way—he will then realise 'I am here, I am fine, my contacts are fine,' so it tackles the fear of the unknown and I think over time if this legislation is passed and implemented smoothly it may increase the comfort of the general public about their data being looked at.

I think this bill is a good attempt by the government and the opposition to strike a balance between law and order and the requirement to maintain the right to privacy. Again, because technology is improving and changing so rapidly, this bill is merely one step in the direction of catching up with technology changes. We will be reviewing this legislation from time to time and when required we will be making changes accordingly. In that process, as I said, the media and journalists play a very important role in getting feedback from the public to the politicians so they know how the legislation is working and whether we should make further changes. I hope the Senate can accept my amendment.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Wang, the government does not support your amendment, and there is a very simple reason why. I understand the sentiment behind the amendment, and indeed I share a lot of that sentiment, but one must always bear in mind that what we are talking about here is investigations, and what you particularly have in mind with your amendment are investigations conducted by the national security agency.

It has never been the practice for ASIO to advise people who may have been the subject of investigations that were concluded without any adverse finding or assessment of them but those investigations had been in being. There is a very important practical reason for that. At the time the investigation is being undertaken, those who carry out the investigation cannot know where the investigation will lead. An investigation is not undertaken for no reason; an investigation is undertaken because the relevant officers are of the view that there is something to be investigated—a matter of security concern, in this case. But they cannot know what conclusions or outcomes their investigation might disclose and therefore, in carrying out the investigation, it would put them in an impossible position to be unaware of whether or not, in the event that the investigation was resolved without any adverse finding against a person, their investigative steps and conclusions may nevertheless be communicated to the person.

I have worked with ASIO as their minister for long enough to know that the nature of the investigations they undertake are very complex; the fact that an investigation may involve one individual and one particular line of inquiry may bear directly upon another individual and raise more serious issues in relation to that other individual. It would be an unreasonable constraint upon officers carrying out an investigation if they were not to know whether or not the facts found in the investigation might subsequently be publicly, or privately for that matter, disclosed.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

The Greens will be supporting Senator Wang's amendment. To me it goes to attention to detail and it would appear to be reasonably common sense that if material is no longer required in connection with the kind of investigations or authorisations that the Attorney-General refers to, there is absolutely no reason why you would not let the journalist in question know that their material had been accessed. I think it is a matter of common courtesy, apart from anything else, but it is also a matter of due process. This is a government that has made numerous referrals to the Federal Police to try to track down who is talking to journalists. This is not an issue that is happening in a vacuum. It is not an academic question. We strongly believe that once those investigations have concluded, or if that material has been found to be no longer necessary, of course the journalist in question should be notified, so I am happy to commend this amendment to the Senate and I congratulate Senator Wang for his contribution to the debate.

Progress reported.