James McGrath (Queensland, Liberal National 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 Inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press and documents presented to the committee. I move:

That the Senate take note of the report.

I seek leave to continue my remarks later.

Leave granted.

Kristina Keneally (NSW, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

by leave—On the morning of 4 June last year, officers from the Australian Federal Police raided the home of News Corp journalist Annika Smethurst. It was over a story published in April 2018 about a proposal to allow the Australian Signals Directorate, for the first time, to access the emails, bank records and text messages of Australians if approved by the Minister for Defence and Minister for Home Affairs. In May this year, Annika shared the impact of those raids on her. She wrote:

Would you prefer strangers look through your bras and briefs, or the contents of your bathroom cupboard and private text messages? I was forced to hand over the passcode to my mobile phone.

At the risk of further damaging the reputation of Millennials, giving police access to my iPhone—and therefore my text messages, search history and screenshots—filled me with incredible anxiety.

It might not sound like a hardship and it doesn't deserve comparisons with the horrifying violence inflicted on journalists in some countries, but this was an incredible intrusion.

The day after Annika Smethurst's home was raided, AFP officers raided the Sydney headquarters of the ABC. These raids were about a story from July 2017. The story related to alleged war crimes in Afghanistan. The day of the raids on Annika Smethurst's home, the Prime Minister was in London, and, when asked about the raids, he said, 'It never troubles me that our laws are being upheld.'

But those raids weren't simply about laws being upheld. They—quite comfortingly now—highlighted issues that exist within our national security legislation and framework. The following week I wrote in The Australian that we should review the balance between national security and press freedom. At the Midwinter Ball last year, in a room full of journalists, the Labor leader, Anthony Albanese, made it clear:

Journalism is not a crime and should never be treated as such. It's something we simply can't be complacent about so we need to cherish it, we need to nurture it, and we need to support whatever legislative change is required to ensure that press freedom remains a central component of our democratic system.

That was Labor's position last year and it remains Labor's position today. Freedom of the press is central to a functioning democracy. A robust free press makes our democracy stronger and our nation more secure.

There are ever-present threats to our democracy, including foreign interference and espionage, but it wasn't until those raids in June 2019 that the parliament, the media and the Australian people would have thought that freedom of the press in Australia was under attack. When freedom of the press, a basic tenet of our democracy, is seen to be under attack, any government—Labor or Liberal—must speak up. When a perception of bias starts to develop around the police, the government must restore that trust. This report is a first step to doing both of those things.

From the outset I will make clear that Labor did not believe the PJCIS was the best forum for conducting a comprehensive inquiry into freedom of the press and the public's right to know. We proposed and attempted to establish a parliamentary joint committee set up for the specific purpose of recommending legislative and other steps to consider these matters. We believe such a committee would have been a better vehicle to consider whether the country's laws are getting the balance right between national security legislation and freedom of the press. This does not discredit the report that is being tabled today but rather highlights the fact that there is still more work to be done.

The final report from the Parliamentary Joint Committee on Intelligence and Security inquiry into freedom of the press has unanimously concluded that the existing law in Australia does not adequately protect freedom of the press. In total, the PJCIS report made 16 bipartisan recommendations and, if implemented, these recommendations would result in significant improvements in our laws, including improved legal protections for journalists.

The most significant changes recommended relate to how all overt and covert warrants that relate to a person who is working in a professional capacity as a journalist or in a media organisation are contested and issued. The PJCIS accepted that law enforcement agencies should not be required to give journalists or media organisations prior notice of a warrant. However, the committee recommended that warrants for journalists or media organisations must be contestable by a public interest advocate before a senior judge. If these processes had been in place when law enforcement agencies sought warrants for News Corp's Annika Smethurst and two ABC journalists, Dan Oakes and Sam Clark, it's quite possible the outcomes would have been different.

The committee recommended four significant changes to how warrants relating to media organisations or journalists are issued: all warrants sought by an enforcement agency related to a media organisation or a person working in a professional capacity as a journalist must be considered and authorised by a superior court judge or a nominated Federal Court judge as the issuing authority; all warrants are to be contested in front of the issuing authority; a public interest advocate must make a submission to the issuing authority; and the issuing authority must consider both the application from the agency seeking the warrant and the submission from the public interest advocate. I will note the committee recommended that public interest advocates must be a QC or an SC or have served as a High Court judge or a state and territory supreme court judge and they would be appointed for five years.

The committee also determined that this new process of contested warrants should be expanded to apply not only to journalist's information warrants under the Telecommunications (Interception and Access) Act but also to a number of pieces of legislation.

Finally, the committee recommended journalists' information warrants under the Telecommunications Act only be available in relation to an investigation of a serious offence, meaning those punishable by imprisonment of at least three years.

The PJCIS recommended a range of new record keeping and reporting requirements to ensure greater transparency for warrants relating to professional journalists and media organisations. This includes a requirement on government to publish the number of covert and overt warrants in relation to journalists issued under Commonwealth legislation. The committee made recommendations that go to the manner in which Commonwealth agencies interact with journalists and media organisations in order to better facilitate and support public interest journalism.

As mentioned earlier, the PJCIS made 16 bipartisan recommendations, including changes to the Public Interest Disclosure Act, changes to the way government classifies secret information and processes freedom-of-information requests and on harmonisation of state and territory shield laws.

This report is a valuable contribution to the public debate on this issue. But it's only the beginning point. There is considerably more work to do to protect the public's right to know. Labor calls on the Morrison government to urgently implement the bipartisan recommendations of the PJCIS and use those recommendations as a starting point for further reform. No journalist should ever face the prospect of being charged or jailed just for doing their job. Law enforcement agencies should never raid journalists just because they are embarrassing the government. A strong and independent media is vital to holding governments and oppositions to account and to informing the Australian public. Labor will always continue to fight to defend and strengthen press freedom and the public's right to know.

In conclusion, I would like to place on the record my appreciation of the Liberal members of the committee, including the chair, Andrew Hastie, for the constructive and bipartisan way we worked together to deliver this report. This report was an unusual one for the PJCIS; it was not the usual work of the committee. We did not review a specific piece of legislation. This committee is not normally tasked with both defining a problem and defining a solution. As such, it was a complex task, made even more difficult due to the restrictions COVID placed upon the parliament and its processes. In that vein, I acknowledge all the members of the committee, Labor and Liberal; the leadership of the chair, Andrew Hastie, and the deputy chair, Anthony Byrne; and the secretariat for their unfailing work and focus on ensuring that we were able to deliver this report to the parliament and the government.

I seek leave to continue my remarks later.

Leave granted; debate adjourned.