National Security and Media Freedom

There is uncertain protection for media freedom in the report by the Parliamentary Joint Committee on Intelligence and Security regarding the impact of national law enforcement and intelligence powers on the freedom of the press. 

 The inquiry was referred by the Attorney-General in July last year, with the Committee to report on 

 1 The experiences of journalists and media organisations that have, or could become, subject to the powers of law enforcement or intelligence agencies performing their functions, and the impact of the exercise of those powers on journalists' work, including informing the public. 

2 The reasons for which journalists and media organisations have, or could become, subject to those powers in the performance of the functions of law enforcement or intelligence agencies. 

3 Whether any and if so, what changes could be made to procedures and thresholds for the exercise of those powers in relation to journalists and media organisations to better balance the need for press freedom with the need for law enforcement and intelligence agencies to investigate serious offending and obtain intelligence on security threats. 

4 Without limiting the other matters that the Committee may consider, two issues for specific inquiry are:

a. whether and in what circumstances there could be contested hearings in relation to warrants authorising investigative action in relation to journalists and media organisations. 

b. the appropriateness of current thresholds for law enforcement and intelligence agencies to access electronic data on devices used by journalists and media organisations. 

 The Committee's Recommendations are 

 1 The Committee recommends that the Australian Federal Police and other Commonwealth law enforcement agencies with investigatory powers amend their operating procedures or practices to advise journalists or media organisations when they are no longer persons of interest in an investigation in circumstances where doing so would not jeopardise the future of the investigation. 

2 The Committee recommends that the current role of the Public Interest Advocate, as provided for under the Telecommunications (Interception and Access) Act 1979 (TIA Act), for the purposes of Journalist Information Warrants (JIW) sought under Chapter 4, Part 4-1, Division 4C of that Act, be amended and expanded to apply in the following circumstances:

• That warrant-related provisions of the Crimes Act 1914, the Surveillance Devices Act 2004, the Telecommunications (Interception and Access) Act 1979 and the Australian Security Intelligence Organisation Act 1979 (as set out in paragraph 3.122 of the Committee’s report) be amended to include mandatory consideration of warrant applications by Public Interest Advocates (PIAs) to cover all overt and covert warrants that relate to a person working in a professional capacity as a journalist or a media organisation, where the warrant is related to the investigation of an unauthorised disclosure of government information, including national security information, or Commonwealth secrecy offence. 

• All such warrants are to continue to be issued without notice to the journalist or media organisation, however the PIA is required to make a submission to the issuing authority, addressing the following: 

• the current requirements of section 180T(b)(i)–(vi) of the TIA Act and section 14(2) of the Telecommunications (Interception and Access) Regulations 2017; 

• the public interest in preserving the confidentiality of journalist sources; and 

• the public interest in facilitating the exchange of information between journalists and members of the public to facilitate reporting of matters in the public interest. 

• The PIA must represent the interests of the principles of public interest journalism, and be authorised to request information to clarify elements of the warrant application provided by ASIO or an enforcement agency to enable the case to be built in their submission. 

• All PIAs must: 

• be Queen’s Counsel or Senior Counsel; or 

• have served as a judge of the High Court, a court that is or was created by the Parliament under Chapter III of the Constitution or the Supreme Court of a State or Territory; and 

• be appointed for a minimum term of 5 years. These requirements should be set out in primary legislation. 

• All such warrants sought by an enforcement agency related to a person working in a professional capacity as a journalist or a media organisation, be required to be considered, authorised and issued by:

• a judge of a superior court of record in the jurisdiction of issue for 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. 

• The issuing authority must consider both the application from the agency seeking the warrant, as well as the submission from the PIA. 

• Individual PIAs are to be informed of the outcome of the consideration of warrants for which they were responsible for making submissions. 

• Journalist information warrants under Chapter 4, Part 4-1, Division 4C of the Telecommunications (Interception and Access) Act 1979 should only be available in relation to the investigation of (i) a serious offence or (ii) an offence against a law of the Commonwealth, a State or a Territory that is punishable by imprisonment for at least 3 years. 

3   The Committee recommends that the Telecommunications (Interception and Access) Act 1979 be amended to include additional record-keeping and reporting requirements in respect of the role of the Public Interest Advocate in relation to journalist information warrants. At a minimum, the following additional information should be collected and included in the Minister’s annual report on the use of the Telecommunications (Interception and Access) Act 1979: 

• The number of serving Public Interest Advocates and which State or Territory they operate in;  

• The qualifications of each Public Interest Advocate (i.e. whether the Advocate is a Queen’s Counsel or Senior Counsel, a retired judge or both); 

• The number of cases where a Public Interest Advocate contested a warrant application; 

• The number of cases where a Public Interest Advocate attended the hearing of a verbal application for a warrant; and 

• The number of cases where a warrant was not issued after being contested by a Public Interest Advocate. 

4   In respect of the expanded role of Public Interest Advocates (following implementation of Recommendation 2), the Committee recommends that the Crimes Act 1914, the Surveillance Act 2004 and the Telecommunications (Interception and Access) Act 1979 be amended to include (at a minimum): 

• Similar recordkeeping and annual reporting requirements to those that already exist in relation to journalist information warrants under the Telecommunications (Interception and Access) Act 1979; and 

• The additional requirements outlined by the Committee in Recommendation 3. 

5   The Committee recommends that the Crimes Act 1914, the Surveillance Devices Act 2004, the Telecommunications (Interception and Access) Act 1979 and the Australian Security Intelligence Organisation Act 1979 be amended to include the following additional recordkeeping and reporting requirements: 

• On an annual basis, the Attorney-General of the Minister of Home Affairs should provide information to the public about: 

• The number of covert and overt warrants that were obtained by enforcement agencies under Commonwealth legislation in relation to journalists or media organisations; and

• The specific offences to which each warrant related. 

• In addition to ASIO’s existing reporting requirements, ASIO should be required to:

• Provide a report to the Attorney-General on each journalist information warrant that is issued, consistent with other types of warrants issued under the Telecommunications (Interception and Access) Act 1979 and the Australian Security Intelligence Organisation Act 1979; and 

• Include, in its annual report, the number of times ASIO applied for a warrant in relation to a media organisation or a person working in a professional capacity as a journalist (including, but not limited to, the number of applications for a journalist information warrant). 

6   The Committee recommends that, as part of its upcoming review of all secrecy provisions in Commonwealth legislation (in accordance with the recommendation of this Committee in its Advisory Report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017) the Attorney-General’s Department specifically consider whether the relevant legislation adequately protects public interest journalism. The Committee also recommends that this ongoing review be prioritised for finalisation and report by June 2021. 

7   The Committee recommends the Government give consideration to whether defences for public interest journalism should be applied to other secrecy offences within relevant Commonwealth legislation. Any additional defences should be based on the defence provided by section 122.5(6) of the Criminal Code Act 1995. 

8   The Committee recommends that the Australian Government give consideration to the formulation of a mechanism to allow for journalists and media organisations, in the act of public interest journalism, to consult with the originating agency of national security classified information without the threat of investigation or prosecution. Additionally, the Committee recommends that all intelligence and law enforcement agencies prioritise the creation of a media disclosure liaison unit to facilitate this formal consultation. 

9   The Committee recommends that the Government formally responds to the recommendations of the Review of the Public Interest Disclosure Act 2013: An independent statutory review conducted by Mr Philip Moss AM before the completion of the Senate Environment and Communications References Committee’s inquiry into press freedom. The response should include consideration of:

• Amending the Public Interest Disclosure Act 2013 (PID Act) to make it easier to understand for both disclosers and agencies; 

• Simplifying the public interest test in the PID Act; 

• Strengthening the reprisal protection provisions in the PID Act; and 

• Improving alignment between public and private sector whistleblower regimes. 

10   The Committee recommends that the Public Interest Disclosure Act 2013 be amended to require the following occur when a Public Interest Disclosure is made by an official connected to an intelligence agency regarding the actions of that agency:

• the originating agency report a Public Interest Disclosure to the Inspector General of Intelligence and Security within 24 hours if it is indicated as urgent by the discloser, or as soon as possible after the disclosure is made, but within the current 14 day required timeframe; and 

• the originating agency maintain contact and notification with the Inspector General of Intelligence and Security during the 90 day investigation window to outline investigation progress and potential outcome timelines, including possible extensions. 

11   The Committee recommends that the Australian Government provide for the mandatory reporting of aggregated statistics, related to numbers and timeframes of all Public Interest Disclosures, to be made to the Parliament every six months by the Attorney-General. 

12   The Committee recommends that the Auditor-General prioritise the adoption of the identified 2019-2020 potential audit Implementation of the revised Protective Security Policy Framework. 

13   The Committee recommends that training on the application of the Protective Security Policy Framework requirements for sensitive and classified information be made compulsory for all relevant Commonwealth officers and employees. 

14   The Committee recommends that the Inspector-General of Intelligence and Security (IGIS), conduct a preliminary inquiry into the application of national security classifications in intelligence agencies, where such an inquiry may include:

• Examination of a sample of classified material in relation to the appropriateness of the classification; and 

• Reviewing the classification procedures of intelligence agencies.

The IGIS should advise the Committee of the outcome of any preliminary inquiry into the application of national security classifications, and to the extent possible, provide information to the public on the outcome of an inquiry. Information made available to the public may include analysis of apparent trends or culture within intelligence agencies in relation to applying national security classifications, or commentary on statistical trends and outcomes, as appropriate. Additionally, any recommendations made by the IGIS to alter or improve internal practices should be prioritised by the relevant agency and reported to the Committee as part of its annual Administration and Expenditure Review. 

15   The Committee recommends that the Australian Government promote consideration of harmonisation of State and Territory shield laws through National Cabinet, with relevant updates incorporated to expand public interest considerations, and to reflect the shifting digital media landscape. 

16 The Committee recommends that the Australian Government review and prioritise the promotion and training of a uniform Freedom of Information culture across departments, to ensure that application of the processing requirements and exemptions allowed under the Freedom of Information Act 1982 are consistently applied.