Journalist ‘metadata’ scheme may be incompatible with human rights law

Attorney-General George Brandis has not managed to assuage the concerns of a parliamentary committee that a system of warrants for police seeking journalists' ‘metadata’ is incompatible with Australia’s human rights obligations.

A report featuring the concerns of the Parliamentary Joint Committee on Human Rights was tabled today.

The PJCHR last year sought details from Brandis about the system of warrants employed by security agencies such as the Australian Federal Police when they seek to access the telecommunications data of a journalist in order to identify the source of a story.

Details of the scheme are set out in a government-made regulation, not the primary data retention legislation, and it is that regulation that last year was the subject of scrutiny by the PJCHR.

Under normal circumstances agencies authorised to access historical telecommunications information covered by the data retention scheme are not required to apply for a warrant.

The warrant requirement when seeking journalists’ telecommunications data specifically to identify a source was included as a compromise by the government in the face of concern about the data retention regime's impact on the media.

The PJCHR last year raised concerns about several elements of the warrant scheme, under which a journalist or publisher is not notified of a warrant application. Instead a government-appointed ‘Public Interest Advocate’ (PIA) may object to the application.

It is illegal to disclose that such a warrant is being sought, and the process of granting a warrant takes place in secret.

This means that although a PIA can make submissions on a warrant application it is prohibited from contacting a journalist who is the subject of an application.

The warrant process is set out in the Telecommunications (Interception and Access) Amendment (Public Interest Advocates and Other Matters) Regulation 2015 and under the regulation there is no requirement that a PIA submission be considered before a warrant is issued.

In its latest report the committee offers details of the reply it received from Brandis. The attorney-general said it was “reasonable and proportionate” that a journalist not be notified of a warrant application.

“This reflects the public interest in avoiding the kinds of harm that may arise if a party is given advance knowledge of the application and in turn, the existence of an investigation,” Brandis wrote.

In relation to another concern of the committee, that a PIA may in some circumstances may only be provided with a summary of an application, that measure in the regulation relates to oral applications for warrants Brandis wrote.

In relation relation to a further concerns of the human rights committee, the attorney-general wrote: “I have considered very carefully concerns about warrants being issued absent a submission by a Public Interest Advocate.

“However, I am advised that it would be beyond the scope of the regulation-making powers in the Act to prevent warrants being made in the absence of a submission from a Public Interest Advocate.”

“The legislation provides a discretion to the issuing authority as to whether to issue journalist information warrants. It is well-established that the Minister may not make delegated legislation that is contrary to the primary statute,” the attorney-general wrote.

“However, the Regulations include an additional requirement that in circumstances where an Advocate indicates that he or she is unable to consider an application or request, the agency is required to give a copy to another Advocate. In effect, this requires an agency to continue to approach Advocates until it finds one who is available.”

The attorney-general’s responses left the committee unsatisfied, however.

The “blanket prohibition” on the PIA contacting a party affected by a warrant means that “even were a court to consider it was necessary or desirable for the PIA to seek instructions in any regard from an affected person, the court is unable to order or allow that to occur,” the report said.

In relation to a PIA being provided with only a summary of a warrant application, the committee said that the attorney-general’s details about it relating to oral applications should be included in the regulation.

Finally the committee argued that in relation to a warrant being issued without a PIA making a submission, the safeguards outlined by Brandis “do not address the committee's concern, which is that a minister or issuing authority may still issue a journalist information warrant without any submission from a PIA, thereby limiting the right to a fair hearing and an effective remedy, and, consequentially, the right to privacy and freedom of expression.”

The committee concluded that the regulation that governs the warrant scheme “may, taken together with the primary legislation, remain incompatible with Australia's obligations under international human rights law.”

Copyright © 2016 IDG Communications, Inc.

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