3.1
This chapter outlines the primary issues raised with the Committee during this inquiry, the evidence received regarding these issues, and the Committee’s recommendations to achieve contemporary, meaningful change to help re-establish a balance between national security and the public accountability achieved through the free operation of the media.
Proposals for consultation and consolidated legislation
3.2
As highlighted in Chapter 2, there was a common opinion amongst many submitters to the inquiry that the cumulative effect of national security legislation changes in recent years has affected the ability of the media to fulfil its role in Australia’s democracy.
3.3
As a result of this perception, a large number of submitters supported, in some form or another, a review of national security legislation, with a specific focus to ensure that its cumulative effect does not unnecessarily impinge on the freedom of the press.
3.4
Additionally, the Alliance for Journalists’ Freedom asserted that the issues identified by submitters, as reflected in the previous Chapter, require ongoing cooperation:
A Taskforce, implemented as an ongoing action-group post the inquiry, would rebuild both the cohesiveness of these institutions and the public’s trust in them. This enables people with opposing views to understand others’ views and search for mutually acceptable solutions.
In a time of changing roles and responsibilities, and increasing global and regional instability, finding the right balance and ensuring its longevity will take time and ongoing collaboration, not just a single inquiry.
3.5
This call for a taskforce is a suggestion related to the ability for government to directly engage with the media to re-establish trust and work out mutually agreeable solutions. This issue of trust and agreement was brought to light with the later submissions received by the Committee and is discussed below.
Counterpoint arguments and proposals
Australia’s Right to Know proposals
3.6
Towards the end of 2019, the inquiry had progressed to a point where the Committee had established a preliminary position on a way forward with the terms of reference of the inquiry, that could be achieved given the remit of the Committee under the Intelligence Services Act 2001 and the information that had been presented to it.
3.7
However, upon receipt of submission 23.3 from the Australia’s Right to Know (ARTK) coalition of media companies on 10 December 2019, the certainty of the Committee’s ability to address the concerns expressed by that peak media representative became unclear.
3.8
The ARTK submission provided detailed proposals on two principle areas of legislative reform, that had been raised in a general way in previous submissions:
an exemption for ‘criminal’ liability in relation to secrecy offences, or other Commonwealth offences that may be committed by the handling of, or reporting of material from an unauthorised disclosure or related to national security classified information; and
a process for a contestable warrant framework when a journalist or media organisation is the subject of investigation.
3.9
These proposals had been raised in previous ARTK submissions and at public hearing appearances, but had not been presented with specific legislative amendment suggestions prior to this December submission. The proposed contested warrant process directly relates to a primary consideration before the Committee as referred by the Attorney-General.
Proposed exemption for criminal liability
3.10
The main points regarding the proposed exemption are summarised as:
Essentially, a journalist could not be convicted of a relevant offence if the journalist engaged in relevant conduct, in good faith, in the belief that the journalist was engaging in the conduct in the public interest, at the time the conduct was undertaken.
The second category of person covered under the exemption (administrative staff) would have to be acting under the direction of a journalist, but could also be acting under the direction of an editor or a lawyer, who must believe the conduct is in the public interest.
The proposed exemption includes an element of an exclusion from an evidential burden and onus of proof, if a prosecution were to be sought. This is modelled on the successful amendment made to the Criminal Code Amendment (Agricultural Protection) Bill 2019, related to news or current affairs coverage of trespass onto agricultural land for the purposes of damaging or destroying property.
ARTK raise a number of arguments for the exemption and the exemption from an evidential burden and onus of proof.
3.11
ARTK suggested that one recent amendment to the Criminal Code from the Criminal Code Amendment (Agricultural Protection) Bill 2019 (s. 474.47(2A)) gives weight to the inclusion of a similar exemption across other Commonwealth legislation (arguing that it will harmonise law).
3.12
This exemption was introduced to that Bill to ensure that media were not caught up with prosecutions of individuals trespassing and damaging agricultural land and assets, not receipt of classified material. ARTK suggested that a similar amendment would harmonise Commonwealth law. It is of note that the exemption suggested is in relation to trespass and criminal damage, rather than national security unauthorised disclosures, which attract multiple offences across legislation.
3.13
ARTK proposed retrospectivity, which has not been the case with previous amendments or changes to relevant offence provisions (sections 70 and 79 of the Crimes Act).
Proposed contested warrant process
3.14
ARTK proposed a ‘minimalist’ intervention for warrant processes across Commonwealth legislation that encapsulates the concepts put forward by both ARTK and other submitters regarding an inter partes process (where all parties can appear before consideration/court processes) for warrant execution approvals and consideration.
3.15
This process proposes introducing an extra step (journalist access authorisation) to gather any form of ‘journalism material’ (not just classified material disclosed in an unauthorised manner). The proposed process is outlined at Attachment B to submission 23.3, but is informed by principles and amendments outlined below:
The proposed process includes the foundation elements of a contested process in court/tribunal including a public interest test (similar to that for the current Journalist Information Warrant process) and the involvement of senior judicial decision makers.
The proposed process is to be contained in a new division of the Crimes Act to cover all warrants that may affect a journalist. The submission does not seem to suggest that this process will only apply to warrants applicable to unauthorised disclosures (the main subject of this inquiry), but all warrants, citing multiple Acts that are considered as requiring amendment.
The proposed definition of ‘journalism material’ is not bound to particular offences or material that is related to unauthorised disclosures.
There is no role for a Public Interest Advocate in the proposed process. Rather, the journalist or media organisation that is the subject of the warrant would be notified of, and given the opportunity to contest, the warrant application.
3.16
Detailed drafting amendments to give effect to these proposals were suggested by the ARTK.
3.17
Commentary on these proposals is provided later in Committee comment.
Department of Home Affairs and Australian Federal Police proposals
3.18
After the ARTK submission was received, the Committee was informed that a joint submission from the Department of Home Affairs and the Australian Federal Police (AFP) was forthcoming. Accordingly, the Committee delayed any finalisation of the inquiry or public analysis of the ARTK proposals.
3.19
Once the joint submission was received on 27 February 2020, the Committee notes that the submission rejected the proposals put forward by the ARTK, restating that while the government support for press freedom as a fundamental pillar of Australia’s democracy is intact, press freedom is not absolute, and an exemption and the contested warrant process put forward would pose too great a risk to the government’s ability to secure information and provide assurances to international partners about the integrity of law enforcement and intelligence agency operations.
3.20
The joint submission restated the positions put forward in earlier submissions, that:
the current warrant processes in question are appropriate;
the ability for an affected party to seek judicial review, with any relevant injunctions placed on evidence, is an appropriate control;
any change to warrant processes, including a contested process, would threaten the efficient work of law enforcement and intelligence agencies, as well as undermining the ability to collect untampered evidence and delaying processes;
the Ministerial Direction to the AFP and the Attorney-General’s direction to the Commonwealth Director of Public Prosecutions (CDPP) are appropriate responses to guarantee press freedom;
more comprehensive assessments by the AFP and the early consideration of prosecution success, along with encouragement of internal investigation and remediation measures within agencies will help address concerns. Additional measure include:
Seeking voluntary assistance from journalists, where possible and appropriate; and
Continual improvement of policies and procedures, as highlighted by the changes made and suggested by the Lawler review.
3.21
Rather than amending current warrant provisions or defences to secrecy provisions, or introducing contested warrants, the joint submission suggested an alternative mechanism of a ‘Notice to Produce Framework’, which had not been raised in previous submissions.
Notice to Produce Framework
3.22
The proposed framework was outlined in a general, principles-based manner:
Consideration could be given to amending the Crimes Act to establish a Commonwealth Notice to Produce framework as an additional information gathering method for law enforcement agencies undertaking investigative action in relation to a professional journalist or media organisation in the context of the unauthorised disclosure of material made or obtained by a current or former Commonwealth officer. This would offer an alternative to executing a search warrant in person, give parties more flexibility to serve and produce material (such as electronically where appropriate), and provide an opportunity for professional journalists and media organisations to put forward any strong, countervailing arguments to not produce material pursuant to such an Notice.
3.23
The proposal did not include detail of aspects of the suggested framework, however referred to current frameworks across other jurisdictions (summarised below), as well as the current provision in section 3ZQO of the Crimes Act that enables the AFP to apply to a Judge of the Federal Court of Australia for a notice to produce certain limited documentation (bank account information, travel movement records, etc.) to assist the investigation of a serious offence.
3.24
The proposal put forward does not include detail regarding public interest considerations or appeal processes, acknowledging that this would require consideration:
Further consideration would need to be given to the means by which a Notice to Produce framework would take into account public interest considerations. This could include introducing a ground for challenging the production of documents in response to a Notice, or other mechanisms providing an independent and impartial public interest assessment on the release of material to law enforcement.
3.25
The submission specifically mentions the provisions of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘the Act’) which relate to NSW police issuing a notice to produce to an ‘authorised deposit-taking institution’ for an investigatory process under Part 5, Division 3 of the Act.
3.26
An application under the Act requires approval from a:
Nominated employee of the Attorney-General’s Department.
3.27
The material may be subject to a claim of privilege. Where privilege is claimed, the police officer must apply to a magistrate for an access order. Once the notice has been executed, the requester needs to report details to the authorising officer – as with other search warrant requirements under s74 of the Act.
3.28
There are similar mechanisms in Queensland, Western Australia and South Australia; however, like the NSW provisions identified, they normally relate to investigation of financial records related to organised crime, where the notice is served on a third-party. This point was identified by ARTK in identifying their concerns with the proposed framework and its potential unconstitutionality and violation of the right against self-incrimination, as discussed below.
3.29
The submission identified the United Kingdom and the United States as jurisdictions with similar processes. Elements of these suggestions are discussed later in this chapter.
ARTK, Alliance for Journalists’ Freedom and Law Council of Australia responses
3.30
In response to the further submission from the Department of Home Affairs and the AFP, ARTK and Alliance for Journalists’ Freedom (AJF) provided further submissions, with the Law Council of Australia providing analysis of the proposal put forward from a general legal perspective.
3.31
In its response submission, ARTK maintained that the government submission fails to engage with any of their detailed proposals.
3.32
ARTK maintained that there is a lack of coherence and articulation of consistent concept in the joint submission, that the submission does not provide any detail of alternatives, and that there is no new reasoning for rejection of the model put forward by ARTK.
3.33
ARTK asserted that the Notice to Produce Framework proposed by the joint submission may abrogate human rights and could be deemed unconstitutional.
3.34
In essence, ARTK rejected the position put forward in the joint submission and further state their aim of adoption of their proposals.
3.35
The ARTK raised the following summarised points and objections in relation to the proposed Notice to Produce framework:
If the current uncontested warrant regime continues alongside the Notice to Produce Framework, then law enforcement and intelligence agencies would not be required to use the latter;
The argument that law enforcement would invariably (or almost invariably) use the framework due to the expectation raised in the Ministerial Direction was contested due to:
it only applying to the AFP;
the fact that the Direction can be changed at any time, without review; and
the fact that the Direction only applies in circumstances where the alternative to a warrant is ‘consistent with operational imperatives’ and, in any event, the Direction is not legally binding.
The proposed framework violates the right against self-incrimination and raises constitutional concerns that the ARTK submission outlines at length.
ARTK does not believe that the assertion that the media is used by hostile actors is true, or that any changes to ensure press freedom would increase this risk.
3.36
The AJF, while broadly agreeing with the ARTK, outlined some alternative points including:
The AJF restated its support for independent judicial oversight over the issue of warrants, which would require rapid and responsive mechanisms. Further, the AJF noted that the proposed Notice to Produce Framework suggests judicial oversight, but does not go far enough.
AJF reinforced that the Ministerial Directions issued by the Minister for Home Affairs and the Attorney-General raise potential issues regarding integrity of decisions and directions made regarding journalists that may be reporting on those Ministers.
A separate Media Freedom Act with a clear definition of journalism would guarantee codification of rights and responsibilities of all parties, as well as enabling the media to take a key role in the nation’s security by enhancing cooperation between the press and law enforcement and intelligence agencies.
The AJF restated their call for a taskforce to be established to enable media and the government and agencies rebuild trust and come to collaborative solutions.
3.37
The Law Council of Australia’s further supplementary submission responded to the proposal for a Notice to Produce Framework. The summary principal points being:
The Law Council maintains its position that an appropriate approval and authorisation process for warrants is preferable to maintaining the status quo or introducing the framework with no changes to the current warrant process. Accordingly, the Law Council continues to advocate for expanded public interest considerations at warrant issue and an expanded role for public interest advocates or monitors (as per their earlier submissions).
Whilst the Law Council does not object to a Notice to Produce Framework, they do not believe enough detail exists regarding how one would work, and would require critical evaluation to ensure that such a system did not just add further doubt and pressure on the journalist/source relationship. The Law Council also notes that the argument put forth by the government that contested warrant processes would be complex and risk operations are just as salient for the proposed framework, with no detail being put forward by the joint submission.
The Law Council suggests that for certainty of application that any Notice to Produce Framework should be mandated to be used exclusively unless a warrant is immediately required for very specific reasons – imminent destruction of material, risk of death etc.
Any framework must ensure claims for privilege relating to the identity of an informant be maintained (as per current shield laws).
The same proposed seniority of issuing officers for warrants should be applied to any Notices to Produce, as well as public interest considerations and public interest advocates etc.
The Law Council notes that the comparable Crimes Act scheme referenced in the joint submission is for terrorism and serious non-terrorism offences and has certain elements of operation that are problematic:
Notices are not reviewable or contestable;
There are no shield law privilege protections or public interest considerations;
Offences exist under that scheme for failure to comply with a notice and disclosure that a notice even exists; and
That the scheme reference is for evidence held by third parties, not a primary party, which a journalist would be considered as.
The Law Council does not suggest that a scheme would abrogate human rights, or be unconstitutional, but it does suggest that these rules and rights would need to be carefully considered.
Committee comment
3.38
As identified in earlier chapters of this report, the complexity and breadth of the subject matter before the Committee regarding this inquiry has challenged the Committee’s ability to provide a comprehensive response, on both the terms of reference and the additional issues raised by submitters. The late submissions covered above are further evidence of this complexity.
3.39
The PJCIS is not a general purpose policy committee of the Australian Parliament, nor is it a legislation drafting body. It has a very specific legislated role set out under the Intelligence Services Act 2001.
3.40
The Committee enters into further commentary and analysis of identified areas for reform later in this chapter, including in relation to warrant processes; however these reforms are based on identified improvements to, or expansions of, existing mechanisms that can deliver process improvements to the current system in question.
3.41
The Committee agrees with submitters that Australia’s national security legislation is often complex, with many interrelated elements. Moreover, there are numerous current and past review and reform processes already being considered by government to alter the landscape that is currently being presented in this inquiry for reform. Analysis of any meaningful reform in this space requires collaboration, not the staged proposal and counter-proposal process of a parliamentary inquiry.
3.42
As a general comment, the Committee considers that there is a clear need for the government and major media stakeholders to work together to identify a common path that can be agreed on, one which ends in meaningful and agreed administrative and legislative change.
3.43
The Committee is not minded to make a specific recommendation regarding the mechanism by which this collaboration can take place, more that the positions stated in the supplementary submissions discussed above demonstrate that cooperation and collaboration must take place.
3.44
That being said, the Committee has identified the below areas for improvement regarding the issues referred by the Attorney-General and that have been raised with it throughout the course of the inquiry.
Law enforcement and intelligence agency powers and warrants
3.45
The following analysis and recommendations are aimed at delivering meaningful improvements to the current regime that the government can implement in the shorter term.
Current review mechanisms for warrant applications
3.46
Investigative action related to journalists or media organisations requires a warrant to obtain information, overtly or covertly, regarding the crime alleged to have been committed. The effect of warrants related to the unauthorised disclosure of information, or an offence related to the secrecy provisions within Commonwealth legislation, is one variable of consideration for this inquiry. The ability to review or contest a warrant requested or issued is an issue for particular inquiry in the terms of reference from the Attorney-General.
3.47
In order to access warrants to search persons of interest or premises in an investigation, the relevant authority must consider the rationale put forward and the justification for seeking the warrant. This is explained in Department of Home Affairs’ supplementary submission:
Each warrant type also has specific requirements and thresholds that must be met prior to issuing a warrant. On each occasion, the issuing officer must ensure that the relevant subjective and/or objective tests set out in the legislation are met prior to issuing a warrant.
For example, section 3E of the Crimes Act requires the issuing officer to be satisfied on information provided on oath or affirmation that there are reasonable grounds for suspecting that there is, or will be within the next 72 hours, evidential material at a premises, prior to issuing a search warrant. The requisite level of satisfaction that the issuing officer must reach to issue a search warrant does not vary or lessen simply because the officer holds a position other than that of a Judge.
3.48
Generally, a person of interest is not advised when a warrant application has been made – or if it is subsequently issued – due to the risk of an investigation being hindered by the person of interest.
3.49
Therefore, the AFP indicated in its principal submission that most review mechanisms are enacted after a warrant has been issued and executed:
There are a number of avenues open to individuals to contest police powers through the Courts after a decision has been made to issue a warrant:
During the execution of a search warrant, an affected person may apply for an urgent injunction to halt the warrant activity;
Judicial review of the lawfulness of decisions, either at common law or through the process outlined in the Administrative Decisions (Judicial Review) Act 1977;
Litigation for damages on the basis of tort law, including negligence (which generally requires the conduct to have been unlawful);
Claims of parliamentary privilege or legal professional privilege over documents seized at the search warrant;
High Court challenges in relation to constitutional validity; and
The ability of a Defendant in a criminal prosecution to object to evidence that has been improperly or illegally obtained.
3.50
ARTK acknowledged these mechanisms outlined by the AFP, however they dispute their adequacy, indicating that ‘[n]one of the above are appropriate or provide efficient legal recourse’, citing numerous reasons including:
the onerous requirement of proving a warrant is invalid through an error of issue or reviewable error in the administrative action of issuing the warrant;
making a claim for damages in torts requires additional error resulting in harm, possibly to prove misfeasance in office; and
privilege claims and objections to evidence do not cease a warrant being exercised.
3.51
Noting that there are limitations to the existing legal challenge of a warrant, potential change to the issuing mechanism to include contestation, or at least consideration of the public interest, is discussed below.
Contested hearings in relation to warrants
3.52
Submissions by media organisations and other non-governmental stakeholders to the inquiry have generally considered the ability to contest a warrant post-execution to be inadequate in balancing the protection of national security information and public accountability, and – in line with the terms of reference for the inquiry – have suggested that a contested warrants process is an appropriate means of achieving balance. ARTK suggested in its earlier principal submission that the scheme could operate as follows:
Applications for the issue of all warrants and compulsory document production powers associated with journalists and media organisations undertaking their professional roles must be contestable. This requires:
Applications for all warrants must be made to an independent third party with experience in weighing evidence at the level of a judge of the Supreme Court, Federal Court or High Court. The best outcome is for this to occur in open court in the Supreme Court, Federal Court or High Court.
The journalist/media organisation being notified of the application for a warrant.
The journalist/media organisation being represented at a hearing, presenting the case for the Australian public’s right to know including the intrinsic value in confidentiality of journalists’ sources and media freedom.
The independent third party deciding whether to authorise the issuing of a warrant – or not – having considered the positions put by both parties.
That a warrant can only be authorised if it is necessary for its stated statutory purpose and the material sought cannot be obtained via other means.
That a warrant can only be authorised if the public interest in accessing the metadata and/or content of a journalist’s communication outweighs the public interest in NOT granting access, including, without limitation, the public interest in the public’s right to know, the protection of sources including public sector whistle-blowers and media freedom.
That there be a presumption against allowing access to confidential source material.
3.53
A number of submissions supported the process as described by ARTK.
3.54
Additionally, ARTK provided further rationale for their proposals in supplementary submissions, as well as discussion countering the positions of the Department of Home Affairs and Attorney-General’s Department regarding elements of their proposed reforms or the current process.
3.55
As part of the initial suggested reforms ARTK proposed that the journalist or media organisation be provided a window following the issue of a warrant, but prior to its execution, to allow persons of interest to seek appropriate legal recourse.
3.56
The Department of Home Affairs and the Attorney-General’s Department were critical of such an approach indicating:
Search warrants are an essential power in the investigation of criminal activity by law enforcement and intelligence agencies, and contested hearings for warrants may undermine the efficacy of these powers. Requiring subjects of search warrants to be provided with advance notice of the warrants’ execution may lead to situations in which essential evidential material is destroyed or transferred to a different location, creating major impediments for the investigation and prosecution of serious criminal offending.
3.57
In addition, the AFP indicated that covert warrants are a key aspect of investigating serious offences:
They enable police to collect information without alerting suspects, risking the destruction of evidence or providing an opportunity to employ counter-surveillance. Any form of contested hearing in relation to covert powers would fundamentally undermine their effectiveness, and the ability of police to conduct an investigation.
3.58
The AFP also suggested that warrants are executed cooperatively whenever operationally possible:
… AFP investigators work cooperatively with organisations that are the subject of a search warrant. This may include arranging for a warrant to be executed at a time and in a manner agreeable to all parties, as we did with the ABC, and as we were doing with News Corp. We do this all the time with cooperative third parties, including banks and large corporations, and we very rarely have complaints about that process. That is not always possible. As you know, we do also execute search warrants without notice. There is nothing unusual about that process. We do that to ensure that evidence is not destroyed, which can be a real risk if suspects or other relevant parties have notice of a warrant before it is executed.
3.59
Mr Campbell Reid of News Corp Australia contended that the existing cooperative process negates concerns about destruction of evidence:
We think that, if a story that's being written gets to the point where the police want to have a warrant issued to raid a journalist, we should have a right to have a debate with that agency as to whether or not that warrant is necessarily in the public interest. That immediately raises the response, 'Yes, but if you get alerted first you'll destroy the evidence, and the element of surprise goes away,' to which the response is, 'The destruction of evidence is a criminal offence.' A contested warrant regime exists in Britain, and we don't see any evidence that their society is more in danger or out of control than ours.
… I would say one more thing on the contested warrants—it is from our lived experience and is in the ABC's submission. It seems strange to us that often in the past when the police have seen the need to raid or execute a search warrant they have politely and cooperatively given us a telephone call beforehand and said, 'Hey, listen; we're going to come in and seek some information,' and we've said, 'Okay, what about 10 o'clock?' We've done it completely politely and no evidence has ever been destroyed. So to then turn around and say, 'No, you can't have that regime,' when in practical terms it exists already, is bemusing to say the least.
3.60
However, the AFP suggested that the cooperative process does not fully deal with the risk of destruction of evidence.
I've heard comments about, 'We have said that we are worried about the destruction of evidence,' and I have heard comments like, 'Well, there are laws against the destruction of evidence.' That's correct; there are. We need to know the evidence existed and was destroyed for us to use that law. These are real considerations for a police investigation.
3.61
A number of other submitters to the inquiry supported the introduction of a contested hearing process, without giving substantive extra detail.
3.62
The Law Council of Australia did not directly support the introduction of the contesting of warrants by journalists or media organisations, instead suggesting improvement in the issuing process, specifically in relation to the consideration of the public interest, reform to the nature of the ‘issuing officer’, and expanding or introducing a role for a public interest advocate/monitor. This position was reflected in its later submission in response to the joint submission from the Department of Home Affairs and the AFP.
Public Interest Advocates
3.63
In relation to Journalist Information Warrants in Chapter 4, Part 4-1, Division 4C of the Telecommunications (Interception and Access) Act 1979 (TIA Act) the current role of a PIA is to prepare a submission related to the issuing of a Journalist Information Warrant (JIW), when a law enforcement agency or the Australian Security Intelligence Organisation (ASIO) wishes to access telecommunications data of a journalist (or their employer) in order to identify a journalist’s source.
3.64
The Department of Home Affairs and the Attorney-General’s Department stated:
Journalist information warrants must not be issued to law enforcement agencies unless the issuing authority is satisfied that the warrant is reasonably necessary for the specified purpose and that the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the identity of the source.
The journalist information warrant framework also allows a Public Interest Advocate to make a submission to the issuing authority of the warrant as to the propriety of the enforcement agencies application. Public Interest Advocates are declared by the Prime Minister and must be given a copy of the journalist information warrant application before the application is made.
3.65
The Law Council of Australia identified concerns with the operation of the PIA system:
Recent reports have raised concerns about the secretive, covert nature of the way in which the PIA system operates. It has been said that it ‘allow[s] the authorities to fly under the radar’. The Law Council notes that at no point is the PIA required to inform the journalist to which the warrant relates, or their media employer.
3.66
ARTK was particularly critical of the PIA scheme and made detailed submissions to past inquires of this Committee, as well as the current statutory review of the mandatory data retention scheme. Similar criticisms were included in their later submission to this inquiry.
3.67
AJF stated that the introduction of the PIA system as a mechanism, was an indication that the public interest considerations and impact on the media of warrant processes should be reviewed:
The journalist information warrant system with public interest advocates is, I think, the first acknowledgement of a contestable warrant that we have. We think that's deeply flawed, but it is a legal acknowledgement of a contested process.
3.68
A number of criticisms of the current PIA regime centred on a lack of transparency. ABC Alumni identified:
The secretive role of the Public Interest Advocate, who cannot under present legislation consult with or be briefed by the journalist or organisation that is to be the subject of the search, is ineffective and inappropriate.
3.69
Mr Arthur Moses SC, then President of the Law Council of Australia, advocated for more transparency when questioned about operation of the PIAs:
…the powers that are exercised by these agencies are ultimately in the name of the people, so the people of this country deserve to know the number of warrant applications being made and the number of approvals and refusals by certain agencies. They're entitled to that information. It's not confidential or secret. It's not going to harm national security. So, if they're being deployed, the public has a right to know.
3.70
The Department of Home Affairs and the Attorney-General’s Department counter-contend that a degree of transparency already exists surrounding the operation of the PIA scheme:
Submissions to the press freedoms inquiry have suggested the introduction of annual reporting requirements regarding the number and identity of Public Interest Advocates and the number of cases where a Public Interest Advocate either successfully or unsuccessfully opposed a journalist information warrant. The number and identity of Public Interest Advocates has been tabled in Parliament, and is publicly available.
However, the proposal for additional transparency measures in relation to Public Interest Advocates should be carefully considered, including in light of any benefits or risks associated with a former judicial officer being publicly identified as a Public Interest Advocate and disclosure of their actions in the course of their duty – either in general or in relation to a particular journalist information warrant.
3.71
As mentioned above, the Department of Home Affairs and the Attorney-General’s Department indicated that the identities of the PIAs were tabled in response to a written Question on Notice taken in 2016 at Additional Estimates, and publicly available in October 2017.
3.72
The identities of the PIAs were tabled as part of a response to a Question on Notice regarding board appointments made since former Prime Minister Turnbull took office, and not in relation to any question regarding the operation of the PIA scheme.
3.73
In a supplementary submission responding to written Questions on Notice for this inquiry requesting further information regarding PIAs and reporting of the operation of the current scheme, the Department of Home Affairs outlined:
Since the journalist information warrant scheme came into effect in 2016, eight Public Interest Advocates have been appointed. Five of those appointed are still serving, with their current appointments due to expire in October 2020. Two of the advocates are based in Queensland and there is one in each of New South Wales, South Australia and Tasmania.
The Public Interest Advocates who are still serving have been identified in media reporting. They are; the Hon Peter Evans, the Hon Ian Callinan AC QC, the Hon Peter Jacobson QC, the Hon Richard Chesterman AO RFD QC, and the Hon David Bleby QC.
The Department is not aware of any reporting requirement, legislative or otherwise, in relation to submissions made or hearings attended by Public Interest Advocates. The Department is also not aware of any records maintained on Public Interest Advocates contesting the issuing or the substance in a warrant. However, the use of journalist information warrants by law enforcement agencies is reported publicly in the Telecommunications (Interception and Access) Act 1979 Annual Report.
3.74
The Department restated its concern regarding any expansion of the transparency around the PIA scheme as part of this answer.
3.75
From a general transparency standpoint, the Law Council of Australia has specifically recommended additional reporting requirements for the Public Interest Advocate scheme:
number and identity of Public Interest Advocates (PIA);
number of cases where a PIA contested a journalist warrant;
number of cases where a PIA attended the hearing of an application for a journalist warrant; and
number of journalist warrants that were successfully contested by a PIA.
Potential expansion of Public Interest Advocates to other warrant types
3.76
Some submitters have also suggested that the PIA regime should be expanded to cover all warrant types that could affect a journalist or a media organisation, not just JIWs granted under the TIA Act. The Law Council of Australia outlined:
It is submitted that the introduction of a PIA or Public Interest Monitor (PIM) regime could serve to promote an adversarial process in a manner similar to what occurs under the TIA Act for journalists in terms of mandatory data retention. Such an approach could be valuable where it assists the decision maker to review the information contained in warrant application more thoroughly and from more than one perspective.
3.77
In making this recommendation, the Law Council of Australia noted that the current system is limited, and that any amendment to the PIA process should not detract from the overall consideration process:
The Law Council notes however, that there is little value in introducing a PIA or PIM into the warrant application process if the result, in practice, is simply the transfer of responsibility for reviewing and interrogating the warrant application from the ultimate issuer of the warrant to the PIA or PIM. The decision maker must still scrutinise the information at hand. Similarly, it is important that the role of the PIA or PIM carries proper weight and does not become a ‘rubber stamp’ process.
3.78
In receiving suggestions that the role of a PIA be expanded to other warrant types that may affect journalists, some submitters identified other jurisdictions that have established models for public interest advocacy and protection.
Existing Australian public interest mechanisms
Victoria
3.79
Victoria introduced a Public Interest Monitor (PIM) scheme in 2011, with the commencement of the Public Interest Monitor Act 2011 (Vic) and accompanying regulations, appointing a Principal and Deputy PIM to ‘represent the public interest and provide greater accountability in the collection of evidence from warrants and orders that intrude on the privacy and civil liberties of Victorian citizens’.
3.80
The PIM in Victoria is required to be notified by relevant law enforcement agencies of an application for a warrant or coercive power order under certain intrusive legislative powers, and is then entitled to appear at a hearing for relevant applications ‘to test the content and sufficiency of the information relied on and the circumstances of the application’.
3.81
In identifying the Victorian PIM scheme to this inquiry, the Law Council of Australia noted:
…that while neither the PIM Act nor PIM Regulations include an express public interest assessment provision, the PIM serves an important public interest function and acts as a strong accountability measure on the use and exercise of investigatory powers.
3.82
Additionally, the Victorian PIM is required to make an annual report that outlines many of the same statistics that are recommended be adopted for Commonwealth PIAs above.
Queensland
3.83
Queensland has had a comparable PIM scheme in operation for two decades that serves a similar purpose in testing the validity and appropriateness of granting a warrant or order application, with the similar exception of a direct public interest assessment.
3.84
The Queensland scheme extends to control orders under the Criminal Code Act 1995 (Criminal Code) and preventative detention orders under the Terrorism (Preventative Detention) Act 2005 (Qld), and requires monitoring and reporting on statistics similar, but more expansively, to the Victorian PIM.
3.85
Both domestic PIM schemes allow for accountability and appropriateness testing of warrant and order applications, however neither have a specific public interest consideration relevant to the circumstances of, or the impact on, a journalist or media organisation operating freely in the reporting of matters of public interest.
Comparable international models
United Kingdom
3.86
Several submitters referred to the operation of the Police and Criminal Evidence Act 1984 (PACE Act) in the United Kingdom (UK) which provides some protection to journalists, their material, and their sources in its operation.
3.87
It has been suggested by many of the same submitters that such a model could be implemented in Australia as a ‘contested warrants’ process. Dr Keiran Hardy and Professor George Williams summarised the UK model as follows:
The Police and Criminal Evidence Act 1984 (UK) (PACE) sets out a scheme by which journalistic material is protected under the exercise of search warrants by police. Section 13 of PACE defines journalistic material broadly as any ‘material acquired or created for the purposes of journalism’, provided that material is ‘in the possession of a person who acquired or created it for the purposes of journalism’.
Journalistic material is considered ‘excluded material’, meaning that it cannot be seized under the ordinary search warrant process. Instead, a special procedure found in Schedule 1 must be followed. The special procedure involves applying to a judge for an order that the journalistic material must be produced within 7 days. Notice must be given to the journalist(s) or relevant media organisation, and the application must be heard inter partes (i.e. the journalists must be given an opportunity to make submissions). The journalistic material must not be destroyed unless and until the application has been complied with or dismissed. The relevant test used by the judge is twofold: (1) whether other possible methods of obtaining the material have been tried without success, and (2) it is in the public interest that the material should be produced or access granted. What constitutes the ‘public interest’ is undefined, although the judge is to consider ‘the benefit likely to accrue to the investigation’ and the circumstances in which the person possesses it.
3.88
The operation of the contested aspect of the scheme relates to issuing production orders – an order requiring a journalist or media organisation to provide material relevant to an investigation to law enforcement authorities – not the specific execution of search warrants.
3.89
A warrant relating to ‘special procedure’ journalistic material is required to take the form of a production order unless it is in response to an arrest, or if issuing a production order is not practical in the circumstances. If the investigation which the warrant is being applied for relates to the seizure of journalistic material, or journalistic material is found during a search, then a production order must be made, which can then be contested.
3.90
Some submitters to the inquiry suggested that all search warrants executed against a journalist or a media organisation are contestable under the PACE Act, but contested processes do not apply to all circumstances.
3.91
Certain journalistic material is considered ‘excluded material’ and cannot be acquired under a production order. However, a search warrant can be executed on such material following an arrest, or in circumstances where the material could have been acquired under a search warrant issued under legislation that came into effect prior to the PACE Act. Relevantly, this means that where national security classified information has been obtained by a journalist or media organisation, a search warrant could be issued under the Official Secrets Act 1911 (UK) without requiring a contested hearing, as this Act allows for search warrants to be issued when an offence under that Act has been suspected of having been committed (such as an unauthorised disclosure).
3.92
Intelligence agencies in the UK are not required to follow the procedures under Schedule 1 of the PACE Act, with the ability to exercise independent search warrants.
3.93
The Department of Home Affairs and the Attorney-General’s Department noted that it could be possible to obtain ‘special procedure material’ as well as ‘excluded material’ under the Official Secrets Act 1911 (UK):
Pursuant to subsection 9(1) of the Official Secrets Act, a search warrant may be issued if there are reasonable grounds to suspect that an offence has been, or is about to be, committed under the Official Secrets Act. Despite the restrictions on obtaining ‘special procedure material’ and ‘excluded material’, Schedule 1 of the PACE Act provides that a search warrant may be issued to obtain these types of material if the search of a premises for such material could have been authorised under another law. It is an offence against the Official Secrets Act to communicate documents or information that might be directly or indirectly useful to an enemy, if the person making the communication is acting for any purpose prejudicial to the interests or safety of the State. As such, a search warrant may be used to obtain confidential and non-confidential journalistic material in circumstances whereby a Government official has provided national security information or classified material to a journalist or media organisation, if the Government official’s conduct constitutes an offence under the Official Secrets Act.
3.94
The Department of Home Affairs and Attorney-General’s Department provided further evidence in a supplementary submission that the UK Law Commission is currently undertaking a review in relation to search warrant processes:
The United Kingdom Law Commission is currently reviewing the laws governing search warrants, with the aim of clarifying and rationalising the United Kingdom’s search warrant laws. At present, the Law Commission has described the current search warrant laws as outdated, overly complex and inconsistent, particularly in the application of safeguards aimed at protection certain material, such as privileged information. The United Kingdom has 176 search warrant provisions, excluding warrants to enter premises and warrants to enter and inspect premises.
Caution should be exercised in using the United Kingdom’s laws as a benchmark or model upon which to base potential reforms to Australia’s search warrant schemes until the outcomes of that review are known.
3.95
ARTK rejected the Departments’ caution regarding this review, noting:
The basis for the review is not that contested warrants are causing problems in the investigation of issues relating to national security. One of the stated goals of the review is to extend protections, make it easier to challenge search warrants, and make the law more transparent.
…
One of the proposals by the Commission is that the exclusion of journalistic materials be extended to search and seizure in all cases, to increase consistency. Any provisions relating to search and seizure of confidential journalistic material that are less onerous that are set out in the PACE Act are proposed to be raised to the standard of the PACE Act, so disclosure is exempt in all circumstances.
Nowhere has the Commission stated that it intends to recommend the removal of the additional protections afforded to journalistic materials, or that it intends to recommend the removal of the requirement that warrants in respect of journalistic material be contestable.
3.96
That review is still ongoing at the time that this report was finalised, though there were indications the UK Law Commission would be reporting with recommendations by the UK Autumn of 2020, though this has been likely delayed by the COVID-19 pandemic.
Role of the Investigatory Powers Commissioner’s Office (IPCO)
3.97
The Investigatory Powers Act 2016 (UK) was passed in the UK in 2016 as a means of consolidating and updating the legislative framework related to obtaining and investigating communications and communications data. The Act also established and provides for the Investigatory Powers Commissioner’s Office (IPCO).
3.98
The stated aim of the Act was to:
…provide consistent statutory safeguards and will clarify which powers different public authorities can use and for what purposes. It sets out the statutory tests that must be met before a power may be used and the authorisation regime for each investigative tool, including a new requirement for Judicial Commissioners to approve the issuing of warrants for the most sensitive and intrusive powers. The Bill will also create a new Investigatory Powers Commissioner to oversee the use of these powers. Finally, the Bill will provide a new power, requiring communications services providers to retain internet connection records when given a notice by the Secretary of State.
3.99
The introduction of this Act and the establishment of the IPCO was in response to similar concerns to those expressed to this inquiry regarding the impact of investigatory powers, but also in part due to the complexity and number of warrants available to UK law enforcement and intelligence agencies, and concerns regarding consistent application and execution.
3.100
The IPCO operates similarly to Australia’s oversight agencies – the Office of the Commonwealth Ombudsman and the Office of the IGIS – but in addition to compliance related activities, has additional roles:
Carriage of the Judicial Commissioner process whereby the validity of a warrant – including matters of law and matters of public interest – are assessed prior to the issue of a warrant; and
Establishment and maintenance of a Technology Advisory Panel whose role is to advise the Investigatory Powers Commissioner if technology being used to collect evidence unnecessarily impinges on privacy.
3.101
Dr Keiran Hardy and Professor George Williams summarised the role of Judicial Commissioners as follows:
…unless there is an ‘imminent threat to life’, access to a journalist’s metadata must be authorised by a judicial commissioner, who must consider the public interest with regard to protecting journalistic sources. This is broadly similar to the journalist warrant information scheme in Australia’s metadata regime, as notice need not be given to the journalist(s) or media organisations.
3.102
This role for the Judicial Commissioners is, as noted, very similar to that of current PIAs in Australia, reviewing a warrant designed to enable the collection of telecommunications data, prior to its issue, except in an emergency. Where a warrant is issued in an emergency situation without prior review, Judicial Commissioners retain the right to review or revoke after the fact.
3.103
However, Dr Hardy and Professor Williams outlined evidence that there are key differences in the application of the UK scheme compared to the PIA scheme in Australia, noting that the UK has much wider applications:
First, this process applies not only to law enforcement but also to MI5, the UK’s domestic security service. By contrast, the Director-General of Security need only apply to the Attorney-General (not a judge) for a journalist information warrant under the Australian legislation. Second, judicial commissioners are former or serving High Court judges, not magistrates, district court judges or tribunal members. Third, judicial commissioners are members of the Investigatory Powers Commission, a standing commission which has 70 full-time staff as well as legal and technical support. This provides standing judicial oversight and auditing of the investigatory powers regime, in addition to the authorisation role. Finally, the UK’s metadata scheme is different in that metadata retention can be authorised only by judicial commissioners for 12-month periods. It is not mandatory for all providers for 2 years.
3.104
In the Independent National Security Legislation Monitor’s (INSLM) recently completed report into the provisions of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (TOLA Act), the INSLM had the opportunity to consider the operation of the IPCO and has recommended that Australia adopt a similar model. The recommended model would vest the powers of an Investigatory Powers Division in the Administrative Appeals Tribunal (AAT) and would comprise an Investigatory Powers Commissioner, and ‘other eminent lawyers and technical experts as needed’
Canada
3.105
The right of a Canadian journalist to protect a confidential source in the public interest is supported by the Journalistic Sources Protection Act 2017 (Canada). This legislation was introduced in response to revelations that Canadian police were using telecommunications interception to identify journalists’ sources.
3.106
In response, the statute provides that in certain circumstances:
… [Journalists] are allowed to not disclose information or a document that identifies or is likely to identify a journalistic source unless the information or document cannot be obtained by any other reasonable means and the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source.
3.107
When these conditions are satisfied, a warrant will be issued by a judge of a superior court unless the judge requests that a special advocate should present observations in the interest of freedom of the press concerning the conditions set out in the issue of warrant authorisation or order. This process is still undertaken ex parte (without the affected party present), however the appointment of a special advocate means that a party is involved in presenting observations in the interest of freedom of the press.
3.108
Journalistic material can be sealed under orders by a judge, and the journalist or relevant media organisation is given 10 days from when notified that law enforcement intends to review sealed material to apply to a judge to exclude material obtained by law enforcement.
3.109
Where a warrant is issued in respect of a journalist suspected of committing an offence, the above protections do not automatically apply. However, a judge may order that documents should be dealt with in line with the provisions described above to protect journalistic sources.
3.110
The Department of Home Affairs and Attorney-General’s Department highlighted the definitional nuances of the Canadian scheme:
For these purposes of these provisions, a journalist is defined as a person whose main occupation is to contribute directly to the collection, writing or production of information for dissemination by the media, or any person who assists such a person. A journalistic source is defined as a source who confidentially provides information to a journalist on the basis of an undertaking by the journalist not to divulge the source’s identity, and whose anonymity is essential to the relationship between the journalist and the source.
3.111
Given that the legislation is relatively new the provisions have not been widely tested. The Law Council of Australia identified that the provisions of the Journalistic Sources Protection Act 2017 (Canada) were being tested in the Supreme Court of Canada. However, since that submission was made, the decision in the case of Denis v Côté was handed down, with the decision not providing any real precedent or clarity, with a direction for the Court of Quebec to hear the matter again, in light of new material provided by the Crown during the appeal. However, the Court does appear to support the intention of the legislation, in that it is ‘in the public interest to provide robust statutory protection to such confidential sources’.
Authorisation of warrants
3.112
A number of submitters to this inquiry pointed out or criticised the seniority of the issuing officer for the Crimes Act search warrant executed on the Australian Broadcasting Corporation (ABC), as that particular warrant was authorised by a Registrar of the New South Wales Local Court in Queanbeyan. However, this use of a registrar for authorisation was in line with the law at the time it was sought, and was found to be valid by the subsequent decision of the Federal Court. The differing level of superiority of authorising officers for warrant types was identified as a cause for concern to a number of media and other non-government submitters.
3.113
Many of those same submitters and others have suggested that authorisation for warrants that may affect journalists or media organisations should be elevated to being authorised by the judge of a superior court.
3.114
Concerns raised regarding registrars authorising Crimes Act warrants were put to the AFP and whether requiring authorising officers to be at a superior level would hinder their effective operation, or require undue consideration for the warrant submission, then Commissioner, Andrew Colvin replied:
No. The submission would make no difference, because the submission is determined by what we have to produce under law to get that search warrant and the thresholds we have to meet. The only difference it would make is that, across the country, across the different jurisdictions, there are different rules imposed and different guidelines for where we can go, in terms of rosters of available magistrates and available judges. The local courts would determine that and, so, who we would go and see. It wouldn't change our affidavit unless the legislation changed the thresholds.
3.115
When asked about the Law Council of Australia’s position that the warrants at issue for this inquiry be authorised by superior court judges, Mr Arthur Moses, then President, replied:
It's no disrespect to the individuals who hold those very important offices, but, as Chief Justice Bathurst said when he implemented a regime under the New South Wales Criminal Assets Recovery Act that it had to be a Supreme Court judge making orders in relation to those matters rather than registrars, these are important, invasive steps that are being taken, which impact upon the rights of the community, and it should be that a superior court judge with the experience and the lateral thinking is there to deal with these matters, rather than registrars or members of the AAT, who would not have subject matter expertise in relation to these matters. If I were the judicial officer and I were being asked to issue a warrant that would have somebody go into a person's home and search it, I would want to be very careful in reviewing that material. Registrars and members of the AAT can be very busy at times, and these things may slip off their desk in terms of their dealing with them in a very quick fashion.
3.116
The Department of Home Affairs and the Attorney-General’s Department outlined the relevant levels of authorising officers for applicable warrants in a supplementary submission. The point was also made in this submission that ‘the requisite level of satisfaction that the issuing officer must reach to issue a search warrant does not vary or lessen simply because the officer holds a position other than that of a Judge’.
3.117
Additionally, it was outlined by those Departments that the AFP currently encounters difficulties in finding available magistrates for warrant authorisations, a point made by the AFP as well (as above), highlighting that availability of higher-level authorisers is more of an administrative issue than a legislative one.
Committee Comment
3.118
The Committee acknowledges the arguments made by submitters in relation to contested hearings for warrants to apply to those carrying out professional obligations as a journalist. However, the Committee cannot ignore the concerns raised by law enforcement that the establishment of a contested warrants process along the lines suggested by the ARTK, despite the culture of cooperation in some instances between law enforcement and media organisations, may carry significant risks in relation to the outcome of an investigation or prosecution.
3.119
The Committee notes with interest the evidence received from submitters related to the Public Interest Advocate regime, including evidence on domestic and international models that have sought to incorporate public interest considerations, advocacy, and protections into the expanding suite of warrants affecting telecommunications, metadata and personal information.
3.120
In consideration of the international models presented, and the PIM schemes in Victoria and Queensland, the Committee considers there is an opportunity to expand the role of PIAs at the Commonwealth level.
3.121
Providing additional profile and scope to the role of PIAs, to include applications for any warrants that may affect a journalist in relation to unauthorised disclosures or Commonwealth secrecy offences, will aid in building confidence in a system that is designed to protect the national interest, without threatening media freedom.
3.122
The Committee therefore recommends that a PIA be required to consider an application made by law enforcement or ASIO when seeking an overt or covert warrant that relates to a person working in a professional capacity as a journalist or media organisation when the warrant is related to the investigation of an unauthorised disclosure of government information. Warrants subject to such consideration should include those made under the following legislative provisions, and other warrants not listed as appropriate:
Section 3E of the Crimes Act 1914;
Sections 14-16, 27A-27C of the Surveillance Devices Act 2004;
Sections 9-10, 39, 46-48, 110 and 116 of the Telecommunications (Interception and Access) Act 1979; and
Sections 25, 25A, 26B and 27 of the Australian Security Intelligence Organisation Act 1979.
3.123
The Committee considers that the issue of these warrants should continue to be issued without notice to the relevant journalist or media organisation, but recommends that the PIA’s role should be to represent the principles of public interest journalism in making its submission to the issuing authority on a warrant request related to a journalist or media organisation.
3.124
In order to have the appropriate information to make a submission, the Committee further recommends that PIAs have the ability to request information or clarify elements of the application. In order to allow PIAs to build up a body of expertise in relation to submissions, the Committee recommends that PIAs should be informed of the outcomes of the consideration of warrants processes to which they provide input.
3.125
Historically, PIAs have not been required to make a submission, and the Committee recommends that the relevant provisions be amended to require a submission by a PIA where the requirements above are met.
3.126
The relevant JIW provisions of the TIA Act require an issuing authority to consider the input of a PIA, and the Committee considers this aspect should be expanded to cover all warrants on which a PIA would have input.
3.127
The Committee notes the significant role that PIAs will play in ensuring the interests of the principles of public interest journalism are upheld. The Committee therefore recommends that, in order to be appointed, PIAs must have held the role of Queen’s Counsel or Senior Counsel, or have served a judge in a superior court, and be appointed for a period of 5 years. To provide additional assurances of the seniority of appointment, the Committee recommends that this requirement be recorded in primary legislation rather than in instruments such as the Telecommunications (Interception and Access) Regulations 2017.
3.128
In addition, The Committee notes the concerns expressed by submitters regarding the seniority of authorising/issuing officers in some cases of warrants affecting journalists or media organisations.
3.129
While the argument that regardless of the level of the authoriser the level of satisfaction to be met by the submission made does not change is a valid one, the Committee is inclined to agree with the Law Council of Australia and other submitters that powers such as these need careful consideration by a senior lawyer or judicial officer, especially when they potentially affect the free operation of the media.
3.130
This would require that a special authorising issuing officer (being the relevant Supreme Court in each State or Territory) be created for section 3E Crimes Act warrants that affect journalists or media organisations, but only for the investigation of unauthorised disclosures or Commonwealth secrecy offences.
3.131
Additionally, the requirements for an issuing officer for all other law enforcement warrants, should be retained at the level of an eligible judge, as defined in section 6D of the TIA Act and section 12 of the Surveillance Devices Act 2004, except where those warrants relate to the investigation of an unauthorised disclosure or Commonwealth secrecy offence. In this instance the issuing officer should be restricted to only that of a nominated Federal Court judge.
3.132
The Committee does not believe that any change is required to the authorisation required by the Attorney-General for relevant warrants sought by ASIO.
3.133
The Committee notes the reforms undertaken in the UK over the past four years, to establish the IPCO, have been aimed at streamlining and improving the processes around similar warrants and investigatory powers to those being considered in this report.
3.134
While the Committee is attracted to the centralisation of the authorisation and consideration of relevant powers into one body, it does not believe that any such reform is required in Australia at this time. This is especially relevant regarding the uncertain future of some of the powers and offences under examination, and whether they will be significantly altered by the outcomes of the Richardson Review.
3.135
The Committee also notes the INSLM’s recommendation to establish an Investigatory Powers Division within the AAT, as recently set out in the report into the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018, and considers that the Committee’s upcoming review of the Act will provide an opportunity to consider this recommendation more fully.
3.136
Further, the Committee recognises that the issuance of a JIW under the TIA Act is relatively rare, and will likely to continue to be accessed infrequently in the future. However, the Committee also notes the concerns raised by submitters in relation to the circumstances in which a JIW might be issued, and therefore recommends that the relevant provisions under Division 4C of the TIA Act should be amended to clarify the offences for which a JIW may be sought.
3.137
The Committee notes that the TIA Act includes a definition of what constitutes a serious offence in section 5D, and the Committee therefore recommends that the relevant provisions in Division 4C of the TIA Act be amended to provide that a JIW may only be sought in circumstances that accord with the definition of serious offence provided by the TIA Act. Without intending to limit the legitimate circumstances in which a JIW may be sought, the Committee further recommends that a JIW may be sought for an offence against the law of the Commonwealth, a State or a Territory that carries a penalty of imprisonment for at least 3 years.
3.138
Such an inclusion would not be intended to provide for an exception or exemption for journalists and media organisations, as offences under Division 122 of the Criminal Code 1995 are considered a serious offence for the purpose of section 5D of the TIA Act, but recognises that investigative processes that necessarily intrude on the telecommunications data of journalists, their sources, and media organisations should be commensurate with the seriousness of the offence under investigation.
3.139
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.
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.
3.140
The Committee notes concerns raised by submitters in relation to the transparency of the existing PIA regime, and notes the concerns raised by the Department of Home Affairs regarding the potential expansion of reporting on the identity or activities of PIAs.
3.141
On balance, the Committee believes that for the added benefit of confidence in the existing PIA scheme’s operation, independent of any further change resulting from other recommendations in this report, the risk of identifying the activity of PIAs does not outweigh the benefit of accountability and transparency that would come from public reporting of certain aspects of the current scheme.
3.142
The Committee notes that the Inspector-General of Intelligence and Security (IGIS) suggests that additional transparency and public reporting in relation to the operation of the PIA scheme might assist in providing assurance that the public interest was being appropriately considered in such circumstances.
3.143
It is with this balance in mind that the Committee recommends that an annual reporting mechanism be implemented to require the Attorney-General to report to Parliament in relation to the activities of PIAs in relation to JIWs sought by ASIO, and on behalf of the Minister for Home Affairs in relation to enforcement agencies, to the extent contained in the recommendations.
3.144
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.
3.145
In recognition of the Committee’s Recommendation 2 (expanding the role of PIAs) the Committee recommends reporting requirements should be extended to all other warrants obtained by enforcement agencies and ASIO that relate to journalists and media organisations.
3.146
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.
Publication of warrant data
3.147
In extension of his advocacy for increased reporting and transparency (as referenced in Chapter 4), Mr Arthur Moses SC, then President of the Law Council of Australia, highlighted that until reporting of warrant information is mandated, it will not be voluntarily utilised to build trust:
There has to be, ultimately, a legislative provision that would warrant that information being published and made available. At the moment there is nothing that mandates that the government do that, so it's really up to the parliament—without being critical of the government. If this parliament determines that that is information that ought be out there, it should legislate. It is often very hard for government to publish material if there is no legislative mandate to do it, and you'll always have public officials in the back room asking you, 'Why should we do it if the law doesn't require it?' So I think, rather than me being critical of the government, I would rather have the parliament legislate provisions that would force the publication of that material, and that will have to be a parliamentary decision, because public officials in the background will always ask their minister, 'Why should we do this when the legislation doesn't require it?'
3.148
When questioned about whether this could be achieved as a standing instruction in the Freedom of Information Act 1982 for departments to make as much information available as possible, Mr Moses replied:
There is, but if you don't have the legislative mandate concerning a specific area, especially in areas that relate to national security, I can well understand that behind closed doors public officials would use that as a shield in relation to publishing material. So, rather than have a general provision, now that we're alert to this issue I think it should be made specific as a code so that it is published, which would enhance journalism and freedom of journalism in this country.
Committee comment
3.149
While the majority of evidence to this inquiry was aimed at addressing specific concerns regarding the impact of powers, generally authorised by warrant, there was only minimal commentary on public visibility of the exercise of these powers, outside what the media does now or is available through current annual reporting or freedom of information.
3.150
The Committee has recommended an expansion to the public reporting related to the role of PIAs earlier in this chapter. However, as highlighted by the comments regarding that scheme, when a law enforcement or intelligence agency uses an intrusive power for the purposes of law and order or national security, the public should be informed about how often those powers are being used and – within reason – how those powers are being used.
3.151
The Committee believes that additional regular reporting of aggregated statistics would help to build public knowledge of the operation of these powers, as well as to help stimulate the public discourse identified throughout this report as being crucial to an informed society.
3.152
These additional reporting requirements could take the form of annual reporting similar to the current annex to the AFP’s annual report for delayed notification search warrants, annual reports such as those made by the PIMs, or could take an aggregated quarterly form similar to that the UK Home Office uses for reporting counter-terrorism statistics related to the operation of police powers under the Terrorism Act 2000 (UK).
3.153
The Committee therefore recommends that the Australian Government provide for such reporting.
3.154
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).
Commonwealth secrecy offences and related defences
3.155
For the purposes of considering the adequacy of secrecy-related offences and defences, there is a distinction to be made between the initial unauthorised disclosure by a Commonwealth officer and the subsequent reporting of the disclosure by journalists and media organisations.
Offences that apply to unauthorised disclosure of information by Commonwealth officers
3.156
Submissions to this inquiry highlighted the breadth of disclosure offences that apply to information that is not necessarily bound to national security classified information. Such offences include those outlined in the following pieces of legislation:
Section 35P of the Australian Security Intelligence Organisation Act 1979;
Sections 80.3, 91.4, 91.6, 91.9, 91.13, 92.5, 92A.1, 119.7, 122.5, 131.1, 132.1 and 474.47 of the Criminal Code 1995;
Sections 3ZZHA and 15HK of the Crimes Act 1914;
Section 73A of the Defence Act 1903;
Part 6, Division 1 of the Intelligence Services Act 2001; and
Sections 42 and 45 of the Office of National Intelligence Act 2018.
3.157
Submissions refer to both public servants and Commonwealth officers but the terms are not mutually exclusive. Public servants are generally considered to be those employed under the Public Service Act 1999. However, the offences listed under the Criminal Code for unauthorised disclosure of information – for example – refers to Commonwealth officers and covers a broader range of people:
Commonwealth officer means any of the following:
b.
an individual appointed or employed by the Commonwealth otherwise than under the Public Service Act 1999;
c.
a member of the Australian Defence Force;
d.
a member or special member of the Australian Federal Police;
e.
an officer or employee of a Commonwealth authority;
f.
an individual who is a contracted service provider for a Commonwealth contract;
g.
an individual who is an officer or employee of a contracted service provider for a Commonwealth contract and who provides services for the purposes (whether direct or indirect) of the Commonwealth contract;
but does not include an officer or employee of, or a person engaged by, the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation.
3.158
In addition, offences for unauthorised disclosure of intelligence information by employees and contractors of most intelligence agencies are contained in the Intelligence Services Act 2001. These offences relate to the communication of information acquired or prepared on behalf of the agency where an exception does not apply.
3.159
If a person communicates information where not authorised to do so and the information contains a security classification, is intelligence information, or relates to operations, capabilities, technologies or methods of law enforcement it will constitute an offence under the Criminal Code. If the material is subject to additional conditions – such as being marked as ‘for Australian eyes only’ or is the disclosure of five or more records – it is considered an aggravated offence and carries additional penalties.
3.160
The communication of information by Commonwealth officers constituted as an offence under the Criminal Code attracts a different penalty to communication by journalists. This is not replicated in other legislation where the penalty for communication of national security information has the same penalty for both the initial discloser and any subsequent communication by journalists and media organisations.
3.161
Unauthorised disclosure is a criminal offence, and once a relevant organisation suspects or becomes aware that such a disclosure has occurred, the matter can be referred to the AFP. The AFP may determine it is appropriate to commence an investigation, or may conclude that an investigation is not warranted:
The AFP evaluates and prioritises all allegations of criminal wrongdoing objectively at the organisational level and in accordance with a clear organisational policy called the Case Categorisation and Prioritisation Model (CCPM). Some of the factors that are taken into account through the CCPM include:
The impact of the alleged offending on Australian society;
The likelihood of success in an investigation; and
Whether an alternative to criminal investigation is appropriate.
3.162
If the factors outlined in the CCPM are satisfied, the AFP will commence an investigation into the allegations of criminal activity which may result in the decision to prosecute one or more parties involved in the conduct:
[AFP’s] investigations are directed at collecting information and evidence. That means determining the facts of a case and gathering all relevant evidence so that there can be an informed decision about prosecution by the Commonwealth Director of Public Prosecutions (CDPP) and, where relevant, the Attorney-General. Being on the receiving end of police information-gathering powers does not necessarily make someone a suspect and it does not mean that the CDPP will be prosecuting. In some instances, police powers may identify exculpatory evidence about a person.
3.163
The investigation of a purported offence by a Commonwealth officer may, through passive receipt of information or by their actions, bring journalists into the scope of an investigatory process related to unauthorised disclosure as discussed above.
Offences that relate to dealing with information by journalists
3.164
Submissions contend that the offences that apply to Commonwealth officers can also apply to journalists. Dr Keiran Hardy and Professor George Williams provide an example in their submission:
Under section 91.1(2) of the Criminal Code, a person faces 25 years imprisonment if they ‘deal’ with information that ‘concerns Australia’s national security’ and they are reckless as to whether they will prejudice national security as a result. The definition of ‘dealing’ with information includes not only communicating or publishing information but also receiving, possessing, copying, or making a record of it. A penalty of up to 20 years’ imprisonment is available even if the information itself does not have a security classification or relate to national security.
Under these laws, journalists and other people are subject to criminal penalty for merely receiving or possessing sensitive information (not necessarily relating to national security), even before they decide to publish it.
3.165
However, the Department of Home Affairs clarified that those offences:
…apply where a person intended to prejudice Australia’s national security, intended to advantage the national security of a foreign country or, in relation to offences of introducing a vulnerability, intended or was reckless as to harming or prejudicing Australia’s economic interests, disrupting the function of government or damaging public infrastructure…It is also noted that, for offences with an applicable fault element of recklessness, an individual’s genuine good faith would be likely to preclude recklessness being made out.
3.166
As indicated above, limited protections for journalists apply in relation to the secrecy provisions of the Criminal Code which takes the form of a defence to prosecution for those involved in reporting in the public interest. This defence was introduced as part of the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018.
3.167
Additionally, the Attorney-General’s Department reiterated that a review of all secrecy provisions in Commonwealth legislation will soon be undertaken by the Attorney-General’s Department, as a result of the recommendation of this Committee in its Advisory Report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017.
Definition of journalist
3.168
While some submissions to the inquiry have criticised the legal definition of journalist as not being broad enough, others contend that a more narrow definition of journalist is suitable for the purposes of providing adequate protection to those engaged in journalism and public interest journalism.
3.169
The current legislative provisions at the Commonwealth-level seek to define a journalist as a person who is working in the capacity of a professional journalist as well as:
…a person engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media.
3.170
Further, for the purposes of defining when privilege applies, a journalist is also defined by Commonwealth legislation in the Evidence Act 1995 as:
… a person who is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information may be published in a news medium.
3.171
Members of ARTK emphasise that journalism is a profession that invokes certain obligations. Mr David Anderson, Managing Director of the ABC outlined:
The craft of journalism, through a registered and credible media organisation, is something a journalist is undertaking to inform the public of what's important to them… A journalist is trained, a journalist is skilled, a journalist abides by a code and abides by the obligations of a high journalistic standard… A journalist is there to inform the public about what's important to them and a journalist exercises due diligence in the way that they go about doing it. There is assessment in the effect that might have, but there's also assessment with regard to what is important for a fully functioning democracy… And a journalist operates to a standard of objective journalism, and a journalist is also trained in how to exercise their obligations as a journalist.
3.172
Mr Campbell Reid from News Corp Australia expanded further:
A crucial thing, too, is that journalists individually and through the companies that they work for, and the organisations represented here, accept responsibility for what they do—a crucial difference to people who are operating in social media, seeking to avoid responsibility. The authority comes from the fact that, even in the social and digital era, the primary news sources that serve our country are those that have evolved out of legacy media into digital spaces. All of us are very successful publishers in the digital space and, when we moved into the digital space, all of our acceptance of responsibility and legal requirements went with us, unquestioningly. So we don't think that it's confusing in the modern era to differentiate between real journalism and fake or fraudulent or uncaring things pretending to be journalism. We are who we are. We've gone from legacy to digital and we think, as we take our responsibility with us, we should also take our freedoms with us.
3.173
ARTK suggested that an accurate definition of journalism should preclude those who directly communicate unauthorised material. When asked about the direct disclosure of material obtained by WikiLeaks without redaction, Mr Campbell Reid from News Corp Australia distinguished between the craft of journalism and direct bulk disclosure:
We take responsibility for what we publish. In hindsight, a lot of people who were involved in the Julian Assange matter painted him as a hero of journalism. That's far from the case. If you're going to just dump documents into the world and go, 'Oh well, I'm conducting some kind of public duty,' and people's lives are in danger because of that, that's not journalism; that's irresponsibility. And that's what we're arguing about.
3.174
ARTK considered that direct bulk disclosure to be in contravention of the code that professional journalists abide by:
We talked about a guiding code. We talked about being sourced, being researched, being edited, being checked, being legalled—and that's the process that our journalists and editors and the support teams around them go through.
Public interest defence vs exemption
3.175
Submissions to the inquiry have called for an exemption rather than a defence for reporting in the public interest to negate the requirement to defend prosecution. The substance of this position was stated by the Human Rights Law Centre (HRLC):
It is vital that journalists are provided protection from criminal liability. There is a defence that covers journalists engaged in the business of reporting news (section 122.5(6)), however operating as a defence, it still allows a journalist to be charged and places the burden on journalists to prove the defence, and bear the cost and stress of court proceedings. The June 2019 media raids showed how damaging the mere conduct of raids can be in terms of creating a broader chilling effect.
Instead of defences, there should be exemptions to secrecy offences for journalists.
3.176
ARTK has stated their position for the introduction of exemptions from certain offences and has referred the Committee to its submissions to previous bill inquiries on those offences, but that they do not all uniformly call for exemptions.
3.177
The Institute of Public Affairs raised a counter-argument, noting that an exemption granted to journalists, as a subset of the population, creates a special free speech privilege to those covered by the exemption, something which should be afforded to all. A limited number of other submitters did not support an exemption in any form.
3.178
Mr Hugh Marks, CEO of Nine Entertainment, contended that the defences that are currently available imply that journalists and media organisations are criminals:
The legislative framework that is set around the media's ability to report sets the tone of the role we're able to play in our society, and critical to that tone in our society is whether a piece of legislation has an exemption for legitimate media activity, or a defence. A defence starts with the premise that we could be criminals. An exemption is a mark of respect that truth and the right to be informed are equally as important as safety.
… This comes down to defences versus exemptions. At the moment, you start off with the premise that something that we've done may be a criminal act, and then we have to defend ourselves, whereas if there's a recognition through legislation that the media has a legitimate role to perform, that should be exempted from certain provisions. There's an allegation, and the legal action might be that we didn't operate within the exemption.
3.179
Aside from prosecutorial considerations for a defence, some submitters suggested that requiring the defendant to make out the elements of the defence is an inappropriate reversal of the burden of proof:
… section 122.5(6) is framed in such a way as to provide a defence for journalists prosecuted under Division 122 of the Criminal Code, which may place the burden on journalists to prove the elements of the section 122.5(6) defence beyond reasonable doubt. Whereas, if Division 122 contained a specific exemption of public interest reporting by the press, the burden would fall on the prosecution to establish that the exception does not apply in a particular case.
The Law Council notes that it is ordinarily the role of the prosecution to prove the elements of an offence. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.
While in this provision the defendant bears an evidential burden rather than a legal burden, the Law Council is of the view that it is inappropriate to place the burden of proof on the defendant and rather this should remain the responsibility of the prosecution.
3.180
In response, the Attorney-General’s Department outlined:
Regardless of whether the provision is framed as an exemption or defence, the accused must discharge the evidential burden pursuant to section 13.3 of the Criminal Code. There is no difference in the legal effect.
An evidential burden only requires the defendant to adduce or point to evidence that suggests a reasonable possibility that the matter exists or does not exist. If the defendant discharges an evidential burden, the prosecution must disprove those matters beyond reasonable doubt.
Whether framed as an exemption or defence, an accused may discharge an evidential burden by relying on matters that form part of the prosecution case or seeking to lead evidence as part of the defence case. The question of whether the evidential burden has been satisfied is a question of law, to be decided by a judge. If discharged, the question of whether the prosecution has disproven the defence/exemption beyond reasonable doubt is put to a trier of fact (either judge or jury).
There is no procedural difference between the application of a defence or exemption. An accused person may, for forensic reasons, wait until the defence case is called before revealing evidence to justify his or her conduct, but they do not have to take that course. An accused person may, and sometimes will, act proactively to advance evidence of a defence or exemption in a record of interview, by way of a statement or by supplying evidence to the prosecution in advance of a trial or a prosecution being initiated. This observation applies equally whether the provision is framed as an exemption or defence.
Further, as per the Prosecution Policy of the Commonwealth, the prosecution will also consider whether there is a reasonable prospect of a conviction being secured prior to proceeding with a prosecution, including consideration of any lines of defence that are open to the defendant. This would include consideration of both defences and exemptions alike.
3.181
The requirement identified above, under the CDPP prosecution policy for any possible defences and exemptions to be considered when determining whether there are reasonable prospects of success when determining whether to prosecute, was supplemented by the identification by the Attorney-General’s Department, in answers to questions from the Committee, that ‘[t]he prosecution will also consider whether a prosecution would be in the public interest before proceeding’.
Defences, exemptions and increased espionage risk
3.182
ASIO argued that any exemption created for journalists could encourage hostile foreign actors to exploit potential vulnerabilities in the legal system:
ASIO does not support broad exemptions for particular classes of people, industries or professions. ASIO considers exemptions applied in this way could undermine the effectiveness of Australian laws by encouraging hostile actors to structure their activities to exploit any potential vulnerabilities in Australia’s legislation.
… ASIO can foresee a circumstance in which making a distinction in the application of exemptions between ‘legitimate’ journalism that is conducted in the public interest, and conduct by hostile actors under the guise of journalistic cover could endanger sensitive sources, methods and intelligence-sharing relationships. If an exemption were to be introduced, the prevalence of journalistic cover being used to mask activities harmful to Australia’s interests by hostile actors may well increase. ASIO has also noted in its submission that this could have the unintended consequence of increasing the intelligence threat to journalists, as journalists may be targeted to access information from sensitive sources on behalf of a foreign intelligence organisation.
3.183
In response, ARTK suggested that legitimate journalists ‘have the professional training and instincts to make them suspicious of the motives of anyone who comes to them seeking their assistance, and do due diligence as a result’.
Committee Comment
3.184
The Committee notes the evidence provided for both the retention of a defence and the establishment of an exemption – or element – for reporting in the public interest by a journalist or media organisation.
3.185
Firstly, the Committee notes the evidence provided by submitters that the definition of a ‘journalist’, ‘public interest journalism’ and ‘journalistic material’ varies in Commonwealth legislation. The Committee notes that a consistent definition of what constitutes journalism was not settled among submitters, and whilst acknowledging the need for consistency, the Committee considers that it has received insufficient evidence regarding an appropriate definition to set out in a recommendation as part of this report.
3.186
However, the Committee acknowledges the desirability of consistency across legislation in relation to these key definitional matters, and agrees that consistency in this area provides assurance to those engaged in the professional act of journalism regarding their rights and responsibilities.
3.187
Secondly, existing defences have been introduced in recognition of the potential for journalists undertaking legitimate journalistic activity being captured in relation to secrecy offences introduced into the Criminal Code. However, as outlined above, media and other stakeholders have argued that a defence, which carries with it an onus of proof to disprove one or more evidentiary elements of the offence, is not reflective of a system that balances freedom of the press, especially when acting in the public interest.
3.188
The Committee notes that the establishment of an outright exemption designed to preclude investigatory processes could have unintended consequences if the limits were to be tested in court.
3.189
The Committee also notes the consistent view provided by ASIO that an exemption for journalists would incentivise the use of media credentials as cover for hostile foreign actors to utilise. This position has been stated in very certain terms by the Director-General of Security on multiple occasions, and as such cannot be ignored.
3.190
The argument from ARTK only addresses half of the point put forward by ASIO, that hostile foreign actors may seek to target and influence journalists, rather than posing as journalists in order for any possible exemption to apply to their activity. This cover as a journalist is a legitimate concern, both as a means to access information and influence people under the guise of a journalist, as well as attempts that may be made by these actors to ‘shape the media in Australia’.
3.191
As indicated above, the Committee notes that secrecy offences form part of a number of pieces of legislation and may include:
Section 35P of the Australian Security Intelligence Organisation Act 1979;
Sections 80.3, 91.4, 91.6, 91.9, 91.13, 92.5, 92A.1, 119.7, 122.5, 131.1, 132.1 and 474.47 of the Criminal Code 1995;
Sections 3ZZHA and 15HK of the Crimes Act 1914;
Section 73A of the Defence Act 1903;
Part 6, Division 1 of the Intelligence Services Act 2001; and
Sections 42 and 45 of the Office of National Intelligence Act 2018.
3.192
Accordingly, the Committee recognises that a review is timely, and recommends that the upcoming review of all secrecy provisions in Commonwealth legislation to be undertaken by the Attorney-General’s Department – as a result of the recommendation of this Committee in its Advisory Report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 – should consider whether public interest journalism is adequately protected.
3.193
This review by the Attorney-General’s Department should be prioritised for finalisation and report by June 2021.
3.194
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.
3.195
In addition to the considerations from the recommendation above, the Committee acknowledges the fundamental disparity in the position of many submitters in relation to whether public interest journalism should be considered an exception or remain a defence under subsection 122.5(6) of the Criminal Code 1995.
3.196
Some members of the Committee considered that the subsection 122.5(6) of the Criminal Code 1995 should remain a defence and not an exemption (or exception) for public interest journalism. Other members of the Committee disagreed, and considered that the provision should be re-drafted to provide for an exception along similar lines to amendment made to the Criminal Code Amendment (Agricultural Protection) Bill 2019.
3.197
However, following consideration, the Committee has concluded to recommend that the Government give consideration to whether the defence provided for in subsection 122.5(6) of the Criminal Code should be applied to other secrecy offences in relevant Commonwealth legislation.
3.198
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.
Avenues for further cooperation between media and intelligence and law enforcement
3.199
Mr James Chessell from Australian Metro Publishing of the ARTK indicated that it is the preference of journalists and media organisations to cooperate with departments and agencies in determining harms that can result from the publication of information contained within a document with a national security classification:
Our preference is to work when appropriate with the agencies to make sure what we intend to publish does not put national security at risk. It's a duty we take very seriously. We seek outside advice, we seek legal advice and we draw on the experience of a newsroom to make sure that we approach it in a responsible way. I think one of the dangers of the conversation recently has been that proper newsrooms have been portrayed as places where some of this stuff goes through unfiltered. It is quite the opposite.
3.200
The Committee received similar evidence from Mr Michael Pezzullo, Secretary of the Department of Home Affairs, stating that departments and agencies will cooperate with journalists and media organisations:
In my experience—and this is based on live examples which have resulted in stories that subsequently have been produced—there's always scope to negotiate. In a sense, you don't really need to talk about the detail of that weapons system or the capabilities of our submarines or how ASIS goes about its business, but you've got the document. I might not like the fact that you've got the document, and that goes to the separate question of who the primary discloser is. How is it that the document came to be in the possession of the reporter or the person involved in the news business otherwise? But I accept, in a country with a free press, they're going to publish. So how is it that you can steer, assist and work with that journalist to ensure that lives are not put at risk, that sources and methods are not compromised? It might be that the point of the story they're trying to get at is human rights abuses or maladministration or other facets that are in the public interest, where the capabilities themselves or the systems that we rely upon to keep our country safe don't gratuitously need to be retailed.
… The question then of how you handle the engagement with the media is always, in my experience, a case-by-case matter. Some are willing to be very cooperative and they actually don't want to gratuitously put unnecessary amounts of sensitive information out there; others don't bother to check; and there's a wide spectrum in between.
3.201
Mr Campbell Reid from News Corp Australia acknowledged additional considerations taken regarding the impacts of publication:
There's another important factor in all of this: the readers and the people who consume our news. Can you imagine the level of outcry that would come from ordinary Australians if we published something that put lives of security operators or policemen or armed forces at risk? So, as well as balancing your theoretical and technical responsibility, as an editor you're sitting there thinking, 'Well, if I publish this, and a family of Australians suffers a loss of a loved one because of me being cavalier because "Yay, I've got a document that I'm going to publish"'—there's a huge modifying force, which goes right back to our opening contention, that we are members of this society and we accept our responsibility to behave properly. This creeping legislation over the last 10 years assumes that our starting point is that we are cavalier.
3.202
The nature of potential offences that may have been committed under current legislation by receiving information and approaching an agency with that information may impact on the desire for cooperation between journalists and media organisations and national security agencies.
3.203
As indicated above, in deciding whether to commence an investigation or prosecution, the AFP considers a variety of factors. The AFP Commissioner provided evidence that attempts to check information with departments and agencies would be considered in any future prosecutorial action:
… I would say this. Ultimately we're looking at unauthorised disclosure offences, so that still focuses our attention on the person who has released this in the first place. Where what you're describing comes into our mind is, if a journalist or a media organisation is attempting to engage with the department or whoever the agency is that has that information, then it clearly goes to their intent and their state of mind in publishing that information. That's a relevant factor in a criminal process. We have to prove intent, and the state of mind of somebody is very important in terms of us proceeding with a criminal prosecution. That's a very relevant factor. We would always say—and I'm sure every department would say the same thing—if a media organisation is in possession of information, 'Come forward and work with us,' as many journalists do when they understand that they have information that is sensitive and may have unintended consequences if it's published. Work with us on that. My experience has been, when journalists have done that, it's led to a much better outcome for both the agency that's lost information and the media organisation.
3.204
This statement is supported by evidence provided by Mr Greg Moriarty, Secretary of the Department of Defence, where The Canberra Times cooperated with the Department of Defence on national security classified material as discussed in Chapter 2.
3.205
The ABC highlighted the importance of transparency to a free and democratic society:
Transparency in government is integral to a healthy democracy. It is not only the media which is obliged to inform the public; the government itself is required to disclose government information to the public.
3.206
The Office of National Intelligence (ONI) acknowledged the importance of transparency, but noted it must be balanced with the protection of national security:
… decisions about the disclosure of intelligence information require complex and careful consideration about the harm that could result from such a disclosure. While transparency is important, it is not the only public interest, and the Australian government, supported by advice from intelligence agencies and policy Departments, bears a heavy burden in balancing transparency with its responsibility to protect the wider Australian national interest in protecting Australia's national security.
Committee comment
3.207
The Committee notes with interest the evidence received from media organisations and individual journalists regarding the desire to work cooperatively with the government in ensuring that publication of disclosed material will not unduly affect national security or the safety of individuals.
3.208
The assurances provided are a welcome statement from media that they are willing to liaise and cooperate with agencies regarding the information and its potential publication.
3.209
Accordingly, the Committee recognises that positive outcomes could arise from cooperation between journalists or media organisations and departments when material is received that is not authorised for disclosure, and where formal liaison regarding impact, scope of reporting and follow-up cooperation could be discussed.
3.210
The Committee therefore recommends that establishment of a formal mechanism for consultation be considered, where media can liaise with agencies regarding national security classified information, without the fear of investigation or prosecution. Additionally the Committee recommends that those agencies prioritise the creation of a media liaison unit to create this mechanism.
3.211
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.
Disclosure offences and intention to create harm
3.212
The AJF raised the contention that secrecy provisions hinder journalists reporting on public interest matters:
While the security agencies’ work in relation to matters of national security needs specific protection, the law unnecessarily extends to matters not related to issues of national security. For example, journalists reporting on corruption or sexual misconduct in the security agencies would be just as vulnerable to prosecution as those covering security issues. This unnecessarily hinders the work of journalists in keeping all sectors of government accountable.
3.213
HRLC provided analysis of some Commonwealth secrecy offences in its submission to the inquiry, noting that the recurring element across the general offences analysed was the lack of an element of express harm to an essential public interest, such as protecting national security and law enforcement.
3.214
The Law Council of Australia expanded on this, identifying that the current scope of general secrecy offences in the Criminal Code that are bound to information ‘deemed to ‘cause harm to Australia’s interests’ and consisting of ‘inherently harmful information’’ are too broad and may capture all manner of communications.
3.215
In alignment with the HRLC, the Law Council of Australia identified the need for an element of express harm to an identified essential public interest. Expressing further:
Such an element would address concerns about the broad scope of criminal secrecy provisions, which may capture disclosures of information that are innocuous. Where no harm is likely, the ALRC considered that other responses to unauthorised disclosure of Commonwealth information are appropriate, including the imposition of administrative sanctions or the pursuit of contractual or general law remedies.
3.216
The lack of express harm elements in secrecy offences was a concern raised by a number of other submitters to this inquiry, and had been raised with this Committee’s predecessor during the 45th Parliament in relation to the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 (EFI Bill).
3.217
In its advisory report on that Bill, the Committee’s recommendation 24 stated:
The Committee recommends that, following the passage of the general secrecy offences in Schedule 2 to the Bill, the Attorney-General initiate a review of existing secrecy offences contained in other legislation, taking into account the set of principles contained in the Australia Law Reform Commission’s report, Secrecy Laws and Open Government in Australia.
3.218
This recommendation was acknowledged by the Department of Home Affairs in response to questioning regarding offences relevant to this inquiry:
The Attorney-General’s Department is responsible for coordinating a review of existing secrecy offences. Consistent with the recommendation of the Parliamentary Joint Committee on Intelligence Security’s advisory report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, the review will take into account the principles set out by the Australian Law Reform Commission in its report, Secrecy Laws and Open Government in Australia.
3.219
The Australian Law Reform Commission’s (ALRC) report, that forms the basis of the issue identified by the HRLC and the Law Council of Australia, is being considered as part of the review of existing secrecy offences, incorporated recommendations and the principle ‘to narrow the scope of secrecy provisions, including, in most circumstances, linking them to an express harm requirement’.
Committee comment
3.220
The Committee notes the concerns raised by media organisations and other stakeholders about the breadth of the application of national security offences.
3.221
Changes to general secrecy provisions in Division 122 of the Criminal Code introduced by the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 have addressed some concerns regarding disclosure; however the recommendation by the ALRC for an express harm element to the offences has not been implemented in a complete manner.
3.222
The Committee notes the evidence from the Attorney-General’s Department that a review of all secrecy provisions in Commonwealth legislation is currently being undertaken by the Attorney-General’s Department, as a result of the recommendation of this Committee in its Advisory Report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017.
3.223
Additionally, the Committee notes that the Department of Home Affairs further submitted that the ALRC’s recommendations regarding express harm elements for offences is being considered as part of that review.
3.224
Accordingly, as the recommendations of the ALRC regarding secrecy offences – reiterated by the Law Council of Australia – are currently being considered by a review underway as a result of a recommendation of this Committee in a previous Advisory Report, the Committee is not recommending any further review or change at this time.
Public Interest Disclosure
3.225
Due to the nature of unauthorised disclosures and the circumstances that release of government information might occur under, the inquiry received an amount of evidence about whistleblower protections and the Public Interest Disclosure (PID) scheme.
3.226
The PID scheme is enabled by the Public Interest Disclosure Act 2013 (PID Act), which allows for disclosures in the public interest to Authorised Officers—internal staff members of relevant agencies with training on how to handle public interest matters—as well as the Commonwealth Ombudsman, and the Inspector-General of Intelligence and Security for intelligence-related matters.
3.227
External disclosure is authorised in very narrow circumstances, and usually only after an internal disclosure has been made.
3.228
Once a disclosure has been made it is assessed by the Authorised Officer to ensure that it fits the relevant statutory criteria; including whether the disclosure fits the criteria of disclosable conduct contained within s 29(1). An Authorised Officer must make a determination within 14 days about whether the matter should be referred for investigation, unless additional time is sought and granted.
3.229
Where a matter meets the relevant criteria and is determined to be a PID, the Authorised Officer must allocate the PID, notify the discloser (where practicable), notify the principal officer, and notify the Ombudsman or IGIS (as appropriate).
3.230
Once the matter has been referred for investigation, the investigation is required to be completed within 90 days, however the responsible department or agency can seek an extension if required.
3.231
The legislation came into effect in early-2014, and was subject to a review two years following commencement.
What constitutes a disclosure in the public interest?
3.232
Complaints must relate to disclosable conduct which is defined in s 29(1) of the PID Act and includes conduct that:
contravenes a Commonwealth, state or territory law
occurred in a foreign country and contravenes a foreign law that applies to the agency, official or service provider
perverts the course of justice
constitutes maladministration, including conduct that is based on improper motives or is unreasonable, unjust, oppressive or negligent
is an abuse of public trust
involves fabrication, falsification, plagiarism or deception relating to scientific research, or other misconduct in relation to scientific research, analysis or advice
results in wastage of public money or public property
unreasonably endangers health and safety
endangers the environment.
is prescribed by the PID rules (s 29(1), however no PID rules have been made at the time of publication).
Disclosable conduct also includes conduct by a public official that:
involves or is engaged in for the purposes of abusing their position as a public official, or
could give reasonable grounds for disciplinary action against the public official (s 29(2)).
3.233
The Office of the Commonwealth Ombudsman sets out what does not constitute disclosable conduct under the PID Act:
It is not disclosable conduct just because a person disagrees with:
a government policy or proposed policy
action or proposed action by a minister, the Speaker of the House of Representatives or the President of the Senate
expenditure or proposed expenditure related to such policy or action (s 31).
Disclosable conduct also does not include the proper performance of the functions and proper exercise of the powers of an intelligence agency or its officials (s 33).
3.234
In addition to the disclosable conduct provisions under the PID Act, an employee of an intelligence agency, or members of the public, can make a complaint to the IGIS about the actions of an intelligence agency. In giving evidence to the Committee, ASIO indicated that in their view the scheme was operating effectively:
My view would be that the Inspector-General of Intelligence and Security has a wide remit across the activities of ASIO and the operations of ASIO and is able to inquire very, very broadly when matters are brought to her attention or, indeed, should the Inspector-General wish to do something on her own motion. It is a scheme that's been in operation now for a few years. It has been used on a small number of occasions and has seemed to meet the needs of those who have wished to bring those sorts of issues to attention.
Separately, if a member of the public observes something or wishes to make a complaint in relation to the activities of our agency that go to those issues under the Public Interest Disclosure scheme, they can separately go directly to the Inspector-General of Intelligence and Security, and, again, the office can investigate those matters separately and has wide powers to do so.
3.235
Only current and former public officials may be afforded protection under the PID Act when they make complaints regarding conduct that is contained in the ‘disclosable conduct’ provisions of the PID Act, which can include fraud, serious misconduct and corrupt conduct, as well as minor wrongdoing. Once an eligible person makes a disclosure to a proper authority, they are provided with legal protection from reprisals that result from disclosure.
The operation of the PID scheme
3.236
A number of submissions drew upon the experience of whistleblowers to highlight their concerns regarding government maladministration, or about the chilling effect that is being experienced on sources that are willing to come forward with information. However, the objectives of the PID Act are to foster an environment where officials are encouraged to raise circumstances of wrongdoing:
6 Objects
The objects of this Act are:
(a) to promote the integrity and accountability of the Commonwealth public sector; and
(b) to encourage and facilitate the making of public interest disclosures by public officials; and
(c) to ensure that public officials who make public interest disclosures are supported and are protected from adverse consequences relating to the disclosures; and
(d) to ensure that disclosures by public officials are properly investigated and dealt with.
3.237
Once an eligible person makes a valid disclosure to a proper authority, it is intended that they are provided with legal protection from reprisals that result from disclosure.
3.238
As mentioned above, government departments and agencies must report the receipt of a PID that tends to show, or the discloser reasonably believes that the disclosure tends to show, disclosable conduct under the PID scheme to the Commonwealth Ombudsman or the IGIS once a decision has been made by an Authorised Officer to refer a PID for investigation. This notification may comprise limited details and a short synopsis of the issue and could occur at any time within 14 days following receipt of the PID. The Commonwealth Ombudsman or the IGIS are subsequently updated when a decision has been made that finalises the investigation.
3.239
Each year, the Commonwealth Ombudsman prepares a report to parliament on the operation of the PID Act which includes:
the number of public interest disclosures received by authorised officers of the agency
the kinds of disclosable conduct to which those disclosures relate
the number of disclosure investigations the agency conducted
the actions that the agency has taken in response to recommendations in reports relating to those disclosure investigations
the number and nature of the complaints made to the Ombudsman about the conduct of agencies in relation to public interest disclosures
information about the Ombudsman’s performance of its functions under s 62 and the IGIS’s performance of its functions under s 63.
3.240
Government stakeholders who provided submissions to the inquiry believed that complaints mechanisms for allegations of wrongdoing were generally appropriate.
3.241
The Department of Defence considered that their systems were adequately robust to deal with allegations of wrongdoing:
I think it's worthwhile making the point that, within Defence, as with other Commonwealth agencies, that is not the only way in which people who had some sort of concern could raise issues. We have a strong security reporting framework, so people may raise security matters and, indeed, are expected to raise security matters. We have fraud reporting; some of that comes out through the PID scheme. We have the public interest disclosure scheme; that is well embedded in the Defence department. If you'd like, I can go to some statistics around that. People are also able to make complaints directly to the Commonwealth Ombudsman. We would expect people to use their chain of command. They can go to the Inspector-General of the Australian Defence Force. ADF members can go to the Joint Military Police Unit or the Defence Force Ombudsman. Then there are other ways of making complaints, including, for example, the Inspector-General of Intelligence and Security. So there are a range of mechanisms through which people with concerns could bring those forward in a way separate from a public disclosure, through providing it to someone outside of that chain who is authorised to deal with it.
3.242
However, many non-government stakeholders were critical of the scheme or the limitations of protections to internal disclosures by government officials.
3.243
Additionally, in April of this year the Federal Court made comment on current operation of the PID scheme as ‘technical, obtuse and intractable’.
3.244
Media organisations see a role for themselves in public interest disclosure as a fail-safe for when other systems are inadequate. In reference to the unauthorised disclosure of Australian Signals Directorate (ASD) material, despite the internal processes for addressing complaints, Mr Mark Maley from the ABC indicated that those complaints processes would not be effective all of the time:
But the more general point which you're getting at is that of course it's a good thing that there are systems. I think it's probably fair to say there wouldn't be these comprehensive systems in the public sector if it hadn't been for media pressure and media exposures over the years. They are a response, to a large degree, to the media revealing that adequate systems of that sort weren't in place. So we're all in favour of good systems that protect internal whistleblowers, but, to be honest, the media is ultimately about dysfunction, when things don't work. Those systems will not work in all cases, and there are examples within the Department of Defence, for instance, where those sorts of processes haven't worked and people have complained to the media to good effect. That's the point of free media—we are here when the other systems fail to work. We are the ultimate backstop. Without being too pompous about it, we represent the population outside of government and parliament. That's who we represent. We represent the audience and the ordinary people when those systems fail them. It is great to hear that the Department of Defence has set up comprehensive and effective systems, but it's naive to think they'll work in 100 per cent of cases.
3.245
The concept of whistleblowers and their protection from reprisal or prosecution outside of government were raised in general to the Committee, especially in relation to the role that corporate whistleblowers may have played in public interest reporting. Adele Ferguson outlined that when whistleblowers (most non-government) approach the media they can suffer significant consequences:
Most whistleblowers I have dealt with have made huge sacrifices. CBA whistleblower Jeff Morris has not been able to get a job. His marriage broke down, he suffered a breakdown and received death threats from a co-worker. CommInsure whistleblower Dr Ben Koh had to leave the industry and battled the bank in legal action before settling. ATO whistleblower Richard Boyle is facing 66 charges that, if found guilty, total 161 years of jail.
3.246
Other submitters also noted the potentially dire personal consequences that whistleblowers have historically faced.
The Review of the Public Interest Disclosure Act 2013
3.247
The Review of the Public Interest Disclosure Act 2013, undertaken by Philip Moss AM (Moss Review) on the second anniversary of its commencement, considered the operation of the PID Act and current PID regime. The Moss Review made 33 recommendations that were intended to encourage and instil a pro-disclosure culture. The review concluded that:
When disclosures are made, a strong capacity for investigation is needed. The proposed additional investigative agencies will use their specialist expertise and suite of powers to scrutinise issues within their remit based on PID information, and to support better practice by those agencies. Focussing away from personal employment-related grievances towards serious wrongdoing will help to restore the reputation of the PID Act in the Commonwealth public sector and encourage agencies to regard the PID Act framework in the integrity and anti-corruption context. Simpler legislative procedures, coupled with scrutiny by the Commonwealth Ombudsman, the Inspector-General of Intelligence and Security, and the proposed additional investigative agencies, will improve the PID Act framework and assist the Commonwealth public sector to achieve the purposes of the legislation.
3.248
The focus on stricter oversight and simplified legislation, as well as balancing transparency, confidentiality and procedural fairness to help to achieve an equitable upgrade to the PID scheme was supported by some submitters.
3.249
As part of the consideration of stronger oversight, the review recommended (at recommendations 3 and 4) that:
…the PID Act be amended to require a Principal Officer to provide the Commonwealth Ombudsman or the IGIS with a copy of the investigation report within a reasonable period of time; and
the Commonwealth Ombudsman share information about the handling of or response to a PID with relevant investigative agencies.
3.250
While noting its general support for the PID Act, the Attorney-General’s Department did note that the government is currently considering the Moss Review’s recommendations and did note that there are opportunities to improve the current regime:
While the broad policy settings of the Public Interest Disclosure Act are appropriate, there are opportunities to strengthen its practical operation and clarity. The independent ‘Review of the Public Interest Disclosure Act 2013’ undertaken by Mr Philip Moss AM (Moss Review) in 2016 made 33 recommendations to improve the Public Interest Disclosure Act but made no recommendation relating to the establishment of a Whistleblower Protection Authority. The Government is currently considering the recommendations made by the Moss Review.
Committee Comment
3.251
The Committee notes the important role a robust whistleblowing regime has in ensuring the Commonwealth officials have an avenue available to expose wrongdoing in a form that does not jeopardise effective government, or Australia’s national security interests.
3.252
The Committee supports the principles behind the PID Act and also the improvements identified in the Moss Review to make the scheme more sustainable and transparent. A clear and effective PID scheme will build trust in a government whistleblower’s ability utilise the scheme and receive its protections.
3.253
The Committee notes that no official Government response to the Moss Review has been tabled. The concession by the Attorney-General’s Department that the Government is still considering the recommendations of the review is assuring that the recommendations made have not been dismissed, however the Committee believes that a public response is warranted, given it has been more than three years since the report was handed down.
3.254
As part of any response to the Moss Review, the Committee believes that the Government should focus on a number of key issues, either raised in the original review report or that have been highlighted by submitters to this inquiry:
Amending the 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.
3.255
The Committee also notes that the Senate Environment and Communications References Committee’s press freedom inquiry has an express term of reference into ‘the whistleblower protection regime and protections for public sector employees’.
3.256
It is the Committee’s view that a formal response to the Moss Review, incorporating the improvements above, is warranted as a matter of urgency, preferably before the completion of the inquiry into press freedom that is currently being undertaken by the Senate Environment and Communications References Committee. That committee’s report, at the time of this report’s writing, is due to report by the second sitting Wednesday of 2021.
3.257
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.
3.258
The Committee recognises that the PID scheme is intentionally limited to instances of legitimate wrongdoing, and recognises that disagreement over policy decisions would not meet the objectives of the PID Act, nor should any consideration be given to affording the scheme’s protections to an individual that wishes to make a disclosure on the grounds of a personal rejection of proposed or existing policy proposals, or for the purposes of concealing misconduct by the discloser.
3.259
Given the strict process that applies to national security classified information, the Committee considers that there are opportunities to improve the timeliness and transparency of reports of disclosable conduct.
3.260
The Committee notes that intelligence agencies are currently required to report to the IGIS within 14 days regarding the receipt of a PID. The Committee considers that there would be benefit in intelligence agencies reporting each PID received prior to the determination of tendency (decision to refer investigation of disclosure within the current 14 day requirement) towards disclosable conduct.
3.261
As external disclosure provisions do not exist for intelligence-related disclosures, intelligence agencies should be required to consult with the IGIS within the 90-day investigation window to discuss the investigation outcome and whether a just and timely outcome is likely to be achieved. Ongoing consultation should occur with the IGIS should the circumstances warrant an extension to the investigation timeframe.
3.262
Where a public official indicates that their intelligence-related disclosure is urgent, the relevant agency should engage with the IGIS within 24-hours to ensure that the matter is treated with the appropriate level of urgency.
3.263
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.
3.264
Continued public confidence in the proper operation of government departments and agencies requires appropriate openness and transparency. The Committee considers that more frequent reporting on PID-related issues could assist in building confidence in this area.
3.265
To this end, the Committee recommends that the Australian Government provide for a mechanism for aggregated statistics related to PIDs received by all agencies to be reported to the Parliament every six months. Such statistics should outline the number of PIDS received, numbers allocated for investigation, as well as the time taken to investigate and determine the investigation of the outcome. Such reporting will supplement the statistical reporting currently undertaken by the Office of the Commonwealth Ombudsman and reported in its Annual Report.
3.266
As the Attorney-General’s Department has policy responsibility for the PID scheme, the Committee believes that the Attorney-General is best placed to provide these reports to the Parliament.
3.267
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.
3.268
The Committee also welcomes the Attorney-General’s Department’s advice that the recommendations of the Moss Review are under consideration and considers that the implementation of the reforms recommendation in the Review will go some way to improving the public’s confidence in the PID process.
Classification of documents
3.269
Central to the events that led to the referral of this inquiry, and the nature of the offences being considered related to unauthorised disclosure of classified material, is the assumption that the government appropriately classifies documents or information according to the risk posed if that information were to be disclosed publicly.
3.270
The classification of information is controlled by the originator of information and must comply with the core requirement for sensitive and classified information under the Protective Security Policy Framework (PSPF), as well as the eight supporting requirements for identifying, assessing and controlling that information.
3.271
The consideration of which level to classify information must ‘assess the value, importance or sensitivity of official information by considering the potential damage to the national interest, organisations or individuals, that would arise if the information's confidentiality was compromised’. This assessment is expected to then set the classification at the lowest reasonable level, in accordance with the table below.
Table 3.1: Protective Security Policy Framework - classification assessment matrix
|
|
|
|
|
UNOFFICIAL
|
No business impact
|
Not applicable
This information does not form part of official duty
|
|
OFFICIAL
|
1 Low business impact
|
Not applicable
This is the majority of routine information created or processed by the public sector
|
|
OFFICIAL: Sensitive
|
2 Low to medium business impact
|
Limited damage to an individual, organisation or government generally if compromised
|
|
PROTECTED
|
3 High business impact
|
Damage to the national interest, organisations or individuals
|
|
SECRET
|
4 Extreme business impact
|
Serious damage to the national interest, organisations or individuals
|
|
TOP SECRET
|
5 Catastrophic business impact
|
Exceptionally grave damage to the national interest, organisations or individuals
|
Source: Protective Security Policy Framework, 8 - Sensitive and classified information
3.272
Mr Michael Pezzullo, Secretary of the Department of Home Affairs provided that in addition to these national security classifications, information can be further limited by attaching a code word:
Information can be classified with its stem, if you like, classification: secret or top secret. It can have a code word attached to it, which I won't further describe, but it relates to particular types of information and particular methodologies that have been used or particular categories of information that are otherwise especially protected.
Oversight and compliance mechanisms
3.273
Material with a national security classification can be generated by an expansive range of parties including Commonwealth entities subject to the Public Governance, Performance and Accountability Act 2013, as well as State and Territory authorities and non-Government organisations as required by deed or agreement.
3.274
In line with the PSPF, when a Commonwealth officer makes a determination of the harm that would be caused by the release of information and assigns a security classification, that classification – along with any limits on dissemination or code words – must appear on the document.
3.275
The Attorney-General’s Department indicated that the appropriateness of the classification is only formally considered when a matter related to an unauthorised disclosure is heard in court:
It would not be appropriate for the validity of a security classification to be assessed and determined at the time a warrant application is made. The appropriateness of the security classification is itself an element of the general secrecy offences in the Criminal Code. It can be contested at a trial and, as an element of the offence, it is properly determined by a court at a trial rather than at the evidence gathering stage.
3.276
At present, the assessment on the harm of disclosure made by the Commonwealth officer on classified information is not formalised when a document is created or authorised for dissemination. Mr Pezzullo indicated that assigning a security classification requires experience but is largely instinctual for experienced staff members:
Once you're experienced—an analyst who's had two or three or four years experience, someone who's working in the intelligence community, someone who's working in one of my divisions—it becomes an almost intuitive or instinctive sense of: 'This is clearly going to be secret, so I'll use "secret". This is clearly going to be top secret. Why? Because, in the documents that I'm using, the highest classification is "top secret".' It becomes an intuitive mastery of your subject field.
3.277
Mr Pezzullo also provided an example of a contested consultative process that may occur when assigning a classification:
In some cases an intelligence report might be written by an APS4 or APS5 officer. They will have a supervisor who will assist them, mentor them and guide them. There is no rank classification. I know for a fact that graduates, for instance, in our system can author documents. They will author a brief to me…and it is the document originator who says, 'This probably will involve briefing the secretary at the secret level; so I will pull down a template for secret and start populating the text’…The supervisor might say, 'You're right,' or 'We don't need to tell him all that; so we will knock it down to protected’.
3.278
The person responsible for generating documents with a national security classification retains responsibility for assigning and reviewing its classification, in recognition of the consideration they have undertaken in assigning a classification. This was articulated by ONI in their response to a Question on Notice:
In all intelligence exchanges it is essential that the originator of the material is satisfied with how it is handled and disseminated. Only the originator can fully understand the sensitives around the sourcing of the material, and the potential for the sources, techniques and capabilities to be compromised by unauthorised disclosures.
3.279
Ms Jacinta Carroll indicated that the existing classification of a document is a factor that must be considered when determining whether the document should remain at the classification or would be suitable for reclassification:
While the overall classification of a document or asset is determined through assessing the likely harm of releasing the information, additional factors that must be taken into consideration include classification and protective markings already assigned by originators of information included in the document.
3.280
The originator should undertake consideration in line with the processes set out in the relevant guiding document, cognisant of the objectives of classifying information and the intrinsic risks associated with over-classification:
Appropriately limiting the quantity, scope or timeframe of sensitive and security classified information:
promotes an open and transparent democratic government
provides for accountability in government policies and practices that may be subject to inappropriate or over-classification
allows external oversight of government operations and programs
promotes efficiency and economy in managing information across government.
Over-classification of information can result in:
access to official information being unnecessarily limited or delayed
onerous administration and procedural overheads that add to costs
classifications being devalued or ignored by personnel and receiving parties.
It is not consistent with this policy to apply a security classification to information in order to:
hide violations of law, inefficiency, or administrative error to prevent embarrassment to an individual, organisation or entity
prevent or delay the release of information that does not need protection.
3.281
Mr Dylan Welch of the ABC, submitted, as part of the Walkley Foundation’s submission, that there is a perception that documents are overclassified in contravention of these principles:
I believe there is a very real concern that the government and its agencies may be seeking to undermine the role of public interest journalism for reasons that relate only to embarrassment. It's hard to see how the Oakes/Clarke reports regarding incidents from five to ten years ago dealing with a war in which we are no longer involved truly undermine Australia's national security—it's my view that they instead are merely a source of keen embarrassment to the Government and Defence.
Review of classification application
3.282
Some submitters suggested that an audit or review into the appropriateness of assigning a national security classification is required.
3.283
The last audit into the application of national security classifications, as part of the then broader Protective Security Manual (PSM) implementation audit, was conducted by the Australian National Audit Office (ANAO) in 1999. The audit discovered instances of incorrect classification of documents, and determined that the most common form of incorrect classification was over-classification. The report also recommended that a formal staff training program be implemented to address the appropriate use of the classification system.
3.284
The 2019-2020 Audit Program for the ANAO flagged a potential audit of the implementation of the revised PSPF:
This audit would assess the effectiveness of the Attorney-General’s Department (AGD) in promoting the revised Protective Security Policy Framework (PSPF) and the extent to which selected entities are meeting the framework’s core requirements.
3.285
The Committee received evidence of training that occurs to inform staff of their rights and obligations under the PID scheme, but did not receive evidence of training that occurs to appropriately apply a national security classification to a document.
3.286
In relation to the informal nature of assigning a national security classification, Mr Shoebridge expressed that requiring agencies to document the rationale behind assigning a national security classification could decrease the risk of over-classification.
I would say, having looked at [the classification matrix] before—back to this looking at how it's being applied—that there's just applying the matrix and saying, 'Yes, I assess there's a high level of harm; this would cause grave or catastrophic damage to Australian national security interest,' but the bit that needs to happen is what you are taught in debating: you can make an assertion there will be harm but you have to say why. So you have to give an example of why that would be the case.
… the person who's classifying it needs to bring their own reasoning to specifically why in that case the harm would be catastrophic.
3.287
A process whereby the reasoning behind assigning a security classification could be documented and contestable would allow for improved judgment and appropriate oversight. The Inspector-General of Intelligence and Security could provide valuable oversight of compliance in this area:
A significant proportion of the resources of the Office are directed towards ongoing inspection and monitoring activities, so as to identify issues, including about the governance and control frameworks within agencies, before there is a need for major remedial action.
Committee Comment
3.288
The Committee recognises that the disclosure of classified information can significantly impact Australia’s ability to protect its people, operations, capabilities and relationships with foreign partners.
3.289
Though the PSPF exists to control and limit the amount of information that should have a national security classification applied, it appears from the evidence received that there is a perception that information is classified when it would not prejudice Australia’s national interests if released, or may be overclassified as to the real harm to Australia’s interests that the information presents.
3.290
Therefore, the Committee welcomes the potential ANAO audit into the PSPF as a timely means to create a baseline for the approach by departments and agencies in assigning national security classifications, and recommends that the audit be adopted and prioritised. It is unclear at the time of this report whether the audit may occur due to the impacts of COVID-19, but the Committee would welcome its priority upon the resumption of normal audit activity or in future audit programs.
3.291
Additionally, in order to ensure public confidence – including the confidence of journalists and media organisations – in the process of assigning a national security classification, training programs should be compulsory for staff members.
3.292
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.
3.293
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.
3.294
The Committee notes that, unsurprisingly, intelligence agencies contribute a large proportion of information generated with a national security classification, and that the Inspector-General of Intelligence and Security is empowered to examine matters of legality and propriety in respect of each of the intelligence agencies that fall within its jurisdiction.
3.295
Therefore, the Committee believes the IGIS would be best placed to conduct a preliminary inquiry under the provisions of the Inspector-General of Intelligence and Security Act 1986, which may include examining samples of reports and classified documents and reviewing the classification procedures used by the intelligence agencies. The Committee anticipates that in the event that significant issues are identified, the IGIS would be open to commence a formal inquiry, or incorporate the review of the appropriateness of the classification of materials into its regular inspection program.
3.296
The Committee recommends that the IGIS report to the Committee with the outcome of any preliminary investigation, as well as any subsequent inquiry or inspection process, and suggests that the IGIS should provide information to the public on the outcome of an inquiry insofar as the information would not impinge on legislated secrecy obligations.
3.297
In addition, the Committee expects any recommendations made to the intelligence agencies over which the IGIS has jurisdiction would be prioritised by the relevant agency, and progress on implementation of the recommendations would be reported to the Committee as part of its annual Administration and Expenditure Review obligations.
3.298
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.
Source Protection
3.299
Submissions to the inquiry outlined that professional journalists in Australia abide by a code of ethics that requires them to protect confidential sources:
The protection of confidential sources is fundamental to Australian journalism. It is formulated in article 3 the MEAA (Media, Entertainment & Arts Alliance) Code of Ethics:
Aim to attribute information to its source. Where a source seeks anonymity, do not agree without first considering the source’s motives and any alternative attributable source. Where confidences are accepted, respect them in all circumstances.
3.300
Compliance with this code of ethics could result in increased interaction between intelligence agencies, law enforcement and media organisations, especially in relation to unauthorised disclosures of classified material. The Centre for Media Transition pointed to the potential of fines and jail sentences for journalists who refused to reveal sources:
As a result, from time to time, individual journalists have come into direct conflict with the courts when they have abided by the code of ethics in the face of a court order that they reveal their source. For example, in 1989 Tony Barrass, a journalist on The Sunday Times in Western Australia, was sentenced to seven days’ jail by a Perth magistrate for refusing to reveal who had given him two tax files in a case against a tax clerk accused of leaking information. He served that time and was then fined $10,000 for maintaining his refusal when the case reached the District Court. (The tax clerk was convicted even without Tony Barrass’s evidence. His penalty: a fine of $6,000).
3.301
To address the expectation that exists for journalists to be able to protect confidential sources, the Evidence Act 1995 (Cth) provides that a judge – upon hearing evidence – may grant a journalist’s claim for privilege to protect a confidential source.
3.302
This protection, along with relevant similar State and Territory statutes are known as ‘shield laws’.
3.303
At the Commonwealth and State and Territory levels, submitters have been critical that the claim for privilege is not absolute and that shield laws are inconsistent or not complete.
3.304
Section 126K of the Commonwealth Evidence Act 1995 provides:
(1) If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be ascertained.
(2) The court may, on the application of a party, order that subsection (1) is not to apply if it is satisfied that, having regard to the issues to be determined in that proceeding, the public interest in the disclosure of evidence of the identity of the informant outweighs:
(a) any likely adverse effect of the disclosure on the informant or any other person; and
(b) the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.
(3) An order under subsection (2) may be made subject to such terms and conditions (if any) as the court thinks fit.
3.305
The effect of subsections (2) and (3) allow for the protection of the claim of privilege to be cast aside if the contention that the public interest in the identification of the source outweighs their anonymity. This discretion of the court, and its flexibility, should be considered in light of the lack of a definition of ‘public interest’ in Commonwealth law.
3.306
Submissions also contend that the 2018 amendments to the TIA Act, and the introduction of JIWs in 2015, erodes the limited protections in place for confidential sources:
While the intention of JIW Scheme may have been well-meaning, as it currently stands it does little to meaningfully deliver its stated aims. The JIW Scheme is poorly drafted, cloaked in secrecy and does nothing to address concerns relating to identification of journalists’ sources. In our view the JIW Scheme and related legislation relating to access to journalists’ records more broadly require fundamental reconsideration and immediate amendments.
The current investigations and associated AFP raids into reporting by News Corp’s Annika Smethurst and the ABC have shone a spotlight on the erosion of fundamental press freedoms that is the cumulative effect of multiple pieces of legislation, including this one. It is critical that any law in this area is proportionate to the concerns the law is seeking to address.
In our view, the JIW Scheme and the Mandatory Data Retention regime do not pass this test.
3.307
The Committee also received evidence that shield laws may not cover the full range of people involved in journalistic activities and who form relationships with confidential sources. The evolving nature of the media environment in Australia (as well as globally) challenges the static notion of who is a journalist, so any legal protection or privilege locked to a definition of who a journalist or media organisation is may not cover all parties that could be affected by a prosecution or offence.
3.308
The Centre for Media Transition also contended that defamation laws may have an impact on the operation of shield laws.
Committee comment
3.309
The Committee notes with interest the relatively low concern expressed in principal submissions regarding shield laws and existing source protection provisions within Commonwealth and state and territory law. However, the concerns expressed to the Committee are valid, especially in relation to a journalist’s ability to guarantee a source’s anonymity in the instances of an unauthorised disclosure, and consideration is warranted.
3.310
In addition, the Committee notes concerns about journalistic source protection under the TIA Act, but considers that the recommendation earlier in this chapter to expand the PIA regime will go some way to ensure that the public interest in identifying confidential sources is evenly weighed against national security.
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For immediate consideration though, the Committee is of the mind that harmonised shield laws to unify and clarify such laws could mitigate the chilling effect described by submitters to the inquiry.
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Accordingly, the Committee is recommending that the National Cabinet, as the body identified to replace the Council of Australian Governments, should investigate harmonisation of shield laws, with any relevant incorporation of expanded public interest considerations. Any such consideration should also take into account the concerns expressed by submitters regarding the full scope of what any such laws may consider as a journalist and a source in a shifting digital media environment.
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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.
Defamation law and Freedom of Information
Defamation law in Australia
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Some submitters to the inquiry raised the intersection of Australia’s current defamation laws in terms regarding the restrictions on press freedom, or at least the willingness for the media to report on issues that may result in defamation proceedings.
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While this issue does not fall within the Committee’s terms of reference, it is an element of consideration in relation to the ability of the media to expose elements of society that may point to wrongdoing or even foreign interference.
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In its consideration of this issue, the Council of Attorneys-General has noted that Australia’s current regime of defamation laws has not adequately evolved with the rapid development of media communications over the last few decades:
Since the Model Defamation Provisions were developed, the manner in which information is published and transmitted has changed significantly, particularly with the exponential growth in reliance on digital publications and communications, interactive online forums and blogs. Information flows are even less bound by territorial borders than they were when the Model Defamation Provisions were adopted.
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In its meeting on 27 July 2020, the Council of Attorneys-General approved amendments to the Model Defamation Provisions adopted in 2004 and the State and Territory legislation enacted to implement them (known as the National Uniform Defamation Law) which marked the conclusion of an 18-month process. The key changes agreed included:
Introduction of a single publication rule in each jurisdiction’s limitation laws.
Introduction of a serious harm threshold for defamation claims, to be determined by the judicial officer as soon as practicable before the trial.
Clarification of the concerns notice procedure and procedure for offers to make amends, including requiring that concerns notices must be served with sufficient time for a response to be provided before proceedings can be commenced.
Introduction of a new public interest defence modelled on section 4 of the UK Defamation Act 2013.
Clarification of the operation of the cap on non-economic damages.
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Submitters also raised this concern, especially with regard to the new ubiquity of social media, a scenario that would have been unimaginable at the time the existing laws were conceived.
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ARTK outlined its recommendations for defamation law reform that it has put to the Council. However, ARTK added that it has concerns regarding the ability for defamation proceedings to be commenced in the Federal Court, in order for the avoidance of a jury ‘presumably…on the basis that plaintiffs perceive their prospects of success as being greater before a judge sitting alone’. Currently juries are inconsistently required in defamation cases across Australian jurisdictions.
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The Committee also received a number of confidential submissions from journalists that provided insight into how the current defamation regime could have substantial legal and personal consequences for journalists, publishers and media organisations more generally.
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Some of these examples were more general, others extended to the media’s role in shedding light on potential foreign interference. The potential impact on the role that the media can play in exposing foreign interference is significant and was highlighted in these confidential submissions. If journalists are unwilling or unable to pursue leads relating to instances of foreign nationals seeking to influence national policy, commerce or discourse, then this impact was argued to be equal to the potential impacts of national security legislation.
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In this area Mr Shoebridge noted that national security interests would be better served if ‘truth based on reasonable evidence’ operated as a complete, rather than partial, defence in defamation proceedings:
In particular, where the issues being discussed relate to national security or foreign interference, truth based on reasonable evidence should be a complete and not partial defence, and the public interest in having issues raised in association with named individuals should carry considerable weight in protecting public statements from defamation litigation by these individuals.
The threat to freedom of speech particularly in foreign interference areas from potential defamation litigation is high, and individual journalists and even larger media organisations can be dissuaded from producing well-evidenced investigative reporting that is in the public interest under the current laws.
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In advising the outcome of the Model Defamation Provisions, the Council of Attorneys-General has advised that additional defamation law reform proposals related to online content and defamatory comments will be considered in the future.
Committee comment
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The Committee is conscious that inconsistency of defamation law and unknown potential defamation outcomes for reports regarding national security and foreign interference is of concern to the media. If the media is unable to pursue legitimate leads in the national interest due to the threat of defamation proceedings, the impact on civil society’s ability to regulate its own activities is significantly hindered.
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Noting the desirability identified by stakeholders for greater national consistency, the Committee notes the significant progress that the Council is making on these issues and is of the opinion that the outcomes from this process will adequately address these concerns.
Freedom of information
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Under the current freedom of information (FOI) regime in Australia, section 11 of the Freedom of Information Act 1982 (the FOI Act) gives members of the public a general right of access to documents of an agency or official documents of a Minister, provided that the documents are not exempt or conditionally exempt.
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Subsection 11A(5) of the FOI Act provides that an agency or a minister is not required to provide access to a conditionally exempt document unless giving access to the document at that time would, on balance, be contrary to the public interest. Section 11B sets out factors that must, and must not be, be taken into account when deciding whether giving access to a conditionally exempt document would, on balance, be contrary to the public interest.
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Statistics on requests received, response times, outcomes and charges notified and collected are provided to the Office of the Australian Information Commissioner, which publishes this information in its annual report.
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Several submitters raised issues regarding the current functioning of the FOI regime. ARTK summarised these views, and urged the Government to undertake a comprehensive review of the FOI Act as a matter of urgency:
Journalists continue to encounter barriers to accessing information including systemic delays in processing, failures of agencies to assist with applications and poor decision making;
Review processes are inadequate and alternative means of review at an early stage must be available (for example, Administrative Appeals Tribunal);
Exemptions should not be expanded or ‘reformulated’ (eg, the provision of frank and fearless advice);
The cost of applications is often a disincentive to seek information; and
Processing time assessments and limits are tools to defeat FOI applications.
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The ABC characterised the combined impact of these factors as a ‘culture of secrecy’:
The Commonwealth Freedom of Information laws provide a right of access to documents held by Australian Government ministers and most agencies. However, government agencies are routinely criticised for side-stepping the FOI requirements by classifying documents as exempt and taking a “go-slow” approach to processing applications. Rather than a culture of transparency, we have a culture of secrecy in our government agencies.
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Mr Shoebridge also suggested that FOI exemptions could be used through risk-adverse redaction of information that may otherwise be accessed publically:
As an example, the Australian Defence organisation has struck this balance differently at different times over its history. But since the First principles review in 2016, the organisation, in my view, has come to view disclosure of information about its operations, policies and projects as 'just creating risk', and so it is reluctant to release anything not required by law. A high-point example of this is a recent quarterly performance report of Defence's acquisition organisation. It is about 70 pages long, and it uses so much black ink to censor the text that a toner warning and a reorder form should accompany the link to the document. Much of the inked-out material on project implementation, challenges and issues would be provided publicly in answers by Defence officials to senators' questions at any estimates committee hearing. But it seems none of this can be provided to the public through an FOI process, which is an odd and telling indicator of the risk-averse mindset now governing Defence's public engagement.
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However, the Department of Home Affairs noted that any reduction of the FOI exemptions provided to Government departments could have unintended consequences that would not be in the public interest:
Any proposal to limit the scope of the Freedom of Information exemptions to only information which would substantially harm the public if disclosed may cause potential harm and risk to information affecting other interests such as documents subject to legal professional privilege, documents disclosing trade secrets or commercially valuable information and documents containing material obtained in confidence.
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The Office of the Australian Information Commissioner (OAIC) provided information to the Committee on the number of FOI requests received in recent years, with a total of 38 879 received in 2018-19. The OAIC also submitted information on the timeframes for decisions, with around 83 per cent determined within the statutory time.
Committee comment
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The Committee notes the concerns raised by submitters regarding FOI requests and the challenges faced by Government departments in balancing transparency with factors that would make the release of information contrary to the public interest.
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In light of these considerations, the Committee considers there would be a tangible benefit in the prioritisation of training and promotion of a uniform Freedom of Information culture across departments, to ensure the application of the processing requirements and exemptions allowed under the FOI Act are consistently applied.
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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.
Mr Andrew Hastie MP
Chair