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Australian media advocate condemns powers to pursue journalists' sources in Data Retention Bill

Brisbane, 19 April 2014
Brisbane, 19 April 2014

REUTERS/Phil Noble

This statement was originally published on alliance.org.au on 27 February 2015.

The Media, Entertainment & Arts Alliance, the union and industry advocate for Australia's journalists, condemns the Parliamentary Joint Committee on Intelligence and Security's recommendation to support the passage of the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 without any provision for the protection of journalists and their sources.

Incoming MEAA chief executive officer Paul Murphy said: "It is puzzling how the Committee can on the one hand recognise the seriousness of the issues we have raised but still proceed to recommend the passage of the legislation without those issues being addressed. It is also concerning that in its report the Committee has confirmed that one of the intentions of the Bill is to pursue journalists' sources. It remains our view that this Bill should not be passed but, if it is to be passed, it must include a media exemption.'"

The Data Retention Bill is the third tranche of national security laws introduced by the Abbott Government. The laws threaten whistleblowers and undermine the ethical obligation of journalists to protect the identity of confidential sources. Read MEAA's submission to the Committee.

The Committee has postponed dealing with press freedom as part of its report despite numerous media organisations including MEAA highlighting these issues for months now, including appearing at the Committee's public hearings.

Instead, the Committee has opted in recommendation 26 of its report to review the matter further before making a final recommendation to the Parliament in three months. Ironically, this caution and concern about press freedom was not apparent when the Committee and the Parliament rushed through the first two tranches of national security laws in late 2014.

But what is damning in the report is recommendation 27 which confirms that intent of the Bill is to pursue journalists' sources. It recommends the Commonwealth Ombudsman and the Inspector General of Intelligence and Security be copied when an authorisation is issued seeking to determine "the identity of a journalist's sources". This suggests the Committee will allow government agencies to hunt through journalists' metadata in pursuit of confidential sources.

It also suggests that the Committee intends to ignore media organisations' requests for a media exemption across all three tranches of national security law in order to safeguard press freedom.

Overseas experience suggests that data surveillance and access powers are targeting journalists. Earlier this month, Britain's Interception of Communications Commissioner's Office (ICCO) found that police had accessed journalists' phone and email data more than 600 times in three years. The Commissioner said retrieving journalists' data was being used by nearly half of all UK police forces, without proper consideration of the fundamental principle of freedom of expression.

As recommendation 26 hints at, Britain is now seeking to narrow data surveillance laws to protect journalist sources.

However, even without the Data Retention Bill, Australian government agencies are actively trawling for journalists' confidential sources. Media reports based on Freedom of Information requests have found that journalists from the Guardian, news.com.au and the West Australian had been referred to the Australian Federal Police in an effort to identify the sources for stories on asylum seekers.

"Politicians who have voted for these three national security laws are not champions of press freedom or freedom of expression – quite the opposite. They have already introduced measures that will have a chilling effect on journalism. They have muzzled an important arm of a healthy democracy. It is a shameful outcome," Murphy said.

"The failure of the Committee to promote press freedom from the outset and provide genuine recommendations that protect press freedom must be condemned. It is a half-hearted measure to recognise concerns on the one hand and then spend more time reviewing them. It is worse still to then acknowledge in recommendation 27, openly for the first time, that there is a definite intent to pursue journalists' sources.

"These laws are the greatest assault on press freedom in Australia in peace time. Together, the three tranches represent a sustained attempt by government to control information. In the process, these laws attack freedom of expression, the right to privacy, the right to access information and press freedom," Murphy says.

"These laws can be used to persecute and prosecute whistleblowers and the journalists who work with them. They threaten jail terms of up to 10 years. They have handed the means for intelligence agencies and others to spy on journalists, their media employers and courageous whistleblowers who seek to expose misconduct, illegality and corruption. How can the Parliament that so recently enacted shield laws to protect the identity of confidential sources by acknowledging the principle of journalist privilege, now pass new laws that directly attack that principle?

"MEAA again argues that a media exemption to these laws is needed so that journalists won't be pursued for simply doing their job. This exemption must ensure that whistleblowers can go to journalists, trusting that they can do so safe from harm," Murphy said.

"Unless a media exemption is included across all three tranches, the end result is that journalists and their sources will have to utilise the tools of counter-surveillance to encrypt and protect their relationships to ensure that news and information in the public interest can still be published. That is a result of the political failure to protect press freedom, privacy and freedom of expression," Murphy said.

Earlier this month MEAA wrote to the United Nations' Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression David Kaye urging him to investigate the impact of the security laws and their effect on press freedom in Australia.

MEAA also calls on the Independent National Security Legislation Monitor, former NSW Supreme Court judge Roger Gyles, to undertake an urgent review of the press freedom implications of Australia's national security law regime with a view to ensuring appropriate safeguards are in place to promote and protect press freedom.

ADDITIONAL INFORMATION
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